' IJAZ AHMAD CHAUDHRY, J.---Through this Constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has challenged the order, dated 26- 3-2005 passed by learned Justice of Peace/Additional Sessions Judge, Muzaffargarh on the application of respondent No.5 filed under sections 22-A and 22-B, Cr.P.C. Whereby following direction has been passed:- "In pursuance of foregoing discussion, Investigating Officer is directed to complete investigation after recording the statement of the injured accused as required under section 161, Cr . P . C . , satisfy himself about the credibility of cross-version, formulate his opinion qua the statement of the accused persons. As per advice of Medical Officer, to get X-Rays and opinion of the Radiologist about the injuries suffered by the accused of the F.I.R. Get final opinion of the Medical Officer about the injuries which were kept under observation recover weapons of offence from the accused of cross-version. As per my observation at page 7 (sixthly), the offence under section 324, P.P.C. Is going to be made out, necessitating arrest of the accused of cross-version, hence they should be arrested, as per law. Lastly, in view of dictum of law laid down in PLD 2002 Supreme Court 590, Investigating Officer is further directed to comply with this order and complete investigation of the cross-version within one week of receipt of this order and submit his report as required under section 173, Cr.P.C. To the concerned Ilaqa Magistrate."
2. It is contended by learned counsel for the petitioner that earlier murder case vide F.I.R. No. 174 of 2004, dated 28-9-2004 was got registered against respondent No.5 and other accused at Police Station Chowk Sarwar Shaheed, District D.G. Khan on the statement of the petitioner and report under section 173, Cr.P.C. Was submitted in the Court whereafter the petitioner moved application for transfer of the case from the Court of learned Additional Sessions Judge, Kot Addu, which was dismissed, but the petitioner being not satisfied moved Cr1. Misc. No. 30-T/2005 in this Court for the transfer of above said case out of District Muzaffargrah and vide order, dated 16-3-2005 on the joint request of the petitioner and learned Advocate for respondents (Ch. Pervaiz Aftab, Advocate) the case was transferred to the Court of learned Additional Sessions Judge, Multan with direction to both the parties to appear before the said Court on 29-3-2005. It is next contended that when the report under section 173, Cr.P.C. Had already been submitted in the Court and case was transferred out of District Muzaffargarh, the application under sections 22-A and 22-B, Cr.P.C. Filed by respondent No.5 could not be heard by the Justice of Peace/learned Additional Sessions Judge, Muzaffargrah and the impugned order is an illegal order; that in the application respondent No.5 has not mentioned that report under section 173, Cr.P.C. Was already submitted and then transferred to the Court of learned Additional Sessions Judge at Multan on 16-3-2005 by this Court, which fact was very much in the knowledge of respondent No.5 as their counsel had appeared in this Court on the said date, and that Police Station Chowk Sarwar Shaheed also falls within the territorial jurisdiction of learned Additional Sessions Judge, Kot Addu and the learned Additional Sessions Judge, Muzaffargarh was not empowered to deal with the said application as the learned Additional Sessions Judge/Justice of Peace was also holding Court at Kot Addu.
3. On the other hand learned counsel for respondent No.5 has argued that in F.I.R. No.174 registered against the respondent No.5 and others it is very much mentioned that six persons from the accused/respondent No.5 side also received injuries during the same occurrence, but the police in connivance with the complainant party did not record their cross-version properly in spite of that earlier direction was issued by the learned Justice of Peace in this regard and as such the impugned order has been passed keeping in view the highhandedness of the police who wanted to help the complainant side in spite of that they were aggressors and got registered the case on wrong facts. Relies upon Muhammad Yousaf v. Dr. Madad Ali alias Gulab Laskani and 8 others (PLD 2002 KaraChi 328) to contend that vast powers have been conferred upon Justice of Peace as compared to the jurisdiction exercisable under Art. 199 of the Constitution where merely a direction can be issued, if at all, a case is made out. Also contends that even if the main murder case was transferred to Sessions Divisions Multan, it did not amount to cease the powers of the learned Justice of Peace working in District Muzaffargarh where the alleged occurrence had taken place to take cognizance into the matter on the application of respondent No.5 and the impugned order was passed after hearing learned counsel for both the parties.
4. I have heard the learned counsel for the parties and also perused the documents attached with this petition. Admittedly case F.I.R. No. 174 was got registered on 18-9-2004 under sections 302/ 324/148/149/447/337-A(ii)/F, P.P.C. At Police Station Chowk Sarwar Shaheed on the written application of the petitioner against respondents Nos.5 to 29. From the petitioner side Khalil-ur- Rehman, Mohabbat Islam petitioner, Khuda Bakhsh, Abdul Rashid, Ahmad Khan, Amjad Kareem, Ghulam Yasin, Abdul Rab and Abdul Karim (deceased) allegedly received 5, 2, 2, 4, 5, 2, 1, 5 and 2 injuries respectively. According to the contents of the F.I.R. As well Rab Nawaz, Ijaz, Yaqoob, Akram, Qasim and Hashim from the accused side also received injuries during the said occurrence.
5. It is not denied that earlier on the move of the accused party learned Justice of Peace had directed for recording their cross-version and the matter was investigated by the Police. The challan in the main case was submitted in the Court and on the application of the petitioner the main murder case was withdrawn from the Court of the learned Additional Sessions Judge, Kot Addu and transferred to Sessions, Division Multan by this Court vide order, dated 16-3-2005. Then respondent No.5 on 21-3-2005 submitted an application before the learned Sessions Judge, Muzaffargarh under sections 22-A and 22-B, Cr.P.C. Which was entrusted to the Court of learned Additional Sessions Judge-I and the impugned order has been passed on 26-3-2005. It is admitted fact that the orders passed by the learned Justice of Peace under sections 22-A and 22-B, Cr.P.C.
Are passed on executive side and the said provisions have been introduced through legislation to provide remedy to the citizens at their door steps against the highhandedness of the police, if they fail to perform their duties regarding registration of criminal case, proper investigation or excess is committed by them in relation to their functions and duties, but such discretion has to be exercised in a judicious manner. However, these provisions have not been meant to interfere in the judicial functions of the Courts if after investigation the challan is submitted and cognizance is taken by the Court of competent jurisdiction. The learned counsel for respondent No.5 has failed to show that after the submission of the challan how the application under sections 22-A and 22-B, Cr.P.C.
Was competent before the learned Justice of Peace. The case-law cited by him is not at all applicable to the facts and circumstances of the present case as in the said case the proceedings were initiated for registration of a criminal case and the matter was at investigation stage. If respondent No.5 was not satisfied with the result of the investigation he could have moved application to the higher authority for transfer of the investigation, but it did not provide any right to him to again move to the learned Justice of Peace for recording his cross-version afresh or he can file private complaint, which is equally adequate and efficacious remedy as petitioner allegedly is in possession of whole of the evidence and nothing is to be collected/recovered during investigation the purpose of which is only to collect evidence.
6. It also appears that respondent No.5 had concealed the factum of submission of report under section 173, Cr.P.C. In the Court and then transfer of the same to the Sessions Division, Multan from District Muzaffargarh. It is held that after the submission of challan when the cognizance is taken by the Court, the learned trial Court can pass appropriate orders relating to the matter pending before it and during pendency of the trial any order passed by the learned Justice of the Peace under section 22-A, Cr.P.C. Which even otherwise is an executive order will amount to interference in the judicial proceedings which cannot be allowed to continue as in this way the trial in a criminal case will never come to its logical end.
7. For the foregoing discussion, the impugned order, dated 26-3-2005 passed by the learned Additional Sessions Judge, Muzaffargarh is declared to be without jurisdiction, which is set aside and this writ petition stands accepted.
8. Before parting with this order, I am constrained to observe that the explanation furnished by Ch. Shabbir Hussain, learned Additional Sessions Judge/ Justice of Peace, Muzaffargarh is not found satisfactory. He is directed to explain that under what provision of law after submission of report under section 173, Cr.P.C. In the Court he was still competent to pass orders in the same matter while exercising powers under section 22-A, Cr.P.C. The explanation shall reach this Court through the Additional Registrar of this Bench within one month and put up on the administrative side for appropriate orders.