P L D 2009 Lahore 232 (PLP)

KHAWAJA FAROOQ SAEED, J.

This writ petition has been filed praying for cancellation of the impugned orders dated 5-8-2008 and 12-9-2008.

2. Learned counsel for the petitioner after giving detail of the history of the case states that the husband had legally and lawfully given the property to his wife which she has later sold and there is no reason for interference. He said that the direction given by the Addl. Sessions Judge/Justice of Peace dated 5-8-2008 amounts to delegation of powers to the police which is not permissible by law in any manner.

3. Learned Justice of Peace in his latest order dated 5-8-2008 has directed the S.H.O. to look into the matter and then decide as to whether a cognizable offence is made out or not. It is in this context that the present writ petition is filed. The same inter alia challenging the authority of the Justice of Peace says that direction to the S.H.O. for looking into the matter amounts to delegation of power while it was directly within its own power to issue direct instructions. Various judgments including (2008 YLR 2309) re: "Syed Arif Ali Sabri v. Abdul Samad through L.Rs. and 2 others" (2008 YLR 2406) re: "Rana Inamullah Khan v. S.H.O. and others" (PLD 2007 SC 539) re: "Muhammad Bashir v. Station House Officer, Okara Cantt, and others" have been referred.

4. It has been commented that the aforementioned judgments make it clear that the power of Justice of Peace is direct and clear. He can either direct for registration of the case where the offence in his opinion is cognizable and reject if he feels that no case is made out. Delegation of powers, however, is not within his jurisdiction.

5. The other argument is that the principle of law audi alteram partem, which means that no one shall be condemned unheard, is applicable on all the proceedings. It has been held in a chain of judgments that the same shall be considered as a part of each and every statute even if there is no specific mentioning of the same. The registration of case against a person amounts to considering him as a culprit and this obviously means that he is being accused of an offence. He must be given a chance before nominating him.

6. The respondent's case on the other hand is that it is a case of clear fraud. Their relationship as husband and wife makes no difference. The respondent No.5 is living abroad. He is Professor of English language at Kuwait and as per his passport, he was not in Pakistan on the date when the forged and fake power of attorney was brought into existence by forging his signatures. Subsequently, on the basis of said power of attorney which was in respect of property measuring one kanal one marla, three transactions have been made through which said property has been sold. It is in this background that the whole proceedings have been taken up and the Addl. Sessions Judge has issued direction on 5-8-2008. Regarding delegation of power as well as non-issuance of a notice by the Justice of Peace, he commented that it is not a delegation of power at all. The S.H.O. is independent in his working and he by his own right is competent to register or refuse a case when every it is brought to his notice. The Justice of Peace is not an Investigating Agency, hence, he is only to determine a prima facie case and the direction does not amount to delegation of powers to any body.

7. Regarding non-issuance of notice, the claim remains that this direction does not amount to decision of an issue. The present petitioner can join the proceedings even prior to registration of F.I.R. before the police authorities. He has referred (PLD 2007 SC 539) ref: "Muhammad Bashir v. Station House Officer, Okara Cantt. and others" and (PLD 2005 Kai. 621) ref: "Mst. Bhaitan v. The State and 3 others".

8. I have heard the learned counsel for the parties and perused the record.

9. This court is in agreement with the respondent's side for the obvious reasons that the Addl. Sessions Judge has done nothing beyond his jurisdiction. He has in fact left the 'loots open for the present petitioner. Had he given a direct order for registration of F.I.R. that would have been more damaging .to the petitioner? The observation that "if any cognizable offence was made out then to register a case in accordance with law" obviously is a safe direction and can be in favour of any of the two, petitioner or respondent. The petitioner should better join the proceedings before the police authorities who obviously shall proceed only if a cognizable offence shall be made out after preliminary probe. No reason for interference being apparent, the interference is declined.

10. This writ petition, therefore, is dismissed accordingly. H.B.T./N-8/L Petition dismissed.