' KAZIM ALI MALIK, J.---Brief facts giving rise to this Constitutional Petition may be given first. Ch. Abdul Rehman, petitioner, got registered a case F.I.R. No,315 of 2003 dated 25-10-2003 under sections 365/379/148/149, P.P.C. At Police Station Chak Bedi, District Pakpattan against Muhammad Afzal and 13 others/respondents No,4 to 17 herein. The Investigating Agency conducted investigation in the case and challaned Muhammad Iqbal, another Iqbal, Niaz Ahmad, Anwar, Jalal and Muhammad Hussain, respondents/accused persons to the Court of Area Magistrate vide final report under section 173, Cr.P.C. Dated 23-4-2004. The remaining accused persons did not make themselves available for investigation and were separately challaned to court as proclaimed offenders in terms of section 512, ,Cr.P.C. On 17-2-2004 the challan was placed before the learned Area Magistrate. After submission of the challan in court to the above effect all the 14 accused persons/respondents made an application before the learned Sessions Judge, Pakpattan on 3-6- 2004 for quashment of the F.I.R. Ch. Muhammad Hussain Maken, the then Sessions Judge, Pakpattan admitted the petition for quashment of the F.I.R. Agreeing with" the accused persons that their request was competent before the Court of Session under section 22-A, Cr.P.C. The learned Sessions Judge vide order dated 15-7-2004 cancelled the F.I.R. By exercising powers under sections 22-A(6)(iii) Cr.P.C. In the light of above said order of the learned Sessions Judge, the Area Magistrate seized of the trial dropped the proceeding vide order dated 20-11-2004.
2. Feeling dissatisfied with the order of learned Sessions Judge and that of learned Area Magistrate, the petitioner/ complainant filed this Constitutional Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 and called in question the legality of impugned orders.
3. I have gone through the provisions of sections 22-A and 22-B, Cr.P.0 relied upon by the learned Sessions Judge and would say without any fear of contradiction that only the Ex-officio Justice of the Peace was/is competent to entertain petitions file& under these provisions of law and the learned Sessions Judge was/is not competent to pass any order under the said provisions of law.
The learned counsel for the respondents/accused persons attempted to argue that as a matter of fact the learned Sessions Judge exercised his powers as Ex-officio Justice of the Peace. This contention is not receiving support from a bare perusal of the impugned order, which was given in the hand of learned Sessions Judge and seal of the Court of Session, Pakpattan.
4. The respondents/accused persons sought quashment of the F.I.R. Before the learned Sessions Judge after submission of challan in the Court of Area Magistrate. It is prerogative of the High Court to quash the F.I.R. Or the proceeding of case in exercise of its Constitutional Jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 and inherent powers under section 561-A Cr.P.C. I could not understand as to how and with what authority the learned Sessions Judge cancelled the F.I.R. In a case pending trial with the Area Magistrate. I have gone through Criminal Procedure Code, 1898 with the assistance of learned counsel of both the sides and could not find any provision of law, which may authorize or empower the Court of Session to quash or cancel the F.I.R. In a case pending trial before a competent Court of law. Here I am pained to say that the learned Sessions Judge, Pakpattan encroached upon the powers of High Court.
5. The learned counsel for the respondents/accused also attempted to support the impugned order with the plea that the petitioner/complainant got registered the case with baseless allegation, which forced the accused persons to make a request for quashing the F.I.R. Before learned Sessions Judge, Pakpattan. The contention is misconceived. For the sake of arguments if it is admitted that the charge against the respondents/accused persons was groundless and there was no probability of their conviction at trial even then there was no legal justification to make a request for quashing the F.I.R. Before the Court of Session. The accused persons should have sought quashment of the F.I.R. Through Constitutional Petition before the High Court or they should have sought their acquittal under section 249-A, Cr.P.0 from the court of Area Magistrate seized of trial.
The mere fact that the accused persons were of the view that the allegation/charge for which they were challaned to the competent court, was baseless did not confer jurisdiction upon the Court of Session, Pakpattan to quash or cancel the F.I.R. In a case pending trial before another court of competent jurisdiction.
6. The learned Sessions Judge cancelled the F.I.R. Exercising powers under Section 22-A(6)(iii), Cr.P.C, which is reproduced below for ready reference:-- "22-A (6) An ex-officio Justice of the Peace may issue appropriate directions to the police authorities concerned on a complaint regarding (i)
(ii)
(iii) neglect, failure or excess committed by a police authority in relation to its functions and duties."
A bare perusal of the above said provisions of law would show that the Ex-officio Justice of the Peace may issue an appropriate direction to the police with regard to neglect, failure or excess committed by the police officer in relation to his functions and duties. With no stretch of imagination these provisions of law authorize the learned Sessions Judge or Ex-officio Justice of the Peace to quash or cancel the F.I.R. In a case pending trial. At the most, the learned Sessions Judge in his official position as Ex-officio Justice of the Peace could issue an appropriate direction ,to the Police. I, therefore, feel no difficulty in concluding that the learned Sessions Judge exercised jurisdiction which did not vest in him.
7. The learned counsel for the respondents lastly argued that the petitioner/complainant filed this Constitutional Petition with a considerable delay and in this way accepted the impugned order impliedly. I do not feel inclined to attach any importance to the contention because the impugned order is illegal, without jurisdiction, void ab initio, nullity in the eyes of law and with no legal effect.
8. For what has been stated and discussed above, I allow this petition with costs and set aside the impugned orders. Resultantly, the case No,315 of 2003 shall be deemed as pending before the learned Trial Magistrate for its trial and disposal in accordance with law.
9. A copy of this judgment may be laid before my Lord Hon'ble Chief Justice for favour of information and such action on administrative side as may be deemed appropriate.