MUHAMMAD ABDUL RAUF SIDDIQUI Versus S.H.O. POLICE STATION, GULBERG, KARACHI

ORDER

MUHAMMAD ALI MAZHAR, J.- --This Criminal Miscellaneous Application under section 561-A, Cr.P.C. has been brought to challenge the impugned orders dated 22-10-2011 and 25-11-2011 passed by the learned IIIrd Additional District and Sessions Judge, (South) Karachi (Justice of Peace) in Criminal Miscellaneous Application No.1395 of 2011.

2. Brief facts of the case are that the applicant had submitted a complaint for registration of F.I.R. in Police Station Gulberg Karachi against Dr. Zulfiqar Mirza, who allegedly made blasphemous and derogatory remarks against the Holy Prophet Muhammad (PBUH). The applicant in his written complaint dated 15-10-2011 stated that on 9th and 10th of October, 2011, Dr. Zulfiqar Mirza held press conference, which was also broadcast by the electronic media. The alleged words used in the press conference are as under:--

English Translation

"When the Holy Prophet (SAW) started preaching Islam, garbage and waste used to be thrown on Him. He had to migrate. But by the Grace of Allah, I am so Hi-tech that I will not migrate from Karachi."

According to applicant the above statement has defiled the sacred name of Holy Prophet Muhammad (PBUH), hence he requested the SHO to lodge the F.I.R. against Dr. Zulfiqar Mirza under section 295-C. P.P.C. The SHO failed to record the statement or to act upon further, hence, the applicant moved an application under section 22-A Cr.P.C. to the Justice of Peace, Karachi Central. The S.H.O. Police Station, Gulberg filed his comments, in which he stated that the press conference was held at Football House Chakiwara Chowk, Karachi, which is within the jurisdiction of P.S. Kalakot, District South. He further submitted that the application was received at P.S. on 15-10-2011 and after perusal it revealed that it contains the allegations required to be legally scrutinized as to whether the text of application comes within the ambit/purview of section 295-C, P.P.C. or otherwise, for which a detail report was submitted to Senior Police Officers for legal opinion/guidance. On the basis of this statement Vth Additional Sessions Judge Karachi (Central) (Justice of Peace) disposed of Criminal Petition No.849 of 2011 vide order dated 19-10-2011 on the ground that the press conference was held at Chakiwara Karachi, therefore, he has no jurisdiction to entertain the application and returned the application to the applicant for filing the same in the appropriate forum. The applicant lodged similar complaint to SHO, P.S. Kalakot Karachi but on refusal to record his statement he filed Criminal Miscellaneous Application No.1395 of 2011 before the Justice of Peace Karachi South. The SHO P.S. Kalakot filed his comments on 21-10-2011 in which he stated that he downloaded the press conference on CD through internet, which was held on 9-10-2010 at Football House Chakiwara, Karachi, but according to SHO he did not find the words mentioned by the applicant in his complaint. He further stated that no press conference was held in his area on 10-10-2011. He further stated that no application was given at his P.S. nor C.D. was produced pertaining to the matter. It was further averred that the application given to SHO, PS, Gulberg by the applicant was sent to AIGP Karachi by DIGP West Karachi and AIGP Karachi sent the application to AIGP (Legal) Karachi, who submitted the application to Additional Chief Secretary, Law Department for legal opinion. The SHO finally concluded that the opinion from Law Department has not yet been received, therefore, no further action can be taken in this matter. The Criminal Miscellaneous Application No.1395 of 2011 was disposed of by the Justice of Peace, Karachi South vide order dated 22-10-2011 in the following terms:--

"That the petitioner is directed to appear in person before the concerned police station as a condition precedent of this order and to record his statement, and thereafter, the concerned SHO to the extent of point of jurisdiction will inquire upon, and if found that matter does not pertain to its jurisdiction will return the complaint back to the petitioner without (taking) being further step into the matter, and if after such scrutiny he comes to the conclusion that the matter falls within his jurisdiction he will proceed and apply his mind whether the information so furnished to him is constituted any offence or not; if not, he will hold back, and if yes, then to find out whether it is an information of cognizable case, then he will perform his statutory duty within the parameter of section 154, Cr.P.C. and if information relates to non-cognizable case to perform in accordance with section 156, Cr.P.C."

3. After disposal of the application, the applicant in the same disposed of matter filed an application under section 22-A, Cr.P.C. The grievance of the applicant in the above application was that his statement was recorded on the same date when Justice of Peace passed the order, but despite lapse of considerable time the SHO could not ascertain the jurisdiction and deliberately delaying the matter. The only prayer made by the applicant in the above application was to allow specific time to SHO to comply with the order dated 22-10-2011. On this application, notice was issued of by the Justice of Peace vide order dated 25-11-2011 and in paragraph 4 of the order the learned Justice of Peace referred to paragraph 5 of the inquiry report which is as under:--

"The statement of the applicant Mr. Muhammad Abdul Rauf Siddiqui recorded on 22-10-2011 in compliance of the order of this Hon'ble Court in which (he) has given two dates of 9th and 10th October, 2011, of such press conference (which) has however been sent to Addl. Chief Secretary, Law Department, Government of Sindh, through proper channel for legal opinion, which is still awaited."

4. Keeping in view the inquiry report the learned Justice of Peace issued notice to Additional Chief Secretary, Law Department with the direction to submit comments within 15 days and notice was also issued to DPP, South Karachi. After passing the order by Justice of Peace, Dr. Zulfiqar Mirza filed a Constitutional Petition No.D-1160 of 2012 before the Divisional Bench of this court, in which he prayed that the proceedings under this Criminal Miscellaneous Application and Criminal Miscellaneous Application No.1395 of 2011 before learned IIIrd Additional District and Sessions Judge, Karachi South be quashed. It was further prayed that the proceedings under this Criminal Miscellaneous Application and Criminal Miscellaneous Application No.1395 of 2011 be stayed till final decision of the petition. While issuing notice to the respondent No.2 (applicant in this case) the learned D.B. directed the parties to maintain status quo. However, vide order dated 25-5-2012 by consent the impugned order dated 25-11-2011 passed by IIIrd Additional District and Sessions Judge, Karachi South in Criminal Miscellaneous Application No.1395 of 2011 was set aside. Thereafter, this matter was again fixed before me for hearing. On behalf of proposed accused Mr. Muhammad Ashraf Samoo, Advocate filed application along with his personal affidavit in which he prayed that Dr. Zulfiqar Mirza may be allowed to defend this application. It was further stated in the application that all the allegations are false and baseless. Dr. Zulfiqar Mirza has not committed the alleged offence. It was further stated that the applicant failed to mention the actual words spoken in the press conference and the entire case is based on concealment of facts.

5. Mr. M. Ilyas Khan, learned counsel for the applicant argued that the order dated 19-10-2011 passed by Vth Additional Sessions Judge, Karachi Central, was improper and illegal and the same was passed in derogation of section 182 of Cr.P.C. He further argued that when a place of inquiry or trial or where scene of offence is uncertain or not in one district only or where offence is continuing or consists of several acts or whether offence is committed partly in one local area and partly in another area it may be inquired into or tried by a court having jurisdiction over any of such local areas. The gist of the arguments of the learned counsel for the applicant is that the press conference was held and broadcast by the electronic media throughout the country, hence, the P.S. Gulberg had also had the jurisdiction for the registration of F.I.R. The learned Justice of Peace wrongly returned back the application to the applicant for presenting the same in the competent court having jurisdiction. So far as other two orders dated 22-10-2011 and 25-11-2011 are concerned, learned counsel argued that in both orders learned Justice of Peace failed to consider the true purpose and intent of section 22-A, Cr.P.C. and passed orders in a manner, which is beyond the scope of section 22-A, Cr.P.C. He further argued that learned Justice of Peace complicated the situation and instead of passing order for registration of F.I.R. in case any cognizable offence is made out through statement of applicant, the Justice of Peace undertook undue exercise and directed the SHO to first inquire the matter, which is beyond the scope and powers conferred upon Justice of Peace under section 22-A, Cr.P.C. The inquiry by police if any can only be made after the registration of F.I.R. and at initial stage it is the responsibility of the Officer Incharge of Police Station to reduce in writing information relating to the commission of cognizable offence, but unfortunately, Justice of Peace created much complication in the matter, so that the entire purpose of instituting application under section 22-A, Cr.P.C. had become redundant and useless and even directions given by him were not properly complied with and the matter was delayed without any lawful reason or justification. It was further averred that the learned Justice of Peace passed the orders mechanically without applying his conscience and judicial mind and even he failed to examine the material/comments placed before him. Learned counsel further argued that the direction given by the Justice of Peace to the concerned P.S. to inquire the point of jurisdiction was without any lawful authority as it was admitted that the press conference was held in the jurisdiction of P.S. Kalakot. Once it was proved that the press conference was held then there was no lawful justification to direct the SHO to hold inquiry on the point of jurisdiction and due to this finding much leverage given to SHO, who under the garb of this direction delayed the matter and without registration of F.I.R. started inquiry in the matter, which is beyond the scope and spirit of law. Learned counsel further argued that the proposed accused has committed serious offence but the police officials are not performing their statutory duties in accordance with section 154, Cr.P.C. and for last many months the applicant is continuously approaching for registration of F.I.R. He also referred to section 295-C, P.P.C. and argued that the words spoken by Dr. Zulfiqar Mirza in the press conference clearly defiled the sacred name of Holy Prophet Muhammad (PBUH).

6. In support of his arguments learned counsel for the applicant relied upon the following case-law:--

(1) PLD 2005 Karachi 621 (Mst. Bhaitan v. the State and 3 others). It was held in this case that under section 22-A, Cr.P.C. powers of the Justice of the Peace are very limited which have been given to aid, assist and authorize the criminal judicial system. Said powers are neither supervisory nor judicial, but are administrative and ministerial in nature. Ex-Officio Justice of the Peace who is a senior Judicial Officer has to form an opinion about the offence being cognizable or non-cognizable from the facts narrated to him by the complainant orally or in writing and for such purpose he is not required to issue notice to accused or to police officer or to anybody else; he has to form his own independent opinion from the facts narrated to him. SHO not empowered to refuse registration of F.I.R. Officer Incharge of police station is bound to register F.I.R. under section 154, Cr.P.C., and he has no power to refuse to register the same if from the information a cognizable offence is made out immaterial whether the information is false or correct. Condition precedent for recording F.I.R. is that information must disclose a cognizable offence and that too a cognizable one. Ex-Officio Justices of Peace are not only required to exercise their powers during their office hours but they are Justices of Peace for twenty-four hours. They may exercise their powers anywhere at any time within their territorial jurisdiction.

(2) 2009 YLR Karachi 83 (Aurangzeb Khan v. District Police Officer and 4 others). In this case Justice of Peace on application under section sections 22-A and 22-B, Cr.P.C., passed a detailed order directing SHO concerned to lodge F.I.R. of applicant against proposed accused. SHO violated such order and instead of recording complaint/F.I.R. of the applicant, he recorded his statement as well as statements of various other persons and thereafter, submitted his report before the Justice of Peace. Such conduct of the SHO smacked of foul-play and mala fide on his part as after passing of order by the Justice of Peace, the only course available to SHO was to record the statement of the applicant/complainant under section 154, Cr.P.C., and proceed further with the investigation of the crime in accordance with law. Despite categorical assertion of applicant that SHO was favouring the opposite party, Justice of Peace, instead of enforcing his earlier order, accepted/entertained application of SHO of Police Station; and passed the order reviewing his earlier order and directed the applicant to file direct complaint. Passing of such order by Justice of Peace was a patent illegality, which was liable to be corrected in exercise of revisional powers of the High Court.

(3) PLD 2007 SC 539 (Muhammad Bashir v. Station House Officer, Okara Cantt. and others). In this case it was held that enquiry as to correctness or otherwise of information received by an Officer Incharge of Police Station for the purpose of being reduced in writing as F.I.R. and powers of Officer Incharge of Police Station to refuse to record F.I.R. only because, in his opinion, the allegations conveyed to him were false. Scope, no authority vested with an Officer Incharge of a Police Station or with anyone else to refuse to record an F.I.R. where the information conveyed, disclosed the commission of a cognizable offence. No authority vested with an Officer Incharge of a Police Station or with anyone else to hold any inquiry into the correctness or otherwise of the information which was conveyed to the SHO for the purposes of recording of an F.I.R. Any F.I.R. registered after such an exercise i.e. determination of the truth or falsity of the information conveyed to the SHO would get hit by the provisions of section 162, Cr.P.C. Existence of an F.I.R. was no condition precedent for holding of an investigation nor was the same a prerequisite for the arrest of a person concerned with the commission of a cognizable offence; nor does the recording of an F.I.R. mean that the SHO or a police officer deputed by him was obliged to investigate the case or to go through the whole length of investigation of the case mentioned therein or that any accused person nominated therein must be arrested. Check against lodging of false F.I.Rs. was not refusal to record such F.I.Rs. but punishment of such informants under section 182, P.P.C. etc., which should be, if enforced, a fairly deterrent against misuse of the provisions of section 154, Cr.P.C.

(4) 2011 PCr.LJ 268 (Karachi) (Mumtaz Ali v. S.H.O. Naushahro Feroz and another). This case was authored by me in which the Ex-Officio Justice of Peace dismissed petitioner's application for registering criminal case against the Station House Officer alleged to have committed the murder of petitioner's brother, holding that said brother of petitioner held criminal record. Under section 22-A, Cr.P.C., Justice of Peace was required to ascertain whether a cognizable case was made out by the facts narrated in the application for registration of F.I.R. Minute examination of the case and fact-finding was not included in the functions of the Justice of Peace. Powers of Justice of Peace were designed to aid and assist criminal justice system; such powers were not supervisory or judicial but the same were administrative and ministerial in nature. Officer Incharge of Police Station was not authorized to assess the correctness or falsity of the information received, instead, he was obliged to reduce the same into writing irrespective of the fact whether such information was true or false. Justice of Pease acted in excess of his powers by touching the merits of the case without any justification doing, thereby, violence to the whole scheme of Criminal Procedure Code, 1898. Justice of Peace was saddled with the administrative duty to redress the grievance of complainants aggrieved by refusal of police officer to register their reports and was not authorized to assume the role of investigating agency or prosecution. Assumption of role of investigator by Justice of Peace would make sections 154 and 155, Cr.P.C. redundant. Application filed by petitioner before Justice of Peace was not tainted with malice. Impugned order was set aside and Station House Officer was directed to register F.I.R., if any cognizable case was made out.

(5) 1994 MLD Lahore 15 (Syed Ijaz Hussain alias Tahir Pir v. The State). Word "defile" as used in section 295-B, P.P.C. Meaning, import and extent of its application. The word 'defile' is of general import not confined to a limited meaning to the extent of spiritual aspect and honour but also the physical show of respect which actually is a declaration to the honour and greatness to its teachings and thoughts. The word 'defile' would include both animate and inanimate objects and is not restricted in meaning to acts that would make an object of faith, only unclean as a material object but extends to acts done in relation to all objects of faith, visible, or invisible, rendering such objects ritually impure. The word 'defiles' as defined in Black's Law Dictionary means to corrupt purity or perfection; to debase; to make ceremonially unclean, to pollute; to dishonor; to debauch, deflower.

(6) PLD 1994 Lahore 485 (Riaz Ahmad and 3 others v. The State). In this case it was held that word 'defile' occurring in section 295-C, P.P.C. means to corrupt purity or perfection of; to debase; to make ceremonially unclean; to pollute; to sully, to violate the sacredness or sanctity of; to desecrate, profane; to sully the honour of, and to dishonor. Any word either spoken or written, or visible representation or any imputation which defiles the sacred name of the Holy Prophet (PBUH) directly or indirectly or by an innuendo i.e. latent defamation, amounts to an offence under section 295-C.

7. Mr. Anwar Mansoor Khan learned counsel for the proposed accused argued that powers of this court under section 561-A, Cr.P.C. are only available to give effect to any order under Cr.P.C. or to prevent abuse of the process of any court or otherwise to secure the ends of justice. According to the learned counsel none of the grounds mentioned in this provision are attracted in which this court may exercise its inherent powers. Learned counsel referred to prayer clause of the application and argued that applicant has prayed for setting aside/recalling the order dated 19-10-2011 and 22-10-2011 and also requested for suspension of the impugned orders dated 19-10-2011, 22-10-2011 and 25-11-2011. It was averred that in the first order dated 19-10-2011 the application moved under section 22-A, Cr.P.C. was returned back on the ground that the Justice of Peace has no territorial jurisdiction in the matter. He further argued that order dated 25-11-2011 has already been quashed by the learned Division Bench of this court in C.P. No.D-1160 of 2012, which was passed by Justice of Peace Karachi South on another application moved by the applicant in the same Criminal Miscellaneous Application No.1395 of 2011 and sought direction to grant specific time to SHO for comply with the order dated 22-10-2011. Learned counsel argued that after setting aside the order dated 25-11-2011 by the learned Division Bench in the aforesaid C.P., the application moved on 1-11-2011 is still pending and vide order dated 2-2-2012 the IIIrd Additional Sessions Judge, Karachi South postponed the matter sine die. Learned counsel further referred to subsection (6) of section 22-A, Cr.P.C. and argued that the Ex-Officio of Justice of Peace may issue appropriate directions to police authorities on a complaint regarding non-registration of case, transfer of investigation from one police officer to another and on neglect, failure or excess committed by police authority to relation in its functions and duties.

8. According to learned counsel the second application moved under section 22-A(2), Cr.P.C. by the applicant on 1-11-2011, in the same Criminal Miscellaneous Application is still pending, however, due to pendency of this Criminal Miscellaneous Application learned Judge postponed the hearing for sine die. Learned counsel argued that in this situation instead of pursuing this case the applicant should have approached to the Justice of Peace where his second application in the same case is pending. So far as the words used by the proposed accused in his press conference are concerned, the learned counsel argued that the applicant has not given proper facts in the complaint and according to him no blasphemous or derogatory remarks have been used to defile the sacred name of the Holy Prophet Muhammad (PBUH). Learned counsel also referred to the statement of the applicant recorded by the SHO, PS, Kalakot, Karachi. Learned counsel argued that through this statement the applicant has only given his opinion that whatever stated by the proposed accused in his press conference tantamount to defiling the sacred name of Holy Prophet Muhammad (PBUH) but from his statement no case is made out under section 295-C, P.P.C. The learned counsel argued that the order dated 22-10-2011 passed by the Justice of Peace was complied with and since no cognizable case was made out, no F.I.R. was registered. Learned counsel further argued that if the applicant is aggrieved by non-registration of F.I.R. he can easily file private complaint under section 200, Cr.P.C., which is a proper remedy, but he has wrongly filed this case under section 561-A, Cr.P.C. The applicant has also failed to point out any abuse of process of the court for invoking the inherent powers and jurisdiction of this court. It is further averred that the offence under section 295-C is a very serious offence in which the punishment is a death penalty, so one should be vigilant and careful while levelling allegation against any person for this offence. He further argued that after recording the statement of the applicant an inquiry was conducted and after thorough investigation police reached to the conclusion that no case under section 295-C, P.P.C. was made out hence they rightly denied to lodge the F.I.R. Learned counsel argued that while exercising jurisdiction under section 561-A, Cr.P.C. this court cannot interfere in the investigation, which is under the sole domain of the Investigating Officer.

9. In support of his arguments, he relied upon the following case-law:--

(1) 2011 PCr.LJ Lahore 1870 (Ch. Muhammad Aslam v. C.P.O. Rawalpindi). In this case it was held that the courts have always been insisting and emphasizing on recording of prompt F.I.R. The promptness in furnishing the information, when memory is fresh envisages and carries the presumption of truth. The delay caused in it hints at premeditation, consultation and combination. The petitioner claims that he was the security officer of Mohtarma Benazir Bhutto that the respondent unequivocally deny. He claims to be present at the time of occurrence that took place on 27-12-2007 but he made the application before the respondent DPO on 10-7-2009. The reason for delay that he mentioned in the last page of his application before the District Police Officer is that he was watching the stand of the Federal Government and waiting for the opportune moment, when to jump in. The perusal of written reply submitted by the CPO, Rawalpindi in application under section 22-A, Cr.P.C., before the learned Justice of Peace transpires that the petitioner had never associated himself with the investigation of the case, although a special investigation team headed by Additional Inspector-General, Punjab, investigated the case for several days. The petitioner, if so advised may file a private complaint under section 200, Cr.P.C. which is one of the modes of taking cognizance of an offence by the Magistrate. A private complaint is an alternative and efficacious remedy and the Magistrate seized of the complaint may inquire the matter himself or may direct an inquiry to be conducted by the Justice of Peace or by a police officer. Reliance is placed on Ahmed Ali v. State (2007 PCr.LJ 372), Malik Muhammad Aslam v. SHO, Police Station Saddar, Sargodha and 2 others (PLD 1981 Lahore 138) and Sadiq Masih v. SHO and others (1994 PCr.LJ 295).

(2) 2011 MLD 223 (Nusrat Bibi v. S.H.O. and another). In this case, the petitioner had assailed the order of Justice of Peace declining the request of petitioner to direct the S.H.O. to register case against the respondent. The case of the petitioner, as per the police report appeared to be based on a false premise. Petitioner also had the alternative statutory remedy by way of filing a criminal complaint but she had not exhausted said remedy before filing the constitutional petition. Constitutional petition, was dismissed in circumstances. Petitioner, however, may avail of the alternative remedy provided by law by way of filing of a private complaint in respect of her allegations, if so advised, which shall not be influenced by any observation made in the present judgment.

(3) PLD 2010 SC 691 (Rai Ashraf and others v. Muhammad Saleem Bhatti and others). In this case C.P. before High Court for registration of F.I.R., was filed against the demolition of outer wall and gate of applicant's house etc., by respondent with police aid. Dismissal of application by Ex-Officio Justice of Peace/Additional Sessions Judge after securing report from concerned SHO. The constitutional petition was disposed of by High Court directing SHO to look into contents of petition and pass appropriate orders thereon in accordance with law. Dispute between parties was over a house. Applicant had secured restrain order against respondent from Civil Court, and for its violation, he had .a remedy before Civil Court. Applicant had an alternate remedy to file private complaints against respondent. Applicant had filed another application before Ex-Officio Justice of Peace/Additional Sessions Judge to restrain public functionaries from taking action against him under Lahore Development Authority Act, 1975, Rules and Regulations framed thereunder. Application for registration of F.I.R. had been filed with mala fide intention. High Court had erred in law to exercise discretion in favour of applicant. Constitution petition was not maintainable as disputed questions of fact could not be decided in constitutional jurisdiction. Supreme Court set aside impugned order in circumstances.

(4) PLD 1971 SC 677 (Shahnaz Begum v. The Hon'ble Judges of the High Court of Sindh and Baluchistan). In this case it was held that the High Court has no power under section 561-A of the Cr.P.C. to interfere with police investigations into criminal offences. In the case of Ghulam Muhammad v. Muzammal Khan PLD 1967 SC 317 the Supreme Court had occasion to point out that the power given by section 561-A, Cr.P.C., "can certainly not be so utilized as to interrupt or divert the ordinary course of criminal procedure as laid down in the procedural statute." If an investigation is launched mala fide or is clearly beyond the jurisdiction of the investigating agencies concerned then it may be possible for the action of the investigating agencies to be corrected by a proper proceeding either under Article 98 of the Constitution of 1962 or under the provisions of section 491 of the Cr.P.C., if the applicant is in the latter case in detention, but not by invoking the inherent power under section 561-A of the Cr.P.C.

(5) 1994 SCMR 2142 (Brig. (Retd.) Imtiaz Ahmad v. Government of Pakistan). In this case it was held that the starting point of the examination of the legal questions canvassed by the petitioner's counsel must be the important fact that the stage at which the petitioner though it proper to invoke the High Court's jurisdiction under Article 199 of the Constitution was the stage of registration of criminal cases against him. The effect of the registration of a case is to set in train an investigation by the police in accordance with law. As was said in "Norwest Holst Ltd. v. Department of Trade and others (1978) 3 All ER 280 at 290):

"In every investigation...there are...by and large three different phases. First of all, the administrative phase; next, the judicial phase; and, finally, the executive phase when the orders of the Court or the Tribunal are, if necessary, executed or promulgated. Quite plainly fairness to the suspect... demands that he should be given a chance of stating his case before the final period: the execution... Equally fairness demands that the suspect shall be given a chance of putting his side of the case before the judicial inquiry is over...But on the other side, and the other side are entitled to fairness just as the suspect is, fairness to the inquirer demands that during the administrative period he should be able to investigate without having at every stage to inquire from the suspect what his side of the matter may be. Of course it may be difficult to find out the particular point at which the administrative phase ends and the judicial phase begins...."

To quote a passage from Lord Reid's speech in "Wiseman v. Borneman" (1971) AC 297, at 308):--

"Every public officer who has to decide whether to prosecute or raise proceedings ought first to decide whether there is a prima facie case, but no one supposes that justice requires that he should first seek the comments of the accused or the defendant on the material before him. So there is nothing inherently unjust in reaching such a decision in the absence of the other party."

(6) PLD 2002 Lahore 587 (Muhammad Mahboob alias Booba v. The State). In this case it was held that increase in the number of registration of blasphemy cases and element of mischief involved therein calls for extra care at the end of the Prosecuting Officers. Failure, inefficiency and incompetence of the Investigation in handling the case of blasphemy. Directions by High Court with regard to investigation and trial of cases of blasphemy. High Court, in circumstances, directed the Inspector- General of Police of the Province to ensure that whenever such a case is registered, the same may be entrusted for purposes of investigation to a team of at least two Gazetted Investigating Officers preferably those conversant with the Islamic Jurisprudence and in case they themselves are not conversant with Islamic law, a scholar of known reputation and integrity may be added to the team and the team should then investigate as to whether an offence is committed or not and if the team comes to the conclusion that the offence is committed, the police may only then proceed further in the matter. Trial in such a case be held by a court presided over by a Judicial Officer who himself is not less than the rank of District and Sessions Judge.

10. The learned counsel also referred to PLD 2005 Karachi 621, PLD 2007 SC 539 and PLD 1994 Lahore 485 on which reliance was also placed by the learned counsel for the applicant.

11. Mr. Muhammad Ashraf Samoo, who is also appearing for the proposed accused argued that the complaint was based on mala fide intentions and it was lodged just to drag the proposed accused in a false case. Learned counsel further argued that the complainant in his complaint has not given actual words spoken by the proposed accused and mentioned the words in a way to show that the proposed accused has committed an offence under section 295-C, P.P.C. It was further averred that police has already conducted inquiry and recorded the statements of various persons, who in their statements clearly stated that no offending or blasphemous words were used or spoken in the press conference.

12. Mr. Imtiaz Ali Jalbani, learned APG argued that as per order of the Justice of Peace the SHO performed his duty by recording the statement of the complainant and forwarded it to SSP South, who forwarded the same to DIG, Karachi South. The DIG Karachi South forwarded it to CCPO Karachi, who forwarded the statement to I.G. Sindh and I.G. Sindh forwarded the statement to Additional Secretary Law Department. Learned APG further argued that the SHO recorded the statement of 39 persons, who stated that no blasphemous words were spoken in the press conference and the police has opined that no offence has been committed or made out from the statement, hence, no F.I.R. was registered. Learned APG further argued that if the complainant is aggrieved, the remedy under the law is available to file direct complaint under section 200, Cr.P.C. and not this petition under section 561-A, Cr.P.C. to assail the order passed by Justice of Peace.

13. In rebuttal Mr. Aamir Mansoob Qureshi, learned advocate for the applicant argued that before registration of F.I.R., no inquiry could be conducted by the police. It was the responsibility of police officer either to act under section 154, Cr.P.C. and or 155, Cr.P.C., but for last many months they are lingering on this matter without any rhyme or reason. So far as the filing of the direct complaint is concerned, the learned counsel argued that in this case the police has completely failed to perform their statutory duty and to question their mala fide or unlawful act, the applicant has rightly approached this court for the redress of his grievance, as the series of orders passed by the Justice of Peace and action taken by the police on it are the clear examples of abuse of process, which are liable to be set aside. He further argued that the case-law presented by the counsel for the proposed accused are distinguishable and not attracted to the facts and circumstances of this case.

14. Heard the arguments. The record reveals that the applicant has filed Criminal Miscellaneous Application under section 22-A, Cr.P.C. in District Central Karachi for registration of F.I.R. The SHO, PS Gulberg, Karachi has filed his comments, in which it was stated that the press conference was held at Chakiwara Chowk, Karachi. On the basis of his statement, the application was returned back by the Vth District Additional Sessions Judge, Karachi Central to the applicant with the direction to file it before the appropriate forum having jurisdiction. The alleged crime mentioned in the complaint was the press conference, and according to the applicant it was widely broadcast through electronic media and viewed throughout the country. In order to deal with such a situation; a complete answer and recourse is available in Cr.P.C. Though under section 177, Cr.P.C. it is clearly mentioned that every offence shall ordinarily be inquired into and tried by a court within the local limits of whose jurisdiction it was committed, but at the same time under section 179, Cr.P.C., it is provided that when a person is accused of the commission of any offence by reason of anything, which had been done, and of any consequence which has ensued, such offence may be inquired into or tried by a court within the limits of whose jurisdiction any such thing has been done or any such consequence has ensued. While returning the application to the complainant, the learned Justice of Peace overlooked and ignored the aforesaid provisions of law and on the basis of comments filed by SHO it was held that the court has no jurisdiction to entertain the application. The SHO did not mention anything in his comments whether he considered the section 179, Cr.P.C. or not. At this juncture, I would like to quote an example of a defamation case. The cognizance in the case of defamation can be taken where the defamatory statement is made at one place and is published in a newspaper in another place or the newspaper is published at one place and circulated in another place, a complaint may be instituted under section 500 in the courts having jurisdiction over both the places. The reason is that the offence of defamation consists of making the defamatory utterance and its publication and offence is committed on publication. Reference can be made to Subramaniam v. Prabhakar (1984) Cr.L.J. 1329 (Para.9) Bom., Lankesh v. Shivappa (1994) Cr.L.J. 3510 (Para 16) Knt., 'Bangarappa v. Ganesh (1984) Cr.L.J. 1618 (Paras 7 18-19) Knt. (Cr.P.C. Durga Das Basu, 4th Edition 2010).

15. The ingredients of section 295-C, P.P.C. are that the accused used derogatory remarks, such remarks in respect of Holy Prophet Muhammad (PBUH), the remarks conveyed through words, either spoken or written or by visible representation, or by any imputation; innuendo or insinuation, directly or indirectly defiling the sacred name of Holy Prophet Muhammad (PBUH). The applicant stated that the press conference was held at Football House, Chakiwara Chowk, but it was widely broadcast/telecast through electronic media, through which he came to know about the words spoken by visible representation in the press conference in the local limits of PS. Gulberg. Keeping in view the above position, the learned Justice of Peace District Central, Karachi wrongly returned the petition to the applicant while an order for recording the statement by P.S. Gulberg, Karachi could have been passed by the learned Justice of Peace in view of section 179, Cr.P.C. Since the applicant himself filed another application under section 22-A, Cr.P.C. in the District South Karachi, therefore, I do not find it necessary to set aside the order dated 19-10-2011, which otherwise, has become redundant and infructuous for all intent and purpose.

16. According to the applicant the following words were uttered by the proposed accused in his press conference, which considered to be derogatory and blasphemous:--

While the counsel for the proposed accused argued that the applicant has suppressed the words actually spoken and according to him the following words were spoken in the press conference:--

17. Except first line there is no difference in both the statements. As stated earlier the applicant moved application before the Justice of Peace South Karachi, which application was disposed of vide order dated 22-10-2011. In the operating para of the said order, the learned Justice of Peace directed the applicant to appear before the concerned police station, where his statement was to be recorded, but in the same order it was further stated by the learned Justice of Peace that concerned SHO to the extent of point of jurisdiction will inquire upon and if found that the matter does not pertain to its jurisdiction will return the complaint back to the petitioner, however, further directions were issued that if any cognizable case is made out then SHO will perform his statutory duty within the parameter of section 154, Cr.P.C. The earlier application moved in District Central Karachi was returned back on the sole ground that the press conference was conducted in Football House Chakiwara and thereafter, the applicant filed the case before the proper forum, therefore, to that extent, I am of the view that no further direction were required to be made to the SHO to inquire upon the jurisdiction. It is the sole duty and responsibility of the SHO under section 154, Cr.P.C. to record the statement of the complainant and registered the F.I.R., if information regarding the commission of any cognizable offence is received "every information relating to the commission of a cognizable offence" used in section 154, Cr.P.C. pertains to information and do not pertain to actual commission of a cognizable offence. The information supplied should be about the alleged commission of cognizable offence irrespective of the fact whether such information is ultimately proved to be correct or not and also irrespective of the fact whether ultimately such offence was found to have been actually committed or not. Due to directions given by the learned Justice of Peace for inquiry prior to registration of the case, the situation became much complicated as under the garb of this order allowing the SHO to decide the point of jurisdiction, he entered into a full-fledged inquiry and or investigation at a premature stage which was an abuse of process. Since the concerned SHO failed to take prompt action, therefore, the same applicant moved another application under section 22-A, Cr.P.C. in the same Criminal Miscellaneous Application, which is in fact not a new case, but in the nature of an interlocutory application. The applicant submitted the application to the Justice of Peace with the prayer that specific time may be given to SHO, P.S. Kalakot to comply with the order passed by Justice of Peace on 22-10-2011. This application was entertained and vide order dated 25-11-2011 the Justice of Peace issued notice to Additional Secretary Law Department with the direction to submit the comments within 15 days. This order was challenged by the proposed accused in the C.P. No. D- 1160 of 2012, which was set aside by consent.

18. On 12-1-2012 SHO, P.S. Kalakot, Karachi (respondent No.2) filed his comments in which it was stated that in view of the inquiry report no cognizable offence was made out in the area of P.S. Kalakot and the order passed by Justice of Peace on 22-10-2011 was complied with. In these comments, it was stated that in view of the inquiry report no cognizable offence was committed in the area of P.S. Kalakot, but in the same case, SHO, P.S. Kalakot again filed his comments in which it was stated that in view of the order dated 22-10-2011 passed by Justice of Peace the statement was recorded and it was carefully examined with full text of speech. However, no F.I.R. was registered as the statement of applicant did not make out any cognizable offence as mentioned under section 295-C, P.P.C. During the course of arguments, learned APG also submitted attested copy of statement of the applicant recorded on 22-10-2011. With the statement an inquiry report is also attached which was conducted by the Inspector Abid Hussain Ansari, P.S. Kalakot, Lyari. District South Karachi in which he stated that he received this inquiry against the press conference conducted by proposed accused on 9-10-2011 at Football House Chakiwara. He stated in his report that during the course of inquiry he viewed different channels through internet and found that no such derogatory or blasphemous words were found in the press conference. In the inquiry report he has referred to the names of atleast 39 persons as witnesses with their CNIC numbers and also recorded their statement. All the persons in their statements stated that they were present in the press conference, but the proposed accused never used any word defiling the sacred name of Holy Prophet Muhammad (PBUH).

19. In the inquiry report, it is stated that the Inquiry Officer viewed T.V. Channel and internet, and he did not find out any blasphemous words defiling the sacred name of Holy Prophet Muhammad (PBUH). On the contrary, the SHO, P.S. Kalakot in his subsequent comments mentioned the text of words actually spoken and gave his opinion that after careful examination of the contents of the statement no cognizable offence is made out under section 295-C, P.P.C. The result of alleged inquiry containing the statement of 39 witnesses is totally contrary to the comments submitted by SHO in which he did not deny that no words were spoken, but he himself mentioned the words actually spoken in the press conference and he further stated that in view of the full text of speech no cognizable offence was made out.

20. The record reveals that much complications have been created since the inception of the case when the first application was filed and it was returned to the applicant without mentioning the relevant provisions of law. Another Justice of Peace issued directions to record the statement of the applicant, with the rider that point of jurisdiction should be decided first and on this pretext the SHO delayed the matter and after recording the statement full-fledged inquiry was conducted by the inquiry officer, who recorded the statements of 39 persons. One SHO, P.S. Kalakot filed his comments in this case in which he stated that no offence was committed in the area of P.S. Kalakot, while in the subsequent comments SHO, P.S. Kalakot stated that he has examined the full text of speech and reached to the conclusion that no cognizable offence was made out. The Inquiry Officer stated in his report that 39 persons were present in the press conference, but they did not hear any offending or blasphemous remarks defiling the sacred name of Holy Prophet Muhammad (PBUH).

21. Whatever done so far was beyond the scope and spirit of section 22-A, Cr.P.C. The function of the Justice of Peace is to check whether the statement of the complainant intimating or informing the commission of any cognizable offence was recorded or not. It is not the function of Justice of Peace to touch the merits of the case or to give certain directions, which are beyond his scope of powers and jurisdiction. The matter could be simply disposed of by the Justice of Peace with the direction to the SHO to record the statement of the applicant and if any cognizable offence is made out, he will act in accordance with section 154, Cr.P.C. and there was no occasion or reason to allow the SHO to first determine the point of jurisdiction, which should have been left opened for the SHO concerned to apply his own independent mind, which he does in other cases to decide the point of jurisdiction in view of sections 177 and 179, Cr.P.C. The question of jurisdiction is always determined by reference to the provision of Cr.P.C. It is a general principle of law that all crimes are local. The jurisdiction to try a person for an offence depends upon the crime having been committed within the area of said jurisdiction. It is basic requirement of law that a court within whose local limits or jurisdiction an offence is committed will have jurisdiction in dealing with the matter. Section 179, Cr.P.C. applied to those offences which by their very definition consist of an act and its consequence. The consequence must form part of the offence, and the act and consequence together must constitute the offence. The above is the guidance provided in Cr.P.C. which is required to be considered in the registration of F.I.R.

22. The case-law relied upon by the learned counsel for the applicant are mainly focused on the jurisdiction of justice of peace and guidelines are provided to deal and decide an application filed under section 22-A, Cr.P.C. In the case reported in 2011 PCr.LJ 268, (Mumtaz Ali v. S.H.O. Naushahro Feroz and another) (authored by me), I have also discussed in detail the jurisdiction and the functions of the justice of peace that under section 22-A, Cr.P.C. Justice of Peace is required to ascertain whether a cognizable case was made out or not. Minute examination of the case and fact-finding is not included in the functions of the justice of peace as his powers are designed to aid and assist criminal justice system and the said powers are administrative in nature. Officer Incharge of police station is not authorized to assess the correctness or falsity of the information received but he is obliged to reduce the same into writing irrespective of the fact whether such information was true or false. Justice of Peace is saddled with the administrative duty to redress the grievance of the complainant aggrieved by refusal of police officer to register his report and he is not authorized to assume the role of investigating agency or prosecution. In the case reported as PLD 2005 Karachi 621, it was held that the Justice of Peace has to form an opinion about the offence being cognizable or non-cognizable from the facts narrated to him by the complainant. Officer Incharge of police station is bound to register the F.I.R. under section 154, Cr.P.C. if from the information a cognizable offence is made out. The Hon'ble Supreme Court has held in the judgment reported in PLD 2007 SC 539 that no authority vested with an Officer Incharge of police station to refuse to record an F.I.R. where the information conveyed, disclose for commission of a cognizable offence. No authority is vested with an Officer Incharge of a police station or with anyone else to hold an inquiry into correctness or otherwise of the information. Any F.I.R. registered after such an exercise i.e. determination of the truth or falsity of the information conveyed to the SHO would get hit by provisions of section 162, Cr.P.C. Learned counsel for the applicant also referred to 1994 MLD Lahore 15 and PLD Lahore 485 in both the aforesaid judgments learned Judges of Lahore High Court considered the meaning and definition of the word "defile" used in section 295-C, P.P.C. So far as the meaning, import and extent of the word "defile" is concerned it has been rightly defined. Since I am not the trial Court nor the appellate court nor deciding the guilt of any person whether any offence has been committed or not by the proposed accused that can only be decided after trial, which would only be possible if F.I.R. is registered, investigation is made, charge is framed and matter is decided on merits. Any observation on merits may cause prejudice to the case of either party.

23. Learned counsel for the proposed accused relied upon 2011 PCr.LJ Lahore 1870 in which the court held that the courts have always been insisting and emphasizing on recording of prompt F.I.R. In this case, the petitioner was the Security Officer of Mohtarma Benazir Bhutto, who was allegedly present at the time of occurrence took place on 27-12-2007, but he made the application on 10-7-2009. His application under section 22-A, Cr.P.C. was dismissed on the ground of unexplained delay and he was advised to file a private complaint under section 200, Cr.P.C. The facts and circumstances of the reported case are distinguishable. The case reported in 2011 MLD 223 in which the petitioner challenged the order of justice of peace declining the request to direct the S.H.O. to register the case. Since entire case was based on false premise, therefore, it was held that the petitioner had alternate statutory remedy by way of filing a criminal complaint. Hence, the constitution petition was dismissed. Here the applicant has filed the application under section 561-A, Cr.P.C. and not C.P. in which existence of alternate remedy may be sufficient to decline constitutional jurisdiction under Article 199 of the Constitution.

24. In the judgment reported in PLD 2010 SC 691 the application was dismissed by the justice of peace, but he directed the S.H.O. to look into the contents of petition and pass appropriate orders. The Hon'ble apex Court was of the view that dispute between the parties was over a house and applicant in that case also secured restraining order against the respondent from civil court and on its violation, he had a remedy before civil court. This case pertains to the demolition of outer wall and gate of applicant's house. Again the facts of this case are distinguishable to the facts and circumstances of the case in hand. So far as the case of Shahnaz Begum is concerned (PLD 1971 SC 677), there is no cavil to the proposition that High Court has no power under section 561-A, Cr.P.C. to interfere with police investigation into criminal offences and section 561-A, Cr.P.C. can certainly not be so utilized as to interrupt or divert the ordinary course of criminal procedure. In 1994 SCMR 2412 the Hon'ble Supreme Court held that the effect of registration of the case is to set in train an investigation by the police in accordance with law. The Hon'ble Supreme Court in this case relied upon (1978) 3 All ER 280 and held that in every investigation there are three different phases, first of all the administrative phase, the judicial phase and finally the executive phase when the orders of the court or the tribunal are if necessary executed or promulgated equally fairness demands that the suspect shall be given a chance of putting his side of the case before the judicial inquiry is over. But on the other side are entitled to fairness just as the suspect is, fairness to the inquirer demands that during the administrative period he should be able to investigate without having at every stage to inquiry from the suspect what his side of the matter may be. The judgment will apply in this case only when from the statement of the applicant a cognizable offence is made out, F.I.R. is registered and the investigation is carried out in accordance with law.

25. Learned counsel also referred to PLD 2002 Lahore 587 in which it was held that there is increase in the number of registration of blasphemous cases and element of mischief is involved therein call for extra care at the end of prosecuting officers. Learned Lahore High Court directed the Inspector-General of Police of the Province of Punjab to ensure that whenever such case is registered, the same may be entrusted for the purpose of investigation to at least two Gazetted Investigating Officers preferable those conversant with Islamic jurisprudence. In the case in hand still no case has been registered, but prior registration of the case the S.H.O. started investigation.

26. So far as the arguments advanced by the counsel for the proposed accused that if the police officer refuses to register F.I.R., the applicant may file direct complaint. He also relied upon the judgments in which Hon'ble courts as an alternative remedy held that the applicant may file direct complaint. The case-law relied on this point are distinguishable and not attracted to the facts and circumstances of the case. Under section 154, Cr.P.C. it is the responsibility of the Officer Incharge of police station to reduce in writing the information relating to the cognizable offence. The remedy of filing direct complaint cannot be equated with section 154, Cr.P.C. in which the Officer Incharge of Police Station is duty bound to record the statement and registered the F.I.R., if cognizable offence is made out. If in each and every case it is presumed or assumed that instead of insisting or emphasizing to lodge F.I.R. the party may file a direct complaint then the purpose of recording F.I.R. as envisaged under section 154, Cr.P.C. will become redundant and futile and it would be very easy for the police to refuse registration of F.I.R. with this advice to file direct complaint. Each case has its own facts, however, in some exceptional circumstances, it is noted that superior courts held that alternate remedy in the shape of direct complaint is available, but not in each and every case. The mechanism and machinery provided for investigation in Cr.P.C. is not available in the case of direct complaint. Under section 154, Cr.P.C. the statutory duty is cast upon the officer of police station to enter every information regarding the cognizable offence in a book maintained by him in the prescribed form. The investigation of case comes later, which consists of different steps such as proceedings to spot, ascertainment of facts and circumstances of the case, discovery and arrest of suspected offender and collection of evidence. In the case of Dr. Inayatullah Khilji and 9 others v. Ist Additional District and Sessions Judge (East) at Karachi and 2 others reported in 2007 PCr.LJ 909 (Karachi), the Division Bench of this court held that wide discretion to register or not to register the F.I.R. does not vest in a police officer. To hold otherwise would mean that such officer may be fully empowered to pick and choose as regards to which particular case he would like to investigate and would refrain from investigating the other case. The process of investigation would normally start only after recording the F.I.R. No doubt it is the function of SHO to determine whether an F.I.R. is to be recorded, but such determination is only confined to the question whether the allegations contained in the information conveyed to him, prima facie, amount to cognizable or a non-cognizable offence. The question as to the truth of the information or the involvement of the persons mentioned as having committed the offence will be determined in the course of investigation and his conclusions arrived at thereby could be stated in his report under section 169, Cr.P.C.

27. Learned counsel for the proposed accused made much emphasis that another application under section 22-A, Cr.P.C. is pending in the trial Court, which has been adjourned sine die. In this regard I would like to observe that no fresh application was filed but a criminal misc. application with same nomenclature was filed in a disposed of Criminal Miscellaneous Application No.1395 of 2011 in which the applicant only prayed to the court for specific time be granted to the respondent No.1 for complying with the order passed by Justice of Peace on 22-10-2011. Since in the present case the applicant has challenged the orders passed by the Justice of Peace, one of which has already been set aside by the learned Division Bench of this court in C.P. No.D-1160 of 2012, therefore, in my view the pendency of application in a disposed of case has no relevancy or impact on the case in hand, in which the applicant did not ask any relief for registration of F.I.R., but simply prayed for implementation of order dated 22-10-2011.

28. On 9-3-2012 when Mr.Ashraf Samoo, Advocate filed Vakalatnama for the proposed accused, the counsel for the applicant raised objection and reliance was placed on PLD 2005 Karachi 621, in which it was held that Justice of Peace has to form opinion about the offence being cognizable or non-cognizable from the facts narrated to him by the complainant orally or in writing and for such purpose he is not required to issue notice to accused or to police officer or to anybody else, but he has to form his independent opinion. Learned counsel for the applicant argued that the proposed accused has no right of audience in view of the aforesaid judgment. However, on the next date Mr. Anwar Mansoor Khan appeared for the proposed accused and he filed his Vakalatnama. After arguing at some length the counsel for the applicant withdrew this objection. Even otherwise, the judgment quoted supra pertains to the jurisdiction and power of Justice of Peace, in which the learned Single Judge of this court observed that Justice of Peace is not required to issue notice to the accused or to police officer, but in this case not only the proposed accused challenged the order of the Justice of Peace in constitution petition before learned Division Bench, but also made representation by his own without issuing any notice to him. Since his counsel voluntarily appeared, hence, I deemed it proper in the interest of justice to allow him right of audience and subsequently the counsel for the applicant had also withdrawn this objection.

29. As a result of this discussion, I have no hesitation in my mind to hold that directions given by the learned Justice of Peace in the impugned order to the respondent No.2 to conduct an inquiry prior to registration of F.I.R. was in contravention of section 154, Cr.P.C. Consequently the impugned order dated 22-10-2011 is set aside with all consequential proceedings and this Criminal Miscellaneous Application is disposed of with the directions to the respondent No.2 to record the fresh statement of applicant and if any cognizable offence is made out under section 295-C, P.P.C, the respondent No.2 shall incorporate the same in accordance with section 154, Cr.P.C. for further proceedings in accordance with law.

MWA/M-172/K Application accepted.