2010 PLP 1598 (YLR)

HASNAT AHMAD KHAN, J.--Through this writ petition order dated 4-4-2009 passed by a learned Additional Sessions Judge, Sargodha, with powers of Ex-Officio Justice of Peace, whereby the application filed by the petitioner under sections 22-A and 22-B, Cr.P.C. was dismissed with costs, has been challenged.

2. On the first date of hearing this petition qua dismissal of petitioner's application for registration of case by the said Ex-Officio Justice of Peace was dismissed in limine. However, pre-admission notice was issued to respondents Nos.2 and 3 to hear them on the question of imposition of costs by the learned Ex. Officio Justice of Peace while dismiss-sing the application under sections 22-A, 22-B, Cr.P.C. filed by the petitioner.

3. After hearing the said respondents this writ petition was admitted to regular hearing vide order dated 22-5-2009.

4. In support of this petition learned counsel for the petitioner has contended that while hearing the application under sec tion 22-A, Cr.P.C. the learned Additional Sessions Judge/Ex. Officio Justice of Peace was not performing the duties on judicial side, therefore, in his administrative capacity he could not burden the petitioner with costs while dismissing his application under sections 22-A, 22-B, Cr.P.C. In order to shore up his contention, learned counsel for the petitioner has relied upon in the cases of Amanat Masih v. Additional Sessions Judge, Kasur and 4 others PLD 2007 Lahore 53, Syed Iqbal Hussain v. District Police Officer, Hafizabad and 5 others 2004 PCr.LJ 256 Muhammad Asif v. The State and 4 others PLD 2008 Lahore 222 and Kehar Khan v. Additional Sessions Judge and Ex. Officio Justice of Peace, Kotri and 3 others 2009 PCr.LJ 634.

5. Conversely, learned counsel appearing on behalf of Rehmatullah, respondent No.3, has opposed this petition by contending that learned Ex. Officio Justice of Peace had ample powers to burden the petitioner with costs after reaching to the conclusion that the said application was false and frivolous.

6. Heard. Record perused.

7. There is no cavil with proposition that while deciding the application under sections 22-A and 22-B, Cr.P.C. the learned Sessions Judge do not perform their duties on judicial side, rather they function in their administrative capacity as Ex. Officio Justice of Peace. The case law cited by the learned counsel for the petitioner fully supports the said proposition of law. In Kehar Khan's case (ibid) of Sindh High Court jurisdiction, it was held as under: "The powers exercised by the Ex. Officio Justice of Peace are very limited which have been given to supervise and to laid the criminal Justice system and not of judicial nature but administrative and ministerial in nature, and while exercising such powers the Ex. Officio Justice of Peace should not enter into the disputed question of facts to find out the truth and on the basis of the application made before him has to form his opinion whether a cognizable offence has been made out or not." In Muhammad Asif's case (ibid), it was held by this Court as under: "The Justice of Peace, being not a judicial officer, while exercising his administrative powers-can at the most direct- the S.H.O. concerned to proceed and conduct the investigation in accordance with law." In Syed Iqbal Hussain's case (ibid), this Court held as under:-- "It, thus, can be said that the learned Sessions Judge was not competent to direct initiation of proceedings against the petitioner under section 182, P.P.C." In yet another case cited as Amanat Masih (supra), it was observed by this Court as under:-- "A perusal of the provision of law reproduced ibid reveals that the learned Ex. Officio Justice of Peace could only pass an order directing registration of a criminal case if a cognizance offence was made out from the application or decline the same. The direction given to the S.H.O. by the learned Ex. Officio Justice of Peace to initiate proceedings against the petitioner under section 182, P.P.C. is beyond the purview of section 22-A, Cr.P.C, hence in excess of the jurisdiction conferred upon him under the law."

8. In all the above-quoted cases, the proposition of law has been settled by observing that the learned Sessions Judges/Additional Sessions Judge while performing their duties as Ex. Officio Justice of Peace, do not perform their duties as Court, rather they perform their duties on administrative side. The precise and direct question of jurisdiction of imposition of costs by Ex. Officio Justice of Peace came up for hearing before honourable Sindh High Court and in the case of Muhammad Nafees alias Sohail v. The State and others PLD 2005 Karachi 638, it was categorically held that the learned Ex. Officio Justice of Peace was not empowered to impose fine/costs upon the petitioner while rejecting his application filed under section 22-A, Cr.P.C.

9. Consequently, while respectfully following the law laid down in the said case, I am inclined to accept this petition. Resultantly, the order dated 4-4-2009 passed by the learned Additional Sessions Judge Ex. Officio Justice of Peace, Sargodha to the extent of burdening the petitioner with costs of Rs.10,000 while dismissing his application under 22-A, Cr.P.C. is set aside and quashed. H.B.T./K-15/L Petition accepted