SAJID ALI Versus VIIIth ADDITIONAL DISTRICT AND SESSIONS JUDGE, KARACHI EAST
ORDER
FAHIM AHMED SIDDIQUI, J .---The applicant has invoked the jurisdiction of Sessions Court in the capacity of Ex-officio Justice of Peace by filing an application for registration of FIR against the private respondents. The said application was entrusted to the learned Additional Sessions Judge-VIII, Karachi East, which was dismissed through impugned order dated 24-09-2018.
2. To state in brief, the applicant claims that he is residing in PIB Colony and has been doing business of cable TV network in the area including a residential complex namely 'A One Centre' since last 15/16 years. The said residential complex is situated within the territorial jurisdiction of respondent No. 2 (SHO, Police Station Newtown). Allegedly, the nominated proposed accused persons demanded BHATTA in April 2018 and the applicant paid them Rs.10,04,000/- to save his business within that residential complex. Allegedly, the proposed accused persons again demanded an amount of Rs. 2,50,00,000/- which he could not pay. According to the applicant, the proposed accused called the applicant in the aforementioned building complex and threatened for dire consequences. The applicant approached the area police for lodgment of FIR but failed and ultimately he sought the legal course by filing the application mentioned above.
3. Mr. Yousuf Iqbal, the learned counsel for the applicant, submits that the SHO is duty-bound to lodge FIR when a cognizable offence is reported to him. He further submits that neither the SHO nor the learned Ex-officio Justice of Peace can refuse to entertain such a request of a complainant. According to him, whenever a person approaches to the Ex-officio Justice of Peace for lodging FIR, he has to issue directions to the concerned SHO for recording of the statement of such person and if a cognizable offence is made out then incorporate the same in the prescribed book of section 154, Cr.P.C. He submits that the function of the learned ex-officio Justice of Peace is purely administrative, as such he is not required to indulge in an in-depth inquiry and there is no need to hear the proposed accused. He emphatically argues that there will be no harm to the proposed accused if an FIR is lodged and if the said FIR will be found false after investigation, the remedy is available to them in shape of proceedings under Section 182, P.P.C. In support of his contentions, he relies upon the cases reported as Javed v. The State (2015 YLR 764), Khurram Waheed v. The State and 2 others (PLD 2014 Lahore 639), Muhammad Ali v. Additional I.G. (PLD 2014 Supreme Court 753), Muhammad Bashir v. SHO Okara Cantt (PLD 2007 Supreme Court 539), Dr Inayatullah Khilji and 9 others v. Additional District and Sessions Judge, Karachi East and 2 others (2007 PCr.LJ 909), Muhammad Aslam v. Justice of Peace/ADJ Burewala and another (2010 PCr.LJ 296) and Umer Hayat v. Inspector General of Police (2015 PCr.LJ 1551).
4. Conversely, Ms. Naila Tabassum, learned counsel for the proposed accused, strongly opposed the instant application. She submits that no such incident has ever happened. She further submits that the applicant is aggrieved with the result of the election of the Union of 'A One Centre' and now he is instrumental by the losing party. She submits that actual dispute is about union election for which the applicant and his associates may have appropriate remedy before the civil court. According to her, the applicant has moved the instant application as counterblast, as FIR against him has already been lodged. She denies the allegation of demand of Bhatta and points out that no proof of such demand is placed on record. She supports the impugned order and submits that there is no illegality in calling the proposed accused and to hear them before passing the order. According to her, the instant application is not maintainable as such the same is liable to be dismissed. She relies upon the cases reported as Syed Abdul Hameed v. Mian Izhar Ahmed and 2 others (PLD 2019 Peshawar 154), Mir Muzaffar Azam v. SHO PS A-Section, Sukkur (2017 PCr.LJ Note 179) and Younus Abbas and others v. Additional Sessions Judge, Chakwal and others (PLD 2016 Supreme Court 581).
5. I have heard the arguments advanced and have gone through the relevant material as well as citations relied upon during the course of arguments. The applicant claims that the private respondents (proposed accused) have taken some amount from him as extortion and they are demanding more amount. It reflects from the arguments as well as annexures filed by either side that there is a dispute regarding the union of a residential complex i.e. 'A One Centre', and an election rivalry became so severe that the parties bent upon to initiate criminal cases against each other. In the instant matter, one of the party i.e. proposed accused persons succeeded in lodging a criminal case but the similar effort of the other side could not bear fruits.
6. Nevertheless, since some important questions of law have been raised; therefore, it would be appropriate that the same should be addressed properly. Mr. Yousuf lqbal, the learned counsel for the applicant, contends that the learned Sessions Judge in the capacity of Ex-officio Justice of Peace is enjoying the administrative power only; as such he does not require to issue a notice to propose accused. According to him, the proposed accused have no right of audience and their right will start after registration of FIR. According to him, the learned Ex-officio Justice of Peace has no option but to issue directions to the SHO for recording the statement of the applicant and incorporating the same in the prescribed book of section 154 of the Code of Criminal Procedure (hereinafter referred as 'Cr.P.C.'), if cognizable offence is made out from such a statement. In my humble view, the correct legal position is entirely different. The Hon'ble Supreme Court in the case of Younus Abbas (supra) has already held that "the functions performed by the Ex-officio Justice of Peace being quasi-judicial in nature cannot be termed as executive, administrative or ministerial." Since it has been declared by the apex Court that the powers conferred to Ex-officio Justice of Peace are quasi-judicial powers; therefore, the minimum judicial norms must have been followed in such cases. In every judicial or quasi-judicial proceeding, the rule of 'Audi Alteram Partem' must be followed which requires that the parties to litigation should be heard before passing any order. It is my considered view that the Ex-officio Justice of Peace is duty-bound to hear the proposed accused before passing any order against him. It is, therefore, necessary that a notice should be given to the proposed accused and if he chooses to appear in response of such notice, a proper hearing should be given to him.
7. If after hearing the matter, the Ex-officio Justice of Peace comes to the conclusion that an FIR is to be lodged then he may issue such directions with or without any condition regarding the arrest of the nominated accused in such FIR. The FIR is a pertinent document in the criminal procedural law of our country and its main object from the point of view of the complainant is to set the criminal law in motion and from the point of view of the investigating agencies is to obtain information about the alleged criminal activity so as to be able to take suitable steps to trace out and to bring to task the offender. If the offenders are known to complainant and evidence is available with him, then the State assistance is least necessary for the collection and preservation of evidence through investigating authorities. Hence, the directions for registration of FIR should only be given in a case where the assistance of the State machinery is required for the collection and preservation of evidence. If the Ex-officio Justice of Peace comes to the conclusion that the complainant has all the relevant evidence with him and under his control, then it will be appropriate that no direction for registration of FIR be issued and the complainant should be set at liberty to invoke the jurisdiction of a private complaint, which is more felicitous remedy in such cases.
8. No doubt, the provision under section 22-A, Cr.P.C. is beneficial, especially in those cases where police deliberately avoid to lodge FIR under some compilations or greed. Historical experience has thrown up cases from both the sides where the grievance of the victim/complainant of non-registration of valid FIRs as well as that of the accused of being unnecessarily harassed and investigated upon false charges levelled by the complainant. It is the reason that a good number of criminal cases, initiated under an application under section 22-A, Cr.P.C., are proved to be false during the investigation or after trial. In myriad cases, innocent persons are dragged by the complainant for ulterior motives for which he abuses judicial and administrative system dauntlessly. I think that the time has come to check this manic administratively and judicially. I am clear in my mind that unless we ensure that wrong- doers are denied the undue benefits and advantages from the frivolous litigations, it would be difficult to control frivolous and uncalled for litigation. Although, in case of false FIR, the option of proceeding under section 182, P.P.C. is available but the Court cannot invoke the same unless a complaint/report is filed by the concerned SHO, for which even no direction can be given to the concerned SHO. Nevertheless, there is another option available to the courts that is compensation under section 250, Cr.P.C., which is as under:
250. False, frivolous or vexatious accusations .---(1) If in any case instituted upon complaint or upon information given to a police officer or to a Magistrate, one or more persons is or are accused before a Magistrate or any offence triable by a Magistrate, and the Magistrate by whom the case is heard acquits all or any of the accused, and is of opinion that the accusation against them or any of them was false and either frivolous or vexatious, the Magistrate may, by his order of acquittal, if the person upon whose complaint or information the accusation was made is present, call upon him forthwith to show cause why he should not pay compensation to such accused or to each or any of such accused when there are more than one, or, if such person is not present direct the issue of a summons to him to appear and show cause as aforesaid.
(2) The Magistrate shall record and consider any cause which such complainant or information may show and if he is satisfied that the accusation was false and either frivolous or vexatious may, for reasons to be recorded, direct that compensation to such amount not exceeding twenty-five thousand rupees] or, if the Magistrate is a Magistrate of the third class, not exceeding two thousand and five hundred rupees as he may determine, be paid by such complainant or informant to the accused or to each or any of them.
(2A) The compensation payable under sub-section (2) shall be recoverable as an arrear of land revenue.
(2B) When any person is imprisoned under sub-section (2A), the provisions of sections 68 and 69 of the Pakistan Penal Code (XLV of 1860) shall, so far as may be, apply.
(2C) No person who has been directed to pay compensation under this section shall, by reason of such order, be exempted from any civil or criminal liability in respect of the complaint made or information given by him:
Provided that any amount paid to an accused person under this section shall be taken into account in awarding compensation to such person in any subsequent civil suit relating to the same matter.
(3) A complainant or informant who has been ordered under subsection (2) by a Magistrate of the second or third class to pay compensation or has been so ordered by any other Magistrate to pay compensation exceeding fifty rupees may appeal from the order, in so far as the order relates to the payment of the compensation, as if such complainant or informant had been convicted on a trial held by such Magistrate.
(4) When an order for payment of compensation to an accused person is made in a case which is subject to appeal under subsection (3), the compensation shall not be paid to him before the period allowed for the presentation of the appeal has elapsed, or, if an appeal is presented, before the appeal has been decided and, where such order is made in a case which is not so subject to appeal, the compensation shall not be paid before the expiration of one month from the date of the order.
9. From the above provision of law, it is clear that the law has empowered the Magistrate to direct the complainant/informer to award compensation to the accused, who has been dragged by him in a false and frivolous criminal case. Although this provision appears in Chapter-XX of Cr.P.C. but the same is general in nature like certain other provisions in the same chapter like sections 245-A (Procedure in case of previous convictions) and 248 (Withdrawal of complaint) 1 , and in the same way the provision under section 250 of Cr.P.C. and the same are available to the Sessions Court in appropriate cases. In this respect reliance may be taken from a case of the Hon'ble Supreme Court reported as Muhammad Khan v. The State and others (PLD 2007 Supreme Court 5), wherein the Apex Court has ordered to pay compensation under the provision of section 250, Cr.P.C. I am of the view that section 250, Cr.P.C. is a means of restorative justice and in appropriate cases; compensation under section 250, Cr.P.C. may be awarded by all criminal courts to counterweigh the suffering of the accused. It will also discourage the vexatious litigants, albeit it is necessary that all the conditions laid down in section 250 including issuance of Show Cause Notice to the complainant/Informer should be followed in letter and spirit 2 . Yet, no case of compensation under this Section will be made out unless after conclusion or disposal of case, the trial Court is satisfied that the complainant/informer has initiated a false and frivolous criminal case against the accused. It is further observed that in all those cases the proceedings under section 250, Cr.P.C. should be initiated where FIR is lodged after seeking directions from the learned Justice of Peace but the case fails and it is evident from the record that a false and frivolous case was initiated by the complainant.
10. The ultimate outcome of the above discussion is that the impugned order appears to be proper, hence does not require any interference by this Court. However, in the existing position of affair, the applicant is at liberty to seek his remedy under section 200, Cr.P.C. if advised so. Consequently, the instant application was dismissed by a short order dated 10-10-2019, and these are the reasons for the same.
11. The learned MIT is directed to place the copy of this Order before the Hon'ble Chief Justice and with the consent of his lordship; this order may be circulated amongst the judicial officers subordinate to this Court.
MH/S-82/Sindh Petition dismissed.
1 Azmat Bibi and another v. Asif Riaz and 3 others (PLD 2002 SC 687)
2 Ali Ghulam Laghari and 4 others v. Chaudhri Muhammad Aslam Gill and 34 others (2009 YLR 1252) decided by Sindh High Court.