2005 PLP 908 (MLD)

The necessary facts giving rise to the present writ petition are that the petitioner had lodged F.I.R. No.169 at Police Station Malka Hans, District Pakpattan Sharif against respondent No.5 on 31-5-2004 for an offence under section 212, P.P.C. and after completion of investigation a challan was submitted in the case before the learned trial Court. After submission of the challan in that case respondent No.5 submitted an application before the learned Sessions Judge, Pakpattan Sharif on 7-9-2004 seeking holding of an inquiry against the petitioner for falsely implicating srespondent No.5 in the above-mentioned criminal case and seeking cancellation of the above-mentioned F.I.R. It was also prayed by respondent No.5 in the said application that a departmental inquiry may be initiated against the petitioner. The learned Sessions Judge, Pakpattan Sharif called for a report from the District Police Officer, Pakpattan Sharif in respect of the allegations of respondent No.5. After receipt of the requisite report from the District Police Officer, Pakpattan Sharif the learned Sessions Judge, Pakpattan Sharif passed an order on 8-10-2004 directing the Station House Officer of Police Station Malka Hans to register a criminal case against the petitioner at the instance of respondent No.5. Through the same order the learned Sessions Judge, Pakpattan Sharif also summoned the record of the above-mentioned criminal case from the learned trial Court as to be placed before the learned Sessions Judge, Pakpattan Sharif on 16-10-2004. The said order passed by the petitioner before this Court through the present writ petition.

2. I have heard the learned counsel for the parties and have gone through the documents appended with this petitioner as well as the relevant record produced by the police officer present before this Court today.

3. Respondent No.5's application submitted by him before the learned Sessions Judge, Pakpattan Sharif on 7-9-2004 was presumably a petition filed under section 22-A(6), Cr.P.C. In the said petition respondent No.5 had prayed for cancellation of the above-mentioned F.I.R. after holding an inquiry and had also prayed that a departmental inquiry may be initiated against the petitioner. It is admitted at all hands that the challan in the above mentioned criminal case had been submitted before the learned trial Court on 11-6-2004. i.e, many months before submission of the petition under section 22-A(6), Cr.P.C. by respondent No.5 before the learned Sessions Judge, Pakpattan Sharif. It is settled law that no investigation can be carried out in a criminal case and the relevant F.I.R. cannot be cancelled by a Magistrate or by any other judicial or executive officer after submission of a challan before the trial Court and after taking of cognizance of the case by the trial Court. A reference in this regard may be made to the cases of Muhammad Alam and another v. Additional Secretary to Government of N.-W.F.P. Home and Tribunal Affairs Department and 4 others (PLD 1987 SC 103), Nasira Surriya v. Muhammad Aslam and 7 others (1990 SCMR 12), Syed Waqar Hussain Shah v. The State (PLD 1988 Lahore 666) and Ashiq Hussain v. Sessions Judge, Lodhran (PLD 2001 Lahore 271). In view of this settled legal position it has surprised me to learn that the learned Sessions Judge, Pakpattan Sharif had decided to entertain and proceed with respondent No.5's petition under section 22-A(6), Cr.P.C. at a stage when the matter of correctness or otherwise of the petitioner's allegations against respondent No.5 was already sub judice before the learned trial Court.

4. The learned Sessions Judge, Pakpattan Sharif had acted in the matter nor in any judicial capacity but only in his capacity as an ex officio Justice of the Peace. In Pakistan a Justice of the Peace or even an ex officio Justice of the Peace has no judicial powers and he acts only in an administrative or ministerial capacity. It is inconceivable that an administrative officer could summon the file of a judicial officer or of a Court of law so as to pass orders regarding matters which were sub judice before the Court. In this view of the matter the prayer made by respondent No.5 before the learned Sessions Judge, Pakpattan Sharif regarding cancellation of the above-mentioned F.I.R. after holding an inquiry in that respect could not be granted by the learned Sessions Judge, Pakpattan Sharif acting in his capacity as an ex officio Justice of the Peace. The other prayer made by respondent No.5 regarding holding of a departmental inquiry against the petitioner could also not be granted by an ex officio Justice of the Peace because that was a matter which was already being taken care of by the departmental hierarchy. The impugned order dated 8-10-2004 itself shows that a departmental action has already been ordered against the petitioner by the police hierarchy itself and, thus, the said prayer of respondent No.5 was not even maintainable at that stage.

5. For what has been discussed above this petition is allowed and the impugned order passed by the learned Sessions Judge, Pakpattan Sharif on 8-10-2004 is hereby declared as without lawful authority and of no legal effect and, resultantly, the same stands set aside. There shall be no order as to costs. It, however, goes without saying that respondent No.5 may have recourse to any other remedy available to him under the law in respect of his grievances voiced and allegation levelled against the petitioner. H.B.T./M-964/L Petition allowed.