BOSTAN and another vs THE STATE and another

ABDUL QADIR MENGAL, J.---This Criminal Miscellaneous Quashment Petition under section 561-A, Cr.P.C. Has been filed against the order dated 25-6-2011. Passed by the learned Additional Sessions Judge-VI, Quetta, whereby the application under section 22-A, Cr.P.C. Filed by the private respondent was accepted and the S.H.O. Police Station, Satellite Town, Quetta was directed to register the F.I.R. Against the petitioners.

2. Brief facts leading to file, the present petition are that, the respondent No.2 Khuda-e-Dad Khan son of Sher Muhammad, on 17-6-2011 moved an application under section 22-A, Cr.P.C. In the Court of Sessions Judge, Quetta, alleging therein that on 16-6-2011, four persons including the petitioners came into their house, who were armed with Kalashnikov and pistols. They put him in fear of hurt and made fires, however, luckily the applicants were saved. The culprits snatched Rs.50,000 from the applicant and gold ornaments from the wife of the applicant and also damaged other household articles amounting to Rs.30,000. On hearing of the firing reports, the residents of the area came and saved them from the culprits. The applicant went to police station for registration of F.I.R., but police did not register the F.I.R. The application of the respondent was transferred to the file of learned Additional Sessions Judge-VI, Quetta for hearing. Learned Additional Sessions Judge-VI, Quetta issued notice to S.H.O. And also directed him to file report on or before 26-6-2011.

The S.H.O: concerned filed his report. In which it was specifically mentioned that there is a matrimonial dispute between the parties. However, the learned Additional Sessions Judge-VI, Quetta, after hearing the parties directed the S.H.O. To register the case against the petitioner.

Against which the petitioners have filed the present petition before this Court, on the following grounds; A: That order dated 25-6-2011 is patently illegal and against the principles of justice, because no reason at all advanced or given by the learned Court for acceptance of the application.

B. That there was no any material available on record from where it can be inferred that the incident had taken place as alleged by the respondent No.2.

C. That the petitioners have been condemned unheard, though the counsel for the petitioners filed his Vakalat Nama on 25-6-2011, but, he was not properly heard and the impugned order was passed.

D. That the report of S.H.O. Is that the respondent No.2 wants to settle matrimonial in garb of criminal case. So being, the Additional Sessions Judge was bound to refrain to pass such order, therefore, learned counsel for the petitioners has prayed that this court may be pleased to accept the request of the petitioners and quash the proceeding under section 561-A, Cr.P.C. By setting aside the order dated 25-6-2011.

3. On the other hand, Mr. Ajmal Khan Kakar Advocate, learned counsel for the private respondent, repudiated the contention of learned counsel for the petitioners, stating that it was not necessary for Ex-Officio Justice of Peace to issue notice to accused or to police officer or anybody, because the powers of the Justice of the Peace are very limited and they have been given to him to aid, assist or authorize the criminal jurisdiction system of the country under section 154, Cr.P.C. The S.H.O. Was bound to record the F.I.R. In cognizble cases, irrespective that information was false or correct. In this respect learned counsel relied on 2007 PLD SC 539.

4. After hearing .Both the parties, I have also perused the relevant laws in respect of the registration of the F.I.R. Under section 154, Cr.P.C. So as also considered the section 157, Cr.P.C. As according to learned counsel for the petitioners that a police officer in view of section 157, Cr.P.C. If seems commission of cognizable offence is suspected in respect of information received under section 154, Cr.P.C., then he could decline to register the case and submit the investigation report to the Magistrate in view of section 158, Cr.P.C. And then it is the duty of the Magistrate under section 159, Cr.P.C. To hold investigation or preliminary inquiry or otherwise dispose of the matter provided under the Cr.P.C. The contention of learned counsel for the petitioners on this point, seems devoid of the force and it appears that learned counsel intermingle the provisions of section 154, Cr.P.C.

With the provisions of section 157, Cr.P.C. Under the provisions of section 154, Cr.P.C. The S.H.O./Police Officer is bound to register the case against accused irrespective of that the information, which he has received is correct or otherwise, as same is evident from the PLD 2007 SC 539. Whereas section 157, Cr.P.C. Is an independent section, which starts after the registration of the F.I.R. And thereafter the Police Officer or S.H.O., if suspects that information is false or frivolous, then he could make an investigation in respect of a cognizable matter and submit his report to Magistrate under section 158, Cr.P.C. It is then up to Magistrate to hold fresh investigation or preliminary inquiry under section 159, Cr.P.C. Or dispose of the same in accordance with law. Thus in view of above when, adverting to the objections of learned counsel for the petitioners, it may be pointed out that under section 22-A(6), Cr.P.C. The Ex-officio Justice of the Peace function as an administrative or ministerial nature of functions and not in a Judicial character. So being, the objection of learned counsel that the impugned order dated 25-6- 2011, passed by the learned Additional Sessions Judge-VI, Quetta is not speaking order or he has not been given proper opportunity of hearing, having no any relevancy or weight in the circumstances of the matter, as such, order of the learned Additional Sessions Judge-VI, Quetta needs no interference under the provisions of section 561-A, Cr.P.C.

5. It may be noted that exercising the power under section 561-A, Cr.P.C. To determine the fate of a criminal case is thus a serious departure from the normal course and needless to say that any deviation from the normal path is always pregnant with risk of being led astray. Mere claim of innocence by an accused person can never be considered sufficient to justify such a departure, because if this was so permitted, then every accused person would opt to stifle the prosecution and to have his guilt or innocence determined under .Section 561-A, Cr.P.C. The powers under section 561-A, Cr.P.C. Ordinary, only could be used where no provision exists in the code to cater for a situation or where the code offers no remedy for the redress of the grievance. Whereas, in the present case there is a remedy for the petitioners in case of non-availability of evidence or , claiming of his innocence, he could file at any stage an application for his acquittal under the provisions of section 249-A, Cr.P.C. Or section 265-K, Cr.P.C. So -being, the present criminal miscellaneous quashment petition has no force and the same is dismissed.