PLJ 2023 Lahore (Note) 131
[Multan Bench, Multan]
Present: Sadiq Mahmud Khurram, J.
ABDUL MAJEED--Petitioner
versus
ADDITIONAL SESSIONS JUDGE BUREWALA DISTRICT VEHARI and 3 others--Respondents
W.P. No. 5509 of 2021, decided on 2.5.2023.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 22-A/22-B--Constitution of Pakistan, 1973, Art. 199--Ex-Officio justice of peace--Police repot--Disputed questions of facts--Alternate remedy--Ex-Officio justice of peace ordered to SHO to proceed u/s 154 of CrPC--Trespassed in house, damaged household articles, committed theft of same and criminal intimidation--Allegation is not supported by any other material--Controversy between parties essentially pertains to disputed questions of facts which cannot be undertaken in constitutional jurisdiction--Ex-Officio justice of peace passed impugned order in mechanical manner--Though it was not obligatory for Justice of Peace to call for Police Report, but once Police Report is called for, Justice of Peace cannot ordinarily brush it aside--Petition allowed. [Para 7 & 8] A, B, C, D, E & F
PLD 2005 Lahore 470; 2013 PCr.LJ 684 ref.
Khawaja Qaisar Butt, Advocate for Petitioner.
Mr. Kabir Ahmad Gill, Advocate for Respondent No. 4.
Mr. Mushtaq Ahmed Chohan, Assistant Advocate General for State.
Date of hearing: 2.5.2023.
Judgment
Through this petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the following prayer Has been made:
“Under above submitted facts and circumstances, it is most respectfully prayed that this petition may kindly be accepted and impugned order dated 31.03.2021 passed by the learned Respondent No. 1 may graciously be set aside while declaring illegal, vide, ab-initio corrun non-judice, against the law and facts in interest of justice.
2. Brief facts of the case leading up to the filing of this petition are that the Respondent No. 4 namely Sardar Ali, moved an application under Section 22-A/22-B Code of Criminal Procedure, 1898, complaining of the non-registration of the F.I.R. by the police authorities. The Respondent No. 4 had asserted in his application that on 29.01.2021 at about 08.00 p.m., the accused named in his petition including the petitioner, trespassed into his house, dispossessed him from the same, damaged the household articles, committed theft of the same and caused criminal intimidation to him. That upon the said application filed under Section 22-A/22-B Code of Criminal Procedure, 1898 by the Respondent No. 4, the learned Ex-Officio Justice of Peace, Burewala vide his order dated 31.03.2021, directed the SHO concerned to proceed further in accordance with the law under Section 154, Cr.P.C., after recording the version of the Respondent No. 4.
3. Learned counsel for the petitioner inter-alia contended that the order passed by Ex-Officio Justice of Peace, Burewala, dated 31.03.2021 was liable to be set aside being against the facts and law; that the learned Ex-Officio Justice of Peace misconstrued the facts of the case; that the perusal of the application as filed by Respondent
No. 4 did not reveal commission of any cognizable offence, hence, the impugned order was liable to be set aside.
4. The learned Assistant Advocate General has submitted that no cognizable offence had been committed, hence no order for registration of an F.I.R. could have been passed. The learned Assistant Advocate General also relied upon the report submitted by the District Complaint Officer, Burewala to the learned Ex-officio Justice of Peace.
5. The learned counsel appearing on behalf of the Respondent No. 4 submitted that the petitioner had committed cognizable offences which were reported to the police, however, on the refusal of the police to lodge an F.I.R., the Respondent No. 4 filed an application before the learned Ex-Officio Justice of Peace who had passed an appropriate and legal order. The learned counsel appearing on behalf of the Respondent No. 4 further submitted that the learned counsel for the petitioner had not been able to point out any illegality, infirmity or jurisdictional error in the impugned order which would warrant interference by this Court in exercise of jurisdiction under Article 199 of the Constitution.
6. I have heard the learned counsel for the petitioner, the learned counsel for the Respondent No. 4, the learned Assistant Advocate General and perused the documents appended with this writ petition as well as the impugned order dated 31.03.2021 passed by the learned Ex-Officio Justice of Peace, Burewala.
7. The record evinces that the Respondent No. 4 namely Sardar Ali, moved an application under Section 22-A/22-B Code of Criminal Procedure, 1898, complaining of the non-registration of the F.I.R. by the police authorities. The Respondent No. 4 had asserted in his application that on 29.01.2021 at about 08.00 p.m., the accused named in his petition including the petitioner, trespassed into his house, dispossessed him from the same, damaged the household articles, committed theft of the same and caused criminal intimidation to him. That upon the said application filed under Section 22-A/22-B Code of Criminal Procedure, 1898 by the Respondent No. 4, the learned Ex-Officio Justice of Peace, Burewala vide his order dated 31.03.2021, directed the SHO concerned to proceed further in accordance with the law under Section 154, Cr.P.C., after recording the version of the Respondent No. 4. With regard to the allegations levelled by the Respondent No. 4 namely Sardar Ali that on 29.01.2021 at about 08.00 p.m., the accused named in his petition including the petitioner, trespassed into his house, dispossessed him from the same, damaged the household articles, committed theft of the same and caused criminal intimidation to him, it was reported by the District Complaint Officer, Burewala in his report submitted to the learned Ex-officio Justice of Peace, that the said allegations were false and could not be verified. It had been brought on record that the petitioner himself was residing in the house and the said house had been constructed upon land owned by Provincial Government. It was further reported by District Complaint Officer, Burewala in his report submitted to the learned Ex-officio Justice of Peace that no occurrence as narrated by the Respondent No. 4 in his petition had happened rather, because of disputes between the parties over the possession and title of the said house, a false application had been submitted by the Respondent No. 4. The allegations levelled by the Respondent No. 4 were also not supported by any other material. There is not even prima facie, relevant, actionable information available that the petitioner had committed any cognizable offence. The allegations leveled by the Respondent No. 4 were also not verified by any independent source. The controversy between the parties essentially pertains to disputed questions of fact which exercise cannot be undertaken in the constitutional jurisdiction of this Court. In this scenario, when there does not exist any reason to reject the report submitted by the District Complaint Officer, Burewala to the learned Ex-officio Justice of Peace, then there does not exist any justification for not relying upon the same. The available material prima facie does not reveal the commission of any cognizable offence. As is obvious, an F.I.R. cannot be registered with regard to a non-cognizable offence. The learned Ex-Officio Justice of Peace, without applying his mind, passed a mechanical order, by not considering the report submitted by the District Complaint Officer, Burewala, which would encourage the trend already in vogue of managing to get an order for registration of F.I.R. It has been held in “Khizer Hayat and others v. Inspector General of Police (Punjab) Lahore and others” (PLD 2005 Lahore 470) that it was advisable for the Justice of Peace to call for the Police Report. The sole object of this mechanism is to bring the true facts on record. Though it was not obligatory for the Justice of Peace to call for the Police Report, but once the Police Report is called for, the Justice of Peace cannot ordinarily brush it aside and in case the Justice of Peace proposed to pass an order contrary to the Police Report, he was also supposed to furnish tangible reasons for not relying upon the solicited Police Report. Dictum of law as laid down by the aforesaid authoritative and celebrated judgment was followed in the cases reported as “Khalid Anwar v. Ex Officio Justice of Peace Lahore and 3 others” (2013 PCr.LJ 684) and“Mureed Hussain Additional Sessions Judge/Justice of Peace Jampur and 3 others” (2014 PCr.LJ 1146). Exposing a person to the investigative process and face the rigors of criminal prosecution is a no small measure; there must exist reasonable and tangible material, with the evidential basis to set the law into motion so as to bring about an indictment. The insertion of Section 22-A(6)(iii) was never meant to necessary allow every such application else the legislature would not have used word ‘may’ in subsection (6), which (word may) always speaks of ‘discretion’ by application of mind. Thus, it is settled law that the Ex Officio, Justice of Peace may refuse to issue direction regarding registration of case and may competently dismiss application under Section 22-A(6), Cr.P.C., reminding the complaining person of his alternative statutory remedies under Section 156(3), Cr.P.C. and 190, Cr.P.C., as well as he has a remedy to file criminal/private complaint under Section 200, Cr.P.C. So also, there are cases where complainant party may be in a better position in pressing its allegations by filing a criminal complaint rather than forcing the police to register the criminal case and to investigate when the police itself was not convinced of the complainant party’s allegations being correct. In this respect reliance may be placed upon case of “Habibullah v. Political Assistant Burewala and others” (2005 SCMR 951).
8. For the above identified reasons, it is a fit. Case for interference and invalidation of the impugned order. Therefore, by allowing this petition, the impugned order dated 31.03.2021, passed by the learned Ex-Officio Justice of Peace, Burewala, is set-aside. However, Sardar Ali, the Respondent No. 4, shall be at liberty to avail the alternate remedy of filing a private complaint for the redressal of his grievance, if so advised, and if any such a complaint is filed, the learned Court concerned shall decide the same strictly on its own merits, in accordance with the law and without being influenced by the observations made hereinabove.
(K.Q.B.) Petition allowed
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