KHADIM HUSSAIN M. SHAIKH, J.---Through the captioned petition, the petitioner has called in question the order dated 09.04.2015, passed by ex-officio Justice of the Peace/Additional Sessions Judge, Kotri being without lawful authority and illegal.
2. Briefly, the facts of the case are that one Shafi Muhammad son of Jumo Khan Leghari, the father of the petitioner had filed an F.C. Suit, No,35 of 2009 re-Shafi Muhammad v. Province of Sindh and others including Abdullah, the father of respondent No,18 for declaration, cancellation of entries and permanent injunction in the Court of Senior Civil Judge, Sehwan Sharif with the following prayers.
(a) That the Honourable Court may be pleased to declare that the plaintiff is the lawful owner of the suit property to the extent of his share inherited from his late father and the act of defendant Nos.07/a to 07/d, 08/a to 11 of issuing threats of dispossession etc is illegal, null, without due course of law and purely based on mala fide motive.
(b)That the Honourable Court may further be pleased to direct the defendant No,05 for cancellation of the entries shown in the names of private defendants relating to the inherited property of the plaintiff.
(c) That the Honourable Court may further be pleased to issue permanent injunction against the defendant Nos.07/a to 07/d, 08/a to 11 from interfering with the peaceful possession of the plaintiff over the suit property and issuing threats by themselves or through their agents, collaborates and friends etc. or selling the suit property into any other hands.
(d) That the permanent injunction may also be ordered directing the defendant Nos.05 and 06 preventing from making any further entry or requesting any sale deed relating to suit property.
(e) That the costs be borne by the private defendants.
(f) That any other relief.
3. It is further the case of the petitioner that the aforesaid suit was decreed as prayed by the Court of Senior Civil Judge, Sehwan Sharif vide Judgment dated 28.10.2010; the respondent No,18 had filed a Criminal Miscellaneous Application No,169 of 2015 re-GuI Hassan v. Senior Superintendent of Police District Jamshoro and others including the petitioner under the Provisions of sections 22-A and 22-B, Cr.P.C. before the learned ex-officio Justice of the Peace/Sessions Judge, Jamshoro, which was entrusted to the learned ex-officio Justice of the Peace/Additional Sessions Judge, Kotri, who vide an order dated 09.04.2015, disposed of the aforementioned Criminal Miscellaneous Application, in the following manner:- "Considering the report of Mukhtiarkar Revenue, Taluka Kotri and report of SHO Police Station Bhan Sayedabad lam satisfied that the absconders/proclaimed offenders mentioned above against whom, the large number of criminal cases are pending, they are allegedly relatives of private respondents, the situation emerges from the circumstances that the possibility cannot be ruled out that the applicant and his relatives are not being allowed to harvest the wheat crop standing on the above mentioned survey numbers, in which the private respondents and absconders mentioned above have nothing and have no concern. In these circumstances, 1 find it fit and proper to direct the respondents Nos.1 to 3 to provide complete legal protection to the applicant and his relatives present in Court, so that they could cultivate above survey numbers viz. S. Nos.
136, 137, 142, 147, 148, 152, 153 of Deh Sayedabad, 326, 642, 643 of Deh Bhan. The Tapedar of the beat should be present at site along with SHO Police Station Bhan and DSP Sehwan, to ensure that private respondents or anybody else on their behalf may not create any hindrance while the wheat crop is harvested by the applicant and his relatives on above survey numbers. In case, there is any attempt by the private respondents or anybody else creating hindrance in the process of harvest and thrashing of lawful cultivation of applicant and his relatives on survey numbers as mentioned above, legal action in the shape of FIR shall be taken against the persons involved. The DSP Sehwan and SHO Police Station Bhan must keep in mind that in case, the order is not implemented in letter and spirit and any complaint is made against them by the applicant, if the Court is satisfied that the order is not implemented in its letter and spirit, strict action shall be taken against them. With these observations, application stands disposed of."
4. Having felt aggrieved by the aforesaid order dated 09.04.2015, passed by the learned ex-officio Justice of the Peace/Additional Sessions Judge, Kotri, the petitioner has filed the instant petition, with the following prayers:- A) That honorable court may be pleased to set aside the impugned order dated 09.04.2015 passed by the respondent No,1, which is against the law and natural justice.
B) That this honorable court may be pleased to direct the respondent Nos.2 to 4 not to cause harassm ent to the petitioner and his family members in respect of land as per judgment dated 28.10.2010 passed by SCJ Sehwan in favor of petitioner father.
C) That this honorable court may be pleased to direct the respondent Nos.2 to 5 not to interfere with the matter of petitioner, which is pure civil nature.
D) Any other relief which deemed fit and proper.
5. Learned advocate for the petitioner has mainly contended that the petitioner's father namely Shafi Muhammad son of Jumo Khan Leghari had filed a suit in the Court of Senior Civil Judge, Sehwan Sharif, for declaration, cancellation of entries and permanent injunctions against Abdullah, the father of respondent No,18 Gul Hasan in respect of the disputed land, which per him, was decreed vide judgment dated 28.10.2010, by the aforesaid Civil Court; there is dispute between the private parties over the title and possession of the landed property; the learned ex-officio Justice of the Peace/Additional Sessions Judge, Kotri vide impugned order dated 09.04.2015 allowed the respondent No,18 Gul Hasan to take over the possession of the subject land belonging to the petitioner party with the help of the police along with the crops cultivated therein by the petitioner and his brothers; and, the impugned order dated 09.04.2015 is without jurisdiction and illegal. He, therefore, prays that the petition may be allowed and the impugned order dated 09.04.2015, passed by ex-officio Justice of the Peace/Additional Sessions Judge, Kotri, may be set aside.
6. Learned A.A.G adopting the arguments of the learned counsel for the petitioner further submitted that ex-officio Justice of the Peace/Additional Sessions Judge, Kotri had limited jurisdiction within the scope of provisions of sections 22-A and section 22-B, Cr.P.C. and the impugned order; passed by him, is not sustainable.
7. Record reflects that the respondent No,18 namely Gul Hasan, who was the sole applicant and real contestant before learned ex-officio Justice of the Peace/Additional Sessions Judge, Kotri, had appeared before this Court on two dates of hearing viz. 13.05.2015 and 04.06.2015 and sought adjournments, but today he chose to remain absent without any intimation.
8. The powers and duties of a Justice of the Peace and an ex-officio Justice of the Peace in Pakistan have been discussed in detail by the Hon'ble Full Bench of Lahore High Court in case of Khizer Hayat and others v. Inspector-General of Police (Punjab), Lahore and others (PLD 2005 Lahore 470). Some of the paragraphs of the said judgment, which are relevant for the purpose of deciding the instant petition; are reproduced below for convenience and ready reference:- "35
(i) The powers and duties of a Justice of the Peace or an ex-officio Justice of the Peace in Pakistan stand specified in sections 22-A and 22-B, Cr.P.C. and they possess no other additional power and perform no other additional duty except that which is specifically conferred upon them by a statute, (ii)The powers and duties of a Justice of the Peace or an ex-officio Justice of the Peace in Pakistan do not involve any jurisdiction which can be termed as judicial and the functions performed by him are merely administrative and ministerial in nature and character.
(iii).....................................
(iv)The directions to be issued by an ex-officio Justice of the Peace under section 22-A(6), Cr.P.C. are to be directions to the concerned police authorities to attend to the grievance of the complaining person in accordance with the relevant law and through the jurisdiction under section 22-A(6), Cr.P.C. an ex-officio Justice of the Peace cannot arrogate to himself the power of redressing the actual grievance itself (v)................................
(vi)The proceedings before an ex-officio Justice of the Peace under section 22-A(6), Cr.P.C. are essentially summary in character. He is not required to treat such proceedings as regular lis and no elaborate orders having semblance of a judgment are required to be passed."
9. Manifestly, the matter before the ex-officio Justice of the Peace/Additional Sessions Judge, Kotri involved dispute between the private parties over the landed property and the Civil Court had already been approached by the petitioner's father in the aforementioned suit, which, per the petitioner, was decreed vide judgment dated 28.10.2010, copy whereof has been annexed by the petitioner with the petition as Annexure-"D" at pages-41 to 48.
10. In view of the above, it is crystal clear that it did not fall within the domain of ex-officio Justice of the Peace to enter into arena of civil disputes between the private parties over the landed property involving intricate questions of fact relating to title and possession etc., over the subject property and his powers and duties, having been specified in sections 22-A and 22-B, Cr.P.C., were limited within the scope of the said provisions of law, but ex-officio Justice of the Peace/Additional Sessions Judge, Kotri arrogated to himself the powers which did not vest in him and has passed the impugned order dated 09.04.2015, which from face of it is without jurisdiction and void.
11. It needs no reiteration that it is the duty of every court or forum to first determine its jurisdiction and then to proceed ahead for the simple reason that the order, if any, passed without jurisdiction, would be void ab initio and nullity in the eye of law and such an order shall neither have any binding force nor does it create or recognize any right and it would rather be non-existent.
Reference can be made to case of Muhammad Ramzan and others v. Member (Rev.)/CSS and others (1997 SCMR 1635), wherein Hon'ble Supreme Court has held that "entire edifice constructed on the basis of void order crumbles along with same and did not require to be set aside through appeal or any other proceedings." Reference can also be made to a case of Rehmatullah and others v. Saleh Khan and others (2007 SCMR 729), wherein the Hon'ble Supreme Court has held that "when the basic order is without lawful authority then all the superstructure shall fall on the ground automatically." In case of Khyber Tractors (Pvt.) Ltd. v. Pakistan through Ministry of Finance (PLD 2005 'Supreme Court 842), the Hon'ble Supreme Court has held that:- "Question of jurisdiction of a forum is always considered to be very important and any order passed by a court or a forum, having no jurisdiction, even if it is found to be correct on merits, is not sustainable. Jurisdiction of a court lays down a foundation stone for a judicial or a quasi- judicial functionary to exercise its powers/authority and no sooner the question of jurisdiction is determined in negative, the whole edifice, built on such defective proceedings is bound to crumble down."
12.In view of what has been discussed above, we are of the considered view that the impugned order dated 09.04.2015, passed by the ex-officio Justice of the Peace/Additional Sessions Judge, Kotri is without any lawful authority and of no legal effect, which is not sustainable and the instant petition deserves to be allowed.
13. Foregoing are the reasons of our short order dated 26.02.2016, whereby the instant petition was allowed and the impugned order dated 09.04.2015 passed by ex-officio Justice of the Peace/Additional Sessions Judge, Kotri was set aside.
14.Resultantly, the listed application having become infructuous stands disposed of.