2021 P Cr (PLP)

SADIQ MAHMUD KHURRAM, J.

Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the following prayer has been made:- "Under the afore-going facts and submissions, it is most respectfully prayed that instant petition may kindly be accepted and the impugned order dated 30.09.2019 passed by the learned respondent No.1 may kindly be declared illegal, void ab-initio, against the law, facts, null and void and set aside the same in the interest of justice and equity and application under section 22-A, Cr.P.C. filed by the respondent No.4 may also be dismissed."

2. Learned counsel for the petitioner, inter alia contends that the order passed by learned Ex-officio Justice of Peace, dated 30.09.2019 is against the facts and law; that the perusal of the application as filed by the respondent No.4 did not reveal commission of any offence under section 405, P.P.C. made punishable under section 406, P.P.C.; that the comments as filed by the police were in favour of the petitioner, however, the same have not been referred to, by the learned Justice of Peace while passing the impugned order, hence, the impugned order is liable to be set aside.

3. Conversely, Mr. Aftab Hussain Malik, Advocate for respondent No.4 submitted that from the contents of the application, moved by the respondent No.4, a cognizable offence was made out and the Ex- Officio, Justice of Peace had rightly passed the impugned order in accordance with law.

4. The learned Law Officer has submitted a report on behalf of the respondent No.3/Station House Officer Police Station B-Division, District Dera Ghazi Khan.

5. I have heard the learned counsel for the parties and perused the documents appended with this writ petition as well as the impugned order passed by learned respondent No.1 and the report submitted on behalf of the respondent No.3/Station House Officer Police Station B-Division, District Dera Ghazi Khan. 6 The record evinces that respondent No.4 lodged an application under sections 22-A and 22-B, Cr.P.C. before the learned Ex-Officio Justice of the Peace alleging therein that the petitioner dishonestly misappropriated two cheques, drawn by the respondent No.4, of the total value of Rs.8,00,

000. The report and parawise comments were requisitioned from the SHO concerned by the learned Ex-Officio Justice of the Peace and this Court, which depict that the respondent No.4 had drawn a cheque of Rs.4,00,000/-, in favour of the petitioner, which on presentation before the concerned bank authorities, was dishonoured and an FIR No.35 of 2018 dated 28.01.2018 was registered at Police Station B-Division, District Dera Ghazi Khan in respect of an offence under section 489-F, P.P.C. The respondent No.4 was declared a proclaimed offender in the said case and was subsequently arrested. The report and parawise comments requisitioned by this Court are available on the file, wherein, the SHO concerned has reported that no such occurrence of the petitioner dishonestly misappropriating two cheques drawn by the respondent No.4 of the total value of Rs.8,00,000 had taken place and respondent No.4 wanted to involve the petitioner in false litigation. Moreover, respondent No.4 has not produced any cogent evidence in support of his allegations. The Justice of Peace without applying his mind passed a mechanical order, by not even considering the Police Report, which would encourage the trend already in vogue to manage to get an order against the petitioner. Even otherwise, respondent No.4 did not approach the Court with clean hands and apparently had withheld and concealed the material facts that he had been arrested in case FIR No.35 of 2018 dated 28.01.2018 was registered at Police Station B-Division, District Dera Ghazi Khan in respect of an offence under section 489-F. P.P.C. regarding the same cheque.

7. 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 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 called 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 report 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). Exposing a person to investigative process and face rigors of criminal prosecution is a no small measure; there must exist reasonable and tangible material, with evidential basis to set the law into motion so as to bring about an indictment. The insertion of section 22-A(6)(iii) was never meant to necessary allow every such application else the legislature would not have used word 'may' in subsection (6) which (word may) always speaks of 'discretion' by application of mind. Thus, it is settled law that the Ex: Officio, Justice of Peace may refuse to issue direction regarding registration of case and may competently dismiss application under section 22-A(6), Cr.P.C., reminding the complaining person of his alternative statutory remedies under section 156(3), Cr.P.C. and 190, Cr.P.C., as well as he has remedy to file criminal/private complaint under section 200, Cr.P.C. So also there are cases where complainant party may be in better position in pressing its allegations by filing criminal complaint, rather than forcing the police to register the criminal case and to investigate when the police itself was not convinced of the complainant party's allegations being correct. In this respect reliance may be placed upon case of 'Habibullah v. Political Assistant Dera Ghazi Khan and others' (2005 SCMR 951).

8. For the above identified reasons, it is a fit case for interference and invalidation of the impugned order. Therefore, by allowing this petition, impugned order dated 30.09.2019 passed by the learned Ex-Officio Justice of Peace, Dera Ghazi Khan is set-aside. However, the respondent No.4 shall be at liberty to avail alternate remedy of filing private complaint for redressal of his grievance, if so advised, and if any such complaint is filed, the learned court concerned shall decide the same strictly on its own merits in accordance with law without being influenced by the observations of any orders of the Court. SA/T-21/L Petition allowed.