RAIS KHAN Versus State

QAISER RASHID KHAN, J.--- Aggrieved of the judgment and order dated 16.8.2011 of the learned Justice of Peace/ASJ-I, Kohat whereby he dismissed the application of the petitioner under section 22-A(6), Cr.P.C. for the registration of the FIR against the private respondents, the instant writ petition has been preferred.

2. Briefly stated facts leading to the instant petition are that earlier the petitioner filed W.P. No.922/2011 before this court seeking directions for the registration of an FIR against respondents Nos. 5 to 7, but the same was though dismissed in limine but the petitioner was left with liberty to approach the competent court of law for the redressal of his grievance. Thereafter the petitioner filed an application under section 22-A before the learned Sessions Judge Kohat, which was entrusted to the learned Justice of Peace/Addl: Sessions Judge-I, Kohat wherein comments were called and finally the application was dismissed vide judgment dated 16.8.2011, hence the present petition.

3. Learned counsel for the petitioner argued that the petitioner had specifically charged the local police of P.S. Muhammad Riaz Shaheed for having raided the house of the petitioner, insulting the inmates of the house and humiliated and beat his wife namely Mst.Dilshad Bibi. She was asked to accompany the police to the P.S. and Aqlim Khan SI (respondent No.6), caught hold of her, dragged her and after beating her, tore her clothes and her 'dopatta and chaddar' fell on the ground and the same raid was conducted in the absence of the petitioner. He next argued that on 5.5.2011, the police again raided his house, took him away and confined him in a room and even demanded bribe for his release and during the time of the illegal confinement, a habeas corpus petition under section 491, Cr.P.C. was moved before the learned Sessions Judge Kohat where the bailiff of the court found the petitioner in a lock up though the Roznamcha and the FIR register of the police station did not mention his arrest so much so that the court on the one hand ordered his release in the case and simultaneously directed the DPO to conduct inquiry against the respondent police officials. He contended that the contents of the application prima facie constituted a cognizable offence and warranting the registration of an FIR against the delinquent officials but all the said facts escaped notice of the learned Justice of Peace/ASJ-I, Kohat, while passing the impugned order in a very summary and cursory manner. In support of his contentions he placed reliance on Muhammad Bashir v. Station House Officer Okara Cantt and others (PLD 2007 SC 539).

4. The learned counsel for the accused-respondents Nos.5 to 7 on his turn resisted the submissions made by the learned counsel for the petitioner and defended the impugned judgment of the learned ASJ-I/ Justice of Peace Kohat for the reasons detailed therein. He contended that the accused petitioner has got a criminal history being involved in many FIRs annexed with the reply to the petition. He referred to the FIR No.369 dated 2.5.2003 under sections 302/324/34, P.P.C., Police Station, Hangu wherein the accused-petitioner along with others were charged by the complainant Shah Nawaz Khan for the murder of his brother Muhammad Khan. Similarly he also referred to FIR No.596 of Police Station Saddar Kohat under section 337-A(ii)/34, P.P.C. Police Station Saddar, Kohat as well as FIR No.687 dated 3.6.2009 under section 13 AO Police Station Saddar, Kohat. He contended that the accused-respondents, who are responsible police officials have been harassed by the petitioner unnecessarily through various tactics and the application under section 22-A, Cr.P.C. is one such effort on his part. He argued that Mst.Dilshad Bibi whom the petitioner claims to be his wife and allegedly beaten by the police party i.e. respondents Nos.5 to 7 had herself approached the police through Naqalmad No.6 dated 24.5.2008, wherein she had levelled serious allegations against the petitioner regarding forcible Nikah with her as well as physical beating and threats to her life at his hands. He also referred to a copy of 'talaq nama' annexed with his reply, whereby the petitioner had divorced Mst.Dilshad Bibi on 25.5.2008 and that the matter went up even before the Jirga members, who too, vide 'Iqrar Nama' dated 13.5.2009 held the 'talaq' to have taken place between the spouses. He further contended that Mst.Dilshad Bibi has never for once appeared before the learned Justice of Peace or for that matter before any other court/forum in support of the allegations of the petitioner. He lastly argued that even in the inquiry report which was held pursuant to the directions of learned Justice of Peace/ASJ-I, Kohat, the alleged charge of the petitioner regarding his illegal confinement in the police station could not be substantiated.

5. The learned AAG on his turn too, threw his weight behind the submissions made by the learned counsel for the accused-respondents. He argued that except the oral allegations of the petitioner no evidence was brought forth by him to substantiate the same and thus contended that the petitioner having a criminal history wants to settle old scores with the police. He stated that the petitioner was duly charged by the complainant Yar Muhammad in case FIR No.100 dated 30.1.2011 under section 302, P.P.C. P.S. Muhammad Riaz Shaheed, Kohat, but subsequently he entered into some compromise with the petitioner and disowned his earlier statement under section 161, Cr.P.C. He thus finally urged that the impugned judgment of the learned Justice of Peace/ASJ-I, Kohat, whereby he dismissed the application of the petitioner under section 22-A, Cr.P.C. is in accordance with law.

6. Arguments heard and available record perused.

7. As the available record reveals, the instant case has a chequered history spread over two years of litigation. Initially the petitioner levelled a set of allegations detailed in the preceding paras, whereby he charged the official respondents for having raided his house on 3.2.2011 and in his absence assaulted the womenfolk of his house including his wife Mst.Dilshad Bibi and even dragged and tore her clothes in the process and when the petitioner came to know of the incident, he rushed to his house, who too, was whished away from his house and confined in a dark room by the respondent police officials. In this respect pursuant to an application under section 491-A, Cr.P.C. for the release of the petitioner, the learned Sessions Judge, Kohat on the one hand ordered the release of the petitioner and simultaneously directed for an inquiry against the respondent police officials. The inquiry report as annexed with the reply was accordingly conducted by the DSP City and DSP legal, who exonerated the accused-respondents from the charge and even held that proper entries regarding the arrest of the petitioner are available, who was charged by the complainant Yar Muhammad on 7.2.2011 for the murder of his brother. Another interesting or rather intriguing aspect of the application under section 22-A, Cr.P.C. of the petitioner is the absence of his alleged wife Mst. Dilshad Bibi all through the proceedings before the learned Justice of Peace/ASJ-I, Kohat. She neither turned up before the learned Justice of Peace to record her statement in support of the allegations of the petitioner nor has even appeared on any occasion before this court though it was primarily her alleged thrashing, insult and humiliation, which infuriated and prompted the petitioner to approach the court for the purpose of lodging an FIR against the respondent police officials. The alleged 'talaq' to Mst.Dilshad Bibi way back in the year 2008 i.e. over 2 years prior to the happening of the alleged incident brought on record by the respondents Nos.5 to 7 in their reply to the present writ petition leaves serious question marks about the version of the petitioner in his application under section 22-A, Cr.P.C. More so, such serious allegations in the reply submitted by the accused respondents have not been rebutted by the petitioner through filing a rejoinder in this regard before this court.

8. As far as the alleged confinement of the petitioner at the police station on the basis of the statement of Yar Muhammad under section 161, Cr.P.C. charging him for the murder of his brother and the subsequent turn about through his statement before the learned Justice of Peace/ASJ-I, Kohat, whereby he disowned his statement under section 161, Cr.P.C. and thus giving a clear chit to the petitioner is concerned, the same prima facie appears to have been prompted by the compromise arrived at between the complainant Yar Muhammad and the petitioner namely Rais Khan in the case FIR No.100 dated 30.1.2011 under section 302, P.P.C. Police Station, Muhammad Riaz Shaheed, Kohat.

9. Taking stock of all the available record, we are of the considered view that the petitioner has been unable to make out any case for the registration of an FIR against the respondent police officials. The impugned judgment of the learned Justice of Peace/ASJ-I, Kohat being unexceptionable warrants no interference through the present petition.

For reasons stated above this writ petition is dismissed.

WA/336/P Petition dismissed.