Irfan-ul-Haq, Inspector/SHO Police Station Saddar Sialkot, Rana Nadeem Tariq Inspector, Police Lines Sialkot and Raja Jameel Ahmed Inspector/incharge, Elite Force, Sialkot, have filed this Constitutional petition, challenging the order dated 22.03.2006, whereby the learned Additional Sessions Judge/Ex-Officio Justice of the Peace Sialkot who was seized of an application filed by Iftikhar Hussain son of Muhammad Akrarn (Respondent No. 1) under Section 22-A, 22-B Cr.P.C., had ordered registration of a criminal case against the petitioners: The background leading to the filing of instant writ petition is that FIR No. 48/2006 dated 28.01.2006 was registered at Police Station Civil Lines, Sialkot for offence under Section 6 of the Prevention of Gambling Act, 1978 against Iftikhar Hussain son of Muhammad Akram (Respondent No. 1) on the complaint of Munawar Khan S.I/SHO Police Station Civil Lines Sialkot. The allegation in the FIR was that SHO with some police officials were on patrol duty and had reached Warraich street when he was informed that gambling was going on in the house of Iftikhar Hussain alias Khari son of Muhammad Akram caste Rajput resident of Christian Town. The said Iftikhar and Asad Butt son of Qasir Mehmood caste Kashmiri were found gambling while sitting on a carpet. They were arrested and an amount of Rs. 1,39,600/- was recovered as stake money.
2. After registration of the case, Respondent No. 1 was arrested and later on he was released on bail.
He made an application to the learned Sessions Judge Sialkot under Section 22-A, 22-B. Cr.P.C., wherein he came out with his own version and stated that while he was present in his house on 28.01.2006, at 5:00 p.m alongwith Muhammad Younas, Asad Butt and Adeel, Irfan Sulehria SHO, Rana Nadeem Tariq, Rana Jameel Incharge Elite Force alongwith 30 police personnel made forcible entry into his house; on being asked as to why they had entered into the house, they enquired about some person by the name of Gul; he told them that no person by such name was residing there; they started issuing threats to kill him in a mock police encounter and Irfan Sulehria SHO removed Rs. 22,000/- from his pocket and Rs. 20,000/- from the pocket of Younas; Rana. Jameel removed prize bonds valued at Rs. 1,80,000/-, Irfan Sulehria SHO removed three cellular telephones, one watch Rolex Gold, one diamond ring, one silver ring from Muhammad Younas, shoved them in a van and brought them to Police Station Civil Lines and after planting some of the articles on them recorded, a false and fabricated report under the Gambling Ordinance. He also stated that since the police hierarchy had failed to redress his grievance, therefore, he had filed an application under Section 22-A, 22-B Cr.P.C. After summoning police report the learned Additional Sessions Judge/Ex-Officio Justice of the Peace vide his impugned order dated 22.03.2006, ordered registration of a case against the police officials named in the petition and directed that the matter be investigated by a fair and impartial honest police officer not less than the rank of Superintendent of Police. It is the said impugned order dated 22.03.2006 which has been challenged before this Court.
3. This petition was admitted to regular hearing on 29.03.2006. I have heard Mr. Saif-ul-Malook, Advocate for the petitioners, Malik Saeed Hassan, Advocate for Respondent No. 1, Ch. Aamir Rehman Addl. A.G. for :he State and have perused the record brought by. Rehmat Ali S.I Police station Civil Lines Sialkot.
4. The learned counsel for the petitioners candidly stated that he foes not controvert the legal position that Ex-Officio Justice of the Peace is competent to order registration of a case and that as such his order cannot be termed as one without jurisdiction. However, he submitted that the order of the learned Additional Sessions Judge suffers from improper exercise of jurisdiction inasmuch as in the given facts and circumstances of the case especially when the police report had exonerated the petitioners he ought not to have ordered for registration of a criminal case, he added that in the Peculiar circumstances the impugned order could not be termed just and acquitable and therefore, it was in violation of Section 22-A (6) Cr.P.C.
5. On the other hand Malik Saeed Hassan the learned counsel for Respondent No. 1 vehemently argued that the impugned order is perfectly legal and was in line with the dictum of a full bench of this Court in the case "Khizer Hayat and others us. Inspector General of Police Punjab, Lahore and others" (PLD 2005 Lahore 470). He also read out the relevant provisions )f the Prevention of Gambling Ordinance 1978 and contended that the police lo not have any jurisdiction to enter into a residential house. He argued that forcible entry of the police contingent in the petitioner's house was not only violative of the Gambling Ordinance 1978 but also constituted an affront to :he fundamental right of a citizen which ensures sanctity of home. He argued that it was a dacoity by all descriptions and that thereafter to cover up their misdeeds the police resorted to registration of case under the provisions of the Gambling Ordinance 1978.
6. During the course of arguments Mr. Saif-ul-Malook, the learned counsel for the petitioner had stated with some degree of confidence that Respondent No. 1 was involved in a large number of gambling cases and that he had recoursed to an application under Section 22-A, 22-B Cr.P.C. with a new to intimidating and browbeating the police functionaries. Respondent No. 1 who was present in the Court stated that if his involvement in any ambling case anywhere in the country is shown he would be out of the Court and would not contest this petition. Confronted with this situation the earned counsel for the petitioners could not produce anything whatsoever to support his claim.
Respondent No. 1 also stated that he is a Jewellery by Profession and runs four different Jewellery shops in Sialkot that he is stationed at Kuwait for the last twenty years and had been in the process of moving his business to his native country by making huge investments. He however, lamented that in view of the treatment meted out to him by the police functionaries he had decided to wind up his business in. Pakistan and go back to Kuwait for good. The learned counsel for the petitioners has not been able to point out any irregularity much less any illegality in the impugned order which could warrant interference by this Court in its Constitutional jurisdiction.
7. His argument that the impugned order runs counter to the dictum in Khizer Hayat's case supra because in the event of a negative report by the police, Ex-Officio Justice of the Peace is bound to decline the prayer for registration of a case is totally without substance. In Khizer Hayat's case their lordships had suggested that before issuing a direction for registration of a case the better course for an Ex-Officio Justice of the Peace would be to invite police comments, so as to apprise himself of the reasons as to why the police were not inclined to register a criminal case. The Ex-Officio Justice of the Peace was required to refuse registration of a case only if the police report disclosed justifiable reasons for not registering a case. There is no absolute embargo against the power of Ex-Officio Justice of the Peace that in all circumstances in the event of a negative police report he could not order registration of a case. In my opinion the reasons advanced by the learned Additional Sessions Judge in disagreeing with the police report are convincing, plausible and persuasive. In this backdrop this Court while exercising its jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan cannot substitute its own opinion for that of the learned Ex-Officio Justice of the Peace.
8. For what has been stated above there is no merit in this petition which is accordingly dismissed.
There will be no order as to costs.