2018 Y L R 1897
[Balochistan]
Before Mrs. Syeda Tahira Safdar and Zaheer ud Din Kakar, JJ
GHULAM HAIDER ---Petitioner
Versus
ADDITIONAL DISTRICT AND SESSIONS JUDGE/JUSTICE OF PEACE,
DALBANDIN and 2 others ---Respondents
C. P. No.382 of 2015, decided on 9th October, 2017.
(a) Criminal Procedure Code (V of 1898) ---
----S. 22- A---Application for registration of case against accused persons was dismissed by Ex -
officio Justice of Peace--- Contention of applicant was that he was owner of landed property
and fru it trees, which was his ancestral property ---Said property was in possession of petitioner
and his brother ---Accused persons along with six unknown persons came there and forcibly
looted two bags of fruit ---Petitioner submitted application for registration of case but Tehsildar
refused to register the same ---Petitioner filed application under S. 22- A, Cr.P.C. before Ex -
officio Justice of Peace, who rejected the same--- Validity ---Ex -Officio Justice of Peace under
S. 22- A(6), Cr.P.C. had to examine whether the information disclosed by the applicant did or
did not constitute a cognizable offence and if it did then to direct the concerned Tehsildar to
register FIR ---Record showed that there was a dispute between the parties over the land and
both the parties wer e claiming ownership of the land in question whereas the land where alleged
trees were planted was Beroon -az-Line---Dispute between the parties was that of civil nature
and the Ex -officio Justice of Peace had passed a well reasoned order ---Allegation levelled
against the accused persons by the applicant could not be gone into by High Court while exercising its extra -ordinary constitutional jurisdiction, under Art.199 of the Constitution as
the same would require a factual inquiry ---Constitutional petition w as dismissed in
circumstances.
Muhammad Bashir v. Station House Officer, Okara Cantt and others PLD 2007 SC 539
rel.
(b) Criminal Procedure Code (V of 1898) ---
----Ss. 22- A & 22 -B---Ex -officio Justice of Peace, jurisdiction of ---Scope --- Ex-officio Justi ce
of Peace while seized of application under Ss.22- A & 22 -B, Cr.P.C. was not to act mechanically
by issuing direction for registration of criminal case in each and every case. Mian Abdul Waheed v. Additional Sessions Judge Lahore and 7 others 2011 PCr.L J
438 rel. Syed Ayaz Zahoor for Petitioner.
Date of hearing: 21st September, 2017.
JUDGMENT
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 Ses sions
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. Precisely stated facts of the case are that the petitioner filed an ap plication 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 Narmag 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 Kalashinkov 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 before 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 as ide and directions be issued to the concerned authorities to
register the FIR against the proposed accused persons.
4. We have heard learned counsel for the petitioner and have gone through 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 (PLD 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 22A(6) Cr.P.C. was to examine whether the information disclosed by the applicant did or did not constitute a cognizable off ence
and if it did then to direct the concerned S.H.O. to record an FIR, without going into the veracity of the information in question, and no more. Offering any other interpretation to the provisions in question would be doing violence to the entire sche me
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 FIRs. 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 important consideration such as the seeker of a writ being an aggrieved person; av ailability 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. c ould, 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 inform ation disclosed by the
petitioner did or did not constitute a cognizable offence and if it did then to direct the concerned Tehsildar to register FIR. Perusal of the impugned 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 planted is Beroon -az-Line ( ). In the instant case as per impugned order which
was bas ed 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 order. Further, it is
settled principle of law that the Ex -Officio JoP while seized of a petition u nder 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 as has been held by the Lahore High Court Lahore in case Mian Abd ul Waheed v. Additional Sessions Judge
Lahore and 7 others (2011 PCr.LJ 438). In any case the allegation levelled against the accused persons by the petitioner cannot be gone into by this Court while exercising its extra -ordinary
constitutional jurisdictio n, 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 illegality or irregularity in the impugned order calling interfering by this Court in its constitutional jurisdiction. Resultantly, the instant petition is dismissed in limine.
JK/154/Bal. Petition dismissed.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,
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