2024 M L D 462
[Balochistan]
Before Abdullah Baloch and Rozi Khan Barrech, JJ
MIR WAIS ---Petitioner
Versus
NASEEBULLAH and 3 others ---Respondents
C.P. No.463 of 2022, decided on 31st October, 2022.
Criminal Procedure Code (V of 1898) ---
----Ss.22- A & 22 -B---Duty of Ex- officio Justice of Peace---Issuance of direction to register
FIR---Pre -conditions ---Petitioner / accused was aggrieved of order passed by Ex -officio
Justice of Peace directing registration of FIR ---Validity ---Ex -officio Justice of Peace in
exercise of powers under S.22 -A, Cr.P.C., was not supposed to proceed and act mechanically
by simply considering version of events narrated by a party applying for registration of FIR --
-In order to safeguard against misuse or abuse or such process, Ex- officio Justice of Peace
had to apply his judicial mind and to satisfy himself that prima facie there was some material
available on record to support such version--- Proceedings before Ex -officio Justice of Peace
were quasi -judicial and were not executive, administrative or ministerial to deal with the
matters mechanically ---Such quasi -judicial proceedings before discretion, demanded judicial
observations after hearing the parties ---Application under S. 22- A, Cr.P.C. was filed by
complainant in order to harass and humiliate petitioner and this was never intention of Legislature ---High Court set aside order passed by Ex- officio Justice of Peace as it was not
in accordance with law and element of mala fide was apparent from conduct of complainant --
-Constitutional petition was allowed, in circumstances.
Younas Abbas and others v. Additional Sessions Judge, Chakwal PLD 2016 SC 581
and 2020 YLR 44 rel.
Muhammad Akbar Shah and Asad Khan Achakzai for Petitioner.
Ameer Hamza Mengal, APG for the State.
Date of hearing: 26th October, 2022.
JUDGMENT
ROZI KHAN BARRECH, J. ----The petitioner has invoked the constitutional
jurisdiction of this court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, with the following prayer: -
"It is, therefore, respectfully prayed that the impugned order dated 26.03.2022, passed
by the learned Additional Sessions Judge -VII, Quetta, may kindly be set aside and the
application under section 22- A, Cr.P.C filed by the respondent No.1 may graciously
be dismissed in the interest of justice.".
2. Brief facts of the case are that respondent No. 1, namely Naseebullah, son of Ghulam
Rabani, filed an application under section 22- A, Cr.P.C against the petitioner before the
learned Additional Sessions Judge -VII, Quetta, being designated Justice of Peace ("JOP") for
registration of a criminal case under the relevant law on the ground that FIR No. 37 of 2022 was lodged against the petitioner under section 337- AD of Qisas and Diyat Ordinance at
Police Station Civil Line Quetta with the history of causing injuries to the complainant of the case namely Bashir Ahmed. There- after on the basis of spy information, the police
apprehended the petitioner while lodging FIR No. 49 of 2022 under section 9 -c of CNS Act
1997 and it was alleged that the vehicle from which the contrabands were recovered belonged to the petitioner and the said vehicle had two plate numbers, the front plate No.BD -
5555 while back plate No.LKZ -0660 was found on the said vehicle, therefore, he prayed for
the registration of FIR against the petitioner under the law.
3. After hearing arguments of learned counsel for respondent No.1, the application
submitted by him was accepted by the learned Justice of Peace, vide impugned order dated 26.03.2022 (hereinafter "the impugned order"); the SHO concerned was directed for registration of criminal case according to relevant law.
Feeling aggrieved, the petitioner has challenged the validity of the said order by filing
the instant constitution petition.
4. Respondent No.1 was put on notice. After filing this petition, the petitioner submitted
a Miscellaneous Application No. 1145/2022 whereby this court, vide order dated 12.04.2022, suspended the impugned order dated 26.03.2022.
5. We have heard the learned counsel for the parties and anxiously considered the
arguments in the light of the law and facts on record.
6. In the exercise of powers under section 22- A, Cr.P.C., the Justice of Peace, is not
supposed to proceed and act mechanically by simply considering the version of events narrated by a party applying for registration of an FIR, but instead, in order to safeguard against misuse or abuse of such process, the Justice of Peace has to apply his judicial mind and has to satisfy himself that prima -facie there is some material available on record to
support such version. We are fortified by the additional note appended to the main judgment of the Hon'ble Supreme Court in the case reported as Younas Abbas and others v. Additional Sessions Judge, Chakwal (PLD 2016 SC 581) wherein the following was observed:
"2. The past experience of around 14 years (since the insertion of these provisions into the Code of Criminal Procedure) would unmistakably reveal that these provisions especially Section 22 -A of the Code of Criminal Procedure, though beneficial and
advantageous to the public at large, yet in myriad cases, it has been misused and abused.
Once a false criminal case is registered against an individual, it becomes exceedingly
difficult for him/her to get rid of it. The time and money which is spent on acquiring a clean chit by way of cancellation of the case or acquittal is not hard to fathom. There is no denying the fact that at times false and frivolous cases are got registered just to humiliate and harass the opposite party. In such a milieu, powers given to an ex-officio Justice of the Peace under subsection (6) of Section 22- A, Code of Criminal
Procedure, to issue appropriate directions on a complaint filed by an aggrieved person for registration of a criminal case (Clause -i) and for transfer of investigation from one
police officer to another (Clause -ii) though efficacious and expeditious besides being
at the doorstep, but at the same time, these provisions should not be unbridled or open- ended. These provisions must be defined, structured and its contour delineated
to obviate misuse by influential and unscrupulous elements. Therefore: -
(i) The ex -officio Justice of the Peace, before issuance of a direction on a complaint
for the non- registration of a criminal case under subsection (6)(i) of section 22- A,
Code of Criminal Procedure must satisfy himself that sufficient material is available on the record, such as application to the concerned SHO for registration of the criminal case and on his refusal or reluctance, complaint to the higher police officers i.e. DPO, RPO etc., to show that the aggrieved person, before invoking the powers of ex-officio Justice of the Peace, had recourse to the high ups in the police hierarchy.
(ii) ...... "
7. The logic behind the conferring of powers upon the Justice of Peace under the latest
amendment, which was made in the year 2002, was to enable the aggrieved person to approach the Justice of Peace for the redressal of his grievances, i.e. non -registration of
FIR's, transfer of investigation to the Courts situated at the district level or Session or at
particular Sessions Division. At times, this is being observed that the office of Justice of Peace is being misused by the litigants in order to settle their scores or sometimes to convert the civil litigation into criminal litigation and to use the powers under this section to damage the rival party for certain ulterior motives, which was never the intention of the legislature. For convenience, the provisions of sections 22- A (6) and 154 of the Cr.P.C., are reproduced
hereunder: -
Section -22-A(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
iii) Neglect, failure or excess committed by a police authority in relation to its functions and duties."
"Section 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 into 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
person 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."
By comparing the abovementioned provisions of the Criminal Procedure, it is
abundantly clear that in section 154, Cr.P.C, the word shall have been used while in section 22-A(6), Cr.P.C the word may have been used, which manifests the intention of the
legislature that the Justice of Peace is still left with discretion to pass an order for the registration of FIR that's too in appropriate/certain cases.
Proceedings before the Justice of Peace are quasi -judicial and are not executive,
administrative or ministerial to deal with the matters mechanically rather, the same is quasi-judicial powers in every case before his demand discretion and judicial observations, and that is too after hearing the parties.
8. In view of the latest judgment of this Court 2020 YLR 44, it is abundantly clear that a
party to a 22 -A, Cr.P.C, proceedings shall have the right of hearing to the proceedings and
the person against whom the registration of FIR is sought he has to be afforded an opportunity of hearing and thereafter the Justice of Peace can pass any appropriate order because by not giving notice, the Justice of Peace would be condemning that person unheard by passing an order under the quasi -judicial proceedings. It is, therefore, observed that the
Justice of Peace, before passing any order for the registration of the FIR shall put the other party on notice against whom the registration of FIR is asked for.
9. Now dilating upon the merits of the instant petition. After perusal of the case file, it
revealed that respondent No.1 was nominated in case FIR No. 37 of 2022 dated 15.02.2022 for an offence under section 337- AD PPC at PS Civil Line Quetta with the allegation that he
attacked upon one Bashir Ahmed who received injuries. On 07.03.2022, on the report of a special informer, the Ex -SHO PS Civil Line, along with other police officials, raided at
Jinnah Road, Quetta and apprehended respondent No.1 and got recovered 3888 grams Charas from a vehicle and FIR No.49 of 2022 for an offence under section 9- c of CNS Act 1997 was
registered at P.S Civil Line Quetta. After conducting an inquiry and obtaining the CCTV footage from Jinnah Road and it was further revealed from the CCTV footage that respondent/applicant Naseebullah had put charas in the vehicle of the petitioner, and thereafter, the respondent/applicant was booked in FIR No. 49 of 2022 for an offence under
section 9 -c of the CNS Act 1997. It also revealed from the report of SHO, which was called
by the learned JOP, that respondent/applicant Naseebullah was also involved in many
criminal cases, i.e. FIR No. 95/209, FIR No. 194 of 2020 and FIR No.219/2020 of PS City Quetta, FIR No. 41/2009 and FIR No. 39/2020 of PS Qaid Abad as well as in different decoity cases.
10. It is apparent from the impugned order that the substance of the element was neither
considered nor held in the juxtaposition by the trial court with the material available. The application under section 22- A, Cr.P.C., was filed by the respondent in order to harass and
humiliate the petitioner, which was never the intention of the legislature.
The element of mala fide is quite apparent from the conduct of the
respondent/complainant, and in this view of the matter, the impugned order passed by the
learned Justice of Peace dated 26.03.2022 is not in accordance with the law.
For the reasons discussed above, the instant writ petition is allowed in result whereof
the impugned order dated 26.03.2022 passed by the learned Additional Sessions Judge -VII/
Justice of Peace, Quetta, is set aside.
MH/189/Bal. Petition allowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.