2020 PLP 1341 (YLR)

WIQAR AHMAD, J.

This order of ours is directed to dispose of W.P. No. 972-M of 2018 filed by the petitioner against the respondents under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.

2. The petitioner is aggrieved of the order dated 18.09.2018 of the learned Ex-Officio/Justice of Peace/Additional Sessions Judge-III Swat, whereby his application filed under section 22-A of the Criminal Procedure Code 1898 (hereinafter referred to as "Code") for issuance of direction to the local police for registration of FIR was dismissed. The petitioner had contended in his writ petition as well as in his application filed before the learned Justice of Peace that he along with his wife namely Mst. Shehnaz Begum had been living in House No. B-2 situated near Government Girls High School at College Colony Saidu Sharif Swat and had also filed a civil suit, wherein status quo in respect of retaining possession of the house had also been granted in their favour. Mother of the petitioner was stated to have been admitted in Hayat Abad Medical Complex Peshawar, for certain surgical procedures, who had been looked after by the petitioner and his wife in the hospital. When they returned to their house No. B-2 at Saidu Sharif on 18.08.2018, they came to know that respondents Nos. 2 to 4 had taken possession of the house by the direction of respondent No.5, illegally. Their luggage had been stored in a junk room, where some of it was found to have been missing, and the others damaged. The petitioner with the allegation of some stealing against respondents Nos. 2 to 4 approached the learned Justice of Peace for issuance of direction to the local police for registration of FIR, but same was declined through the impugned order.

3. Learned counsel for the petitioner contended that all the proceedings have been carried out on his back and that the contents of the complaint disclosed the commission of a cognizable offence, therefore his application for the grant for registration of an FIR against respondents Nos. 2 to 4 must have been accepted by the learned Justice of Peace, to whom no other course was open.

4. Learned counsel for the private respondents Nos. 2 to 4 submitted in rebuttal that the petitioner was a trespasser in an official accommodation, and when he was evicted therefrom in due course of law, he turned up with his application, before the learned Justice of Peace, just to pressurize the respondents and the said application was nothing more but the result of express mala fide.

5. The learned A.A.G supported the arguments of learned counsel for respondents Nos. 2 to 4.

6. Arguments heard and record perused.

7. Perusal of record reveals that the learned Justice of Peace during pendency of the application filed under section 22-A of the Code, had called for the comments of the SHO concerned. The SHO disclosed in his report that on 30.06.2018 the Additional Assistant Commissioner Revenue namely Hamid Iqbal along with police contingent and levy officials had vacated house No. B-02 situated at College Colony Saidu Sharif Swat on the orders of Commissioner Malakand. The house had earlier been allotted to respondents Nos. 2 to 4 vide allotment No. 1552, who occupied the said house. During vacation of the house, the luggage of the petitioner was stated to have been collected in a room wherein a detailed inventory had also been prepared. The said inventory was also annexed with the comments, which is available on record of the instant proceedings also. The learned counsel for the petitioner was asked time and again whether any allotment order in respect of the house in dispute had ever been issued in favour of the petitioner, he replied that in-fact he got possession of the house in dispute by way of an exchange. He could not produce allotment order of any other house/quarter which, according to the learned counsel had been exchanged for the house in dispute. It is an admitted position that the house in dispute was an official accommodation. Same has never been allotted to the petitioner. How has he intruded into the house could not be explained by the learned counsel for petitioner. The validity of the injunctive order issued by the learned civil Court had seized long before the date of dispossession. His vacation of the house had been conducted by respondent No. 5 in accordance with law while the petitioner had moved an application for lodging of FIR against respondents Nos. 2 to

4. Commission of cognizable offence did not come out of the record, in the circumstances of the case.

8. The earlier view expressed in the case of "Muhammad Bashir v. Station House Officer Okara Cantt and others" reported as "PLD 2007 Supreme Court 539" has largely been departed from in the subsequent judgment of the Hon'ble Apex Court in the case of "Younas Abbas and others v. Additional Sessions Judge, Chakwal and others" reported as "PLD 2016 Supreme Court 581". It was a judgment of five (5) members Bench of the Hon'ble Apex Court wherein the nature of powers of Justice of Peace under subsection (6) of section 22-A of the Code, has been redefined as quasi-judicial in nature and not ministerial. The relevant Para of the judgment in this respect is reproduced hereunder for ready reference; "

11. The duties, the Justice of Peace performs, are executive, administrative, preventive and ministerial as is evident from subsections (1), (2), (3), (4) and (5) of sections 22-A and 22-B of the Cr.P.C. Such duties have not been a subject matter of controversy nor have they ever been caviled at by anybody. Controversy emerged with the insertion of subsection (6) in section 22-A and section 25 of the Cr.P.C. when Sessions Judges and on nomination by them the Additional Sessions Judges became the Ex-officio Justices of Peace. The functions, the Ex-officio Justice of Peace performs, are not executive, administrative or ministerial inasmuch as he does not carry out, manage or deal with things mechanically. His functions as described in Clauses (i), (ii) and (iii) of subsection (6) of section 22-A, Cr.P.C., are quasi-judicial as he entertains applications, examines the record, hears the parties, passes orders and issues directions with due application of mind. Every lis before him demands discretion and judgment. Functions so performed cannot be termed as executive, administrative or ministerial on any account. We thus don't agree with the ratio of the judgments rendered in the cases of Khizar Hayat and others v. Inspector General of Police (Punjab), Lahore and others (PLD 2005 Lah. 470) and Muhammad Ali v. Additional I. G. (PLD 2015 SC 753) inasmuch as it holds that the functions performed by the Ex-officio Justice of Peace are executive, administrative or ministerial." It has also been held in the said judgment that the parameters laid down for the exercise of writ jurisdiction of the High Courts were equally applicable to the Ex-officio Justice of Peace while exercising his powers under subsection (6) of section 22-A of the Code. Additionally, Hon'ble Justice Manzoor Ahmad Malik in a separate note has also held that before issuance of a direction on the complaint for registration of a criminal case under subsection 6(i) of section 22-A of the Code, the Ex-officio Justice of Peace must satisfy himself that sufficient material is available on the record to show that the aggrieved person before invoking the powers of Justice of Peace had recourse to the high-ups in the police hierarchy. In the additional note, the Hon'ble member of the Bench has laid special stress on the prevention of abuse of section 22-A (6) of the Code.

9. In the case in hand when the Justice of Peace read the allegations in the complaint along with report of the SHO concerned and the material in the shape of inventory of the house-hold items of the petitioner preserved during the course of a lawful act of taking possession of official house by the competent authority, he came to the conclusion that no case came out of the record, which could have justified registration of an FIR against respondents. Such an exercise of jurisdiction by the Worthy Justice of Peace was fully justified in the circumstances of the case. We found no reason to interfere in the same in exercise of our constitutional jurisdiction. The petition in hand is therefore found meritless and same is accordingly dismissed. SA/38/P Petition dismissed.