ROZI KHAN BARRECH, J. The petitioners have invoked the constitutional jurisdiction of this court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 with the following prayer: "It is, therefore, respectfully prayed that, in consideration of above stated facts and circumstances of the case, this Hon'ble court may be pleased to set aside the impugned order dated 5.3.2016 passed by Addl.. Sessions Judge-VI Quetta/ respondent No.3 and to dismiss the application under section 22-A (6), Cr.P.C. filed by respondent No.1 applicant, in the interest of justice and equity ."
2. Facts of the case are that respondent No.1 namely Khan Muhammad son of Hasam-ud-Din submitted an application under Section 22-A Cr.P.C. against the petitioners before the court of learned Additional Sessions Judge-VI, Quetta being designated Justice of Peace for registration of criminal case under the relevant law on the ground that respondent No.1 had execu ted an agreement dated 29.05.2015, with one Haji Muhammad Akram, petitioner No.1 's brother , in pursuance whereof the respondent No.1 alleged that a property was leased out to him for purpose of carrying out business of car parking; that the petitioners started interference in the said property and thereafter the petitioners along with 20/22 other unknown armed persons entered in the premises and illegally broke the locks and forcibly entered into the same, where-after steal different valuable items i.e. electric articles, service wires, computer set, fifty five cartons of medicines, batteries, parts of vehicles lying in the parking. Upon receipt of the application filed by respondents, the learned Justice of Peace called for comments from the concerned SHO, who submitted his comments wherein he admitted to the extent that there is civil dispute between the parties and at the time of the alleged incident the petitioners were not present at Quetta, and were at Karachi.
3. After hearing arguments of learned counsel for respondent No.1, the application submitted by him was accepted, whereby vide order dated 5.3.2016 ("impugned order") the SHO concerned was directed for registration of criminal case according to relevant law. Feeling aggrieved the petitioners have challenged the validity of the said order by filing the instant constitution petition.
4. The respondent No.1 was put on notice , who submitted reply to the instant writ petition, denying the contents of the same. After filing this petition, the petitioner No.1 submitted a Miscellaneous Application bearing No. 476 of 2016 dated 08.03.2016, whereby this court vide order dated 9.3.2016 suspen ded the impugned order dated 05.03.2016.
5. We have heard the learned counsel for the parties and anxiously considered the arguments in the light of the law and facts on record.
6. Perusal of the record reveals that respondent No.1 took the ground in his application under Section 22-A(6)
Cr.P.C. that: "the petitioners/proposed accused started illegal interference in the peaceful business of the complainant/applicant and forcing him to vacate the said parkin g; that respondent No.1 filed a civil suit before the learned Civil Judge-VI, Quetta, which is still pending and due to interference and forcible entrance into car parking by the petitioners, the applicant/ respondent No.1 also filed an application for contempt of court before the learned Civil Judge-VI, Quetta"
7. It is an admitted fact of the case that the occurrence of the alleged incident arose in the backdrop of civil dispute between the parties and so far as the constitution of the cognizable offence is conc erned, the story of the applicant seems to be doubtful. Neither any date of occurrence is given in the complaint nor the complainant has mentioned the name of any witness in his complainant. Perusal of the impugned order , which is based on the report of the SHO concerned shows that there is dispute over land between the parties and the SHO is still inquiring about the said incident. It is apparent from the impugned order that substance of the allegation was neither considered nor weighed in juxtaposition by the trial court with the material available.
8. In our opinion, a Justice of Peace acting in exercise of Section 22-A, Cr.P.C, is not supposed to proceed and act mechanically by simply considering the version of events narrated by a party applying for registration, but instead, in B order to safeguard against misuse or abuse of such process, must apply his mind and satisfy himself that, prima-facie, there is some material available on the record to support such version. We are fortified by the additional note appended to the main judgment of the Hon'ble Supreme Court in the case reported as Younas Abbas and others v. Additional Sess ions Judge, Chakwal (PLD 2016 SC 581) wherein the following was observed: "2. The past experience of around 14 years (since the insertion of these provisions into the Code of Criminal Procedure) would unmistakably reveal that these provisions especially Section 22-A of the Code of Criminal Procedure, though beneficial and advantageous to the public at large, yet in myriad cases, it has been misused and abused.
Once a false criminal case is registered against an individual, it becomes exceedingly difficult for him/her to get rid of it. The time and money which is spent on acquiring a clean chit by way of cancellation of the case or acquittal is not hard to fathom. There is no denying the fact that at times false and frivolous cases are got registered just to humble and harass the opposite party . In such a milieu, powers given to an ex-of ficio Justice of the Peace under subsection (6) of. Section 22-A, Code of Criminal Procedure, to issue appropriate directions on a complaint filed by an aggrieved person for registration of a criminal case. (Clause-i) and for transfer of investigation from one police officer to another (Clause-ii) though efficacious and expeditious besides being at the doorstep, but at the same time, these provisions should not be unbridled or open-ended. These provisions must be defined, structured and its contour delineated to obviate misuse by influential and unscrupulous elements. Therefore:--
(i) The ex-officio Justice of the Peace, before issuance of a direction on a complaint for the non-registration of a criminal case under subsection (6) (i) of section 22-A, Code of Criminal Procedure must satisfy himself that sufficient material is available on the record, such as application to the concerned SHO for registration of the criminal case and on his refusal or reluctance, complaint to the higher police office rs i.e. DPO, RPO etc., to show that the aggrieved person, before invoking the powers of ex-officio Justice of the Peace, had recourse to the high ups in the police hierarchy .
(ii) ................"
9. It has also been argued by the learned counsel for the petitioner that as the petitioners were condemned unheard while passing the impugned order , therefore, the same is liable to be set aside. We are of the considered view that in cases where the allegations of cheating, fraud, forgery , criminal breach of trust, ineffective firing without causing any injury to any person, criminal trespass, criminal intimidation to commit murder , etc. are levelled and no urgency is involved and there are no chan ces of the evidence being destroyed, in all such cases and other cases of the like nature, the concerned Justice of Peace, must provide an opportunity of hearing to the proposed accused before giving a direction for registration of the FIR. However , in the cases where the allegations of murder , causing such injuries to the aggrieved party attracting cognizable offences, offences under Anti-T errorism Act, rape, sodomy , possession of counterfeit currency , drugs etc. have been levelled, in such cases and in all other cases in which some urgency is involved and there are chances that due to the delay in registration of the FIR, valuable evidence of the case may be destroyed, there is no need to provide opportunity of hearing to the proposed accused before registration of the case and FIR can be lodged without hearing a proposed accused. However , we may clarify here that even in cases falling under this latter category , if the facts and circumstances of a case so warrant or appear to be doubtful or a petition for registration of FIR seems to be based on mala fides then opportunity of hearing may be provided to the proposed accused. In such like cases, the Justice of Peace is not obliged to blindly pass an order for registration of the FIR. Reference in this context may be made to the case of 'Rai Ashraf and others v. Muhammad Saleem Bhatti and others' (PLD 2010 Supreme Court 691), wherein the Hon'ble Supreme Court was pleased to observe as under: "as the petition under section 22-A/B of Cr.P.C. was malafidely , filed by the petitioner of said case against Lahore Development Authority (L.D.A) in order to restrain the public functionaries not to take action against him in accordance with the L.D.A. Act, 1975, rules and regulations framed thereunder , therefore, the said petition was rightly dismissed by the learned Ex-officio Justice of Peace, Lahore and the order of High Court, whereby , petition under section 22-A/B of Cr.P.C. was accepted merely on the ground that a cognizable offence was made out from the contents of said petition, was set-aside. We are therefore, of the considered view that even in suitable cases falling under the latter category , the Justice of Peace should provide opportunity of hearing to the proposed accused before giving final decision on the petition under section 22-A/B of Cr. P. C. For example in a case of abduction or rape of a girl, if the police report or the other circumstances suggest that the abductee/victim, being sui juris, with her free will and consent has contracted marriage with the proposed accused and there is some documentary evidence like registered Nikah Mama, etc. in this respect then a mechanical order for registration of FIR should not be passed by the Justice of Peace, merely on the ground that a cognizable offence was made out from the contents of the petition for regist ration of FIR. Similarly , in a case where the allegation of dacoity has been levelled and the police report so suggests that petition under section 22-A/B of Cr.P.C. has malafidely been moved by a person-who is himself an accused in the murder case of the relative of the proposed accused and the petition under section 22-A/B of Cr.P.C. has been moved in order to save his own skin, in that situation, the Ex- officio/Justice of Peace must provide an opportunity of hearing to the proposed accused before passing any adverse order against him. In such like cases, opportunity of hearing must be provided to the proposed accused, by the Justice of Peace by fixing shortes t possible dates of hearing before passing a final verdict on the petition under section 22-A/B of Cr.P.C. However , it is clarified that opportunity of hearing to a proposed accused of cases falling under the category of latter cases, is to be provided by the Ex-officio/Justice of Peace, only in exceptional cases, where the circumstances of a case so warrant and not in all cases of the said category ."
10. Now let us dilate upon the merits of the instant petition. The impugned order for registration of FIR against the petitioners was passed by learned Justice of Peace without affording an opportunity of hearing as mentioned in ground "C" of the instant petition. Moreso, there is civil dispute between. the parties, which is still pending before the learned Civil Judge-VI, Quetta due to some occurrence the ground taken in the application under Section 22-A, Cr.P.C. appears to be whimsical. The element of mala fides is quite apparent from the conduct of the respondent/complainant and in this view of the matter the order passed by learned Justice of Peace dated 5.3.2016 is not in accordance with law .
For the reasons discussed above, the instant petition is allowed, the impugned order dated 3.5.2016 passed by learned Justice of Peace is set aside. However , the complainant/ respondent is at liberty to file a private complaint, if so advised, before the competent forum.