Muhammad Sharif vs Dpo etc.

Muhammad Sharif D.P.O etc

07.04.2014 Ch. Muhammad Younis, Advocate for petitioner.

The petitioner has filed this petition, invoking the constitutional jurisdiction of this Court being aggrieved of the behavior of respondents No.2 and 3 regarding non compliance of the orders passed by learned Justice of Peace.

2.Briefly the facts, as narrated in the petition, are that the petitioner is the complainant of case FIR No.148 dated 15.2.2014, u/s 496-A PPC registered at P.S B-Division, Sheikhupura wherein it was alleged that Mst. Sabiha, the daughter of his sister, was abducted by Muhammad Shan son of Muhammad Shafi on 26.1.2014 who was already married to one Sarfaraz. During the investigation, the alleged abductee herself claimed that she had contracted marriage with Shan, with her own free will and consent.

3.The petitioner moved a petition u/s 22(a)/22(b) Cr.P.C to the learned Justice of Peace for issuance of a direction, which was decided on 3.3.2014. The direction issued by learned Justice of Peace is reproduced as under: - “As per contents of petition, the instant petition stands disposed of with the direction to the I.O of aforesaid criminal case to investigate the case in hand on this line

as well that whether any offence alleged by the petitioner is committed by the alleged abductee by contracting her second marriage in existence of her first marriage and relevant offences be added by the I.O after conducting of fair investigation.”

Statedly, on non-compliance of the above referred direction, the petitioner filed another petition before the learned Justice of Peace on 12.3.2014, wherein another direction was issued on 28.03.2014, which is also reproduced as under: -

“The Investigating officer of already registered criminal case bearing FIR No.148/2014 U/S 496-A, PPC, P.S. B-Division, Sheikhupura is present in person before this court today. He is directed to record the statement of petitioner with regard to the allegation that proposed accused was already in marital bond when she contracted second marriage and add other offences after investigation in fair and transparent manner in accordance with law, if contention of the petitioner is found true. With the same observation the instant petition stands disposed of accordingly. A copy of this petition and order be sent to SHO concerned. “

When, statedly the order dated 28.3.2014 was not implemented by the respondents, the petitioner filed the third petition and the learned Justice of Peace again issued a direction on 02.04.2014, which is also reproduced as under: - “Since the aforesaid allegation has been leveled against the Investigating officer, Nishan Ali ASI,

Police Station City B-Division, Sheikhupura, therefore, the matter is referred to the D.P.O Sheikhupura for probing into the same and for taking necessary legal action if any lapse is found on the part of the said police officer. The grievance of the petitioner also be redressed in accordance with law. With the same observation the instant petition stands disposed of accordingly”.

4.Now the petitioner has filed the instant writ petition with the prayer that;

(i)“this petition may kindly be accepted and the respondent No.2 and 3 may kindly be summoned in person in this Court and questioned about their willful and deliberate repeated violation of the orders of the learned Justice of Peace and;

(ii)they be directed to produce compliance report in this Court, by adding necessary sections in above FIR of petitioner and to act strictly in accordance with law”.

In view of the prayer, made by the petitioner to this Court, I find it necessary to dilate upon the legality of both the parts of his prayer one by one.

5.As far as the violation of the orders of the learned Justice of Peace is concerned, I am of the view that no doubt, the remedy is, invoking the constitutional jurisdiction of this Court, but it is very much relevant in the circumstances of the case that this Court should interfere and come forward in case

the orders passed by learned Justice of Peace are legally valid and if orders are otherwise, neither the government functionaries are bound to obey such orders nor this Court should interfere in exercise of its constitutional jurisdiction.

Even otherwise, constitutional jurisdiction of High Court being discretionary in character needs to be exercised after proper application of mind with cogent reasons and not arbitrarily.

6.The second part of the prayer contains the compliance of the orders of the learned Justice of Peace regarding insertion of applicable sections in the FIR. Regarding the legality of this part of the prayer, law is very much clear.

Under the provisions of Section 9 (7) of Punjab Criminal Prosecution Service (Constitution, Functions & Power) Act, 2006, the District Prosecutor has the powers to scrutinize the available evidence and applicability of offences against all or any of the accused as per facts and circumstances of the case.

Deletion or insertion of any offence falls within the exclusive domain of the investigating police agency and District Prosecutor. Question whether the police or District Prosecutor had rightly deleted or inserted the sections, is to be seen by the learned trial court at the time of framing of the charge and such act by the investigating agency or the District Prosecutor cannot be challenged either u/s 22-a/22-b, Cr.P.C or under constitutional jurisdiction of High Court, as this

would amount to the interference in the investigation. In this regard, guidance is sought from landmark judgment titled “Khizar Hayat vs. Inspector General of Police (Punjab), Lahore and others (PLD 2005 Lahore 470), the relevant paragraph is reproduced as under: -

“(x) Complaints about failure by an investigating officer to add appropriate penal provisions to an FIR or a cross-version of the accused party:- Such complaints are not worthy of being taken with any degree of seriousness by an ex-officio Justice of the Peace. The stands taken by the complaining persons in this regard normally touch the merits of the allegations and an ex-officio Justice of the Peace would be well advised to refrain from entering into any such controversy at a premature stage. The overall incharge of a criminal case is the Area Magistrate who, even during the progress of an investigation, gets many opportunities to go through the record of investigation conducted by the police and in an appropriate case and at an appropriate stage he can require the investigating officer to consider addition or deletion of any, penal provision. After submission of a report under section 173, Cr.P.C./Challan the Magistrate taking cognizance of the offence or the trial Court taking cognizance of the case can take cognizance of any offence disclosed by the material available on the record of investigation even if the police have not invoked the relevant penal provision. Even at the time of framing of the charge a trail Court can frame a charge in respect of any offence disclosed by the record even if the same finds no mention in the report submitted under section 173, Cr.P.C/Challan.

With so many opportunities being available with the Magistrate and the trial Court regarding rectification of a mistake, deliberate or otherwise, committed by the police in this connection it would be unwise for an exofficio Justice of the Peace to interfere with such a matter at an inappropriate and premature stage. In case of receipt of such a complaint an ex-officio Justice of the Peace may advise the complaining person to approach the Area Magistrate or the trial Court, as the case may be, rather than entertaining such a complaint himself”.

7.Another important aspect of this case is that the I.O has already submitted a report dated 01.04.2014 before the learned Justice of Peace, mentioned in paragraph No.6 of the writ petition wherein it is recorded that after obtaining the legal opinion, the offences u/s 494/496-B, PPC are applicable which are non cognizable offences. The cancellation report has already been prepared. Even according to the petitioner’s own stand during the investigation, the alleged offences committed are sections 494/496-B, PPC and not section 496-A, PPC. Offences u/s 494/496-B, PPC are non cognizable, then how the FIR can remain in field?

For what has been discussed above, I am of the considered view that not only the instant petition is misconceived but also the directions issued by the learned Justice of Peace to the extent of direction for insertion of certain penal provisions are not warranted by law and thus are

set aside. Hence, this petition is dismissed in limine being misconceived as well as devoid of any force.

(Syed Shahbaz Ali Rizvi) Judge

Approved for report.

Judge

Rafaqat Ali