NASEER AHMED Versus JUSTICE OF PEACE KOTLI

ORDER

MUHAMMAD SHERAZ KIANI, J.--- The captioned application has been filed under section 561-A of Cr.P.C. by the petitioner for the quashment of FIR No. 98/2017 dated 21.10.2017 registered at police station Nar Tehsil and District Kotli on the complaint of respondent No.5, and direction of respondent No.1. It is stated in the application that respondent No.1, learned Justice of Peace was not justified to order for the registration of the Criminal case as the SHO police station Sehansa seized the car in dispute under section 550 of Cr.P.C. It is further contended that ex-officio Justice of Peace has not considered the version of the police authorities and petitioner was also not summoned by the respondents and the case is based upon the concocted and fabricated story. It is alleged in the application that disputed car is property of the petitioner. The respondent No.5 has no proof, that the car belongs to him and other grounds have also been taken in this application that the alleged occurrence happened with one Tahir Mehmood and he was only competent to file application under section 22-A of Cr.P.C. not respondent No.5.

2. The learned counsel for the petitioner while reiterating the grounds taken in the petition submitted that the petitioner is the owner of car No. ICT-060/HX and the case is based on fabricated and false story and if the proceedings on the basis of impugned FIR is allowed to continue it would be an abuse of process of Court and law.

3. I have heard the argument of the learned counsel for the applicant and gone through the record of the case.

4. As, no legal valid point has been raised in this application, therefore, to continue proceedings of this application would be a wastage of the time and abuse of the process of the Court.

5. The FIR No. 98/2017, has been registered at Police Station Nar on the direction of Justice of Peace (Sessions Judge Kotli) given under section 22-A, Cr.P.C. In the contents of the FIR the following story has been narrated by the complainant respondent No. 5.

From bare reading of this report prima facie the cognizable offence given in column No.3 of the FIR 341/34 APC 20 EHA are made out and the law is well settled that when from any information cognizable offence is made out then under section 154 of Cr.P.C. the officer incharge of police station is bound to register the FIR in the prescribed book or form. He cannot delay or refuse to register the case, no discretion lies with the police officer in such circumstance to refuse the registration of the case. My this view finds support from the case laws reported as:-

1. 2003 YLR 131 6;

2. PLD 2003 Lah. 228;

3. 2005 YLR 152;

In the comments given by SHO Nar before the learned Sessions Judge Kotli and the grounds given therein, for non-registration of the FIR are not valid grounds for non-registration of the case. It is stated by the SHO Nar that the police was making inquiry under section 157(2) of Cr.P.C. as the ownership of the car is disputed. The police has the authority to not enter into investigation under section 157(1)(b), Cr.P.C. but that can be done only when there is sufficient ground for not investigating the case. That power can be exercised in appropriate cases only after registration of the case, not before registering the FIR when from information a cognizable offence is made out. The powers given in section 157(2), Cr.P.C. cannot override the mandatory requirement of section 154, Cr.P.C. (i.e. registration of FIR). The SHO was not supposed to determine the ownership of the car. The relevant questions in the present case are:-

(i) Whether the car was in use and possession of the complainant?

(ii) Whether the accused snatched the car forcibly?

(iii) Whether accused restricted the way of Tahir Mehmood and abducted him on gun point and threaten him to take his life?

In his comments SHO police station Nar deliberately deflected and kept unanswered these questions which shows that he is either inefficient or influenced by some ulterior motives.

6. A perusal of the copy of the comments Annexure "C" shows that the applicant has admitted that in year 2014 he sold the questioned car No. ICT 060/HX to one Sarfaraz. After this admission, if there was any outstanding amount against the purchaser he could have claimed that amount through a civil suit. He has no authority to snatch the car without recourse to any legal forum. Some serious allegations have been leveled in the FIR against the applicant that along with other five unknown persons, he snatched the car from Tahir Mehmood on gun point then took him forcibly at Sehra-Mandi Tehsil Sehansa and threatened him to take his life. So it is not an ordinary case on the face of it, under the constitution nobody can take the law into his own hand.

6(sic.) It is pertinent to note here, that in any cognizable offence, registration of the case is the right of a citizen through which he seeks his help and redressal from the state authorities that's why under section 154, Cr.P.C. this right has been protected with mandatory provision of law. The SHO Nar had no authority to refuse the registration of the case after having information of the above alleged facts and occurrence. It seems that police has made refusal due to some ulterior reasons and the learned Sessions Judge/Justice of Peace was quite justified and competent to issue direction under section 22-A of Cr.P.C. for the registration of the case. No illegality has been committed. It is to be observed here that if any police officer or any other public servant, knowingly disobeys any direction of law likely to cause any injury to any person, he can be proceeded and punished under Section 166 of APC. Obviously to register FIR under section 154, Cr.P.C. in a cognizable offence is a direction of law which must be obeyed.

7. As far as the contention of the learned counsel for the applicant that the case is based upon fabricated and false story, is concerned, it is question of facts which cannot be resolved under section 561-A of Cr.P.C., it is for trial Court to determine truthfulness or falsehood of the facts after recording the same recording the evidence if any.

8. The FIR can be quashed only in the following eventuality

(i) If from the bare reading of the FIR it does not make out any cognizable offence.

(ii) If the same has been registered without lawful authority and jurisdiction.

(iii) If any civil liability is given the shape of criminal liability.

No such eventuality existed in the present case mere action of any police officer under section 550 of Cr.P.C. was no bar for the registration of the impugned FIR. As, separate distinct occurrence has been alleged in the FIR. The scope of section 550 is quite different rather it is meant that a police officer can seize any property, which may be alleged or suspected to have been stolen, or which may be found under circumstances which create suspicion of the commission of any offence. When it is admitted position that the car was sold by the applicant then how the question of any theft of the car arises, even no such theft was alleged by the applicant. Although, at this stage any conclusive finding on the merit of the proceeding of section 550, Cr.P.C. is not required. For the purpose of disposal of this application, it is sufficient to observe that such seizure is no bar for the registration of the impugned FIR. But in this regard, some questions require a separate inquiry that how, when and why the car was seized by the SHO Sehnsa particularly when the alleged occurrence took place in the limits of police station Nar and why the car was not taken by the latter police when the matter was already reported to them by the complainant and whether in a dispute of civil nature of the recovery of any outstanding amount of the accused petitioner and that too from another purchaser, the SHO Sehnsa was competent to seize the car under section 550, Cr.P.C.? Apparently it appears the collusive and mala fide actions of police Sehnsa. Furthermore, disputed questions of facts and law require proper probe and cannot be resolved by this Court in exercise of its inherent powers under section 561-A, Cr.P.C. where the offence prima facie is committed, it is not ordinary course, trial before the competent Court cannot be allowed to be deflected by resorting to the exercise of inherent jurisdiction of the High Court.

9. Section 561-A, Cr.P.C. could not be applied lightly as the same would tend to circumvent the due process of law. My this view finds support from the case titled Allah Bakhsh and another v. The State and 3 others [PLD 2013 Peshawar 117] the relevant para 5 of the aforesaid judgment is reproduced below:-

"5. Having heard the arguments of the learned counsel for the parties and perusal of the record reveals that the complainant has charged the petitioner along with others for commission of a cognizable offence. In case the contents of the instant petition and that of the FIR are put in juxtaposition to each other, it brings the case of the parties within the area of disputed questions of facts and laws which cannot be resolved by this Court in the exercise of its inherent jurisdiction under section 561-A, Cr.P.C. which requires proper probe, investigation and evidence of the parties, which is absolutely the job of the trial Court. By now it is a settled law that if, prima facie, an offence has been committed, the ordinary course of trial before the competent court cannot be allowed to be deflected by resorting to the exercise of inherent jurisdiction of this Court."

10. So, registration of the case and FIR is sole duty of the police and to submit the report to Magistrate/trial Court. High Court while exercising powers under section 561-A, Cr.P.C. has no role at investigation stage. It is further held this Court has powers to interfere under section 561-A of Cr.P.C. for implementation of order of the Court and to secure the ends of justice. If the proceedings are pending before any Court and it appears that there is abuse of process of Courts only then it can make order for quashment of proceedings. Quashment of FIR is ordered only in exceptional cases when the same is registered without lawful authority. The argument of the learned counsel for the applicant that alleged occurrence took place with one Tahir Mehmood and he was only competent to make complaint has no force, as for criminal proceedings (Registration of FIR etc) any person can give information to move the police machinery. In this regard only few exceptions have been given in sections 195 to 199, Cr.P.C. Except the offences mentioned in those sections, in all the other cases anybody can become an informant. So there was no legal restriction for the non-applicant No.5 to move for the registration of the case, particularly when he is stated to be owner in possession of the car. The plea that the accused was not a party in the proceeding before the Justice of Peace, summoning of the accused in proceedings under section 22-A, Cr.P.C. is not necessary requirement. So this objection is also repelled. Impugned order also shows that the accused applicant was represented in the proceeding through Rafiullah Sultani advocate as well.

In the light of what has been stated above, finding no force in this application, therefore, it is herby dismissed in limine.

(Note: Copies of this judgment shall be sent to the DIG, Mirpur, SSP Kotli and SHO NAR for their guidance and necessary legal actions.)

JK/53-HC(AJ&K) Application dismissed.