PLJ 2018 Quetta 79 (DB)
Present : MRS. SYEDA TAHIRA SAFDAR AND ZAHEER -UD-DIN KAKAR , JJ.
GHULAM HAIDER --Petitioner
versus
ADDITIONAL DISTRICT & SESSIONS JUDGE and others --Respondents
C.P. No. 382 of 2015, decided on 9.10.2017.
Criminal Procedure Code, 1898 (V of 1898) --
----S. 22- A--Constitution of Pakistan, 1973, Art. 199--Constitutional petition --Ancestral
property --Joint possession--Forcibly looted two bags of shnay fruits --Application for
registration of case before Tehsildar --Refused --Application f or registration of case to ASJ --
Rejected --Direction to --Validity --Ex-Officio JoP under Section 22- A(6), Cr.P.C. have to
examine whether information disclosed by petitioner did or did not constitute a cognizable
offence and if it did then to direct concerne d Tehsildar to register F.I.R --It is settled principle
of law that Ex -Officio JoP while seized of a petition under Section 22- A/22 -B, Cr.P.C. is not
to act mechanically by issuing a direction for registration of a criminal case in each and every case, which had to be decided on its own peculiar facts --Petition dismissed. [P. 81] A
& B
Syed Ayaz Zahoor, Advocate for Petitioner.
Date of hearing: 21.9.2017.
J
UDGMENT
Zaheer -ud-Din Kakar, J.--The petitioner through this petition assailed the validity of order
dated 25.3.2015 (the impugned order), passed by the Additional Sessions Judge in his
capacity as Ex -Officio Justice of the Peace. Dalbandin (Ex -Officio JoP), whereby the
application under Section 22- A, Cr.P.C. filed by the petitioner was dismissed.
2. Pre cisely stated facts of the case are that the petitioner filed an application under Section
22-A, Cr.P.C. for registration of case against one Munawar and Syed Muhammad alleging
therein that he was owner of the landed property and Shnay trees situated at Na rmag Mouza
Birabchah Tehsil Dalbandin. The said property claimed to be ancestral property whereas, he and his brothers are in possession of the same; that on 4.9.2014 at about 9:00 a.m., the
accused persons Munawar and Syed Muhammad along with six unknown persons armed with
Kalashnikov came to their property and forcibly looted two bags of Shnay fruits from his
Bazgars , such information was brought into his knowledge and he without wasting any time
submitted an application for registration of the case befor e Respondent No. 2, but he refused
to register the case. Thereafter, he filed an application under Section 22- A, Cr.P.C. before
Respondent No. 1 who after calling for a report from the concerned Tehsildar rejected the application vide impugned order, hence this petition.
3. Learned counsel for the petitioner contended that the impugned order passed by the Ex -
Officio Justice of Peace is contrary to the facts and law; that there are various illegalities,
irregularities and improprieties, on the basis whereof as well the impugned order is not
sustainable and liable to be set aside and directions be issued to the concerned authorities to
register the F.I.R against the proposed accused persons.
4. We have heard learned counsel for the petitioner and have gone t hrough the available
record, perused the application under Section 22- A, Cr.P.C. and the impugned order.
5. Before proceeding further, it is necessary to mention here that in the case of Muhammad Bashir v. Station House Officer, Okara Cantt. and others {P LD 2007 SC 539} the Hon’ble
Apex Court has been pleased to observe as under:
“40. Therefore, in our opinion, the only jurisdiction which could be exercised by an Ex-Officio Justice of the Peace under Section 22 -A(6), Cr.P.C. was to examine
whether the info rmation disclosed by the applicant did or did not constitute a
cognizable offence and if it did then to direct the concerned S.H.O to record an F.I.R, without going into the veracity of the information in question, and no more. Offering
any other interpret ation to the provisions in question would be doing violence to the
entire scheme of the, Cr.P.C. which could not be permitted.
41. We are conscious of the fact that in pursuance of petitions filed under Article 199
of the Constitution, the High Courts, at times, did refuse to issue writs directing recording of F.I.Rs. Suffice it to say that the exercise of discretion under the said jurisdiction was not dependent only on an illegality committed by a competent authority but was also controlled by some other i mportant consideration such as the
seeker of a writ being an aggrieved person; availability of alternative remedies such as filing of a complaint etc. in criminal matters and the applicant being qualified, in equity, for the grant of the sought relief. The powers of the Ex -Officio Justice of
Peace under Section 22 -A(6) of the, Cr.P.C. could, therefore, not be equated with the
constitutional jurisdiction vesting in a High Court.”
6. In view of the above legal position, we are clear in our mind to observe that Ex -Officio
JoP under Section 22- A(6), Cr.P.C. have to examine whether the information disclosed by the
petitioner did or did not constitute a cognizable offence and if it did then to direct the
concerned Tehsildar to register F.I.R. Perusal of the impug ned order which based on the
reports of Tehsildar and Qanongo (not annexed with the petition) shows that there is a dispute between the parties over the land and both the parties are claiming ownership of the same
whereas the land where alleged trees are p lanted is Beroon -az-Line ( ﺑﯿﺮون از ﻻﺋﻦ
.)In the
instant case as per impugned order which was based on the report of Tehsildar and Qanongo, it is clear that the dispute between the parties is civil in nature and the Ex -Officio JoP passed
a well reasoned or der. Further, it is settled principle of law that the Ex -Officio JoP while
seized of a petition under Section 22- A/22 -B, Cr.P.C. is not to act mechanically by issuing a
direction for registration of a criminal case in each and every case, which had to be d ecided
on its own peculiar facts as has been held by the Lahore High Court Lahore in case Mian
Abdul Waheed v. Additional Sessions Judge Lahore and 7 others {2011 P.Cr.L.J 438}. In any
case the allegation leveled against the accused persons by the petition er cannot be gone into
by this Court while exercising its extra -ordinary constitutional jurisdiction, as the same would
entail a factual inquiry.
7. For what has been discussed hereinabove, learned counsel for the petitioner has failed to
point out any il legality or irregularity in the impugned order calling interfering by this Court
in its constitutional jurisdiction. Resultantly, the instant petition is dismissed in limine .
(Y.A.) Petition dismissedThis 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,
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