Tuesday, 10 February 2015

Justice of Peace is not required to allow petition blindly

PLJ 2013 Cr.C. (Peshawar) 533
[Abbottabad Bench]
Present: Waqar Ahmed Seth, J.
QAMAR NAEEM--Petitioner
versus
S.H.O. POLICE STATION CANTT., ABBOTTABAD and 3 others--Respondents
Crl. Misc. Q.P. No. 7-A of 2013, decided on 25.2.2013.
Statutory duty--
----Information relating to commission of a cognizable offence would fall under Section 154--Police officer is under statutory duty, without entering into enquiry and without hearing accused, to enter it in FIR register--For this exercise, the only pre condition is that the information should disclose commission of a cognizable offence on the face of the allegation--Failure of concerned police officer to register such information in FIR register would amount to failure to discharge statutory obligations by the police officer.   [P. 535] A
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 22-A & 561-A--Powers of ex-officio--Powers of ex-officio, the same are very limited one--While exercising such powers, he should not enter into disputed questions of facts to find out the truth--Under Section 22-A he is not expected and is not required to allow the request of complainant mechanically, blindly and without application of his legal mind--However, when the complainant discloses the cause of action and commission of cognizable offence his order to refuse registration of the case under the relevant Sections of law would be perverse and arbitrary exercise of powers under Section 22-A--Quashment petition was allowed.           [P. 535] B
Malik Masood-ur-Rehman Awan, Advocate for Petitioner.
Mr. M. Nawaz Khan Swati, AAG for Respondents.
Date of hearing: 25.2.2013.
Judgment
Qamar Naeem petitioner has filed this petition u/S. 561-A, Cr.P.C. for quashment of order dated 06.12.2012, whereby learned Justice, of Peace/Additional Sessions Judge-II, Abbottabad dismissed the application of petitioner filed under Section 22-A, Cr.P.C. for  registration of case against the persons mentioned therein.
2. Facts, as per contents of petition, are that initially petitioner submitted an application to Respondent No. 1 regarding the occurrence and thereafter approached Respondent No. 2. Respondent No. 1 allegedly initiated an enquiry instead of registration of case. Feeling aggrieved, the petitioner filed application u/S. 22-A, Cr.P.C. for issuance of direction regarding registration of case and Respondent No. 3 called for comments of Respondent No. 1. Respondent No. 3, on receipt of comments, rejected the application of petitioner. Hence, this petition.
3. Learned counsel for petitioner argued that petitioner is lawful owner of the shop in question, which was given to one Raheel Shah on rent and the accused mentioned in the application and his companions duly armed with lethal weapons cut off the lock of shop and also attacked at the life of petitioner and thereby committed a cognizable offence but the police officials and the learned Justice of Peace in haste turned down the applications of petitioner.
4. On the other hand, learned counsel for State opposed the contentions of petitioner and supported the impugned orders.
5. Arguments heard and record perused.
6. A perusal of record would show that a cognizable offence has been made out against the accused persons as the possession of the shop in question is stated to have been given to the complainant, which was later on shown to have forcefully been occupied by the accused persons and the SHO is under obligation to register the case against the accused persons.
7. Information relating to commission of a cognizable offence would fall under Section 154. Police officer is under statutory duty, without entering into enquiry and without hearing accused, to enter it in FIR register. For this exercise, the only pre condition is that the information should disclose commission of a cognizable offence on the face of the allegation. Failure of concerned police officer to register such information in FIR register would amount to failure to discharge statutory obligations by the police officer.
8. As regarding the powers of ex-officio, the same are very limited one. While exercising such powers, he should not enter into disputed questions of facts to find out the truth. Under Section 22-A he is not expected and is not required to allow the request of complainant mechanically, blindly and without application of his legal mind. However, when the complainant discloses the cause of action and commission of cognizable offence his order to refuse registration of the case under the relevant Sections of law would be perverse and arbitrary exercise of powers under Section 22-A.
9. For the reasons mentioned hereinabove, the present quashment petition is allowed, the impugned order passed by Additional Sessions Judge-III Abbottabad dated 06.12.2012 is quashed and SHO of Police Station concerned is directed to register FIR against the accused persons, under the relevant Sections of law.
(A.S.)   Petition allowed

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