' SAYYED MAZAHAR ALI AKBAR NAQVI, J.---Through this constitutional petition filed in terms of Article 199 of the Constitution of Islamic Republic of Pakistan, the petitioner has made the following prayer:- "In the light of the above it is humbly prayed that the petition may .Kindly be accepted and the Orders dated 05.01.2012 and 25.01.2012, passed by the learned additional judge may kindly be set aside. The SHO concerned and other police officials may kindly be restrained from harassing the petitioner illegally, unlawfully and without due process of law."
2. At the very outset, learned counsel for the petitioner contends that the petitioner while performing his official duty conducted raid at the premises of respondent No,2 and found that he was committing theft of electricity. Further contends that respondent No,2 just to avoid the circumstances of stealing of electricity burnt the meter to ashes and in this regard, the petitioner lodged an FIR No,1623/2011, under section 39-A of Electricity Act with Police Station Baghbanpura, Lahore, against him. Also contends that subsequently, respondent No,2 filed a civil suit "titled Glad= Qadir v. LESCO etc." for declaration and permanent injunction against the petitioner and LESCO and also filed contempt petition. It is argued that thereafter, respondent No,2 filed a petition under sections 22-A and 22-B Cr.P.C. For registration of criminal case against the petitioner and others on wrong premises before the learned Additional Sessions Judge/Ex-Officio Justice of Peace, Lahore, who while passing the order impugned dated 05.01.2012 has ordered the SHO, Police Station Baghanpura, to get recorded statement under section 154, Cr.P.C. Of petitioner (respondent No,2 herein) and while keeping in view the application and statement of the petitioner (respondent No,2 herein) if any cognizable offence is made out, then chalk out FIR and proceed further in accordance with law. It is also argued that another application under Article 155-C of Police Order was moved by respondent No,2 before the learned Additional Sessions Judge/Ex-Officio Justice of Peace, Lahore,. Who vide order dated 25.01.2012 has referred the matter to Capital City Police Officer, Lahore, to look into the matter. It is further argued that the petitioner is a public servant; therefore, the learned court below has not taken into consideration the fact that the act, that is purported to be committed by him, is in official capacity. It is argued that the ordcrs impugned are not sustainable under the law in the given circumstances especially when it is an admitted fact that civil suit was filed by respondent No,2 and the same was pending at the time when the application under sections 22-A and 22-B, Cr.P.C. Was moved. It is lastly argued that the orders impugned have been procured by respondent No,2 against the real facts and circumstances of the case and as such, the same are liable to be set aside.
3. On the other hand, learned counsel for respondent No,2 submits that respondent No,2 has installed a small unit where the petitioner forcibly entered and committed the crime alleged.
Further submits that the orders impugned passed by the learned court below are in accordance with law.
4. I have heard the learned counsel for the petitioner as well as respondent No,2 and'have gone through the available record.
5. There is no second cavil to the proposition that the petitioner is the public functionary and he in the capacity as public functionary performed his official duty after fulfilling all the legal requirements, therefore, he has not committed any offence. Moreover, the petitioner has already lodged an FIR against respondent No, 2, who has also filed a suit for declaration and permanent injunction against LESCO including the petitioner and subsequently, he has filed a contempt petition.
6. As far as the scope of action is concerned, in salutary judgment in 'the case titled "The State and others v. M. Ldrees Ghauri and others" .(2008 SCM R 1118), it has been held by the august Supreme Court of Pakistan that:-- "----Act done in- good faith---Penal consequences--Scope---Act done in good faith, which is not in violation of criminal law and also is not result of criminal motivation, has no penal consequences-- If a person is prosecuted for such an act, there is no repair to the loss caused to him in his body and mind. "
7. Admittedly, the petitioner has acted as public 'fanctionary in good faith, therefore, the act was done in good faith.
8. Keeping in view all the facts and circumstances and pendency of civil suit, the orders impugned dated 05.01.2012 and 25.01.2012, passed by the learned Additional Sessions Judge/Ex-Officio Justice of Peace, Lahore, are declared as illegal and without lawful authority and the same are liable to be set aside. Resultantly, this petition is allowed and the orders impugned dated 05.01.2012 and 24.01.2012, passed by the learned Sessions Judge/Ex-Officio Justice of Peace, Lahore are set aside.