Muhammad Mushtaq, petitioner, made an application under Section 22-A and 22-B Cr.P.0 before Ex-officio Justice of Peace, Lahore seeking a direction to the SHO, Police Station, Nishtar Colony, Lahore for registration of a case against his maternal uncle Muhammad Din with an allegation, in brief, that he deceitfully and fraudulently got transferred the land in his favour through a registered sale-deed, which had been inherited by his sister Mst Hameeda Begum. Ex-officio Justice of the Peace issued a notice to Muhammad Din, aforementioned and also called for a report from the local police. The petition was dismissed vide order dated 03.06.2008 with an observation that it was a civil dispute between the parties.
2. Feeling dissatisfied with the report of local police and the order of Ex-officio Justice of the Peace, Muhammad Mushtaq, petitioner, filed this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 seeking a direction to the SHO for registration of a case against aforementioned Muhammad Din on the charge of cheating, fraud and forgery on the same ground, which did not find favour with the local police and the Ex-officio Justice of the Peace.
3. The learned counsel for petitioner has contended that the provisions of Criminal Procedure Code and that of the Police Order, 2002 do not authorize Station House Officer of the police station or an Ex-officio Justice of the Peace to hold an inquiry or to analyze the allegations laid before them to determine its truth or falsity. He has further argued that requirement of Section 154 Cr.P.0 is to record FIR without holding an inquiry irrespective of the fact whether or not the information is based on facts. The learned counsel has placed reliance on the case law laid down in Muhammad Bashir Vs. Station House Officer, Okara Cantt and others (PLD 2007 SC 539) and has contended that Ex officio Justice of the Peace was duty bound to get registered a case on the above said complaint of the petitioner without application of legal mind.
4. I have minutely gone through the precedent case. It has been Held by the Apex Court that no provision exists in the Code of Criminal Procedure or any other law which permits the SHO to refuse recording of an FIR provided the information conveyed to him discloses commission of a cognizable offence. The august Supreme Court of Pakistan has also determined the scope, functions and duties of the institution of Ex-officio Justice of the Peace at page 555 of the precedent case as under:-- "Therefore, in our opinion, only jurisdiction which could be exercised by an Ex-officio Justice of the Peace under Section 22-A(6) Cr.P.0 was to examine whether the information disclosed by the applicant did or did not constitute a cognizable offence and if it did then to direct the concerned SHO to record an FIR without going into the veracity of the information in question and no more.
Offering any other interpretation to the provision in question would be doing violence to the entire scheme of the Cr.P.C, which could not be permitted."
5. The point in issue was also thoroughly examined by a Full Bench of this Court in Khizar Hayat's case reported as PLD 2005 Lahore 470 and the controversy was resolved to the following effect:-- "Officer In-charge of the relevant police station may be under a statutory obligation to register a FIR whenever information disclosing commission of a cognizable offence is provided to him but the Provision of Section 22-A(6) Cr.P.0 do not make it obligatory for an Ex-officio Justice of the Peace to necessarily or blind foldedly issue a direction regarding registration of a criminal case whenever a complaint is filed before him in that regard. An Ex-officio Justice of Peace should exercise caution and restraint in this regard and he may call for comments of the Officer Incharge of the relevant police station in respect of complaints of this nature before taking any decision of his own in that regard so that he may be apprised of the reasons why the local police had not registered a criminal case in respect of the complainant's allegation. If comments furnished by the Officer Incharge of the relevant police station discloses no justifiable reason for not registering a criminal case on the basis of the information supplied by the complaining person then an Ex-officio Justice of Peace would be justified in issuing a direction that a criminal case be registered and investigated......
In an appropriate case, depending upon the circumstances thereof, an Ex-officio Justice of the Peace may refuse to issue a direction regarding registration of a criminal case and may dismiss the complaint under Section 22-A(6) Cr.P.0 reminding the -complaining person of his alternate statutory remedies under Sections 156(3) and 190 Cr.P.C.
6. A combined examination of Sections 154, 22-A(6) Cr.P.0 and the case law laid down by the Apex Court and the Full Bench of this Court, referred to above, would show that an Ex-officio Justice of the Peace before whom an application under Section 22-A(6) has been laid seeking a direction to the SHO concerned for registration of a case is not expected and required to allow the request of the complaining person mechanically, blindly and without application of legal mind. The Apex Court held in an express terms that it was the duty of Ex-officio Justice of the Peace to examine whether the information did or did not constitute a cognizable offence. In other words the Ex-officio Justice of Peace is competent to examine the complaint obviously with full application of legal mind and is not supposed to accept and believe the same as gospel truth. In case Ex-officio Justice of the Peace after examination of the complaint with full application of legal mind comes to the conclusion that the allegation set up by the complaining person appears to be ridiculous, or self contradictory or vague or barred by of law or offensive to the public policy and accepted standards of morality, he may be legally justified to turn down the request for registration of a case.
7. I am not in agreement with the learned counsel for petitioner that the august Supreme Court of Pakistan have restrained Ex-officio Justices of the Peace from examination of complaints placed before them under Section 22-A(6) Cr.P.C. However, such examination can not be and should not be with the yardstick of Trial Court. The office of Ex-officio Justice of the Peace is a legal forum. The complaints against an action or inaction of the police are filed by the aggrieved persons before this legal forum, which performs administrative and ministerial functions subject to scrutiny by the superior Courts of Pakistan having Constitutional, supervisory and inherent judicial jurisdiction. Any order passed by an Ex-officio Justice of the Peace is subject to scrutiny on judicial side , by the superior Courts of Pakistan, therefore, the administrative legal forum is required to dispose of the applications under Section 22-A and 22-B Cr.P.0 by means of speaking and well reasoned orders in the light of available material without holding trial or mini trial of the controversy.
8. For what has been stated above, I am of the considered view that it is prerogative of an Ex-officio Justice of Peace to examine the information furnished by the applicant and to decide as to whether it did or did not constitute a cognizable offence. I have noted with concern in a sizeable number of cases that Ex-officio Justices of Peace mortgaged their legal duties and functions to the SHOs of the police stations asking them to decide as to whether or not the information constituted a cognizable offence. Here I must say that this self styled procedure adopted by Ex-officio Justices of the Peace in disposing of applications filed before them under Section 22-A and 22-B Cr.P.0 cannot be and should not be approved of. At the cost of repetition I would say that an Ex-officio Justice of the Peace is possessed with the jurisdiction under Section 22-A(6) Cr.P.0 to decide after examining the information as to whether or not any cognizable offence was made out. He can not delegate such powers and functions to the police.
9. Now adverting to the complaint in hand, I find it appropriate to bring on record the facts, which are not in dispute or disputable:--
(i) The land in dispute was originally owned by Elahi Bakhsh, grand father of the petitioner.
(ii) On death of Elahi Bakhsh the land devolved upon his two daughters Mst. Hameeda Bibi (mother of petitioner), Mst. Azizan Bibi and his son Muhammad Din, respondent.
(iii)After acquiring ownership in the above said land through inheritance Mst. Hameeda Bibi and Mst. Azizan Bibi transferred their entitlement in favour of their brother Muhammad Din, Respondent No, 3, by means of a registered deed in the year 1985.
(iv) Mst. Hameeda Bibi and Mst. Azizan Bibi did not challenge the transaction in favour of their brother Muhammad Din, respondent.
(v) After death of Mst. Hameeda Bibi, the petitioner filed a civil suit for declaration before the Civil Court at Lahore with the plea that his mother had not alienated the disputed land in favour of her brother, Muhammad Din.
(vi) The above said civil suit is still pending between the parties.
10. The Ex-officio Justice of the Peace, Lahore examined the complaint laid before him by the petitioner herein in order to determine as to whether it did or did not constitute a cognizable offence. After examining the complaint the Ex-officio Justice of the Peace came to the conclusion that there was a bona fide civil dispute between the parties already placed before the Civil Court for adjudication. Had Ex-officio Justice of Peace accepted and-believed the allegation blindly and without application of legal mind, he would have got registered a case against maternal uncle of the petitioner on the charge of cheating, fraud and forgery. After examining the complaint with full application of legal mind it revealed to the Ex-officio Justice of Peace that the petitioner wanted to prosecute his maternal uncle Muhammad , Din before the criminal Court on account of a pure civil dispute pending trial before the Civil Court. No doubt an Ex-officio Justice of the Peace cannot go into veracity of the information in question, but at the same time it is permissible for him to examine the complaint. I am, therefore, of the view that the Ex-officio Justice of Peace did not violate the case law laid down by the Apex Court.
11.The petition before this Court has been filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. The learned counsel for petitioner could not point out any illegality or irregularity in the impugned order. I have already concluded in the preceding paragraphs that in the light of statutory provisions and the case law laid by the Apex Court it was within the exclusive jurisdiction of Ex-officio Justice of Peace to examine and decide as to whether the information disclosed by the complaining person did or did not constitute a cognizable offence. The Ex-officio Justice of Peace, Lahore exercised jurisdiction vested in him and dismissed the complaint rightly with an observation that it was a civil dispute. Admittedly, 22 years old registered sale-deed in favour of the respondent and adverse to the claim of the petitioner still holds the field. How can I follow the petitioner in exercise of Constitutional Jurisdiction to seek cancellation of the sale-deed or to challenge its legality and correctness before SHO of the police station? In case, the petitioner's request for registration of a case is allowed, it would amount to encroachment upon the powers and functions of Civil Court already seized of the dispute.
12. The petition being without substance is hereby dismissed in limine.