P L D 2021 Balochistan 63
Before Muhammad Hashim Khan Kakar and Abdul Hameed Baloch, JJ
MUHAMMAD JAFFAR MAGSI ---Petitioner
Versus
SANAULLAH and 2 others ---Respondents
Constitution Petitions Nos.(s) 1 and 21 of 2020, decided on 14th October, 2020.
Criminal Procedure Code (V of 1898) ---
----S. 22- A---Ex-officio Justice of Peace, powers of ---Registration of FIR ---Reasons to be
furnished for passing an order contrary to the police report ---Scope ---Ex-officio Justice of
Peace on application of the respo ndent under S.22 -A, Cr.P.C. containing allegations that the
Assistant Commissioner along with Levies Officials came to his house, beaten two persons,
detained them for three hours, set his residential hut on fire as a result of which his educational docume nts were burnt into ashes not only that an amount of rupees seven million
and four hundred thousand were found missing, in view of such circumstances, Tehsildar be directed to register FIR against the nominated persons ---Ex -officio Justice of Peace had
obtained report from the concerned Tehsildar which had elaborated that no such offence took
place, however, despite such report Ex- officio Justice of Peace had ordered for registration of
FIR without any corroborative material from the complainant ---Ex -offici o Justice of Peace
was not required to blindly allow a request of the complainant and to believe the averments of the complaint as gospel truth ---Ex-officio Justice of Peace was supposed to furnish
tangible reasons for not relying upon the solicited report ---Constitutional petitions were
allowed and the order passed by Ex- officio Justice of Peace was set aside.
Nazim Hussain v. Additional Sessions Judge/Ex -officio Justice of the Peace, Nankana
Sahib 2017 PCr.LJ Note 35 rel.
Mian Muhammad Khalid v. Statio n House Officer Police Station Manawan 2017
PCr.LJ Note 9 fol.
Naveed Qambrani, Muhammad Adil and Matiullah for Petitioner (in Constitution
Petition No. 1 of 2020).
Jameel Akhtar Gajani, Additional Prosecutor General, Zahoor Ahmed Baloch,
Assistant Advoc ate General and Asif Reki and Jameel Agha for Respondent No.1 (in
Constitution Petition No. 1 of 2020).
Abdul Wahab, Assistant Commissioner Jhal Magsi Petitioner No.1 present in person
(in Constitution Petition No. 21 of 2020).
Jameel Akhtar Gajani, Addi tional Prosecutor General, Zahoor Ahmed Baloch,
Assistant Advocate General and Asif Reki and Jameel Agha for Respondent No.1 (in
Constitution Petition No. 21 of 2020).
Date of hearing: 23rd September, 2020.
JUDGMENT
ABDUL HAMEED BALOCH, J. ---By means of this common judgment we intend to
dispose of Constitutional Petition No. (s) 01 of 2020 and No. (s) 21 of 2020, as the same have been directed against the order dated 31st December, 2019 (impugned order) of Additional Sessions Judge/Ex- officio Justice of t he Peace Jhal Magsi at Gandawah, whereby
Tehsildar Jhal Magsi was directed to register FIR against the nominated persons according to
law, investigate the matter and submit challan before the concerned court. The petitioners of
both the petitions prayed for declaring the impugned order being illegal, unwarranted and
prayed for quashment of proceedings emerged out of the impugned order.
2. Concise facts of the instant petitions are that the respondent No. 1 Sanaullah filed an
application under Section 22- A C riminal Procedure Code (Cr.P.C.) before the Additional
Sessions Judge/Ex- officio Justice of the Peace Jhal Magsi at Gandawah stating that on 7th
November, 2019 at 5:00 p.m. Abdul Wahab Assistant Commissioner Jhal Magsi along with
Levies Officials came to h is house at Mouza Garh Tehsil and District Jhal Magsi and beaten
Muhammad Ayub and Abdul Sattar. It was further alleged that Abdul Wahab Zehri Assistant
Commissioner Jhal Magsi and Muhammad Din Banglani Levies official set on fire his resident but (Landhi) and forcibly took away both the above named persons with them and
detained them in illegal confinement for three hours. It was alleged that due to fire his educational documents i.e. Form -B, Matric/Secondary School Certificate, passport, local
certificate and original documents of Vehicle No. AZT -510 burnt into ashes. It was alleged
that an amount of Rs. 7,400,000/ - (Rupees seven million and four hundred thousand)
belonging to Salar Khan were also found missing. It was alleged that the instant act was done
by them on the instigation of Muhammad Jaffar Khan. It was further alleged that before this on 5th November, 2019 a false case vide FIR No. 31 of 2019 was also registered by the complainant Asghar Ali on the conspiracy of Muhammad Jaffar Khan and Assistant Commissioner Jhal Magsi, in which the respondent No. 1 has obtained protective bail from High Court on 13th November, 2019 and thereafter, went to Levies Thana for registration of FIR, but of no avail. With these averments application was filed.
3. After filing of application under section 22- A, Cr.P.C, the learned Additional
Sessions Judge/Ex- officio Justice of the Peace Jhal Magsi at Gandawah called repot from
Tehsildar Levies Thana Jhal Magsi and after receiving report the learned Additional Sessions Judge/ Ex- officio Justice of the Peace Jhal Magsi at Gandawah vide order dated 31st
December, 2019 accepted the application and directed Tehsildar Jhal Magsi to register FIR against the nominated persons, hence the petitioners are before this court.
4. Learned counsel for the petitioners contended that the order of the learned Additional
Sessions Judge/Ex- officio Justice of the Peace Jhal Magsi at Gandawah is against the law.
The order was passed without any evidence. The respondent No.3 sought report fr om
respondent No.2, who submitted report stating that no such occurrence has ever taken place
within the jurisdiction of Levies Thana Jhal Magsi. The learned Additional Sessions Judge/Ex -officio Justice of the Peace Jhal Magsi at Gandawah without any evidence ordered
for registration of FIR on the basis of application of respondent No. 1, which is totally illegal
and uncalled for.
5. Learned counsel for the respondent No. 1 has controverted the contention of
petitioners and stated that the petitioners have committed cognizable offence. The Tehsildar
Jhal Magsi is subordinate of petitioner No. 1 (in C.P. No. 21 of 2020). He submitted a false report in favour of respondent No. 1. The respondent No. 3 has rightly disbelieved the report of Tehsildar Jhal Magsi a nd ordered for registration of FIR, which is legal and justifiable.
6. Heard learned counsel for the parties. We have also gone through the record with
their assistance. The record transpires that the respondent No. 1 submitted an application for
registrat ion of FIR in the month of November, 2019 to Tehsildar Levies Thana Jhal Magsi,
whereafter, filed an application under section 22- A Cr.P.C. before learned Additional
Sessions Judge/Ex- officio Justice of the Peace Jhal Magsi at Gandawah for an order of
registration of FIR against the accused persons whose names mentioned in the application,
on which the learned Additional Sessions Judge/Ex- officio Justice of the Peace Jhal Magsi at
Gandawah ordered for registration of FIR vide order dated 31st December, 2019 .
7. The Ex -officio Justice of the Peace on an application under section 22 -A(6), Cr.P.C.
for registration of case is not required to allow the request of complainant blindly and without application of legal mind. The Ex- officio Justice of the Peace is com petent to
examine the application of the complainant with application of legal mind and not to believe
the averments of the complainant is gospel truth. The Ex- officio Justice of the Peace should
examine whether the information did constitute cognizable of fence or not. The learned Ex -
officio Justice of the Peace sought report from the concerned Tehsildar. As per report no such offence was committed in their area. Despite such report without any corroborative
material from complainant the Ex -officio Justice of the Peace ordered for registration of FIR
merely on the allegations of the complainant/ respondent No. 1. The record further reveals
that the petitioner (in C.P. No. 01 of 2020) has already registered a criminal case against the complainant/respondent N o. 1, copy whereof has already been placed before the Ex -officio
Justice of the Peace. It is astonishing that the respondent No. 1 kept all the educational testimonials and more than seven million in hut (Landhi). Reliance is placed on Mian
Muhammad Khalid v. Station House Officer Police Station Manawan 2017 PCr.LJ Note 9. It
was held therein:
"10. 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 emphasized 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 ca lled
for, the Justice of Peace cannot ordinarily brush it aside. And, in case the Justice of Peace who proposed to air an order contrary to the Police Report, in addition, 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 v. Additional Sessions Judge/Justice of Peace Jampur and 3 others" (2014 PCr.LJ 1146)."
8. The concept of 22- A(6), Cr.P.C. is not meant to invoke the provisions for harassment
and personal grudge. The court should not allow the application in a mechanical manner and
should apply its mind judiciously whether the applicant has approached the court malafidely
or with clean hands. The enactment of this provision by the legislator does not mean to exercise for humiliation of citizen. Reliance is placed on the case Nazim Hussain v.
Additional Sessions Judge/Ex- officio Justice of the Peace, Nankana Sahib 2017 PCr.LJ Note
35, wherein it was held:
"----The learned Justice of Peace is not required to pass order for registration of case
in each and every case rather the learned Justice of Peace should look into respective contentions of both the parties. I may observe here that when matter relates to documents i.e. agreement etc. then it is the duty of the Justice of Peace to procure the attendance of respondent (accused) before passing order for registration of case. Admittedly in this case, learned Justice of Peace has passed the impugned order at the back of petitioner without procuring his attendance. This court is conscious of the fact that once FIR is registered against a person h is whole family suffers and he has to go
through the rigours of investigation by police.
In view of what has been discussed above, the Constitutional Petition No. (s) 01 of
2020 and No. (s) 21 of 2020 are allowed and the order dated 31st December, 2019 pa ssed by
learned Additional Sessions Judge/Ex- officio Justice of the Peace Jhal Magsi at Gandawah is
declared null and void/ set aside and any proceedings emerged out of the impugned order are quashed.
SA/261/Bal. Petitions 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.