' MIFTAH-UD-DIN KHAN, J.--- Petitioner Asif Gohar Inspector through the present petition under Article 199 of the Constitution of Islamic Republic of Pakistan has prayed for declaration to the effect that the order dated 5-5-2009 on the petition of respondent No, 1 under section 22-A, Cr . P. C . And order dated 11-11-2009 rejecting the review petition of the present petitioner by respondent No,3 as Ex-officio Justice of Peace, Abbottabad are illegal, without jurisdiction and without lawful authority.
2. The brief facts of the case are that warrant under section 3(1) of the Maintenance of Public Order, 1960 was issued against respondent No,1 and some A other Advocates in connection with lawyers' movement to prevent law and order situation. The petitioner was entrusted with the said warrant for execution. That the petitioner along with S.H.Os. Police Station Cantt. And City, Abbottabad and other officials formed a team to execute all such warrants and went to the residence of respondents Nos.1 and 2 after receiving information that respondent No,1 and some other Advocates were hiding therein. That the above-mentioned team on reaching the residence of respondents Nos.1 and 2 gave a knock at the door, on which servant of respondent No,1 came out and informed that respondent No,1 was in adjacent house. That a knock was given on the door of the adjacent house wherefrom wife of respondent No,1 came at the door and started abusing the police party. That two lady constables as members of police party entered the house and wife of respondent No,1 bolted the door from inside and started beating them. The lady constables were rescued with great difficulty and in the meantime respondent No,1 and his colleagues escaped from the rear door. That on 14-3-2009 respondent No,2 filed a petition under section 22-A, Cr.P.C.
For registration of a case against the petitioner. Similarly, respondent No,1 also filed an application under section 22-A, Cr.P.C. On 9-4-2009 seeking the registration of case against the petitioner. That these petitions were disposed of vide order dated 5-5-2009 without affording an opportunity of hearing to the petitioner. That the learned Justice of Peace instead of deciding the application under section 22-A, Cr.P.C. With respect to registration of case, issued directions to the DPO for departmental action against the petitioner with the direction to intimate compliance to Ex-officio Justice of Peace within a period of two months. That the petitioner filed a review petition against the order dated 5-5-2009, which too, was dismissed by the learned Justice of Peace on 11-11-2009, hence the present petition.
3. Mr. Mushtaq Ali Tahirkheli, Advocate, the learned counsel for petitioner contended that the scope of section 22-A (6)(iii), Cr.P.C. Is very limited and the Ex-officio Justice of Peace can pass appropriate direction with respect to any neglect, failure or excess by police authority in relation to its function and duty which shall be read conjunctively. That the departmental proceedings fall under different provisions of laws and Ex-officio Justice of Peace has got nothing to do with departmental action against police functionary. That the interpretation of provisions of section 12(3) of the Maintenance of Public Order by the learned Justice of Peace also does not find support from any law. That the petitioner in his official capacity has performed his duty in execution of warrant strictly in accordance with the provisions of section 12(3)MPO and has not crossed his limit and authority, thus, the impugned order and direction issued by the Justice of Peace are wrong, illegal, without lawful authority and without any legal foundation. He placed reliance on PLD 2005 Lah. 470, PLD 1992 SC 207 and PLD 2007 Lah.
53.
4. Mr. Rashid-ul-Haq Qazi, Advocate, the learned counsel for respondents contended that the petitioner was having a personal bias and mala fide against respondents as suit for damages has been instituted by respondent No,1 against the petitioner on account of which the petitioner was annoyed and he thereby exceeded his lawful authority and power to unnecessarily harass the respondent and his family members, therefore, the learned Justice of Peace was quite justified to pass the impugned order and issue directions to the higher police authority for departmental proceedings against the present petitioner. He further submitted that review petition of the petitioner was illegal and without any legal justification. He, thus, prayed that the present writ petition is not entertainable, hence be dismissed. He placed reliance on 2005 YLR 3297, 2009 MLD 1020 and PLD 2007 SC 539.
5. Before taking up the question of maintainability of the present writ petition and its decision on merits, we would like to make reference to the relevant provisions and the order passed by ex- officio Justice of Peace in exercise of powers under section 22-A (6)(iii), Cr.P.C. Against the petitioner in connection with execution of warrant under section 3(1) of MPO. Section 12(3) MPO is reproduced as under:-- "the power to take step under subsection (1) or subsection (2) includes the power to enter upon any land or other properties whatsoever."
(i) non-registration of a criminal case;
(ii) transfer of investigation from one police officer to another;
(iii) neglect, failure or excess committed by a police authority in relation to its functions and duties."
' The respondents 1 and 2 in their petition under section 22-A, Cr.P.C. Have prayed for directing the petitioner for acting in accordance with law and not to exceed powers conferred under the law and for directing DPO to lodge F.I.R. Against the present petitioner forthwith .And for his arrest and proceedings in accordance with law. The Ex-officio Justice of Peace issued the following order/directions on the petition of the respondents.
"Hence, by accepting this petition, I direct the respondent/S.H.O. To remain vigilant in future and also direct the DPO to proceed against the respondent S.H.O. For having exceeded his authority in pursuance of his personal mala fide and by misusing the orders under 3 MPO to further his personal vengeance against Sardar Aman Khan Advocate. Copy of this order be placed on his character role so that when this officer is assessed for higher responsibilities, the misuse of authority is before the assessing authorities. The action taken against the respondent be completed within 60 days, the result whereof shall be intimated to this Court."
6. First taking up the question of maintainability of the present writ petition, the Ex-officio Justice of Peace is neither acting in judicial capacity nor as a Court, while exercising powers under the aforesaid provisions of law. The wordings of sections 435 and 561-A, Cr.P.C. Clearly indicate that the order passed by an inferior criminal Court or judicial order passed under the Code or to prevent the abuse of process of any Court, the revisional powers under section 435/439, Cr.P.C. And inherent power under section 561-A, Cr.P.C. Has to be invoked. As the role of Ex-officio Justice of Peace is primarily rendering assistance to the police in the matter of keeping the peace and in case of breach of the peace apprehending the culprit and rendering assistance to the police in an investigation of the crime. Thus, the functions and duties conferred on an Ex-officio Justice of Peace are administrative, executive and ministerial in nature and character as ruled in PLD 2005 Lah. 470, therefore, the only remedy available against such order is a constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan and not a petition under section 561-A, Cr.P.C.
7. In the present case, the petitioner was executing the warrant issued against respondent No,1 under section 3(1)MPO and the provisions of section 12(3) of the Maintenance of public order clearly empower the petitioner to take step under subsection (1) or subsection (2) which includes the power to enter upon any land or other properties whatsoever. Per definitions in Black's Law Dictionary 7th Edition, the world land or other properties includes place and a house. As such, section 12(3) of MPO empowers the petitioner or any other police officer executing the warrant under section 3(1) MPO to enter a place or house without recourse to general law for obtaining search warrant. The rivalry between petitioner and respondents Nos.1 and 2 is not based on previous enmity but their differences and civil litigation appears to be the outcome of the acts and the conduct of petitioner in performance of his official duties. Under the law presumption of good faith is attached to official acts committed during discharge of official duties unless proved to the contrary. Thus, by stretch of no legal interpretation it could be held to be tainted with mala fide and in excess of authority/ powers amounting to abuse and misuse of authority by the petitioner in the discharge of his legal duties and functions.
8. The powers and duties of a Justice of Peace under section 22-A(6), Cr.P.C. Are very limited in nature. The provision of section 22-A(6)(iii) in respect of neglect, failure or excess committed by a police authority in relation to its functions and duties shall not be read in isolation but are to be read conjunctively with provisions (i) and (ii) on the principle of "Ejusdem Generis". In the present case, in spite of the fact that respondent No,1 had prayed for registration of. F.I.R. Against the present petitioner, the Justice of Peace had not ordered registration of case against the present petitioner under section 22-A(6)(i), Cr.P.C. The subsequent directions to be issued by the learned Justice of Peace under section 22-A(6)(iii), Cr.P.C. Must be in relation to clause (i) of the afore-said provisions and not beyond that. In the absence of passing any order in respect of registration of the case against the present petitioner, no neglect, failure or excess of authority could be said to have been committed by police in its functions and duties, therefore, the learned Justice of the Peace was not justified to issue directions for taking disciplinary action against the petitioner. By passing the impugned order, the learned Justice of the Peace has travelled beyond his jurisdiction under section 22-A(6), Cr.P.C. By assuming the administrative powers of high police officer, which under the law is not vested in him but with the police authorities under the Police Order, 2002. It has been ruled in PLD 2005 Lah. 470 that:- "Section 22-A(6), Cr.P.C. Does not allow an Ex-officio Justice of the Peace to put on the mantle of a higher police authority himself and to start exercising all those executive powers himself which the relevant law has vested in the concerned police authorities. Such executive role of judicial officers May militate against the constitutional mandate of separation of Judiciary from Executive under Article 175(3) of the Constitution of Islamic Republic of Pakistan."
' In PLD 2007 Lah. 53, the order of Ex-officio Justice of Peace to direct S.H.O. To initiate proceedings under section 182, P.P.C. Was declared beyond the purview of section 22-A, Cr.P.C. And in excess of the powers conferred on him under the law.
9. The powers, scope and extent of ex-officio Justice of Peace under section 22-A, Cr.P.C. Has also been highlighted in 2010 PCr.LJ Peshawar 45 in the following words:-- "Justice of Peace in many cases frequently issue directions to the superior officers of the police seized of the investigation of a case to take departmental disciplinary action against him---Such powers had not been expressly conferred upon Justice of Peace---Justice of Peace, in circumstances, would refrain from issuing such orders, because it would result into penalty/penal consequences--- In very exceptional cases, it could record its own observation and would leave the matter to the officers superior in rank either to initiate or not any departmental disciplinary action against the police officer complained against---Any mistaken view held by the Justice of Peace in a summary way and the directions so issued by him, could ruin the carrier of a police officer albeit he might not be guilty of the act complained against---In any case, the internal departmental check and balance system within the police hierarchy was not to be usurped by the Justice of Peace in a routine manner."
"Justice of Peace had directed D.P.O. To take disciplinary action against the S.H.O. Of Police Station- --Said direction was not the domain of Justice of Peace to issue direction of that nature to the superior officer of any police officer to be proceeded against under Efficiency and Disciplinary Rules---Impugned order having been passed without lawful authority and without jurisdiction, was set aside---If any breach of duty had been committed by the S.H.O., then it was for the D.P.O. Alone to initiate or not to initiate disciplinary proceedings keeping in view the facts and circumstances of the case."
10. Resultantly, we hold that in the present case, the learned ex-officio Justice of Peace while passing the impugned orders against the petitioner in exercise of powers under section 22-A(6), Cr. P . C . On applications of respondents Nos.1 and 2 has assumed the role and powers of a high police officer which under the law is not vested in him while exercising limited jurisdiction under the afore-said provisions of law. The wording of orders passed by the learned Ex-officio Justice of Peace clearly shows that he has practically punished the petitioner without any showcause-notice, inquiry and departmental proceedings which amounts to usurpation of powers of concerned departmental authority responsible for maintaining departmental check and balance within the police hierarchy. Consequently, we allow the present writ petition and declare the impugned orders dated 5-5-2009 and 11-11-2009 as wrong, illegal, without jurisdiction and without lawful authority.