' ATTAULLAH KHAN, J. Through this writ petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan 1973, Muhammad Aslam Khan has challenged the order dated 19-4-2010 passed by learned Additional Sessions Judge 1st/Justice of Peace, D.I. Khan.
2. The facts of the instant case are that respondent No.3 namely Muhammad Younus filed an application under section 22-A(6), Cr.P.C. For registration of F.I.R. Against the petitioner under sections 406/419/420/468/471/477-A and 489-F. The learned Additional Sessions Judge/Justice of Peace accepted the said application and directed the S.H.O. Police Station concerned to register the F.I.R. Against the petitioner.
3. According to the petitioner, the payment of rupees three million (30,00,000/-) from respondent is not believable. It is furthez alleged that perjury has been committed by respondent No.3 by producing fake cheque. According to him a civil suit is also pending between the parties.
4. Learned counsel for the parties heard and record on file perused.
5. It is contended by the petitioner's counsel that the impugned order is illegal, without jurisdiction and is liable to be dismissed because the petitioner instead of approaching the Police Station for registration of case filed directly a petition before the Justice of Peace and thus very petition was not maintainable.
6. On the other hand, learned counsel on behalf of respondents contended that fraud and perjury has been committed by the petitioner while issuing two cheques dated 26-10-2009 which was not honoured because no amount was available in his account and that the petitioner had also stopped the bank from encashment of the cheque. According to learned counsel, petitioner has committed fraud and, therefore, case was rightly been directed to be registered against him. It is further contended that writ is not competent.
7. The impugned order is placed on file which is dated 19-4-2010. The learned Justice of Peace has held that a cognizable offence appears to have been committed by the petitioner, therefore, directions were issued for registration of case.
8. The impugned Cheque bearing No.0503666 placed on file having two different dates, one bearing 26-3-2009 and other 26-10-2009. Contentions of the petitioner is that in fact the cheque was given to respondent concerned for payment of Rs.30,00,000/- in consideration of part payment of the total amount to be paid for purchase of land. After the deed was struck down a dispute arose between the parties which was settled through arbitration and the amount was paid to respondent concerned otherwise and the cheque issued on 26-3-2009 became redundant.
After about seven months of issuance of the initial cheque, respondent tampered the date on the same cheque and instead of 26-3-2009, 26-10-2009 was scribed which was presented to the bank and obtained their acknowledgment for payment or stopped payment of the drawer. The above facts implies that in fact the forgery and fraud has been committed by respondent himself and not by petitioner. Secondly, for invoking the jurisdiction of the Ex-Officio Justice of Peace under section 22-A subsection (6) Clause (i) pre-condition is that when the S.H.O. Concerned refused to register a case regarding cognizable offence. The relevant provisions of section 22-A(6), Cr.P.C. Is reproduced below.
"An Ex-Officio Justice of the Peace may issue appropriate directions to the police authorities concerned on a complaint regarding.
(i) Non-registration of criminal case."
9. In the instant case the application submitted before Justice of Peace does not disclose that respondent has ever approached the concerned Police Station forJ registration of the case. Again on the first, date of hearing when the S.H.O. Appeared before the Justice of Peace, he stated at the, Bar that no one has approached him for registration of the case. His statement at the Bar has not been controverted by the respondent concerned in any form. It is also to be noted that copy of the plaint submitted in the suit before the Civil Court also reveals that there is dispute between the parties which negates the contention of the respondents.
10. So far as the objection of learned counsel for respondent that the writ petition is not competent is concerned, we may refer to PLD 2006 Lahore (sic) wherein it is held that if the order of Justice of Peace is without jurisdiction, void ab initio, it can be challenged in the writ petition. Relevant provision is reproduced below:- "7. The arguments of learned counsel for the appellant regarding the order of Justice of the Peace being on administrative order and as such not amendable to writ jurisdiction is misconceived as an order without jurisdiction and void ab initio can be challenged in the constitutional jurisdiction of this Court. The order to the extent of a direction to the S.H.O. To restore possession of the shop to the appellant was beyond the ambit of the powers conferred on the Justice of the Peace by virtue of sections 22-A and 22-B, Cr.P.C. The dictum laid down by the Hon'ble Supreme Court in the case of Mrs. Shahida Zahir Abbasi and four others v. President of Pakistan and others PLD 1996 SC 632 and Haji Mushtaq Ahmad Khan and others v. Government of N.W.F.P. Through the Secretary in the Department of Excise & Taxation, Peshawar and others PLD 2000 Pesh. 73 is fully attracted to the instant case.
8. Since the learned Justice of Peace while passing the order had clearly acted beyond his jurisdiction and had in fact passed the order in violation of the statutory provisions of law as such the order of the learned Judge in Chamber striking it down to that extent is legal and calls for no interference".
11. The above observation of the learned Court shows that when an order of Justice of Peace is without jurisdiction and passed in violation of the statutory provisions of law, it can be assailed in a writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan.
12. In the light of above discussion, we are of the view that the impugned order passed by Justice of Peace is in violation of statutory provisions of Cr.P.C., incompetent, premature and liable to be dismissed, therefore, the writ is allowed and the impugned order is declared as such.