2019 PLP 1066 (MLD)

ZAFAR AHMED RAJPUT, J.

Respondent No.1 herein filed Criminal Misc. Application bearing No. 1062 of 2017 before the Sessions Judge/ Ex-officio Justice of Peace, Larkana, alleging therein that her mother, namely, Mst. Amnat Bibi, who died on 22.05.1995, was the holder of 10 paisa share, along with other shareholders, namely, Zahid Ali son of Muhammad Ali Shaikh (11 paisa) and Ghulam Umar son of Ghulam Umar (01 paisa) in S. No. 451, admeasuring 3.07 acres, situated in Deh Wakro, Tapo Bag, Taluka Dokri, District Larkana and such record of rights was mutated in their names. It was further alleged that co-sharer Zahid Ali sold-out his share to respondents Nos. 2 and 3, who have constructed a patrol pump thereon while the share of Mst. Amnat Bibi was/is also in the dominance of petitioner and respondent No.3. It was also alleged that respondent No.1 approached the respondent No.4 (The Mukhtiarkar, Taluka Dokri) for the issuance of Heirship Certificate of her mother being a real son but he was refused on the ground that her deceased mother was not a government servant and directed him to approach the competent court, so also, he refused to change the Foti Khata. Hence, he sought through his said application inter alia directions to respondent No.4 for issuance of Heirship Certificate and to change the Foti Khata of deceased Mst. Amnat Bibi in the name of her legal heir.

2. Sessions Judge/ Ex-officio Justice of Peace, Larkana, vide order dated 22.08.2017, while observing that the respondent No.4 being a public servant is duty bound to act in accordance with law, disposed of the said Criminal Misc. Application, directing the respondent No.4 to change the Foti Khata of the deceased mother of respondent No.1 and to demarcate the land as per share. It is against that order the instant Constitutional petition has been maintained by the petitioner.

3. Learned counsel for the petitioner has contended that the application filed by the respondent No.1 was itself not maintainable in law as the same did not disclose under what provision of law it was filed for invoking the jurisdiction of Sessions Judge/ Ex-officio Justice of Peace, Larkana in a dispute of civil nature. He added that so far the scope of section 22-A(6) of the Criminal Procedure Code, 1898 (Cr.P.C.) is concerned, the relief sought by the respondent No.1 does not come within its scope and; as such, the Sessions Judge/Ex-officio Justice of Peace, Larkana has travelled out of his jurisdiction while entertaining the application of respondent No.1 and passing the impugned order, which is being illegal and without jurisdiction is liable to be set aside to secure the ends of justice.

4. On the other hand, learned counsel for the respondent No.1 has supported the impugned order on the ground that the deceased mother of the respondent No.1 was co-sharer in the subject land, which was forcibly occupied by the petitioner and respondents Nos.2 and 3 and since the respondent No.4 was not mutating the Foti Khata of his deceased mother, the respondent No.1 maintained the Criminal Misc. Application before the Sessions Judge/ Ex-officio Justice of Peace, Larkana.

5. The learned counsel for the respondents Nos. 2 and 3 and A.P.G have however, conceded the arguments of learned counsel for the petitioner.

6. It is an admitted position that the application filed by the respondent No.1 before the Sessions Judge/ Ex-officio Justice of Peace, Larkana does not disclose the provision of law under that it was maintained, but the impugned order reflects that it was passed in the capacity of Ex-officio Justice of Peace. An Ex-officio Justice of Peace in Pakistan (i.e. Sessions Judge and nominated Additional Sessions Judge in a relevant Districts), deriving jurisdiction under section 25, Cr. P.C., exercises, by and large, his powers under section 22-A(6), Cr.P.C., which reads as under: 22-A. Powers of Justices of the Peace: (1) A Justice on the Peace for any local area shall, for the purpose of making an arrest have within such area all the powers of a police officer referred to in section 54 and an officer-in-charge of a police station referred to in section 55. (2) A Justice of the Peace making an arrest in exercise of any powers under subsection (1) shall, forthwith, take or cause to be taken the person arrested before the officer in-charge of the nearest police station and furnish such officer with a report as to the circumstances of the arrest and such officer shall thereupon re-arrest the person. (3) A Justice of the Peace for any local area shall have powers, within such area, to call upon any member of the police force on duty to aid him. (a) in taking or preventing the escape of any person who has participated in the commission of any cognizable offence or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists of his having so participated; and (b) in the prevention of crime in general and, in particular, in the prevention of a breach of the peace or a disturbance of the public tranquility. (4) Where a member of the police force on duty has been called upon to render and aid under subsection (3), such call shall be deemed to have been made by a competent authority. (5) A Justice of the Peace for any local area may, in accordance with such rules as may be made by the Provincial Government, (a) issue a certificate as to the identity of any person residing within such area, or (b) verify any document brought before him by any such person, or (c) attest any such document required by or under any law for the time being in force to be attested by a Magistrate, and until the contrary is proved, any certificate so issued shall be presumed to be correct and any document so verified shall be deemed to be duly verified, and any document so attested shall be deemed to have been as fully attested as if he had been a Magistrate. (6) An ex-officio Justice of the Peace may issue appropriate directions to the police authorities concerned on a complaint regarding. (i) non-registration of criminal case; (ii) transfer of investigation from one police officer to another; and, (iii) neglect, failure or excess committed by a police authority in relation to its functions and duties.

7. It may be observed that an Ex-Officio Justice of Peace has the power to issue appropriate directions to the police authorities concerned on a complaint regarding non-registration of criminal case, transfer of investigation from one police officer to another and neglect, failure or excess committed by a police authority in relation to its function and duties. Aforesaid powers of Ex-Officio Justice of Peace are very limited which have been given to aid, assist and authorize the criminal jurisdiction system. However, office of the Ex-Officio Justice of Peace is not a court as envisage under section 6 of the Cr.P.C. or the relevant provisions of C.P.C. In other words, powers and duties of Ex-Officio Justice of Peace under section 22-A(6), Cr.P.C. are only administrative and purely ministerial in character, which do not involve any jurisdiction that can be termed as judicial in nature or character. As such, section 22-A(6), Cr.P.C., does not confer any jurisdiction on the Ex-officio Justice of Peace to entertain any complaint/ application aimed to pass any direction to a person or official relating to his duties in respect of any dispute regarding any immovable property.

8. In the case in hand, it does not reflect from the available record as to how and with what authority the Sessions Judge/ Ex-Officio Justice of Peace, Larkana entertained the application of the respondent No.1, and exceptionally when it revealed that the dispute between the parties did not fall within the defined domain of Ex-officio Justice of Peace under section 22-A(6), Cr.P.C., the application should have been dismissed by him at limine stage for want of jurisdiction, directing him to adopt proper course to redress his grievance.

9. For what has been discussed above, this Constitutional Petition is allowed and the impugned order passed by the Sessions Judge/Ex-officio Justice of Peace, Larkana on 22.08.2017 is hereby declared as without lawful authority and of no legal effect and, resultantly, the same stands set aside.

10. This order shall, however, not come in the way of passing an order in accordance with land revenue laws by the respondent No.4 upon the application of respondent No.1, if so filed, so also approaching the respondent No.1, alternatively in accordance with law, the competent civil court under usual mode of proceedings for redressal his grievances. SA/G-41/Sindh Petition allowed.