2019 PLP 1284 (YLR)

CH. MUHAMMAD IBRAHIM ZIA, C.J.

The captioned appeal by leave of the Court has been filed against the judgment of the High Court dated 12.07.2018, whereby the writ petition filed by the appellants, herein, has been dismissed in limine.

2. An FIR was registered against respondent No.1, herein, in the offences under sections 10, 11, 16 and 19 ZHA. The accused was arrested and later on released on bail. Thereafter, he moved an application to the District Magistrate that the appellants, herein, have physically tortured him. He sought order for his medical checkup. The application was allowed and in the light of the medical report respondent No.1, presented another application before Superintendent Police, Kotli against the appellants. After conducting the inquiry his application was dismissed. Feeling aggrieved, he filed an application under section 22-A, Cr.P.C. before the Justice of Peace for registration of case against the appellants. The learned Justice of Peace vide order dated 28.03.2017 accepted the application and ordered for registration of the case against the appellants to and to initiate the proceedings. They filed a writ petition before the High Court which has been dismissed in limine through the impugned judgment dated 12.07.2018, hence, this appeal by leave of the Court.

3. Mr. Muhammad Nadeem Raja, Advocate, the learned counsel for the appellants after narration of necessary facts seriously objected to the impugned judgment and submitted that the learned High Court has failed to properly appreciate the legal and factual propositions involved in the case. The impugned judgment is result of lacking proper application of judicial mind. The story narrated by the respondent relating to the Commission of offence clearly reveals that the same is concocted, afterthought and false. To substantiate his arguments, he focused on the medical report and submitted that the duration of the caused injuries clearly rebuts the version of the respondent's story. These legal and factual propositions have not been properly appreciated by the learned High Court and the writ petition has illegally been dismissed in limine.

4. Conversely, Sardar Karam Dad Khan, Advocate-General and Mr. Rashid Nadeem Butt, Advocate the learned counsel for the respondents seriously opposed the appeal on the ground that all the points agitated in writ petition are out the scope of the writ petition. The writ petition can only be maintained if there is any violation of law or lack of jurisdiction, whereas, in this case, admittedly, the Justice of Peace is vested with the powers to entertain such like application and pass order, therefore, there is no question of lack of jurisdiction or passing of order against the law. The arguments advanced are misconceived. In writ jurisdiction such like factual propositions cannot be resolved which even otherwise amounts to interference in the domain of the investigating agency. The appellants are at liberty to raise all these grounds and defences during investigation and in writ jurisdiction such delicate factual propositions cannot be determined. Therefore, this appeal is liable to be dismissed.

5. We have heard the learned counsel for the parties and gone through the record made available. According to the facts of the case, the matter is under investigation, therefore, it will be improper to discuss the merits of the case. Admittedly, the Justice of Peace, respondent No.2, while exercising the powers vested under law and keeping in view the stated facts, issued direction for registration of the case. According to the enforced law, while investigating the case the investigating agency is fully empowered to determine all the questions which have been raised by the appellants before this Court. It is also empowered to impartially investigate the matter according to law and draw the conclusion. While passing the impugned order the learned Justice of Peace, respondent No.2, has neither travelled beyond law nor there is any lack of jurisdiction. Therefore, in such like situation the extraordinary writ jurisdiction cannot be exercised merely on the apprehension of the party based upon factual propositions. According to the celebrated principle of law, such questions cannot be resolved in writ petition and the learned High Court has rightly declined to exercise the writ jurisdiction. However, keeping in view the apprehension of the appellants we clarify that the investigating agency shall investigate the matter strictly according to law in transparent and impartial manner without taking any influence from the judgments passed in this litigation. With these observations, this appeal stands disposed of. ZC/22/SC(AJ&K) Order accordingly.