2013 PLP 674 (MLD)

SYED MUHAMMAD KAZIM RAZA SHAMSI, J.

This petition, filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, is directed against an order dated 10-7-2012 passed by the learned Ex-Officio Justice of Peace, Lahore whereby the application filed by respondent No.3 under sections 22-A & 22-B Cr.P.C. was accepted and the S.H.O. Police Station, Faisal Town, Lahore was directed to record the version of respondent No.3 and to register the case.

2. Brief facts of the case are that in case F.I.R. No.315 of 2012 Wamiq Zaka petitioner filed his pre-arrest bail petition before the trial Court, which was dismissed for non-prosecution vide order dated 3-5-2012. Subsequently another application was filed by the petitioner on the same day with the request of bail on which application the Reader of the Court recorded the order of issuance of notice to the State and counsel for the complainant. On the application of bail petitioner that no order for grant of interim bail was passed. Later on by realising mistake the petitioner moved another application for passing interim bail order upon which the Court on 14-5-2012 admitted the bail petitioner to ad interim pre-arrest bail till 17-5-2012. In the meanwhile Shanshah Shamil Paracha, Advocate, present petitioner, issued a certificate mentioning the fact that Wamik Zaka bail petitioner stood admitted to ad interim pre-arrest bail on 10-5-2012 till 17-5-2012, which certificate bears the date of 10-5-2012.

3. In this background respondent No.3 filed an application under sections 22-A and 22-B, Cr.P.C. before the learned Ex-Officio Justice of Peace stating that Mr.Shamil Paracha, Advocate has cheated the Court by issuing a fake certificate that Wamiq Zaka was allowed bail w.e.f. 10-5-2012 to 17-5-2012 when the Court did not grant ad interim pre-arrest bail to said person on 10-5-2012, thus prayed for registration of the case.

4. Learned Ex-Officio Justice of Peace on receipt of the application issued direction to the S.H.O., Police Station concerned for recording the version of the petitioner for registering the crime report accordingly. This order has given the present petitioner cause of institution of instant petition.

5. It is contended by the learned counsel for the petitioner that respondent No.3 did not file any application before S.H.O. Police Station concerned prior to approaching the Court of learned Ex-Officio Justice of Peace, therefore, the direction issued by respondent No.1 is illegal and liable to be set aside. In this connection a reference is made to application for having a certified copy of the application filed by respondent No.3 before the S.H.O. Police Station and on that application it was reported by the office that such application was not annexed with the petition filed under sections 22-A and 22-B, Cr.P.C. Next contended that infact the Court was allegedly cheated by the petitioner but respondent No.3 did not file any application before the Court, which granted ad interim pre-arrest bail to Wamiq Zaka, therefore, no offence is made out from the perusal of application of respondent No.3. It is maintained that infact on 3-5-2012 when the fresh application for grant of bail was filed in the Court, the Court had announced the order granting ad interim pre-arrest bail to Wamiq Zaka but due to negligence of the Reader of the Court the order could not be recorded and when the petitioner went to file bail bonds before the Court it transpired that the order for grant of ad interim pre-arrest bail was not recorded in the order on 3-5-2012. On having this information an application was filed before the Court with the request for grant of ad-interim pre-arrest bail, which was allowed by the Court on 14-5-2012. In this manner learned counsel for the petitioner submitted that the certificate was issued by the petitioner having bona fide belief that ad interim pre-arrest bail was granted to his client.

6. Learned counsel for respondent No.3 agitated that the petitioner has cheated the Court, thus the Court had rightly issued the direction for registration of the case against the petitioner and prayed for dismissal of the writ petition.

7. Parties heard and record perused.

8. The examination of record indicates that confusion in the matter took place on 3-5-2012 when the Reader of learned Addl. Sessions Judge did not record the order for grant of ad-interim pre-arrest bail to Wamiq Zaka. It is the general practice of the Courts to grant ad interim pre-arrest bail when such like applications are entertained and apparently it is the mistake of the Reader of the Court, which was subsequently cured by the Court on the application of the petitioner when application for grant of ad interim bail was allowed. In this manner the certificate issued by the petitioner was under bona fide belief that the bail was granted by the Court and certificate was not issued by him to cheat the Court. The petitioner is a member of legal fraternity and does not have any history of cheating the Court.

9. Second lacuna found in the order of learned Ex-Officio Justice of Peace impugned through the instant petition is that he did not ask respondent No.3 nor referred him to the Court concerned where the alleged offence was committed by the petitioner for taking necessary action under section 195 read with section 476, Cr.P.C. It was not within the domain of respondent No.1 to issue direction for registration of the case on the basis of certificate issued by a learned counsel. The learned Ex-Officio Justice of Peace did not apply his legal mind to the facts and circumstances of the case and has proceeded mechanically to pass an order on the application of respondent No.3. Under law an aggrieved person is supposed to lay information of commission of cognizable offence before Incharge of Police Station and if he refuses or fails to receive such information, then doors of office of Ex-Officio Justice of Peace are to be knocked. Prior to laying information before S.H.O. concerned remedy provided under sections 22-A and 22-B, Cr.P.C. cannot be availed. In instant case, the record is silent about moving at first hand the S.H.O. to perform statutory duty, thus Ex-Officio Justice of Peace has exercised jurisdiction which did not vest in him.

10. Furthermore, learned Court has also committed illegality by leaving the matter at the discretion of the S.H.O. Police Station concerned to determine the cognizability of an offence. It was the Court itself which has to determine from the surrounding facts and circumstance, if any offence is made out from the bare perusal of the application or not. Keeping in view the fact that provisions of section 154, Cr.P.C. are blatantly being misused by the public at large, it is advisable that opposite party also be heard before issuing any direction to the S.H.O. Police Station concerned for recording the version under section 154, Cr.P.C. Unfortunately, it is generally assumed if the case is found fake by the Police proceedings under section 182, P.P.C. may be initiated against the complainant for laying a false information but this assumption has lost its efficacy in the given circumstances prevailing in the Society that every person, very cunningly, conceals the real facts from the Court and try to cheat it by making frivolous and false accusations for having the direction to the S.H.O. Police Station concerned to register the F.I.R. In this manner the rate of frivolous litigation is increasing day by day; thus now it is time and to stop and to put some restraint upon this practice adopted by the litigants, who in order to satisfy their false ego are contributing in the increase of work load.

11. Since it has been observed in the preceding paras that the order passed by the learned Ex-Officio Justice of Peace is illegal and is not sustainable in the eyes of law, therefore, the same is liable to be set aside.

12. For the foregoing reasons, this petition is allowed and the order impugned in this petition is declared illegal and of no legal consequence as such is set aside accordingly. The result of this, is dismissal of the application filed by respondent No.3 for having the direction for registration of the case against the petitioner. MWA/S-141/L Petition allowed.