MANOO vs 1ST ADDITIONAL SESSIONS JUDGE, BADIN and 2 others

ORDER

1. MUNIB AHMAD KHAN, J.---Learned counsel for applicant submits that the learned Ist Additional Sessions Judge/Ex-Officio Justice of the Peace instead of directing the police to entertain the grievance of applicant has conducted an enquiry and has passed an order wherein previous history of the litigation etc. Has also been given. He further submits that if the Sessions Judge/Ex- Officio Justice of the Peace is allowed to go into the merits and thereafter some direction for lodging or not lodging of the F.I.R. Is given, that will affect the proceedings before the police. He has placed reliance on the cases of Mst. Bhaitan v. The State and 3 others (PLD 2005 Karachi 621) and Muhammad Bashir v. Station House Officer, Okara Cantt. And others (PLD 2007 SC 539).

2. ' Learned Assistant Advocate-General Sindh has filed statement annexing therewith report of the S.H.O. Police Station Karyo Ganhwar, District Badin, which are taken on record. He submits that an F.I.R. Against the applicant has been registered and challan has also been submitted before concerned Court while since the application of applicant was dismissed by the 1st Additional Sessions Judge/Ex-Officio Justice of the Peace, therefore, no case was registered on his complaint.

3. After hearing the learned counsel, it appears that sections 22-A and 22-B, Cr.P.C. Are in respect to the powers of Ex-Officio Justice of the Peace and an intervention of Justice of the Peace is required by both the sections when there is complaint in respect to law and order situation or any mala fide on the part of the police officials.

4. ' In this respect section 22-A(6), Cr.P.C. Is referred, which is as follows:-- {{(6) An Ex-Officio Justice of the Peace may issue appropriate directions to the police authorities concerned on a complaint regarding.

(i) non-registration of criminal case;

(ii) transfer of investigation from one police to another; and

(iii) neglect, failure or excess committed by a police authority in relation to its functions and duties} Keeping in view the provisions of law it is apparent that Justice of the Peace can issue direction when there is a complaint in respect to non-registration of a case and if such complaint is brought before him then he can simply direct that the police has to act in accordance with law and entertain the complaint of a complainant and if a cognizable case is made out then further action be taken in accordance with law.

5. ' It will not be proper for the Ex-Officio Justice of the Peace to issue direction for registration of a case as that will prejudice an accused person in all respects, as the registration of a case would be on the direction of Sessions Judge in capacity of Ex-Office Justice of the Peace and subordinate Courts would not be in a position to do the justice in such type of complaint while the police will also register the F.I.R. Blind foldedly while initial investigation is necessarily required before converting a complaint into F.I.R.

6. ' The above observation is also being supported by the authority of the Honourable Supreme Court reported as PLD 2007 Supreme Court 539, which is also relied upon by the learned counsel for applicant. Relevant Paras. Nos.38 and 40 of the said authority are reproduced as follows:-- "(38) And if an Ex-Officio Justice of the Peace who also happens to be the higher of the two subordinate Courts and a trial Court with respect to certain offences and an appellate and a revisional Court in other, was to declare, like it was done in the present case, that no offence at all had been committed and that the accusations were false and that also on the basis of a mere report by the police officer without any evidence having been examined by a Court of Law then we would not only be shutting out the other two channels which had been made available by law but would also be deciding the fate of criminal cases in a manner never visualized by the law makers even in the wildest of their dreams.

(40) Therefore, in our opinion, the only jurisdiction which could be exercised by an Ex-Officio Justice of the Peace under section 22-A(6), Cr.P.C. Was to examine whether the information disclosed by the applicant did or did not constitute a cognizable offence and if it did then to direct the concerned S.H.O. To record an F.I.R. Without going into the veracity of the information in question, and no more. Offering any other interpretation to the provisions in question would be doing violence to the entire scheme of the Cr.P.C. Which could not be permitted."

7. ' In the light of above authority and keeping in view that the learned Ex-Officio Justice of Peace has finally closed the chapter/ grievance of the applicant by declaring that he initiated the case due to enmity. The impugned order is not sustainable, therefore, this criminal miscellaneous application is allowed and impugned order is set aside with direction to the concerned S.H.O. To entertain the complaint of the applicant, and if cognizable offence is made out then register a case, while in case of falsehood etc. Appropriate course be adopted by taking appropriate legal action under section 182, P.P.C. And by referring the matter to the learned Magistrate.