Muhammad Younas VS SSP Islamabad etc

ORDER SHEET

lN TIIE ISTAMABAD t{tcH COURT, |SI/A}rI,ABAD ,uDtctAt DEPARTMENT Wdt petition No. 1052-2013, Muhammad younas Butt-Vs.SSp lslamabad:

S. No. oforder Date orderl Order wlth dgatre of that of pardes or counsel 3r -05-201 3: Mr. Shafqat Mehmood Butt _Advocate for the petitioner, Mr. shabbtr Ahmad Abbasr reamea sunai,g Mr. Samar Naveed Advocate fo, ,.rpona.,it N-o.g. ciiiii, ia*i* t<twa sr

O R.D ER

uuHelffi-eNwen rcnu rnsl. o:

Forowing order of rearned ASl/Ex-office Justice of peace dated 25'02'2013 has been cafled in questron by way of thrs constitutional petitlon:-

n {5 per comment submttted by the tocal pollce, there are clvil nature disputes between the parties, as there ls recovery of amount involved and lust to presurize the other party, the petitioners want to get register FlR. Moreover, as per pollce report and attached agreement, tfie matter was already settled through Jirga. Therefore, the petitlonerc just want to linger on the payment and pressudze the other party by reglstratlon of FlR.

Under the circumstances, no dlrectlon is requlred to be issued to the local police. Resulantln the petitlon in hand needs no further consideration. Same ls hereby dismised.,,

The main contention of the leamed counser rs that Ex-officro lop had no power to enter into deeper controversy or to embark upon an inqulry for determlnatron of the truthfurnes or otherwrse of the contents of the application made to him and he can only order for registratton of case, lf any cognizabre offence rs made out. He refened case raws reported as 2013 P Cr Ll tt7, 2Ot1 p Cr Ll 91t and 2O1l p Cr Ll 258 in support of his submlslons.

The arguments advanced by the reamed counser for the petitroner lead to the point that the observations of the reamed Ex-officro Jop to the effect that there are cMr na['e drsputes betryeen the pardes, as there rs rccovery of amount lnrofued and frst to pres,rlze the other party,, the pedtloners want to get rcdster FIR Moreover, as per poflce report and attached ageement, the mater was already sefiled throudr llnn.

2 Writ Petidon No. 1052.20t3,

Therefure, the peddones lust wam to llnger on the paymem and presurlze the ofter party by reglstradon of FlR, whlle entertalnlng an applicatlon under Sectlon 22- A Cr. PC amounts to a declslon before the trlal and is beyond the mandate whereby the leamed JOp can only examlne whether the lnformatlon disclosed by the applicant dld or dld not constitute a cognlzable offence, and if lt dld accordlng to hls own independent opinion as per facts narrated by the appllcant, then he was bound to dlrect the SHO to register an FIR without going lnto veraclty of the lnformatlon and lrrespectlve of any private or clvll dlspute benreen the parties.

Leamed counsel for private respondent reslsted the above arguments by maintalnlng that the petitioner ln order to avoid payment, lntend to get register the FIR for puttlng pressure on the respondents and that the matter has already been resolved through a compromlse in the pS, therefore, the learned AS]4Op rlghtly rejected the application being devold of merlts. Leamed counsel whlle refening PtD 2010 SC 691 further submits that each and every case ls to be decided on its ovm peculiar facs and clrcumstances and where an applicatlon for registration of FIR had been filed with malafide intentton, Hlgfr Court should decllne exerclse of discretlon in favour ofthe appllcant.

Learned Standing Counsel also supponed the lmpugned order.

Heard and record perused.

The plvotrl polnt ln thls case whlch requlres determlnatton is that as to whether the facs and clrcumstances of thls case deserve dlrection for registration of an FIR or othenrvise?

The record ls eudent of the fact that the parties to lls are at daggers drawn against each other. lnltlally, the petitioner set the law lnto motion through a written complaint on O4.O1.2O12 before the SHO wtth allegation of snatching of his OlFTanker at gun-potnt by respondent No.

3[Raia Saeed]. After four days of moving the said appllcatlon, on 08.12.2012, a case under sectlon 3411506 PPC was got registered from the side of respondent No.3 agalnst Khalld Mehmoo4 the drlver of the present petitloner, at PS Mandra, Gujar-Khan, vlde FIR No. 37412012, which was found false durlng investigation and the accused of that case were recommended for discharge with opinlon that the parties had busines dispute and the respondent No.3 ls retalnlng poseslon of Oil tanker agalnst his claim. Subsequentln the respondent No.3 also got regilstered another FIR No. 38 of 2013 against the present petitioner and hls drlver under section 4O6134-PPC at PS Sehala, lslamabad, regarding embezlement. Soon after the registratlon of sald Fl& the present petitioner filed a Clvil Suh for renditlon of accounts agalnst the respondent No.3 on 22.O+.2O13.

It ls noteworthy that the compromlse document whlch has been annexed with the report of pollce and relled upon by the leamed Ex- Offlclo JOP cannot be termed as an authentlc document for want of date,

3 Writ Pedtion No. 1052.2013,

complete terms 6t condltlons entered lnto between the partles. The sald compromlse was also not entered into between the partles through a due process of Alternate Dlspute Resolutlon; therefore, any reliance upon such unauthentlc document would not be safe.

tt ls evldent from the above facts E[ circumstance of this case that it was the petltloner, who initiated action agalnst the respondent No.3 with speciflc allegation of snatchlng of his oll tanker, and thereafter the respondent No.3 reacted and then the litlgatlon went on. ln such state of affairy the proper cource for ttre learned Ex'Offfce JOP was to direct the SHO concemed to register an FIR and to hold impanial investigatlon and to proceed further ln accordance with law, as, prima facle, there was an allegation of commlslon of a cognizable offence.

fu a sequel of above dlscuslon, Impugned order dated 25.02.2013 is set-aside and the respondent No.2 [SHO, PS Sehala] is directed to reglster the case on the basis of complalnt filed by the petitioner dated 04.12.2013. The respondent No. I TSSPI ls also dlrected to depute any Independent and Impartlal lnqulry Offlcer not betow the rank of DSP, who shall proceed wlth the case stridly ln accordance wlth law, wlthout any favour or fear and shall conclude the investigation wlthin a perlod of one month under intlmatlon to this Court through the Reglstrar, for perusal in Chambers and further nece$ary action, lf need be. Office is further directed to transmlt the copy of thls Order to all concemed lncludlng the IGP lslamabad, with dlrection to ensure strlcti compllance and transparent investlgadon ln this case.

The petitlon is dlsposed of in above terms.

M. Suhall 3r.05.201 3

APPROVED FOR REPORTING

Uploaded By : Engr. Umer Rasheed Dar