I find it convenient to dispose of Writ Petitions No, 5016 and 5042 of 2008 by this single order.
2. To start with it would be advantageous to bring on record the facts which are not in dispute. A Police party headed by Incharge (Investigation Wing), Police Station Saddar Rajjanpur apprehended Peer Bakhsh, Respondent No, 4, on 09.07.2008 at 5.00 p.m. within the area of village Aasti, District Rajjanpur after having received spy information that huge quantity of arms and ammunition was being transported by him from Tribal Area to Settled Area. At the time of his apprehension he was found in possession of plastic bags which contained two Kalashnikovs, three rifles 44 bore one pistol 30 bore, one pistol .12 bore with magazine and live bullets. The In charge Investigation drew up FIR No, 190 of 2008 under Section 13 and 13(b) of the Arms Ordinance, 1965 arrested Peer Bakhsh, respondent, and seized arms and ammunition. 'After his arrest Peer Bakhsh made a disclosure and led to the recovery of three guns 12 bore from his residential house besides tools for repairing firearms. Another case FIR No, 242 of 2008 under Section 13 of the Arms Ordinance, 1965 was registered against the accused at Police Station City Rajjanpur. On 09.08.2008 Peer Bakhsh, accused, made an application before Ex-officio Justice of the Peace, Rajjanpur seeking a direction to SHO, Police Station City Rajjanpur for registration of a case against District Police Officer, Rajjanpur and so many other Police Officials with an allegation that they entered his house without search warrant and took away licensed fire-arms of the customers lying with him for repair. The petition was made over to an Additional Sessions Judge, Rajjanpur, who allowed it vide impugned order. Key lines of which are reproduced below in verbatim:- `"It is, therefore, directed to the SHO Police Station City. Rajjanpur to register a criminal case regarding aforesaid cognizable offences strictly in accordance with Law. He is also directed to submit copy of the FIR forthwith. It is further directed that the matter shall be investigated after registration of the case by DPO Rajjanpur, Layyah personally."
The above said order was not complied with by the SHO, upon which Peer Baskhsh, respondent, made an application before the learned Additional Sessions Judge for initiating contempt of Court proceeding. The learned Additional Sessions Judge took cognizance of the contempt petition and ordered as under:--
(i) A case under Section 155(c) (d) of Police Order, 2002 may be registered against the SHO, Police Station City Rajjanpur for having disregarded the order of Court dated 10.09.2008.
(ii)The DPO Rajjanpur is directed to get implemented the order dated 10.09,2008 and 17.09,20.08 immediately and submit copies of FIR in the Court.
(iii)Salary of the SHO, Police Station City Rajjanpur shall remain attached till further order.
3. Reeling aggrieved Muhammad Mujahid Iqbal, the then SHO Police Station Saddar Rajjanpur challenged legality of the order dated 10.09.2008 through Constitutional Petition No, 5016 whereas Muhammad Sadiq, SHO Police Station City Rajjanpur assailed the subsequent order of the learned Additional Sessions Judge, whereby he entertained contempt petition and took penal action against the police officials.
4. Peer Bakhsh, respondent, approached Ex-officio Justice of the Peace, Rajjanpur seeking a direction to the local police for registration of a case. The application was made over to Khawaja Muhammad Additional Sessions Judge/Ex-officio Justice of the, Peace, who while deciding application assumed the role of Court. For two reasons the first order whereby the SHO was directed to draw up FIR against some Police Officials is not sustainable. Firstly, the application with a request for registration of .case was laid before the learned Additional Sessions Judge in his official capacity as Ex-officio Justice of the Peace, but he chose to decide the same as Court of law and thus violated the case law laid down in Khizar Hayat and other Vs. Inspector General of the Police, Punjab, Lahore and others (PLD 2005 Lahore 470). A full Bench of this Court resolved the controversy with regard to functions and duties of an Ex-officio Justice of the Peace in the following words: 'Powers and duties of a Justice of the Peace or an Ex-officio Justice of the Peace in Pakistan as provided in Sections 22-A and 22-B Cr.P.C. do not involve in jurisdiction, which can be termed as judicial in nature or character. In this context the role of Justice of the Peace or the Ex-officio Justice of the Peace in Pakistan is sharply different from that now enjoyed by their counter part in the United Kingdom and the United State of America where some judicial role regarding summary trial of petty civil and criminal cases has been conferred upon the Justice of the Peace through legislation intervention. That surely is not a case in Pakistan where no Statute confers any judicial powers upon a Justice of the Peace or an Ex-officio Justice of the Peace. We can, therefore, safely hold that the function to be performed by the Justice of the Peace or the Ex officio Justice of the Peace in Pakistan are merely administrative and ministerial in nature and character."
5. In the light of the case law, referred to above I feel no difficulty in holding that the learned Additional Sessions Judge, Rajjanpur wrongly assumed the role of Court while dealing with an application under Section 22-A and B Cr.P.C. Now adverting to the merits of allegation put forward by Meer Bakhsh, respondent, I would say that the learned Additional Sessions Judge or the Ex- officio Justice of the peace was not supposed to believe the allegation as gospel truth without application of legal mind. It is true that he, was not required to hold trial or mini trial of the allegation or to scrutinize the material with a yardstick of trial Court, but being creation of law the Ex-officio Justice of the Peace was under legal obligation to pass an order with application of legal mind. In the case in hand, the respondent made an allegation that the Police Officials raided his house and looted him at gun point. This allegation had not come forward from an independent or unbiased source. The respondent/complainant was found in possession of huge quantity of fire- arms like Kalashnikov, rifles and pistols for which he was booked in two cases. In the; circumstances, the contention of the petitioner herein that the respondent attempted to get registered a case against the police as counter blast to the cases already stand registered against him should have not been lightly ignored by the learned Additional Sessions Judge or the Ex-officio Justice of the Peace. Here I must say that in case the accused involved in heinous and serious offences are allowed to prosecute Investigators, mechanically without application of legal mind, then this trend may erode the system.
The order passed by the Ex-officio Justice of the Peace had allegedly been violated by the Police.
The Additional Sessions Judge took cognizance of contempt petition with an observation that the orders of Court had been disregarded. I have already concluded in preceding paragraphs that the Ex-officio Justice of the Peace passed administrative orders and there was no occasion and justification to initiate contempt of Court proceeding or to take any penal action against the Police Official, who allegedly violated ministerial direction or administrative order. I am supported in my view by the above said precedent case law.
7. For what has been stated above, I feel no difficulty faculty in with no legal effect. Accordingly, the petitions are allowed and the impugned orders are set aside.