P L D 2021 Balochistan 63 (PLP)

ABDUL HAMEED BALOCH, J.

By means of this common judgment we intend to dispose of Constitutional Petition No. (s) 01 of 2020 and No. (s) 21 of 2020, as the same have been directed against the order dated 31st December, 2019 (impugned order) of Additional Sessions Judge/Ex-officio Justice of the Peace Jhal Magsi at Gandawah, whereby Tehsildar Jhal Magsi was directed to register FIR against the nominated persons according to law, investigate the matter and submit challan before the concerned court. The petitioners of both the petitions prayed for declaring the impugned order being illegal, unwarranted and prayed for quashment of proceedings emerged out of the impugned order.

2. Concise facts of the instant petitions are that the respondent No. 1 Sanaullah filed an application under Section 22-A Criminal Procedure Code (Cr.P.C.) before the Additional Sessions Judge/Ex-officio Justice of the Peace Jhal Magsi at Gandawah stating that on 7th November, 2019 at 5:00 p.m. Abdul Wahab Assistant Commissioner Jhal Magsi along with Levies Officials came to his house at Mouza Garh Tehsil and District Jhal Magsi and beaten Muhammad Ayub and Abdul Sattar. It was further alleged that Abdul Wahab Zehri Assistant Commissioner Jhal Magsi and Muhammad Din Banglani Levies official set on fire his resident but (Landhi) and forcibly took away both the above named persons with them and detained them in illegal confinement for three hours. It was alleged that due to fire his educational documents i.e. Form-B, Matric/Secondary School Certificate, passport, local certificate and original documents of Vehicle No. AZT-510 burnt into ashes. It was alleged that an amount of Rs. 7,400,000/- (Rupees seven million and four hundred thousand) belonging to Salar Khan were also found missing. It was alleged that the instant act was done by them on the instigation of Muhammad Jaffar Khan. It was further alleged that before this on 5th November, 2019 a false case vide FIR No. 31 of 2019 was also registered by the complainant Asghar Ali on the conspiracy of Muhammad Jaffar Khan and Assistant Commissioner Jhal Magsi, in which the respondent No. 1 has obtained protective bail from High Court on 13th November, 2019 and thereafter, went to Levies Thana for registration of FIR, but of no avail. With these averments application was filed.

3. After filing of application under section 22-A, Cr.P.C, the learned Additional Sessions Judge/Ex-officio Justice of the Peace Jhal Magsi at Gandawah called repot from Tehsildar Levies Thana Jhal Magsi and after receiving report the learned Additional Sessions Judge/ Ex-officio Justice of the Peace Jhal Magsi at Gandawah vide order dated 31st December, 2019 accepted the application and directed Tehsildar Jhal Magsi to register FIR against the nominated persons, hence the petitioners are before this court.

4. Learned counsel for the petitioners contended that the order of the learned Additional Sessions Judge/Ex-officio Justice of the Peace Jhal Magsi at Gandawah is against the law. The order was passed without any evidence. The respondent No.3 sought report from respondent No.2, who submitted report stating that no such occurrence has ever taken place within the jurisdiction of Levies Thana Jhal Magsi. The learned Additional Sessions Judge/Ex-officio Justice of the Peace Jhal Magsi at Gandawah without any evidence ordered for registration of FIR on the basis of application of respondent No. 1, which is totally illegal and uncalled for.

5. Learned counsel for the respondent No. 1 has controverted the contention of petitioners and stated that the petitioners have committed cognizable offence. The Tehsildar Jhal Magsi is subordinate of petitioner No. 1 (in C.P. No. 21 of 2020). He submitted a false report in favour of respondent No.

1. The respondent No. 3 has rightly disbelieved the report of Tehsildar Jhal Magsi and ordered for registration of FIR, which is legal and justifiable.

6. Heard learned counsel for the parties. We have also gone through the record with their assistance. The record transpires that the respondent No. 1 submitted an application for registration of FIR in the month of November, 2019 to Tehsildar Levies Thana Jhal Magsi, whereafter, filed an application under section 22-A Cr.P.C. before learned Additional Sessions Judge/Ex-officio Justice of the Peace Jhal Magsi at Gandawah for an order of registration of FIR against the accused persons whose names mentioned in the application, on which the learned Additional Sessions Judge/Ex-officio Justice of the Peace Jhal Magsi at Gandawah ordered for registration of FIR vide order dated 31st December, 2019.

7. The Ex-officio Justice of the Peace on an application under section 22-A(6), Cr.P.C. for registration of case is not required to allow the request of complainant blindly and without application of legal mind. The Ex-officio Justice of the Peace is competent to examine the application of the complainant with application of legal mind and not to believe the averments of the complainant is gospel truth. The Ex-officio Justice of the Peace should examine whether the information did constitute cognizable offence or not. The learned Ex-officio Justice of the Peace sought report from the concerned Tehsildar. As per report no such offence was committed in their area. Despite such report without any corroborative material from complainant the Ex-officio Justice of the Peace ordered for registration of FIR merely on the allegations of the complainant/ respondent No.

1. The record further reveals that the petitioner (in C.P. No. 01 of 2020) has already registered a criminal case against the complainant/respondent No. 1, copy whereof has already been placed before the Ex-officio Justice of the Peace. It is astonishing that the respondent No. 1 kept all the educational testimonials and more than seven million in hut (Landhi). Reliance is placed on Mian Muhammad Khalid v. Station House Officer Police Station Manawan 2017 PCr.LJ Note

9. It was held therein: "

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)."

8. The concept of 22-A(6), Cr.P.C. is not meant to invoke the provisions for harassment and personal grudge. The court should not allow the application in a mechanical manner and should apply its mind judiciously whether the applicant has approached the court malafidely or with clean hands. The enactment of this provision by the legislator does not mean to exercise for humiliation of citizen. Reliance is placed on the case Nazim Hussain v. Additional Sessions Judge/Ex-officio Justice of the Peace, Nankana Sahib 2017 PCr.LJ Note 35, wherein it was held: "

The learned Justice of Peace is not required to pass order for registration of case in each and every case rather the learned Justice of Peace should look into respective contentions of both the parties. I may observe here that when matter relates to documents i.e. agreement etc. then it is the duty of the Justice of Peace to procure the attendance of respondent (accused) before passing order for registration of case. Admittedly in this case, learned Justice of Peace has passed the impugned order at the back of petitioner without procuring his attendance. This court is conscious of the fact that once FIR is registered against a person his whole family suffers and he has to go through the rigours of investigation by police. In view of what has been discussed above, the Constitutional Petition No. (s) 01 of 2020 and No. (s) 21 of 2020 are allowed and the order dated 31st December, 2019 passed by learned Additional Sessions Judge/Ex-officio Justice of the Peace Jhal Magsi at Gandawah is declared null and void/ set aside and any proceedings emerged out of the impugned order are quashed. SA/261/Bal. Petitions allowed.