ZULFIQAR ALI SANGI, J. Through this application, the applicant has challenged the order dated 25.11.2020 (impugned herein), passed by learned Additional Sessions Judge/Ex-officio Justice of Peace Thari Mirwah, in Cr. Misc.. Application No.5171/2020 (re-Yasir Yousuf v. The State through DPP Khairpur and others), wherein learned Justice of Peace passed certain directions on an application filed under sections 22f A and B, Cr.P.C.
2.' Learned Counsel for the Applicant, at the very outset, submits that learned Ex-officio Justice of Peace has not applied his judicial mind while passing the impugned order. He next submits that learned Ex-officio Justice of Peace has passed the impugned order while by passing his jurisdiction under sections 22-A and B, Cr.P.C; that not only this order was passed but several orders were passed by the same justice of peace in violation of law. Lastly, he prayed that this application may be allowed and the impugned order may be set-aside. He relied upon the case of Mir Muhammad Shaikh v. The State and 2 others (PLD 2020 Sindh 556)
3. Learned DPG, after going through the impugned order, has not supported the same and submits that learned Ex-officio Justice of Peace has no jurisdiction to pass such like orders while exercising jurisdiction under sections 22-A and B, Cr.P.C. He relied upon the case of Mukhtiar Ali v. The State and 4 others (2019 PCr.LJ 1201).
4. I have heard learned Counsel for the Applicant as well as DPG for the State and have gone through the material available on record with their able assistance.
5. On perusal of record it reflects that the application was filed under sections 22-A and B, Cr.P.C. before the Additional Session Judge/ Ex-officio Justice of Peace Mirwah for the following prayers:-
(a) That this Honourable Court may graciously be pleased to call private respondent in person and get undertaking from him not to harass the applicant and his family members in future.
(b) That this Honourable Court may kindly be pleased to direct private respondent not to run the vehicle with negligent driving behind the vehicle of applicant and further may kindly be pleased to direct the private respondent to leave the Sui Gas stop before time about 10 minutes or 30 minutes of vehicle of applicant or leave the Sui Gas stop after 30 minutes or 10 minutes of vehicle of applicant for secure the lives of passengers.
(c) To direct official respondents Nos. 1 to 3 (SSP Khairpur, SHO PS Thari Mirwah and SHO PS Bozdar Wada) to provide protection to the applicant and his family members.
(d) To award any other relief which deem and fit by this Honorable Court.
6. From perusal of the contents and the above prayers of the application it reveals that there was a dispute in between the private parties on the route permit of their vehicles running there. Record further reflects that while exercising jurisdiction under sections 22-A and B, Cr.P.C. the Ex-officio Justice of Peace beside the police officials called the RTO Khairpur along with a report in connection with the above application though the RTO Khairpur was not party to the proceedings.
The RTO Khairpur appeared and submitted his report, after hearing the parties learned 'Ex-officio Justice of Peace passed the following order:-
Dated: 25-1 1-2020.
Heard learned counsel for applicant/petitioner, applicant in person reports called from the respondents, who submitted their respective reports, reports from complaint cell received.
1. Learned Counsel for the petitioner argued that petitioner having a van service from Mir Wah to Karachi and Geo Farhan is his rivalry, having similar service van service from Bozdar Wada to Karachi but are running service without route permit for the vans used in the service.
2. Private respondent submitted that they having eleven vans used in service but produced only two route permits, that is too photo copies and for remaining vans they are having no record for route permit.
3. RTO Zamir Hussain Brohi present and submitted that van service from Mirwah or Bozdar is running without route permit, when they are trying to take action, local police and Noble persons of the area are creating problems, especially the SHOs are not registering cases against them.
4. Report of SHO and the complaint cell appears evasive, as they are not willing to take action against these transports Mafia.
5. I considered the submission and gone through the material, it appears that both the reports of the SHO and complaint cell which are evasive in nature, the report of RTO is snowing actual facts of the area, in fact it is SHOs of the area especially SHO PS Bozdar Wada and SHO Mirwah responsible for maintaining law and order and Shall cooperative with other officials, especially in present to the RTO.
6. SSP Khairpur and DSP Mirwah shall cooperate with the RTO and direct both the SHOs to retain all the vans used in van service from Mirwah to Karachi or Bozdar Wada to Karachi, including the vans used in the name of Geo Farhan coaches.
7. SHO Mirwah shall provide protection to the petitioner and his family from the private respondents and this order shall not be taken as permission or route permit to the vans of the petitioner from Karachi to Mirwah.
8. By the above directions, application in hand allowed, RTO Khairpur and SHOs Mirwah and Bozdar Wada shall submit report within 30 days. Let the copy of order be sent to the SSP Khairpur, DSP Mirwah, SHO Mirwah and Bozdar Wada and RTO Khairpur for information and compliance.
7. It is observed that an Ex-officio Justice of Peace in Pakistan (i.e. Sessions Judge and nominated Additional Sessions Judge in a relevant District), deriving jurisdiction under section 25, Cr.P.C., exercises, by and large, his powers under section 22-A(6), Cr.P.C., which reads as under:- 22-A. Powers of Justices of the Peace:
(6) 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;
(ii) transfer of investigation from one police officer to another; and,
(iii) neglect, failure or excess committed by a police authority in relation to its functions and duties.
8. Prima facie, the perusal of above provision makes it clear that an Ex-officio Justice of Peace has the power to issue appropriate directions to the police authorities concerned only on a complaint regarding non-registration of criminal case, transfer of investigation from one police officer to another and neglect, failure or excess committed by a police authority in relation to its function and duties. The said powers of Ex-officio Justice of Peace are very much limited, defined by the relevant provision of law itself as the same have been given to aid, assist and authorize the criminal jurisdiction system which, too, in relation to obligations/duties of the police only. As such, section 22-A(6), Cr.P.C, does not confer any jurisdiction on the Ex-officio Justice of Peace vested in it to entertain any complaint/application aimed to pass any direction to a private person or other officials relating to his duties in respect of any civil dispute as such person(s), prima facie, can't be brought within meaning of the 'police authorities'. It is well settled principle of interpretation law that "If the words of the Statute are themselves clear and unambiguous, no more is necessary A to expound those words in their natural and ordinary sense, the words themselves in such a case best declare the intentions of legislature", as held in the case of Mumtaz Hussain v. Dr. Nasir Khan and others (2010 SCMR 1254).
In another case of Ghulam Haider and others v. Murad through Legal Representatives and others (PLD 2012 SC 501), it is held as:- "Where the plain language of a statute admits of no other interpretation then the intention of the legislature conveyed through such language is to be given its full effect."
9. The jurisdiction is always created by the law and the law alone and the Court(s) are always bound to follow the dictate and commandment of the law. What is not permitted by the law, can't be done and even assumed by the Court(s) even in name of hardship rather the Court(s) shall always be required to act strictly in accordance with law. Guidance is taken from the case of Government of Pakistan v. Nawaz Ali Sheikh (2020 SCMR 656), wherein it was held as:- "14. All Courts and Tribunals are required to act strictly in accordance with law and all orders and judgments passed by them must be entrenched and grounded on the Constitution, the law and the rules. No Court, Authority or Tribunal has any jurisdiction to grant any relief in favour of any person which is not based upon the foundation of the Constitution, the law and the rules...."
10. Any order passed by the Ex-officio Justice of Peace, whereby directing any, 'private person' or 'any other official of any other department' would be void, ab initio as well without jurisdiction. Such view finds support from a decision, passed by Division Bench of this court in case of Ghulam Nabi v. Syed Ahmed Shah and 6 others (2019 MLD 1066), while discussing the powers of the Ex-officio Justice of Peace has held as under:-
7. It may be observed that an Ex-Officio Justice of Peace has the power to issue appropriate directions to the police authorities concerned on a complaint regarding non-registration of criminal case, transfer of investigation from one police officer to another and neglect, failure or excess committed by a police authority in relation to its function and duties. Aforesaid powers of Ex-Officio Justice of Peace are very limited which have been given to aid, assist and authorize the criminal jurisdiction system. However, office of the Ex-Officio Justice of Peace is not a court as envisage under section 6 of the Cr.P.C. or the relevant provisions of C.P.C. In other words, powers and duties of Ex-Officio Justice of Peace under section 22-A(6), Cr.P.C. are only administrative and purely ministerial in character, which do not involve any jurisdiction that can be termed as judicial in nature or character. As such, section 22-A(6), Cr.P.C., does not confer any jurisdiction on the Ex- officio Justice of Peace to entertain any complaint/application aimed to pass any direction to a person or official relating to his duties in respect of any dispute regarding any immovable property.
8. In the case in hand, it does not reflect from the available record as to how and with what authority the Sessions Judge/Ex-Officio Justice of Peace, Larkana entertained the application of the respondent No.1, and exceptionally when it revealed that the dispute between the parties did not fall within the defined domain of Ex-officio Justice of Peace under section 22-A(6), Cr.P.C., the application should have been dismissed by him at limine stage for want of jurisdiction, directing him to adopt proper course to redress his grievance.
9. For what has been discussed above, this Constitutional Petition is allowed and the impugned order passed by the Sessions Judge/Ex-officio Justice of Peace, Larkana on 22.08.2017 is hereby declared as without lawful authority and of no legal effect and, resultantly, the same stands set aside.
11. This court in another case of Mukhtiar Ali v. The State and 4 others (2019 PCr.LJ 1201) has held as under:-
10. There is nothing in above provision of law which may authorize an Ex-Officio Justice of Peace to issue direction to revenue authorities to maintain record of right by exercising his powers under section 22A(6)(iii), Cr.P.C. rather the provision is quite clear and obvious that it is aimed to provide a watch over acts and omissions of police only. Here, it may well be added that "jurisdiction" is meant a power to hear and decide a legal controversy between the parties which could be vested by none but the law alone and absence of such power would alone be sufficient to render such order as "without jurisdiction". Reference in that respect may well be placed upon the case of Searle IV Solution (Pvt.) Ltd. v. Federation of Pakistan 2018 SCMR 1444 (Rel. P-1458) wherein it is observed by the Honourable Supreme Court of Pakistan that: "...wherein this Court held that by "jurisdiction" is meant a power to hear and decide a legal controversy between the parties...
Since, prima facie, the provision of section 22A(6)(iii) of the Code, nowhere, vests any power in Ex- Officio Justice of Peace to hear and decide a complaint of negligence by any other official authority but 'police hence it would always be safe to conclude that any such direction would be 'without jurisdiction'. In that situation, it is rightly being contended by learned counsel for the applicant that learned Sessions Judge/Exofficio Justice of Peace, Qamber Shandadkot Qamber, has passed the impugned order in exercise of jurisdiction, which was not invested to him. No order which is passed in excess of jurisdiction could be protected on point of limitation. The applicant of course was not made a party by the private respondent in his application under section 22-A(6)
(iii), Cr.P.C. before the learned Sessions Judge/Ex-Officio Justice of Peace, Qamber Shandadkot alias Qamber, perhaps knowingly to cover up his wrong doing. Even otherwise, an order, passed by a judicial officer, without having any lawful power (jurisdiction), once comes to notice of High Court can well be examined even without any application. In these circumstances, the impugned order could not be sustained, it is set aside.
12. It. is pointed out that Additional Sessions Judge/Ex-officio Justice of Peace Thari Mirwah (Mr. Nazakat All Tanwri) is passing like nature orders in each and every application filed before him by misapplying his judicious mind and by violating the law and the judgments of the Apex Courts though this court in case of Mir Muhammad Shaikh v. The State and 2 others (PLD 2020 Sindh 556), while allowing application set-aside the order passed by the same Justice of Peace Thari Mirwah and the order of this court was communicated to him, wherein this court has held as under:-
13. From perusal of the above provision, it is clear that, an Ex-Officio Justice of Peace has the power to issue appropriate directions to the police authorities concerned on a complaint regarding non- registration of criminal case, transfer of investigation from one police officer to another and neglect, failure or excess committed by a police authority in relation to its function and duties. The said powers of Ex-Officio Justice of Peace are very much limited which have been given to aid, assist and authorize the criminal jurisdiction system. As such, section 22-A(6), Cr.P.C, does not confer any jurisdiction on the Ex-officio Justice of Peace vested in it to entertain any complaint/application aimed, to pass any direction to a person or official relating to his duties in respect of any dispute regarding any immovable property.
14. In the case in hand, it does not reflect from the available record as to how and with what authority the Additional Sessions Judge/Ex-Officio Justice of Peace, Mirwah entertained the application of the Respondent No.3, and exceptionally when it revealed that the dispute between the parties did not fall within the defined domain of Ex-officio Justice of Peace under section 22- A(6), Cr.P.C., the application should have been dismissed by him at limine stage for want of jurisdiction, directing him to adopt proper course to redress his grievance as has earlier been decided by the same Justice of. Peace on the application about the same property. Even from the perusal of memo of application it is clear that there was no any prayer in this regard for which order was passed by the Justice of Peace.
15. For what has been discussed above, this application is allowed and the impugned order passed by the Additional Sessions Judge/Ex-officio Justice of Peace, Mirwah dated 10.01.2020 is hereby declared as without lawful authority and having no legal effect, resultantly, same is set-aside.
Since, undertaking has been given by the counsel of respondent No.3 that respondent No. 3 will not register FIR against the Revenue officials to the extent of allegations in the application therefore, the application of respondent No.3 deemed to be dismissed.
16. This order shall, however, not come in the way of passing an order in the pending litigation or any party moved the Civil Court if so advised. Copy of this order be sent to the Sessions Judge, Khairpur and concerned Justice of Peace.
13. In the case in hand, it does not reflect from the available record as to how and with what authority the Additional Sessions Judge/Exofficio Justice of Peace, Mirwah entertained the application of the Respondent No.5, when it revealed that the dispute was in between the private parties and was on route permit of the Vans (Coaches) which did not fall within the defined domain of Ex-officio Justice of Peace under section 22-A(6), Cr.P.C., the application should have been dismissed by him at limine stage for want of jurisdiction, directing him to adopt proper course to redress his grievance. Learned Additional Sessions Judge/Ex-officio Justice of Peace Mirwah not only entertained such application but called the RTO who was not a party in the application nor was any relief sought against him. The order passed by the Ex-officio Justice of Peace is illegal, unlawful and without jurisdiction therefore the same was set-aside by this court vide short order dated: 04-10-2021.
14. It is also observed that Additional Sessions Judge/Ex-officio Justice of Peace Thari Mirwah is passing orders of like nature frequently in violation of law and the Judgments of the Apex courts, without jurisdiction, however, I am restraining myself from passing any comments/ structure against him in view of the Judgments of Honourable Supreme Court of Pakistan in cases of Miss Nusrat Yasmin v. Registrar, Peshawar High Court, Peshawar and others. (PLD 2019 SC 719) and Aijaz Ahmed Tunio v. The State (PLD 2021 SC 752) and may write a separate note in view of the judgments Supra.
15. In view of the above legal position, all the Sessions Judges/ Additional Sessions Judges working in capacity of Ex-officio Justice of peace in Sindh are directed not to entertain applications under section 22-A(6), Cr.P.C. except discussed above.
16. Additional Register of this court is directed to send copy of this order to all Sessions Judges/Additional Sessions Judges/Ex-officio Justice of Peace within the territorial jurisdiction of this court for compliance, Further, a copy of this order may also be forwarded to the Registrar of this Court for placing the same before the Honourable Chief Justice, for circulation amongst all other districts of the Province, if so desired.