Justice of Peace can agree or disagree with Police Report

 PLJ 2018 Lahore 210

[Multan Bench Multan]

Present: Shehram Sarwar Ch. J.

SHAFIQUE AHMAD--Petitioner

versus

ADDITIONAL SESSIONS JUDGE/EX-OFFICIO JUSTICE OF PEACE, JAHANIAN DISTRICT KHANEWAL
and 4 others--Respondents

W.P. No. 5525 of 2015, heard on 29.6.2015.

Criminal Procedure Code, 1898 (V of 1898)--

----Ss. 22-A, 22-B & 154--Constitution of Pakistan, 1973, Art. 199--Constitutional Petition--Application for registration of case--Cognizable offence--Medical was conducted--Statutory obligation--Report and parawise comments--No occurrence took place--An Ex-Officio Justice of Peace should exercise caution and restraint in this regard and he may call for comments of officer incharge of relevant Police Station in respect of complaints of this nature before taking any decision of his own in that regard so that he may be apprised of reasons why local police have not registered a criminal case in respect of complainant’s allegations--If comments furnished by office incharge of relevant Police Station disclose no justifiable reason for not registering a criminal case on basis of information supplied by complaining person then an Ex-Officio Justice of Peace would be justified in issuing a direction that a criminal case be registered and investigated--An Ex-Officio Justice of peace is not bound to seek report from police at every cost and he is fully competent to decide application and pass an order even without any report by police--But when a report is called, to know truth and real facts, as per above mentioned dictum, then it should not be ignored--If Ex-Officio Justice of Peace does not agree with report, then should give reasons--Seeking and obtaining a police report but ignoring and passing an order, contrary to it, without assigning any reason could not be appreciated--Special care to this situation is required--Petition was accepted.                [Pp. 212 & 213] A & B

Syed Jaffar Tayyar Bukhari, Advocate for Petitioner.

Ch. Naveed A. Maan, Advocate of Respondent No. 3.

Date of hearing: 29.6.2015.

Judgment

This writ petition is directed against the order dated 11.4.2015, passed by learned Ex-Officio Justice of Peace/ Respondent No. 1 whereby on an application moved by Respondent No. 3 for registration of a criminal case against the petitioner a direction to the SHO concerned has been given that he should record statement of Respondent No. 3 and if any cognizable offence is made out he should perform his statutory duties in light of Section 154, Cr.P.C.

2.  Briefly the facts of the case are that Respondent No. 3, Sobia Hameed, occasionally used to visit the general store for purchasing hosiery articles which is situated at Ghareebabad Jahania. On 24.3.2015, the date of occurrence, at about 1.00 p.m. she went to the general store to purchase certain hosiery articles where petitioner was present. He offered Respondent No. 3 to use the try room of the above-said general store on which she went to the upper story where unknown person along with Respondents No. 4 and 5 were present, they caught her and tried to tear her clothes on the pistol point and on the threat Zina-Bil Jabar was committed with her by the petitioner as well as rest of the accused, on her hue and cry two persons, namely, Abdul Hameed and Naeem Safdar reached at the spot and have witnessed the occurrence.

3.  Respondent No. 3 approached the police station for medical check-up and on refusal there-from she got an order of Illaqa Magistrate for medical which was conducted. Thereafter the instant application is filed. Report and parawise comments from Respondent No. 2 were called. According to the report no such occurrence took place as serious questions have been raised against the character of Respondent No. 3 and it was also mentioned by Respondent No. 2 that the said petition under Sections 22-A & 22-B Cr.P.C. filed by Respondent No. 3 is result of malice, ill-will and to blackmail the petitioner for the purpose of grabbing money in the garb of this whole proceedings.

4.  It has been found that the learned Ex-Officio Justice of Peace has failed to give any weight to the abovementioned report, made by the police or even discuss it and preferred to pass the impugned order.

5.  The purpose of the report/comments from the police has been described in detail in the case titled Khizar Hayat and others vs. Inspector General of Police (Punjab) Lahore and others”, reported as (P.L.D. 2005 Lahore 470) in the following terms:

“It is prudent and advisable for an Ex-Officio Justice of the Peace to call for comments of the officer incharge of the relevant Police Station in respect of complaints of this nature before taking any decision of his own in that regard so that he may be apprised of the reasons why the local police has not registered a criminal case in respect of the complainant’s allegations. It may well be that the complainant has been economizing with the truth and the comments of the local police may help in completing the picture and making the situation clearer for the Ex-Officio Justice of the Peace facilitating him in issuing a just and correct direction, if any.”

“The officer incharge of the relevant Police Station may be under a statutory obligation to register an F.I.R. whenever information disclosing commission of a cognizable offence is provided to him but the provisions of Section 22-A(6), Cr.P.C. do not make it obligatory for an Ex-Officio Justice of the Peace to necessarily or blindfoldedly issue a direction regarding registration of a criminal case whenever a complaint is filed before him in that regard. An Ex-Officio Justice of the Peace should exercise caution and restraint in this regard and he may call for comments of the officer incharge of the relevant Police Station in respect of complaints of this nature before taking any decision of his own in that regard so that he may be apprised of the reasons why the local police have not registered a criminal case in respect of the complainant’s allegations. If the comments furnished by the office incharge of the relevant Police Station disclose no justifiable reason for not registering a criminal case on the basis of the information supplied by the complaining person then an Ex-Officio Justice of the Peace would be justified in issuing a direction that a criminal case be registered and investigated.

6.  The above mentioned dictum clearly indicates importance of the report of the police, so that real facts, should come on the record, but in the matter in hand, as stated above, the learned Ex-Officio Justice of Peace, although has sought report from the police but

despite its availability on the record, has ignored it and failed to give any reason for not believing the same.

7.  An Ex-Officio Justice of peace is not bound to seek report from the police at every cost and he is fully competent to decide the application and pass an order even without any report by the police. But when a report is called, to know the truth and real facts, as per the above mentioned dictum, then it should not be ignored. If Ex-Officio Justice of Peace does not agree with the report, then should give the reasons. Seeking and obtaining a police report but ignoring and passing an order, contrary to it, without assigning any reason could not be appreciated. Special care to this situation is required.

8.  Report further reveals that there is a lady named as Ulfat Bibi, who is running a brothel house and Respondent No. 3 Sobia Hameed is working for her. It is also categorically mentioned that there is some sort of dispute of the property between the petitioner and said Ulfat Bibi pursuant to that grudge whole proceedings have been initialed by Sobia Hameed, Respondent No. 3 against the petitioner.

9.  Resultantly, the instant writ petition is accepted, the impugned order is set aside and the application for registration of the case is dismissed.

10.  Despite of the above-mentioned, Respondent No. 3, if so advised, shall have the remedy of filing a private complaint according to the dictum laid down in the cases reported as Khizer-Hay at and others vs. Inspector General of Police (Punjab), Lahore and others (PLD 2005 Lahore 470) and Rai Ashraf and others vs. Muhammad Saleem Bhatti and others (PLD 2010 SC 691).

(M.M.R.)         Petition accepted