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ORDER SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT, HYDERABAD

Present:
Mr. Justice Salahuddin Panhwar
Mr. Justice Fahim Ahmed Siddiqui

C.P.No.D- 2063 of 2016

Date of hearing: 09.08.2017.

Mr. Sartar Iqbal Panhwar, Advocate for petitioner.

Mr. Allah Bachayo Soomro, Additional A.G.

ORDER

SALAHUDDIN PANHWAR, J: Through instant petition, the

petitioner has challenged the order dated 14.05.2016 whereby an

application U/s 22-A,B Cr.PC was dismissed.

2. At the outset, counsel for the petitioner contends that he filed

application u/s 22-A & B Cr.P.C. with the prayer that:-

“To direct the respondents No.1 and 2 to provide legal

protection to the applicant and his family members from the
hands of the respondents No.3 to 5.”

3. Whereas learned Judge without applying his judicial mind

presumed such 22-A & B Cr.P.C. for lodgment of the FIR although that

has never been the grievance of the petitioner, hence he declined the legal

right of the petitioner.

4. The situation explained by learned counsel for petitioner compels

us to refer the order, impugned, which is reproduced hereunder:-

“Heard learned counsel for the applicant and perused the record as well
as report submitted by the S.H.O Police Station

Section 22-A (6) (i) Cr.P.C, provides that an Ex-officio Justice of the
Peace may issue appropriate directions to the authorities concerning a
complainant regarding non-registration of criminal case. The words
“may” and “appropriate” clearly indicates that justice of peace has to
apply his judicial mind to the facts of the case and then pass
appropriate orders, if need be. The Honorable Supreme Court in
Muhammad Bashir Vs SHJO PS Okara cantt and Others (PLD 2007 SC
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539), while interpreting aforesaid provision, has held that an ex-officio

justice of peace has to examine whether information disclosed by the
applicant did or did not constitute a cognizable offence and if it did, he
has to direction (direct) the concerned SHO to record F.I.R

In Muhammad Mushtaque Vs Additional Sessions Judge Lahore and

Others (2008 YLR 2301), the Honor4able Lahore High Court relying on
the judgment of Honorable Supreme quoted above, has held that, “A
combined examination of section 154, 22-A(6), Cr.P.C. and the case law
laid down by the Apex Court and the Full Bench of this Court, referred to
above, would show that an Ex-officio Justice of the Peace before whom
an application under section 22-A(6) has been laid seeking a direction to
the SHO concerned for registration of the case is not expected and
required to allow the request of the complaining person mechanically,
blindly and without application of legal mind. The Apex Court held in
an express term that it was the duty of Ex-officio Justice of the Peace to
examine whether the information did or did not constitute a cognizable
offence. In other words the Ex-officio Justice of the Peace is competent to
examine the complaint obviously with full application of legal mind and
is not supposed to accept and believe the same as gospel truth. In case
Ex-officio of the Peace after examination of the complaint will full
application of legal mind comes to the conclusion that the allegation set
up by the complaining person appears to be ridiculous, or self
contradictory or vague or barred by law or offensive to the public policy
and accepted standards of morality, he3 may be legally justified to turn
down the request for registration of a case.”

Precisely stated, per applicant, proposed accused forcibly tried to

dispossess Mst. Nagina from her parental house. Aunt of applicant
moved an application to police officials in which she disclosed the
incident of 31.3.2016 but in her instant application she did not disclose
about said incident but disclosed about another incident of same nature
dated 14.4.2016. Furthermore Mst. Nagina already lodged F.I.R. no
71/20147 regarding abduction of her brother against same proposed
accused. Police Report also reflects that dispute between the parties is of
civil nature.

Primarily, it appears to be a civil nature dispute, which has been blown

out of proportion unnecessarily. Both the parties are at loggerheads
against Additional Prosecutor General each other over dispute of
property, which can only be determined by the competent Civil Court.
Matter is of civil nature and criminal jurisdiction has been invoked with
mala fide intention, as such, applicant has not come to court with clean
hands.

All the facts and circumstances stated in the application do not disclose
a cognizable offence and lead to conclude that in fact there is a civil
nature dispute between the parties and in order to pressurize the other
side, the applicant wants to lodge the F.I.R., which, in my view, cannot
be acceded to. Unfortunately, trend has been developing in our society to
abuse the provision of law to settle personal score, vengeance and
vendetta, which strictly needs to be curtailed. In this regard, I am
fortified in my view in the citations reported in 2009 YLR 1533, 2013 YLR
624, 2013 P.Cr.L.J 813. The instant application, being meritless and
without substance, stands dismissed accordingly. The applicant may
prefer to file direct complaint, if so advised.”
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5. We have examined the criminal miscellaneous application filed by

petitioner before the Ex-Officio, Justice of Peace whereby a request to

provide protection was sought but the Ex-Officio Justice of Peace passed

the above referred order wherein after deliberating much on scope and

object of the provision of section 22-A Cr.PC dismissed the application

with categorical direction to petitioner to file ‘Direct Complaint’. We do

not find any way out whereby we could justify a direction for lodgment

of a ‘direct complaint’ against a request for protection. Candidly, it

appears that the learned Ex-Officio, Justice of Peace has not even

bothered to examine the contents of application and prayer but seems to

have signed the order without any application of judicial mind although

he (Ex-Officio Justice of Peace) acknowledged that such jurisdiction must

be exercised with application of ‘judicial mind’. Thus, prima facie it

appears that the learned Judge not only passed the dismissal order but

also signed it without hearing the petitioner; examining the contents of

application and verifying whether thing, presented before it, is in fact

relates to what it is claiming to or otherwise. Such attitude can neither be

approved nor even is expected from a judicial officer whose every order

otherwise addresses either to a right or an obligation therefore, before

speaking about application of judicial mind the presence of mind, at least

must appear from every single order whether it be a judicial or quasi-

judicial and every order must be an out of deliberation and application of

mind judiciously.

6. However, leaving regret to mourn, we would add that a direction

for lodgment of FIR may well be a discretion but when some one comes

with a complaint of insecurity and requests for an instruction to police to

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provide protection same should not be declined rather it always be

hammered thereby instructing to police to provide protection which

otherwise is undeniable duty and obligation of the police. A negligence /

failure on part of the police authority, if resulting into a complaint of

insecurity, may well be entertained by Ex-Officio Justice of Peace within

meaning of Section 22-A(6)(iii) Cr.PC which reads as:

“neglect, failure or excess committed by a police authority,

in relation to its functions and duties.”

Since, the petitioner has been continuing with his grievance of insecurity

and insists for protection for which the respondent nos.1 and 2, being

police officials, are otherwise bound, therefore, we find it in all fairness to

set-aside the impugned order and direct the respondent nos.1 and 2 to

provide necessary protection and to initiate necessary action as per law.

However, this direction / instruction shall not be exploited rather the

respondent nos.1 and 2 shall act strictly in accordance with their

functions and duties which first insists to provide protection and then an

action against any body if he takes the law into his hands. The word any

body shall include the petitioner too.

7. Accordingly, instant petition is allowed. Let the copy of this order

be sent to learned Ex-Officio Justice of Peace with note of caution that in

future he must be careful and also be circulated to all learned

Sessions/Additional Sessions who are authorized to exercise power u/s

22-A & B Cr.P.C.

JUDGE
JUDGE

Tufail
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