AMER RAZA NAQVI, J.---Through these proceedings the applicant has challenged order dated 2- 4-2014 passed by learned II-Civil Judge and Judicial Magistrate Mirwah/respondent No.4, whereby he accepted the police report submitted in respect of crime No.35/2014 P.S Sorah which was registered under section 397, P.P.C. On the last date of hearing learned counsel made his submission in respect of maintainability of these proceedings in view of recent judgment of Hon'ble Supreme Court reported as PLD 2014 SC 753. Notices were issued to learned Additional Advocate General and learned D.P.G and matter was adjourned for further arguments on maintainability.
2. Learned counsel for the applicant submitted that it is held in such case law that orders passed by ex-officio Justice of the Peace under section 22-A(6) Cr.P.C. Cannot be challenged under section 561-A Cr.P.C. Before High Court. Today learned counsel advanced his arguments on the question that whether the orders passed by Judicial Magistrates on a police report can also be challenged only through constitutional petition or those orders can be challenged under section 561-A, Cr.P.C. And the said case law is applicable only in respect of orders passed by ex officio Justice of the Peace. Some other matters were also fixed along with this matter to consider this question and learned counsel in all these matters in addition to some other advocates were called to assist the court on this question. Besides the counsel appearing in this matter, Mr. Mukesh Kumar G. Karara, advocate also addressed the Court on above question.Mr. Mukesh Kumar, G.
Karara advocate submitted that it has been observed by Hon'ble Supreme Court in PLD 2014 SC 753 that orders passed by ex-officio Justice of the Peace cannot be challenged before the High Court under section 561-A, Cr.P.C. And for such reasons it was declared that those proceedings before the High Court were not maintainable. He submits that now it is a settled law that orders passed by ex-officio Justice of Peace cannot be challenged before the High Court under section 561-A, Cr.P.C.
Learned advocate however submitted that in the said judgment in para No.2 it is observed that ex- officio Justice of Peace is not a court as defined under section 6 of Cr.P.C. As ex-officio Justice of the Peace is not included in any class of courts or Magistrate mentioned under section 6 Cr.P.C, such office is also not mentioned in sections 28 and 29, Cr.P.C, therefore, orders passed by such offices are not judicial orders nor such office is a judicial forum. At page 756 an observation of Lahore High Court contained in PLD 2005 Lahore 470 has been reproduced which is as under:-- "That surely is not the case in Pakistan where no statute confers any judicial power upon a Justice of the Peace or any ex-officio Justice of the Peace. We can, therefore, safely hold that functions to be performed by a Justice of the Peace or an ex-officio Justice of the Peace in Pakistan are merely administrative and ministerial in nature and character. We feel fortified in so holding by the provisions of section 6, Cr.P.C. Which categorizes the classes of criminal courts and Magistrates in Pakistan and a Justice of the Peace or an ex-officio Justice of the Peace is not included in any such class of courts or Magistrates. Apart from that sections 28 and 29, Cr. P.C.
Specify as to which courts are to try which offences and in those sections too a Justice of the Peace or an ex-officio Justice of the Peace does not figure at all."
3. Mr. Mukesh Kumar, G. Karara advocate submitted that it has been made clear by such judgment that office of ex-officio Justice of the Peace is a non-judicial forum or authority. He further submits that however when the orders are passed by any Magistrate on a police report the situation is different as the court of Judicial Magistrate is a court under section 6 of Cr.P.C. And performs judicial functions even when orders are passed by it which are administrative in nature. He further submits that the question which was raised by the court in case law referred above was to the extent that how petition filed under section 561-A, Cr.P.C. Was competent and maintainable before Lahore High Court, Lahore against the impugned order passed by ex-officio Justice of the Peace, under section 22-A(6) Cr.P.C. Learned advocate submits that the above decision is only in respect of complaints made to ex-officio Justice of the Peace and the question of orders passed by Judicial Magistrates was neither raised nor discussed in said judgment and no finding was given on such aspect in that case law. Learned advocate submits that on the contrary there are number of judgments in which it has specifically been held that orders passed by Judicial Magistrates can be challenged before the High Court under section 561-A, Cr.P.C. He therefore submits that proceedings in which orders passed by Judicial Magistrates are challenged under section 561, Cr.P.C. Are not affected by the judgment referred above. Learned A.P.G. Has agreed with Mr. Mukesh Kumar G. Karara advocate and has adopted his arguments.
4. Today the learned counsel for the applicant while addressing the question of maintainability mainly relied upon three judgments reported as 2011 MLD 766 Karachi, 2006 SCMR 1920 and 2014 MLD 1059 Sindh. While referring para. No.4 of case law reported as 2011 MLD 766, he submits that it has clearly been held by the Division Bench of this Court that proceedings under section 173 Cr.P.C.
Are of administrative nature and could be challenged before this Court by invoking inherent jurisdiction of this Court under section 561-A, Cr.P.C. While relying on 2006 SCMR 1920, he referred para No.8 which is reproduced for convenience.
"It is a settled principle of law that it is the discretion of the Magistrate concerned to pass order under section 63 of the Code of Criminal Procedure to discharge the accused persons. However, the discretion must be exercised by the concerned Magistrate justly, fairly and in case discharge order was passed by Magistrate mechanically without application of his independent mind to the facts of the case, blindfolded acceptance of a recommendation of the police in that regard, perversity of reasoning and adoption of a procedure which offends against the letter and spirit of the law relating to discharge, then High Court has ample jurisdiction to interfere and set aside such an order under section 561-A of Cr. P. C. See Arif Ali Khan and others v. The State and others 1993 SCMR 187 and Muhammad Sharif and others v. The State and another 1997 SCMR 304."
5. While relying on that para, he submits that it was held that administrative order passed by Magistrate cannot even be challenged under a revision under sections 435 and 439, Cr.P.C. And the only remedy available against such order is by way of a petition under section 561-A Cr.P.C. He also relied upon 2014 MLD 1059 Karachi and referred para No.9 of said judgment at page No.1064 and submitted that it has clearly been held that such orders cannot be challenged through constitutional petition. He further submits that office of ex-officio Justice of the Peace is not a court as has been held in 2005 PCr.LJ 357, however the position of court of Judicial Magistrate is distinguishable.
6. On the other hand, Mr. Rabait Ali Bhanbhro, advocate who has filed power in this case on behalf of proposed accused has submitted that it has been held in PLD 2014 SC 753 that jurisdiction of High Court under section 561-A Cr.P.C. Can only be exercised in respect of proceedings of a court and through such proceedings the executive or administrative orders or proceedings of any non- judicial forum cannot be challenged and therefore the orders passed by the Magistrate on police report can only be challenged under constitutional petition. He further submits that in such situation matters pertaining to investigation cannot be challenged under section 561-A, Cr.P.C. As such these proceedings are not maintainable as they have been filed under section 561-A, Cr .P.C .
7. It is clear that Hon'ble Supreme Court has held that orders passed by ex-officio Justice of the Peace cannot be challenged under section 561-A, Cr.P.C. And therefore those proceedings are not maintainable. This judgment was delivered while order passed by Lahore High Court, Lahore dated 27-3-2014 in Criminal Miscellaneous Application No.2404-M of 2009 was being examined by the Hon'ble Supreme Court of Pakistan, in para No.4, the Hon'ble Supreme Court held as under- "In view of the legal position discussed above we have entertained no manner of doubt that the order passed by the ex-officio Justice of the Peace under section 22-A(6), Cr.P.C. And impugned by the petitioner before the Lahore High Court, Lahore was an executive/administrative order and that the petitioner's petition filed under section 561-A, Cr. P. C. Before the Lahore High Court, Lahore assailing the said order passed by the ex-officio Justice of the Peace was not competent or maintainable. Apart from that while seized of a petition filed under section 561-A, Cr.P.C. The Lahore High Court, Lahore had no jurisdiction to interfere in the investigation of a criminal case, as held in the precedent cases mentioned above. It has not been denied before us that during the pendency or hearing of that petition the petitioner had never applied before the Lahore High Court, Lahore or had requested the learned Judge-inChamber of that Court seeking conversion of the petitioner's petition filed under section 561-A, Cr.P.C. Into a writ petition under Article 199 of the Constitution or its treatment as a writ petition without a formal conversion and, thus, the defect in competence and maintainability of the petitioner's petition filed under section 561-A, Cr. P. C.
Remained uncured and fatal to the petition."
8. Therefore with regard to the orders passed by ex-officio Justice of the Peace, the law is therefore clear now that those orders cannot be challenged under section 561-A, Cr.P.C. In the same judgment their lordships have also observed that ex-officio Justice of the Peace is not a court under sections 6, 28' and 29 of Cr.P.C. So far as the portion of judgment relied upon by the learned counsel for the proposed accused at page No. 754 is concerned, it is clear that it pertains to the administrative orders or proceedings of non-judicial forum or authority but in case orders are passed by a judicial authority in my humble view such orders can be challenged under section 561-A, Cr.P.C. As has been held in the case law referred by the learned counsel for the applicant i.e. 2011 MLD 766 Karachi 2006 SCMR 1920 and 2014 MLD 1059 Sindh.
9. In 2011 MLD 766 it was held that orders of the Magistrates cannot be challenged through constitutional petition in 2006 SCMR 1920 in para. No.8 Hon'ble Supreme Court has held that revision against such orders of Magistrate is not maintainable and it can be challenged only under section 561-A, Cr.P.C. In 2014 MLD 1059 Karachi also it has been held that constitutional petition cannot be filed against the administrative orders passed by Judicial' Magistrate. I am, therefore of the humble view that court of Judicial Magistrate is a judicial forum and is mentioned as a court in section 6 of Cr.P.C. And therefore orders passed by Judicial Magistrate on police report can be challenged under section 561-A Cr.P.C. In case other requirements of law are fulfilled. Another feature which distinguishes the court of Judicial Magistrate from the office of ex-officio Justice of Peace is that in case of acceptance of challan proceedings start in that court or such court transfers the matter, to another court it exercises various functions relating to judicial proceedings and is an integral part of judicial hierarchy, whereas office ex-officio Justice of Peace is not. It is not necessary that a juridical officer or office is appointed or declared as ex-officio Justice of Peace and merely the fact that one is so declared/appointed does not make it a court.
10. In view of above I hold that these proceedings are maintainable under section 561-A, Cr.P.C. No other view can be taken in view of observation referred above and made in 2006 SCMR 1920.
Learned counsel for the parties will be heard on merits on, the next date of hearing. Other matters which were tagged to resolve this legal question are de-tagged and will be heard separately on their own merits. This matter is adjourned to 6-3-2015. I am thankful to all the learned counsel appearing for the parties and specially learned Amicus Curiae.