2017 P Cr (PLP)

SARDAR MUHAMMAD SARFRAZ DOGAR, J.

This petition is flagged hitting vires of the order dated 25.07.2014, whereby; the Ex-Officio Justice of Peace, Lahore disposed of the application diarized under sections 22-A and 22-B, Cr.P.C., by respondent No.2 leading the SHO concerned/respondent No.1 by nose to record the version of respondent No.2 while proceeding further strictly in accordance with law.

2. In pursuance of the direction tossed by the Ex-Officio Justice of Peace/respondent No.6, a report has been tendered by respondent No.1/SHO. In his report and comments, the concerned SHO categorically swept the allegations.

3. Learned counsel for the petitioner contended that Ex-Officio Justice of Peace has aired the impugned order arbitrarily without diagnosing the fact that petition under sections 22-A/22-B, Cr.P.C. was filed by respondent No.2 in a malicious and mala fide manner. Further argued that it was a civil dispute clothed by respondent No.2 into criminal litigation.

4. Learned AAG has supported the impugned order passed by the Ex-Officio Justice of Peace.

5. Heard, record perused.

6. Respondent No.2, Mst. Saima Rani, in her application filed under sections 22-A/22-B, Cr.P.C. has withheld and concealed the true facts apparently with a view to obtain a favourable order on her end. The learned Ex-Officio Justice of Peace seized by the matter called for a Police Report, but did not rely on the same, and did not advance any cogent reasons while brushing aside the same. In Police Report as well as parawise comments, it is vividly stated that as a matter of fact, Mst. Saima Shahzadi/respondent No.3 and Mst. Saima Rani/respondent No.2 are wives of Muhammad Qasim Hameed/respondent No.4, the real owner of the house, who is living abroad.

7. The version of Mst. Saima Rani/respondent No.2 is that she, being special attorney of her husband, has sold out the house and received entire consideration amount, and she wants to handover the possession after vacating the house. Whereas, the version of Mst. Saima Shahzadi/respondent No.3, the first wife of respondent No.4, and the other members of locality is that she is owner of the said house and Mst. Saima Rani/respondent No.2 committed theft of her household articles.

8. As regards, Mian Muhammad Khalid/the petitioner was present at the spot, however, the allegations raised in the application were identified incorrect. It is further pointed out that the petitioner appeared before the police, whereas, the other side i.e. respondents Nos.2 to 6 did not bother to appear before the police in order to advance their version.

9. Perusal of record transpires that the petitioner had also filed civil suit under Order XXXVII, Rule 2, C.P.C. for recovery of amount against respondents Nos.2 to 4, which is pending adjudication before the learned civil court and the instant application filed by respondent No.2 is just a counterblast of said suit. Moreover, bare reading of contents of the application, it transpires that there is a dispute regarding recovery of amount involving factual controversy. It has been held in "Muhammad Younas Khan and 12 others v. Government of N.W.F.P through Secretary, Forest and Agriculture, Peshawar and others" (1993 SCMR 618) that where factual controversies are involved, Constitutional petition in the High Court is not the proper remedy. 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 managing to get an order against the petitioner.

10. 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 emphasized 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 reported 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).

11. For the above dissected reasons, it is a fit case for interference and invalidation of the impugned order. Therefore, by allowing this petition, impugned order dated 25.07.2014 passed by the learned Ex-Officio Justice of Peace, Lahore is set aside. SL/M-77/L Petition allowed.