2020 Y L R 44
[Balochistan]
Before Jamal Khan Mandokhail and Rozi Khan Barrech, JJ
Haji ASHRAF and 2 others ---Petitioners
Versus
KHAN MUHAMMAD and 3 others ---Respondents
C. P. No. 203 of 2016, decided on 9th August, 2019.
(a) Criminal Procedure Code (V of 1898) ---
----S. 22 -A---Powers of Ex -officio Justice of Peace---Scope ---Registration of FIR ---
Pendency of civil dispute ---Non -mentioning of date of occurrence and names of witnesses ---
Opportunity of hearing to the proposed accused was not provided--- Effect---Petitioners
assailed order of Ex -officio Justice of Peace whereby he had directed the police to register
criminal case against them ---Allegation of respondent was that his brother had acquired the
property of petitioner on lease; thereafter petitioner along with 20/22 armed persons entered
the property, broke the locks and stole valuable items ---Validity ---Story of respondents was
doubtful as neither any date of occurrence was mentioned in the complaint nor had the
complainant mentioned the names of wi tnesses of the occurrence ---Order of registration of
FIR was passed against petitioners without affording them opportunity of hearing---Civil dispute between the parties was pending---Element of mala fide was apparent from the conduct of respondent ---Const itutional petition was allowed and order passed by Ex- officio
Justice of Peace was set aside.
(b) Criminal Procedure Code (V of 1898) ---
----S. 22- A---Powers of Ex -officio Justice of Peace---Scope ---Registration of FIR ---Scope ---
Ex-officio Justice of Pe ace is not supposed to act mechanically by simply considering the
version of events narrated by a party applying for registration of FIR, but instead, in order to safeguard against misuse or abuse of such process, must apply his mind and satisfy himself that, prima facie, some material is available on record to support such version.
Younas Abbas and others v. Additional Sessions Judge, Chakwal PLD 2016 SC 581
rel.
(c) Criminal Procedure Code (V of 1898) ---
----S. 22 -A---Powers of Ex -officio Justice of Pea ce---Scope ---Registration of FIR ---
Opportunity of hearing to proposed accused--- Scope ---Ex-officio Justice of Peace must
provide opportunity of hearing to proposed accused in case where there is no urgency and there are no chances of the evidence being des troyed ---Ex -officio Justice of Peace is not
required to provide opportunity of hearing to the proposed accused where there is some urgency and there are chances that due to delay in registration of FIR valuable evidence may be destroyed---Ex -officio Justic e of Peace may, if the facts and circumstances of the case
appear to be doubtful or the complaint seemed to be based on mala fide, provide opportunity of hearing to the proposed accused--- Ex-officio Justice of Peace is not obliged to blindly
pass an order for registration of FIR in such cases.
Rai Ashraf and others v. Muhammad Saleem Bhatti and others PLD 2010 SC 691 rel.
Muhammad Akram Shah for Petitioners.
Ameer Hamza Mengal, D.P.G. for Respondents.
Date of hearing: 16th July, 2019.
JUDGMENT
ROZI KHAN BARRECH, J. ---The petitioners have 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, in consideration of above stated facts and circumstances of the case, this Hon'ble court may be pleased to set aside the impugned order dated 5.3.2016 passed by Addl.. Sessions Judge -VI Quetta/
respondent No.3 and to dismiss the application under section 22- A(6), Cr.P.C. filed
by respondent No. 1/applicant, in the interest of justice and equity."
2. Facts of the case are that respondent No.1 namely Khan Muhammad son of Hasam -
ud-Din submitted an application under Section 22- A Cr.P.C. against the petitioners bef ore
the court of learned Additional Sessions Judge -VI, Quetta being designated Justice of Peace
for registration of criminal case under the relevant law on the ground that respondent No.1 had executed an agreement dated 29.05.2015, with one Haji Muhammad A kram, petitioner
No.1's brother, in pursuance whereof the respondent No.1 alleged that a property was leased out to him for purpose of carrying out business of car parking; that the petitioners started interference in the said property and thereafter the p etitioners along with 20/22 other
unknown armed persons entered in the premises and illegally broke the locks and forcibly entered into the same, where- after steal different valuable items i.e. electric articles, service
wires, computer set, fifty five car tons of medicines, batteries, parts of vehicles lying in the
parking. Upon receipt of the application filed by respondents, the learned Justice of Peace called for comments from the concerned SHO, who submitted his comments wherein he admitted to the exten t that there is civil dispute between the parties and at the time of the
alleged incident the petitioners were not present at Quetta, and were at Karachi.
3. After hearing arguments of learned counsel for respondent No.1, the application
submitted by him w as accepted, whereby vide order dated 5.3.2016 ("impugned order") the
SHO concerned was directed for registration of criminal case according to relevant law.
Feeling aggrieved the petitioners have challenged the validity of the said order by filing the instant constitution petition.
4. The respondent No.1 was put on notice, who submitted reply to the instant writ
petition, denying the contents of the same. After filing this petition, the petitioner No.1 submitted a Miscellaneous Application bearing No. 476 of 2016 dated 08.03.2016, whereby
this court vide order dated 9.3.2016 suspended the impugned order dated 05.03.2016.
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. Perusal of the record reveals that respondent No.1 took the ground in his application
under Section 22- A(6) Cr.P.C. that:
"the petitioners/proposed accused started illegal interference in the peaceful business of the complainant/applicant and forcing hi m to vacate the said parking; that
respondent No.1 filed a civil suit before the learned Civil Judge -VI, Quetta, which is
still pending and due to interference and forcible entrance into car parking by the petitioners, the applicant/ respondent No.1 also f iled an application for contempt of
court before the learned Civil Judge -VI, Quetta"
7. It is an admitted fact of the case that the occurrence of the alleged incident arose in
the backdrop of civil dispute between the parties and so far as the constitution of the
cognizable offence is concerned, the story of the applicant seems to be doubtful. Neither any date of occurrence is given in the complaint nor the complainant has mentioned the name of
any witness in his complainant. Perusal of the impugned order, which is based on the report
of the SHO concerned shows that there is dispute over land between the parties and the SHO is still inquiring about the said incident. It is apparent from the impugned order that substance of the allegation was neither consider ed nor weighed in juxtaposition by the trial
court with the material available.
8. In our opinion, a Justice of Peace acting in exercise of Section 22 -A, Cr.P.C, is not
supposed to proceed and act mechanically by simply considering the version of events narrated by a party applying for registration, but instead, in order to safeguard against misuse
or abuse of such process, must apply his mind and satisfy himself that, prima -facie, there is
some material available on the 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 experie nce 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 w ay 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 humble 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 off icer 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 m isuse 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 Proce dure 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 s how 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) ……….."
9. It has also been argued by the learned counsel for the petitioner that as the petitioners
were condemned unheard while passing the impugned order, therefore, the same is liable to
be set aside. We are of the considered view that in cases where the allegations of cheating, fraud, forgery, criminal breach of trust, ineffective firing without causing any injury to any person, criminal trespass, criminal intimidation to commit murder, etc are levelled and no urgency is involved and there are no chances of the evidence being destroyed, in all such cases and other cases of the like nature, the concerned Justice of Peace, must provide an
opportunity of hearing to the proposed accused before giving a direction for registration of
the FIR. However, in the cases where the allegations of murder, causing such injuries to the
aggrieved party attracting cognizab le offences, offences under Anti -Terrorism Act, rape,
sodomy, possession of counterfeit currency, drugs etc have been levelled, in such cases and in all other cases in which some urgency is involved and there are chances that due to the delay in registrati on of the FIR, valuable evidence of the case may be destroyed, there is no
need to provide opportunity of hearing to the proposed accused before registration of the case
and FIR can be lodged without hearing a proposed accused. However, we may clarify here
that even in cases falling under this latter category, if the facts and circumstances of a case so
warrant or appear to be doubtfu1 or a petition for registration of FIR seems to be based on mala fides then opportunity of hearing may be provided to the pr oposed accused. In such like
cases, the Justice of Peace is not obliged to blindly pass an order for registration of the FIR. Reference in this context may be made to the case of 'Rai Ashraf and others v. Muhammad Saleem Bhatti and others' (PLD 2010 Suprem e Court 691), wherein the Hon'ble Supreme
Court was pleased to observe as under:
"as the petition under section 22- A/B of Cr.P.C. was malafidely, filed by the
petitioner of said case against Lahore Development Authority (L.D.A) in order to restrain the pu blic functionaries not to take action against him in accordance with the
L.D.A. Act, 1975, rules and regulations framed thereunder, therefore, the said petition was rightly dismissed by the learned Ex -officio Justice of Peace, Lahore and the order
of High Court, whereby, petition under section 22- A/B of Cr.P.C. was accepted
merely on the ground that a cognizable offence was made out from the contents of said petition, was set -aside. We are therefore, of the considered view that even in
suitable cases fallin g under the latter category, the Justice of Peace should provide
opportunity of hearing to the proposed accused before giving final decision on the petition under section 22 -A/B of Cr.P. C. For example in a case of abduction or rape
of a girl, if the polic e report or the other circumstances suggest that the
abductee/victim, being sui juris, with her free will and consent has contracted marriage with the proposed accused and there is some documentary evidence like registered Nikah Mama, etc. in this respect then a mechanical order for registration of
FIR should not be passed by the Justice of Peace, merely on the ground that a cognizable offence was made out from the contents of the petition for registration of FIR. Similarly, in a case where the allegation o f dacoity has been levelled and the
police report so suggests that petition under section 22- A/B of Cr.P.C. has malafidely
been moved by a person- who is himself an accused in the murder case of the relative
of the proposed accused and the petition under se ction 22- A/B of Cr.P.C. has been
moved in order to save his own skin, in that situation, the Ex- officio/Justice of Peace
must provide an opportunity of hearing to the proposed accused before passing any adverse order against him. In such like cases, opport unity of hearing must be provided
to the proposed accused, by the Justice of Peace by fixing shortest possible dates of hearing before passing a final verdict on the petition under section 22- A/B of Cr.P.C.
However, it is clarified that opportunity of hear ing to a proposed accused of cases
falling under the category of latter cases, is to be provided by the Ex- officio/Justice of
Peace, only in exceptional cases, where the circumstances of a case so warrant and not in all cases of the said category."
10. Now let us dilate upon the merits of the instant petition. The impugned order for
registration of FIR against the petitioners was passed by learned Justice of Peace without
affording an opportunity of hearing as mentioned in ground "C" of the instant petition.
Moreso, there is civil dispute between the parties, which is still pending before the learned Civil Judge -VI, Quetta due to some occurrence the ground taken in the application under
Section 22- A, Cr.P.C. appears to be whimsical. The element of mala fides is quite apparent
from the conduct of the respondent/complainant and in this view of the matter the order
passed by learned Justice of Peace dated 5.3.2016 is not in accordance with law.
For the reasons discussed above, the instant petition is allowed, t he impugned order
dated 3.5.2016 passed by learned Justice of Peace is set aside. However, the complainant/
respondent is at liberty to file a private complaint, if so advised, before the competent forum.
SA/73/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.