Noorullah and others V. Additional District and Sessions Judge and others,

2015 P Cr. L J 1509

[Balochistan]

Before Muhammad Kamran Khan Mulakhail and Mrs. Syeda Tahira Safdar, JJ

NOORULLAH and others ---Petitioners

versus

ADDITIONAL DISTRICT AND SESSIONS JUDGE and others ---Respondents

Constitutional Petitions Nos. 475,493, 496, 513, 518 of 2014, decided on 25th May, 2015.

Criminal Procedure Code (V of 1898) ---

----Ss. 22- A, 22- B & 561- A---Constitution of Pakistan, Art.199---Constitutional petition --- Maintainability ---Justice of Peace---Powers and jurisdiction of ---Nature ---Order of Justice of Peace was not assailable under S.561- A, Cr.P.C.---Powers of Justice of Peace, were merely administrative and ministerial in nature and character ---Any order passed under Ss.22- A & 22 -B, Cr.P.C., did not involve any adjudicat ion, which could be termed as judicial in nature and character ---Any order passed by ex -officio Justice of Peace, would not be assailable under S.561- A, Cr.P.C., and being administrative/executive in nature, could only be assailed under Art.199 of the Cons titution.

Khizar Hayat and others v. Inspector General of Police Punjab and others PLD 2005 Lah. 470; Emperor v. Khwaja Nazir Ahmad AIR (32) 1945 PC 18; Shahnaz Begum v. The Hon'ble Judges of the High Court of Sindh and Balochistan and another PLD 1971 SC 677; Nazir Ahmed and others v Muhammad Shafi and another PLD 1980 SC 65; Bahadur and another v The State and another PLD 1985 SC 62 and Muhammad Ali v. Additional I.G. Faisalabad and others PLD 2014 SC 753 ref.

Syed Ayaz Zahoor and Masoom Khan Kakar for Petitioner (in C.P. No.475 of 2014).

Nauroz Khan Mengal (absent) for Petitioner (in C.P. No.493 of 2014).

Abdul Ghani Mashwani (absent) for Petitioner (in C.P. No.496 of 2014).

Sohail Ahmed Rajpoot (absent) for Petitioner (in C.P. No.518 of 2014).

Saleem Lashari for Petitioner (in C.P. No.513 of 2014).

Muhammad Aslam Chishti, Senior Advocate Supreme Court Amicus Curie.

Zahoor Ahmed Baloch, Additional Advocate General for the State.

Date of hearing: 4th May, 2015.

ORDER

MUHAMMAD KAMRAN KHAN MULAKHAIL, J. ---These Constitutional Petitions have been preferred against the orders passed by respective Sessions/Additional Sessions Judges in their capacity as ex -officio Justices of the Peace on applications filed under section 22- A Cr.P.C. The constitutional Petition No. 475 of 2014 was filed on 26- 6-2014 and came up for hearing on 8- 7-2014, when the following order was passed:

"The learned counsel to satisfy whether constitutional petition lies against an order passed under section 22- A, Cr.P.C. and whether alternate remedy under section 561- A, Cr.P.C. is not available.

Branch to put up orders passed in this regard by the court along with this petition on the next date of hearing as well ."

On subsequent date of hearing i.e. 10 -7-2014, Mr. Muhammad Aslam Chishti, Senior Advocate Supreme Court, was appointed amicus in the instant petition, who was already appointed amicus in C.P. No.209 of 2014, which is pending and is fixed for 26- 7-2015. However, it is pertinent to mention here that in referred C.P. entirely different question of law is under consideration, which has no nexus with the proposition involved in these petitions. On the aforesaid direction, the office has listed these petitions together, as identical question of law was involved.

2. The necessity to dilute upon the referred to proposition aroused when this court vide order dated 26- 12-2012 passed in Criminal Quashment Petition No.281 of 2012, set aside the order dated 27th June, 2012 passed by the Additional Sessions Judge -IV Quetta being designated justice of the Peace. The order passed in referred petition was assailed before the Hon'ble Supreme Court of Pakistan in Criminal Petition No.58- Q of 2013, whereby leave was gran ted on law point to the effect that "whether the order passed by the learned Justice of the Peace being Administrative/Executive order in nature can be assailed/set aside under inherent powers of this court as enumerated under section 561- A Cr.P.C.". On gr ant of leave, the petition was registered as Criminal Appeal No.113 of 2014, whereby vide order dated 15- 4-2014 with consent of the parties the order dated 26 -12-2012 passed by this court, was set aside with an opportunity to the respondent to assail the order dated 27- 6-2012 passed by ex officio Justice of the Peace by availing the alternate remedy before this court.

3. The proposition whether the order passed by the ex officio Justice of Peace is assailable under section 561- A, Cr.P.C. emerged in the ba ckdrop of Jameel Akbar Bugti's case i.e. Criminal Miscellaneous Application No.319 of 2009, when a Single Bench of this court rendered the order dated 7 -10-2009 and held that the order passed by the Justice of the Peace can only be assailed under section 561- A, Cr.P.C. Thereafter, the orders, passed by ex -officio justice of the Peace were being assailed in Criminal Miscellaneous Quashment Petitions under section 561 -A, Cr.P.C.

4. It is imperative to observe here that prior to pronouncement of the judgment by this court in Jameel Akbar Bugti's case, the full bench of the Hon'ble Lahore High Court had already rendered a decision in the case of Khizar Hayat and others v. Inspector General of Police Punjab and others (PLD 2005 Lahore 470), while placing relian ce on the judgment rendered in Emperor v. Khwaja Nazir Ahmad AIR (32) 1945 PC 18, Shahnaz Begum v. The Hon'ble Judges of the High Court of Sindh and Balochistan and another (PLD 1971 SC 677), Nazir Ahmed and others v. Muhammad Shafi and another (PLD 1980 S C 65) and Bahadur and another v. The State and another (PLD 1985 SC 62) Hon'ble Mr. Justice Asif Saeed Khan Khosa, when speaking for the full bench as a judge of the Hon'ble Lahore Court, Lahore observed as under:

"Adverting now to question number (b) framed by us as to whether in Pakistan a Justice of the Peace or an ex -officio Justice of the Peace exercises judicial powers or his functions are merely administrative and ministerial in nature and character we have already observed above in our discussion in respect of question number (a) that the powers and duties of a Justice of the Peace or an ex -officio Justice of the Peace in Pakistan as provided in sections 22- A and 22- B, Cr.P.C. do not involve any jurisdiction which can be termed as judicial in nature or character. In this context the role of a Justice of the Peace or an ex -officio Justice of the Peace in Pakistan is sharply different from that now enjoyed by their counterparts in the United Kingdom and the United States of America where some judicial role regarding summary trial of petty civil and criminal cases has been conferred upon the Justices of the Peace through legislative intervention. That surely is not the case in Pakistan where no statute confers any judicial power upon a Justice of the Peace or an ex officio Justice of the Peace. We can, therefore, safely hold that functions to be performed by a Justice of the Peace or an ex -officio Justice of the Peace in Pakistan are merely administrative and minis terial in nature and character. We feel fortified in so holding by the provisions of section 6, Cr.P.C. which categorizes the classes of criminal courts and Magistrates in Pakistan and a Justice of the Peace or an ex -officio Justice of the Peace is not included in any such class of courts or Magistrates. Apart from that, sections 28 and 29, Cr.P.C. specify as to which courts are to try which offences and in those sections too a Justice of the Peace or an ex -officio Justice of the Peace does not figure at al l. In the case of Pir Abdul Qayyum Shah v. S.H.O. and 4 others (2005 PCr.LJ 357) a learned Judge -in-Chamber of this Court has already held that a revision petition is not competent against an order passed by an ex - officio Justice of the Peace under section 22-A(6), Cr.P.C. because the jurisdiction conferred under the said provision of law is administrative in nature and not judicial and, thus, not amenable to revisional jurisdiction of this Court."

5. Syed Ayaz Zahoor, Advocate for the petitioner in CP No. 475 of 2014 in addition to placing reliance on judgments supra mainly relied upon the judgment of the Hon'ble Supreme Court in case of Muhammad Ali v. Additional I.G. Faisalabad and others (PLD 2014 SC 753).

6. Mr. Muhammad Aslam Chishti, the learned a micus curie and the learned counsel appearing for the petitioners in the connected Constitutional Petitions endorsed the arguments advanced by Syed Ayaz Zahoor, Advocate and were in unison that the order passed by ex officio Justice of Peace is not a judicial order, therefore, is not amenable to the provision of section 561- A, Cr.P.C.

7. The respective Sessions/Additional Sessions Judges have been empowered to exercise the duties of Justice of the Peace under section 25, Cr.P.C. as substituted vide Code of Criminal Procedure (Third Amendment) (Ordinance No.CXXXI) Ordinance, 2002, dated 21- 11-2002, therefore, the presiding officers of respective courts are also performing the functions as an ex officio Justice of the Peace, but these powers are merely admin istrative and ministerial in nature and character. Any order passed under sections 22- A and 22- B, Cr.P.C. does not involve any jurisdiction which can be termed as judicial in nature or character. Therefore, it is instructive to reproduce the relevant passa ge from the judgment supra, which speaks as under:

"In view of the legal position discussed above we have entertained no manner of doubt that the order passed by the ex -officio Justice of the Peace under section 22 -A(6), Cr.P.C. and impugned by the peti tioner before the Lahore High Court, Lahore was an executive/administrative order and that the petitioner's petition filed under section 561- A, Cr. P.C. before the Lahore High Court, Lahore assailing the said order passed by the ex officio Justice of the P eace was not competent or maintainable."

Thus, in view of above discussion and the latest view rendered by the Hon'ble Supreme Court of Pakistan, whereby it has been held that any order passed by ex officio Justice of Peace would not be assailable under section 561- A, Cr.P.C. and same being administrative/executive in nature can only be assailed under Article 199 of the Constitution, the question of maintainability of these petitions is, therefore resolved in affirmative.

Office to issue notices to th e petitioners and their respective counsel and fix all these petitions together for Katcha Peshi on a date which shall be fixed by the office.

Copy of this order be also placed on the files of all the connected petitions.

HBT/69/Bal. Order acco rdingly.