case law on 22 A& B allow

P L D 2011 Quetta 32

Before Mrs. Syeda Tahira Safdar, J

Mst. SHAHZADI---Petitioner

Versus

THE STATE and another---Respondents

Criminal Revision No.112 of 2010, decided on 22nd March, 2011.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A, 154 & 157---Penal Code (XLV of 1860), Ss.379 & 453---Theft, lurking housetrespass

and house-breaking---Registration of case---Powers of Justice of Peace---Application

filed under S.22-A, Cr.P.C. for registration of criminal case, was disposed of by Justice of

Peace in terms that S.H.O. was directed to conduct inquiry under S.157(2), Cr.P.C., and that

if a cognizable offence was made out, F.I.R. be registered as per law---Petitioner had filed

revision petition against such orders of Justice of Peace contending that it was obligatory on

Justice of Peace to issue direction to S.H.O. concerned for lodging of F.I.R., but instead he

directed for conducting of inquiry under S.157(2), Cr.P.C. which was absolutely contrary to

law--Validity-Held, there was no concept of making inquiry before registration of F.I.R.---

Justice of Peace, while exercising the powers under S.22-A, Cr.P.C., had completely failed to

understand the nature of the powers conferred on him under S.22-A, Cr.P.C.-Initial

requirement which was to be seen by an Officer Incharge of Police Station, was whether

commission of cognizable offence was made out on basis of the information received by him

while the second step would be to reduce the same into writing, whereafter, investigation was

to be carried out and report submitted to the concerned court---By directing S.H.O. to

conduct inquiry under S.157(2), Cr.P.C. before registration of the case, Justice of Peace had

failed to exercise the powers vested in him---Impugned order being in complete negation of

law, could not remain in field---Impugned order was set aside and S.H.O. was directed to

register F.I.R. and proceed with the case, strictly in accordance with law.

Muhammad Bashir v. Station House Officer PLD 2007 SC 529 ref.

Muhammad Wassay Tareen for Petitioner.

Miss Noor Jahan Kahoor for the State.

ORDER

MRS. SYEDA TAHIRA SAFDAR, J.---Being aggrieved of order dated 14-10-2010, of

Sessions Judge, Quetta, whereby the application, filed by the petitioner, under section 22-A,

Cr.P.C, was disposed of in terms, that S.H.O. Police Station Sariab, Quetta, was directed to

conduct inquiry under section 157(2), Cr.P.C, and if a cognizable offence is made out, F.I.R.

be registered as per law, the petitioner has preferred instant petition, seeking revision of the

order. It is her contention, that after the death of her husband Muhammad Suleman Khan, she

was dispossessed from her house, and she was deprived of her valuable belongings and cash,

by her step-sons namely Ashfaq Ahmed, Ishtiaq Ahmed, Zulfiqar, and Mukhtiar. Further, the

nominated persons also threatened her for dire consequences. It is her contention, that she

reported the matter to police authorities, but the police, being in. league with the accused

persons delayed the matter, and lastly refused to lodge F.I.R. Thus, in the circumstances,

having no other alternate, she approached the court of Sessions Judge/Justice of Peace, by

way of filing an application under section 22-A, Cr.P.C., which was disposed of, through

order dated 14-10-2010, which is impugned in instant petition. According to the petitioner,

the impugned order is contrary to law and facts, while it was obligatory for respondent No.2,

to have lodged F . I .R. , on the complaint of the petitioner. It was further contended that it

was obligatory on Sessions Judge, Quetta, to issue direction to S.H.O. concerned, for lodging

of F IR. , but instead of the same learned Sessions Judge, only directed for conducting of

inquiry under section 157(2), Cr.P.C, which is absolutely contrary to law. Further, the only

criteria which was to be seen, by the police authorities, was that whether the allegations made

thereon spelling out a cognizable offence, irrespective of the facts that whether the allegations

are true or false, which has not been done. Thus, in the circumstances, non-lodging of

F . I .R. , means denial of legal rights of the petitioner. It is, therefore, prayed by the

petitioner, for setting aside of the impugned order, and issuance of direction for lodging of

F.I.R., and submitting of challan before the competent court, after completion of the

investigation.

Learned counsel for the parties are heard, while record is perused. Learned counsel for the

petitioner mainly contended, that as per relevant provisions of law, police is duty bound to

lodge F.I.R., when on report a cognizable offence is made out. He referred to sections 154

and 155, Cr.P.C. It is further argued, that Sessions Judge has not exercised his powers as

provided under section 22-A, Cr.P.C., which is an illegality. While in reply learned State

counsel contended, that in compliance of order of Sessions Judge, inquiry was conducted in

the matter, while the site was also inspected by the police authorities, and report was

prepared. During course of hearing, the learned State Counsel placed on record the report in

respect of preliminary inquiry, conducted by S.H.O. Police Station Sariab, Quetta, along with

statements of the petitioner Mst. Shehzadi, her father Mulchtar Khan and mother Mst. Aziza,

recorded by him.

In present case, it is an admitted position, that the petitioner approached the police

authorities, while reporting the incident whereby she being dispossessed, from her residential

house, with further allegation of depriving her from cash amount of Rs.16,00,000, jewelry

valuing Rs. 16,00,000, two vehicles, three rifles, furniture, carpets, and other house

belongings, thereby specifically nominating her step-sons namely Ashfaq Ahmed, Ishtiaq

Ahmed, Zulfiqar and Mukhtiar. But F.I.R. was not registered, whereupon she approached the

court of Sessions Judge, being Justice of Peace, by way of filing an application under section

22-A, Cr.P.C, with request, that case be registered, .and investigation be made properly,

whereafter, report/challan be submitted to competent court of law. The Sessions Judge, while

exercising powers under section 22-A, Cr.P.C, only directed for registration of F.I.R. c

subject to conducting of inquiry by concerned S.H.O. of Police Station Sariab, Quetta, and if

a cognizable case is made out. Though it has been asserted by learned State Counsel that

inquiry has been conducted, but there is nothing on record, which can disclose that either as a

result of inquiry, existence of a cognizable offence has been made out, and F.I.R. has been

registered, or in alternate required report has been submitted, as required under provisions of

section 157(2), Cr.P.C. Wherein it is specifically provided, that in case of suspicion the

Officer Incharge of Police Station is bound to submit a report to a Magistrate, empowered to

take cognizance of such of offence upon a police report. Rather perusal of the report, placed

on record, reveals, that concerned S.H.O. has not conducted any inquiry, rather the statement

of Mst. Shehzadi, submitted by her in writing, is reproduced therein with observations that

she has not produced any witness, further the nominated persons also avoided regarding of

their statements. The S.H.O. further added in the report, that parties have filed cross cases

civil in nature, in respect of property. In view of these discrepancies the inquiry report is

neither satisfactory, nor serves the purpose.

Now reverting to the impugned order dated: 14-10-2010, which was made on the application

filed by the petitioner under provisions of section 22-A, Cr.P.C. The Sessions Judges being

authorized to act as Ex-Officio Justice of Peace, under provisions of section 25, Cr.P.C, thus

they are empowered to exercise the powers of Justice of Peace as provided under section 22-

A, Cr.P.C, which states as under:

"22-A. Powers of Justice of the Peace.---(1) A Justice of the Peace for any local area

shall, for the purpose of making an arrest, have within such area all the powers of a

Police Officer referred to in section 54 and, an Officer Incharge of a police station

referred to in section 55.

(2) A Justice of the Peace making an arrest in exercise of any powers under

subsection (I) shall, forthwith, take or cause to be taken the person arrested before the

Officer Incharge of the nearest Police Station and furnish such officer with a report as

to the circumstances of the arrest and such officer shall thereupon re-arrest the person.

(3) A Justice of the Peace for any local area shall have powers, within such area, to

call any member of the police force on duty to aid him:--

(a) in taking or preventing the escape of any person who has participated in the

commission of any cognizable offence or against whom a reasonable complaint has

been made or credible information has been received or a reasonable suspicion exists

of his having so participated; and

(b) in the prevention of crime in general and, in particular, in the prevention of a

breach of the peace or a disturbance of the public tranquillity.

(4) Where a member of the police force on duty has been called upon to render aid

under subsection (3), such call shall be deemed to have been made by a competent

authority.

(5) A Justice of the Peace for any local area may, in accordance with such rules as

may be made by the Provincial Government:--

(a) issue a certificate as to the identity of any person residing within such area, or

(b) verify any document brought before him by any such person, or

(c) attest any such document required by or under any law for the time being in force to

be attested by a Magistrate, and until the contrary is proved any certificate so issued

shall be presumed to be correct and any document so verified shall be deemed to be

duly verified, and any document so attested shall be deemed to have been as fully

attested as if he had been a Magistrate.

(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 criminal case;

(ii) transfer of investigation from one police officer to another; and neglect, failure or

excess committed by a police authority in relation to its functions and duties."

Subsection (6)(i) of the section is relevant in present case. In addition section 154, Cr.P.C. is

relevant, which is to be kept in sight, whereby it is specifically provided that Officer Incharge

of Police Station, shall reduce into writing, every information given to him, either written or

oral, relating to commission of an cognizable offence. Section 154, Cr.P.C. states as under:-

"154. Cr.P.C. 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 persons 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. "

Thus keeping in view the above quoted provision, it is the statutory duty of Officer Incharge

of Police Station, to reduce in writing the information provided to him, about commission of

an offence cognizable in nature. ,While section 155, Cr.P.C. deals with the information

received in respect of an offence being non-cognizable in nature. While section 156, Cr.P.C.,

provided the procedure, required to be adopted by an officer Incharge of Police Station to

investigate in a cognizable case reported to him. It is to be noted that, investigation is to be

made, only after recording the First Information Report. But section 157, Cr.P.C, is an

exception which states as under:-

157. Cr.P.C. Procedure where cognizable offence suspected.---.(1) If from

information received or otherwise an Officer Incharge of a Police Station has reason

to suspect the commission of an offence which he is empowered under section 156 to

investigate, he shall forthwith send a report of the same to a Magistrate empowered to

take cognizance of such offence upon a police-report, and shall proceed in person, or

shall depute one of his subordinate officers not being below such rank as the

Provincial Government may, by general or special order, prescribe in this behalf to

proceed, to the spot, to investigate the facts and circumstances of the, case, and, if

necessary to take measures for the discovery and arrest of the offender: provided as

follows:

(a) Where local investigation dispensed with. --When any information as to the

commission of any such offence is given against any person by name and the case is

not of a serious nature, the Officer Incharge of a Police Station need not proceed in

person or depute a subordinate officer to make an investigation on the post;

(b) Where Police Officer Incharge sees no sufficient ground for investigation.--If it

appears to the officer Incharge of a Police Station that there is no sufficient ground for

entering 'on an investigation, he shall not investigate the case.

(2) In each of the cases mentioned in clauses (a) and (b) of the proviso to subsection

(1), the Officer Incharge of the Police Station shall state in his said report his reasons

for not fully complying with the requirements of that subsection, and, in the case

mentioned in clause (b), such officer shall also forthwith notify to the informant, if

any, in such manner as may be prescribed by the Provincial Government, the fact that

he will not investigate the case or cause it to be investigated".

In present case, this procedure has not been adopted. There is nothing on record that any such

report was submitted to the concerned court, or other steps, as provided therein, were taken.

Rather, on first' instance the information given by the present petitioner about commission of

offence remained unattended, while later in time, as per order of Justice of. Peace, some

inquiry was conducted but with no results. The report of inquiry filed before the Court is of

less importance as it does not amounts to an investigation as provided under section 157,

Cr.P.C, rather the report only based on narration of the facts as made in statement of the

petitioner, or as described by the nominated persons. As such mere narration of facts, does

not serve the purpose. Rather, the Officer Incharge of Police Station was required to arrive to

a decision that whether any cognizable offence is made out or not, if so, F.I.R. was to be

registered. But there is complete failure on part of the concerned authorities. Rather, apart

from the complaint/statement of the petitioner, keeping in view the contents of the report, it is

apparent that some offence of cognizable nature has been made out, which was required to be

registered.

During course of arguments learned counsel for the petitioner relied on the Judgment of

Hon'ble Supreme Court made in Civil Petition titled as "Muhammad Bashir v. Station House

Officer", reported in 'PLD 2007 SC Page 529, wherein provisions of section 22-A, Cr.P.C,

sections 150, 154, 155, 157, Cr.P.C, have been discussed at length and provide complete

guidance in such like cases, thus it is very much relevant in present case. It has been observed

by the honourable Supreme Court that:-

"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 offence 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 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.

14. The wisdom was not far to find. If the S.H.O. was given the authority to determine

the truthfulness or the falsehood of the allegations levelled against some one and

thereafter to decide to record or not to record such allegation as F.I.R., then such a

Police Officer would have got blessed with the power to decide about the guilt or

innocence of an accused person. This was, however, far from the envisaged by the

law-makers regarding the identification and the consequent acquittal or conviction of

accused persons as the said task stood assigned only to the courts of law and had

never been conceded to police officers."

The Hon'ble Supreme Court further observed:-

"37. We know that the prescribed forum for the determination of the correctness or

falsity of the accusation levelled against some' one was a court of law and not a police

man or even an Ex-officio Justice of the Peace irrespective of his rank and status.

And we also know from the provisions or section 1911(1) or the Cr.P.C. that the

lodging of an F.I.R. and the' report consequently submitted by a police officer under

section 173, Cr.P.C. was only one of the three modes of reaching the prescribed

competent court for such a determination. The other two channels being a private

complaint and a suo motu action taken by the authorized Magistrate leading to the

taking of cognizance.

38. And if an Ex-Officio Justice of the Peace who also happens to be the higher of the

two subordinate courts and a trial court with respect to certain offences and an,

appellate and a Revisional court in other, was to declare, like it was done in the

present case, that no offence at all had been committed and that the accusation were

false and that also on the basis of a mere report by a Police Officer without any

evidence having been examined by a Court of Law then we would not only be

shutting out of the other two channels which had been made available by law but

would also be deciding the fate of criminal cases in a manner never visualized by the

law even in the wildest of their dreams".

Arriving to the conclusion it was held:--

"40. Therefore, in our opinion, the only jurisdiction which could be exercised by an

Ex-Officio Justice of the Peace under section 22-A(6), Cr.P.C. was to examine

whether the information disclosed by the applicant did or did not constitute a

cognizable offence and if it did then to direct the concerned S.H.O. to record an F.I.R.

without going into the veracity of the information in question, and no more. Offering

any other interpretation to the provisions in question would be doing violence to the

entire scheme of the Cr.P.C. which would not be permitted."

Keeping in view the verdict of the honourable Supreme Court, the initial requirement, which

is to be seen by an Officer Incharge of Police Station, is whether commission of cognizable

offence, is made out, on basis of the information received by him, the second step would be

to reduce the same into writing, whereafter, investigation is to be carried out, and report be

submitted to the concerned court as provided in above mentioned sections. Thus there is no

concept of making inquiry before registration of F.I.R., with exception as provided under

sections 157 and 159 Cr.P.C. In present case offences of house trespassing, house breaking

and theft, etc. are alleged against the nominated accused persons, by the

petitioner/complainant, thus in the circumstances, the S.H.O. was not empowered, to refuse

registration of F.I.R. The learned Sessions Judge, while exercising the powers under section

22-A, Cr.P.C, completely failed to understand the nature of the powers, conferred to him

under provisions of section 22-A, Cr.P.C. Thus failed to exercise the powers vested in him.

The order, questioned in present petition is in complete negation of law, which cannot remain

in field.

In view of the above discussion, the impugned order dated, 14-10-2010, is hereby set aside.

The S.H.O. Police Station Sariab, Quetta, is directed to register F.I.R. immediately, and

proceed with the case, strictly in accordance with law.

H.B.T./16/Q Order accordingly.