Mst Razia Bibi vs Asj etc.

Stereo.HCJDA 38.

Judgment Sheet

IN THE LAHORE HIGH COURT

BAHAWALPUR BENCH, BAHAWALPUR

JUDICIAL DEPARTMENT

W.P. No.8065 of 2014/BWP.

Mst. Razia Bibi.

VS

Additional Sessions Judge/Justice of Peace, Minchinabad etc.

JUDGMENT

Date of hearing: 06.01.2015 Petitioner by: Mr. Zafar Iqbal Awan, Advocate. Respondents No.1 to 3: Mr. Mohammad Tahir Saeed Ramay, Assistant Advocate General for the State.

Respondent No.4: Mohammad Saleem Ch. Advocate.

MIRZA VIQAS RAUF, J. The instant petition is directed against the order dated 25th of October, 2014, whereby, the learned Additional Sessions Judge/Ex-Officio Justice of Peace Minchinabad dismissed the petition under section 22-A Cr.P.C filed by the petitioner against the respondent No.4.

2.Precisely, the facts necessary for the adjudication of instant petition are that the petitioner statedly, being aggrieved of the illegal acts of the respondent No.4, reported the matter to the Station House Officer, Police Station Minchinabad, District Bahawalnagar. As the matter was not attended to by the SHO concerned, so the petitioner preferred an application under section 22-A Cr.P.C before the learned Ex-Officio Justice of Peace,

Minchinabad arraying the respondents No.3 & 4 as respondents therein. The learned Ex-Officio Justice of Peace called for the report of the police on the said application, which was accordingly submitted. By way of order dated 25th of October, 2014, the application was dismissed.

3.Learned counsel for the petitioner contended that though a cognizable offence is clearly made out from the contents of the application but the learned Ex-Officio Justice of Peace has failed to exercise its lawful jurisdiction and illegally dismissed the same. He maintained that the impugned order is not tenable under the law. Learned counsel further contended that if a complaint reflects the commission of a cognizable offence then no authority left either with the SHO or Ex-Officio Justice of Peace to proceed other than as contemplated under section 154 Cr.P.C. Reliance is placed on PLD 2007 Supreme Court

4.Conversely, the learned Assistant Advocate General appearing on behalf of the officials/respondents defended the impugned order. He maintained that that there is no illegality with the said order and application of the petitioner was rightly declined by the learned Ex-Officio Justice of Peace.

5.Similarly, learned counsel for the respondent No.4 submitted that civil litigation is already pending regarding the property in question in which the alleged witnesses of the occurrence namely Mohammad Asif and Mohammad Zubair are adversary to the respondent No.4. He further added that the alternate remedy in the form of complaint is available to the petitioner. So, in the light of principles laid

in 2014 P Cr. L J 162, the instant petition is not maintainable.

6.I have heard the learned counsel for the parties as well as the learned Law Officer and perused the record.

7.The petitioner, through application under section 22-A Cr.P.C alleged that the respondent No.4 has attempted to commit Zina-Bil-Jabar with her on the stated date and on her hue and cry, Mohammad Asif and Mohammad Zubair attracted to the place of occurrence who have witnessed the said occurrence and upon their intervention, the respondent No.4 fled away. As per report of the police, it is submitted that on the stated date, the petitioner was cutting grass from the field owned by the respondent No.4, as a result of which they have exchanged hot words and the respondent No.4 also slapped the petitioner. It was observed in the report that there is no proof of attempt to commit Zina-Bil-Jabar. The learned Ex-Officio Justice of Peace by way of impugned order held that the petitioner has failed to get herself medically examined and she was cutting grass from the land owned by the respondent No.4. Moreover, the police report also negates the version of the petitioner. As a result of these observations, the application was dismissed.

8.In order to properly appreciate the proposition in hand, it would be advantageous to have a recourse to the relevant law on the subject. In this context, first of all section 154 Cr.P.C is the relevant provision of law which reads as under:- “154. Information in cognizable cases. Every information relating to the commission of a cognizable offence if given orally to an officer

incharge of a police-station, shall be reduced to writing by him or under his direction, and be read over to the informant, and every such information, whether given in writing or reduced to writing as aforesaid shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the Provincial Government may prescribe in this behalf.”

9.Bare perusal of the above provision of law postulates that on receipt of information orally or in writing with regard to the commission of a cognizable offence, the Officer Incharge of a Police Station is duty bound to record an FIR to this effect. No authority is vested with the said Police Officer either to refuse to register the FIR or to hold any inquiry into the correctness or otherwise of the information which was conveyed to him in this regard. He is equipped with the powers to investigate the case after the registration of FIR and this investigation will not be confined to the extent of moving the Investigating Agency only as per dictates of the complainant and against the accused nominated therein but the said investigation would be for the purpose of ascertaining the truth after collecting necessary material in the investigation process and if ultimately the Investigating Officer reaches at the conclusion that the information was not based on truth, he has the powers to proceed against the complainant in terms of section 182 PPC but neither the police nor the Ex-officio Justice of Peace in his capacity as such assume the role of an authority to refuse to record an FIR where the information conveyed, disclosed the commission of a cognizable offence merely on the basis of their opinion that

the information is false. The Hon’ble Supreme Court of Pakistan in the case of Muhammad Bashir Vs. Station House Officer Okara Cantt. and others (PLD 2007 Supreme Court 539) while dealing with the similar question has laid down certain yardsticks for the guideline of Ex-Officio Justice of Peace as well as with regard to the role of the Officer Incharge of a Police Station in terms of section 22-A & 154 Cr.P.C which are reproduced below for ready reference:- “12. The scheme of law which becomes apparent from a bare perusal of these provisions is that whenever an Officer Incharge of a Police Station receives some information about the commission of an offence, he is expected first to find out whether the offence disclosed fell into the category of cognizable offences or was one which was non-cognizable. And once he was through with this exercise then the word “SHALL” appearing in the said provisions of section 154, Cr.P.C. would take over which obliged, the S.H.O. thereafter to reduce the said information to writing in the First Information Report Register as, what is called by Chapter XXIV of the Police Rules of 1934, a F.I.R. if the offence disclosed was cognizable or else to merely record the same in the Station Diary as mentioned by section 155 (1) of the Cr.P.C. and rule 24.3 of the said Rules and refer the informant to the competent Magistrate if the offence be non- cognizable. As has been mentioned above sections 154 and 155 of the Cr.P.C. are the only two provisions in the said Code which talk about the manner in which an information received by a S.H.O. relating to the commission of an offence was to be treated.

13.It may be reiterated and even emphasized that there was no provision in any law, including the said section 154 or 155 of the Cr.P.C. which authorized an Officer Incharge of a Police Station to hold any enquiry to assess the correctness or the falsity of the information received by him before complying with the command of the said provisions which obliged him to reduce the same into writing irrespective of the fact whether such an information was true or otherwise.

26.It will thus be noticed that the provisions of section 157, Cr.P.C. equip a police officer only with a discretion to refuse to investigate a case and no where do these provisions, even remotely indicate, any power vesting in the S.H.O. to REFUSE TO RECORD AN F.I.R. if the information conveyed to him disclosed the commission of a cognizable offence. Needless to add that rules are always subordinate to the statutory provisions and no rule can permit what was not allowed by a statutory provision.

27.The conclusions that we draw from the above, rather lengthy discussion, on the subject of F.I.R., are as under:-- a) 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- b) no authority vested with an Officer Incharge of a Police Station or with any one else to hold any inquiry into the correctness or otherwise of

the information which is conveyed to the S.H.O. for the purposes of recording of an F.I.R. c) any F.I.R. registered after such an exercise i.e. determination of the truth or falsity of the information conveyed to the S.H.O., would get hit by the provisions of section 162, Cr.P.C. d) Existence of an F.I.R. is no condition precedent for holding of an investigation nor is the same a prerequisite for the arrest of a person concerned with the commission of a cognizable offence;

e) nor does the recording of an F.I.R. mean that the S.H.O. 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; and finally that, f) the check against lodging of false F.I.Rs. was not refusal to record such F.I.Rs, but punishment of such informants under S.182, P.P.C. etc. which should be, if enforced, a fairly deterrent against misuse of the provisions of S.154, Cr.P.C.”

10.While dealing with the mandate of section 22-A of Cr.P.C, the Hon’ble Apex Court has dilated upon as under: “28. This brings us to the institution of Ex- OFFICIO JUSTICE OF THE PEACE and the new powers conferred on them.

29.The provisions of section 22 of the Code of Criminal Procedure, as originally enacted in the year 1898, introduced the institution of Justices of the Peace. The Governor-General in Council so far as the whole or any part of the then British India outside the Presidency Towns and every Local Government, vis-à-vis the area subject to its

administration, could appoint persons as the Justices of the Peace. The provisions of sections 23 and 24 of the said Code omitted by Act XII of 1923 talked of appointment of Justices of Peace for Presidency Towns while section 25 thereof constituted the governor-General, the Governors, the Lieutenant Governors, the Chief Commissioner, the Ordinary Members of the Council of Governor- General and the Judges of the High courts as Ex- officio Justices of the Peace with and for the whole of British India while the Sessions Judges and the district Magistrates were Ex-officio Justices of the Peace within and for the whole of the territories administered by the concerned Local Government. The Presidency Magistrates were blessed with the said status vis-à-vis the towns of which they were such Magistrates.

30.What is, however, noticeable is that these provisions did not confer any specific powers on these Justices of the Peace, Ex-officio or otherwise and they exercised only such powers as were conferred on them from time to time either under the Cr.P.C. or under other laws.

31.The above noticed provisions of section 22, Cr.P.C. underwent some minor changes at different times and occasions and it was finally, through the Law Reforms Ordinance No.XII of 1972 that the said section was re-constituted in the form that it exists today whereby the Provincial governments were empowered to appoint Justices of the Peace within the areas under their respective control. The same Ordinance also added two new sections to the Cr.P.C. i.e. section 22-A and 22-B which conferred certain specific powers on the Justices of the Peace and also outlined their duties.

32.The provisions relating to the Ex-officio Justices of the Peace i.e. section 25 of the said code also suffered amendments in the year 1900, 1937, 1949 and 1960 and the said section as it stood before the promulgation of Ordinance No.CXXXI of 2002 reads as under:-- “25. In virtue of their respective offices, the Judges of the High Courts are Justices of the Peace within and for the whole of Pakistan, Sessions Judges and District Magistrates are Justices of the Peace within and for the whole of the territories administered by the Provincial Government under which they are serving.”

33.The said Ordinance No.CXXXI of 2002 promulgated on 21.11.2002 stripped the Judges of the High Courts of their status of the Ex-officio Justices of the Peace which they had enjoyed for more than century as the said provisions of section 25 of the Code of Criminal Procedure were re- constituted to read as under:

“25. Ex-officio Justices of the Peace.--By virtue of their respective offices, the Sessions Judges and on nomination by them, the Additional Sessions Judges, are Justices of the Peace within and for whole of the District of the Province in which they are serving.”

34.The same amending Ordinance No.CXXXI of 2002 added a new subsection i.e. subsection (6) of section 22-A of the Cr.P.C. and this newly added subsection (6) conferred contain powers on the Ex- officio Justices of the Peace in the following terms:--

“22-A...........................

(6)An ex-officio Justice of the Peace may issue appropriate directions to the police authorities concerned on a complaint regarding--

(i)non-registration of a criminal case;

(ii)transfer of Investigation from one police officer to another;

iii)neglect, failure or excess committed by a police authority in relation to its functions and duties.”

35.The result is a major departure, from the scheme heretofore in vogue regarding the administration of justice relating to crimes as it was for the first time that through the said amending Ordinance, the Sessions Judges and the Additional Sessions Judges who were the trial and the Appellate Courts on the criminal side, had been called upon to also supervise what were, purely and essentially, the police functions i.e. the registration and investigation of criminal cases.

36.For the purposes of this petition, we are concerned, primarily, with clause (i) of the above quoted provisions of subsection (6) of the section 22-A of the Cr.P.C. These provisions create a new forum to rectify a wrong done by an Officer Incharge of a Police Station by refusing to register a criminal case i.e. not recording an F.I.R. We have held above that the provisions of section 154, Cr.P.C. command a S.H.O. to lodge an F.I.R. if the information conveyed to him disclosed the commission of a cognizable offence irrespective of the information being correct or incorrect. Undoing this wrong of non-registration of a criminal case would mean only an order to the S.H.O. to register the case. The provisions of the said subsection (6) of section 22-A, Cr.P.C. confer no additional powers on an Ex-officio Justice of the Peace to hold any enquiry to assess the credibility of such an information communicated for the purpose in question nor do the said provisions give any extra authority to the said Ex-officio Justice of the Peace to refuse registration or order non-registration of an

F.I.R. in violation of or beyond the mandatory requirements of section 154, Cr.P.C.”

11.So far the case of Mohammad Imran Aslam Supra, relied upon by the learned counsel for the respondent No.4 is concerned, it is observed that the facts of the said case are entirely different from the facts of instant case as the same are the offshoot of a gift deed regarding which the parties were directly entangled in civil litigation and regarding the same issue, the matter was agitated for registration of case under sections 420/468/471 PPC upon which this Court held that “the matter qua the inheritance of Zubaida Gegum is pending adjudication before the learned Civil Judge Faisalabad by way of a declaratory suit titled Feroza Bibi V. Abdul Qayyum etc. which would be decided on the basis of evidence to be adduced by the parties and in the eventuality the learned trial Court comes to the conclusion any bogus document was prepared by the respondents the said court is fully competent to order for registration of case under section 195(1)(c), Cr.P.C.”

12.Perusal of above referred judgment clearly reflects that the facts of the judgment supra are altogether different from the instant matter. As in the said case, the petition under section 22-A Cr.P.C was moved for registration of a criminal case on the basis of same transaction regarding which civil suit was already pending whereas in the present case there are two distinctive features, firstly there is no civil suit pending between the petitioner and respondent No.4 with regard to the property in question and secondly,

the application under section 22-A Cr.P.C was moved with regard to an independent occurrence.

13.In view of the above discussions, it is held that when the application preferred by the petitioner discloses the commission of a cognizable offence no authority vested in an Officer Incharge of a Police Station or anyone else to refuse to record an F.I.R in such circumstances, the Officer Incharge was bound to proceed in accordance with the mandate of section 154 Cr.P.C which casted a duty upon the Officer Incharge of a Police Station to record an F.I.R in a case where the complaint discloses the commission of a cognizable offence, without holding any inquiry as to the correctness or otherwise of the same. In case information received is found false, the legislature has provided a mechanism in the shape of section 182 PPC to proceed against the informant providing such information. The same reads as under:- “182. False Information with intent to cause public servant to use his lawful power to the injury of another person. Whoever gives to any public servant any information which he knows or believes to be false, intending thereby to cause, or knowing it to be likely that he will thereby cause, such public servant:- a) to do or omit anything which such public servant ought not to do or omit if the true state of facts respecting which such information is given were known by him, or b) to use the lawful power of such public servant to the injury or annoyance of any person, shall be punished with an imprisonment of either description for a term which may extend to six

months, or with fine which may extend to [three thousand rupees], or with both.”

14.Similarly, the Ex-officio Justice of Peace has also a boundan duty under section 22-A Cr.P.C to examine whether the information disclosed by the applicant did or did not constitute a cognizable offence and if in his opinion the same did disclose the commission of a cognizable offence then he has to pass the direction to the SHO concerned to record an F.I.R without going into the veracity of the information in question in terms of subsection 6 of section 22-A Cr.P.C but in the present case the learned Ex-Officio Justice of Peace has failed to exercise its jurisdiction vested under section 22-A Cr.P.C as a result of which this Court holds that the impugned order is not tenable under the law.

15.The nutshell of the above discussions is that the instant petition is accepted and the order dated 25 th of October, 2014 passed by the learned Ex-Officio Justice of Peace has been set-aside with the direction to the respondent No.3 to receive the complaint of the petitioner and thereafter to proceed in accordance with the terms of section 154 Cr.P.C as well as other enabling provisions. The petition is accepted on the above terms with no order as to costs.

(MIRZA VIQAS RAUF)

JUDGE

*Mahtab*

APPROVED FOR REPORTING.

(MIRZA VIQAS RAUF)

JUDGE