' This is a petition under section 561-A, Cr. P. C. By Sh. Haji Muhammad for the quashment of the proceedings initiated against him by Malik Niaz Ali and Malik Muhammad Ismail respondents Nos. 1 and 2 in the Court of the Honorary Special Magistrate with powers of Magistrate 1st Class, Dipalur, District Sahiwal.
2. It appears that on 13-2-78 respondents Nos. 1 and 2 filed a private complaint against the petitioner before the Honorary Special Magistrate, Dipalpur (respondent No, 3) alleging that they were businessm en, that 3/4 years back they had sold 20/22 trucks of raw cotton to the petitioner, proprietor of Sabri Commission Shop, Pakpattan, that the petitioner used to make payments "turn by turn" as the goods were sold and that, a sum of Rs, 10,815.44 was still due to them which the petitioner had finally refused to pay two months back notwithstanding their entreaties to him to do so. The petitioner also alleged that the respondents Nos. 1 and 2 had sought the assistance of all other members in the trade but the petitioner refused to make any payment. It was further submitted that when a final request was made the petitioner submitted that he had transferred the khata of the respondents to the shop of Sh. Hayat Industries therefore there was nothing due to them, but when the respondents called for proof thereof, the petitioner did not produce any. Lastly it was submitted that the respondents were poor persons and that the sum of Rs, 10,815.44 be secured to them.
3. On the above complaint, respondent No, 3, acting as Honorary Special Magistrate with powers of Magistrate 1st Class, summoned the petitioner, to use his powers as Conciliator/Arbitrator between the parties to bring about an amicable settlement between them. On 30-4-1978 the petitioner with the Munshi of his local counsel appeared before respondent No, 3, where the petitioner confessed that Rs, 10,815.44 was due to the respondents but they passed the responsibility for payment to the factory owner. The learned respondent No, 3 whereupon in his order opined that the liability for making payment was entirely that of the petitioner, who was advised to make the payment to the respondents. Respondent No, 3 thereupon fixed the next date of hearing as 15-5-1978. The petitioner not wanting to comply with this order, on 16.5-75 filed the present petition in this Court for quashment of the proceedings before respondent No, 3.
4. In the petition for quashment, the petitioner has submitted that the private complaint discloses no offence, that the matter is purely of a civil nature that even the civil remedy is barred and there being a veritable abuse of the process of the Court, the complaint should be quashed.
5. At the time of the argument the learned counsel for the petitioner was faced with the copy of letter No, Judl-ll-13(3)/76, dated 27-10-1977 from the Home Secretary, Government of the Punjab, Home Department, Lahore, to all Commissioners/Deputy Commissioners in the Punjab reading as follows :- ' Subject Honorary Magistrate? Scheme.
' I am directed to refer to the subject noted above and to state that in order to clear heavy back- log of criminal cases and to provide inexpensive means of Justice, at least one Honorary Magistrate is allocated to Sub-Divisional/Tehsil Headquarters. Honorary Magistrates have been invested with the following powers :-
(i) Powers of the Magistrates of 1st Class under section 14(1) of the Cr. P. C.
(ii) Powers to deal with cases summarily under section 260, Cr. P. C. These cases will be entrusted to Honorary Magistrates by the District Magistrates concerned as envisaged under section 192, Cr.
P. C.
(iii) To act as Chairman of the Arbitration Council under Muslim Family Law Ordinance, 1961, for the Tehsil in which he is appointed as Honorary Magistrate.
' All the District Magistrates are requested to utilize the services of the Honorary Magistrates to the maximum.
' With the extension of Scheme of Honorer); Magistrates to the Tehsil level it has been decided to close down Army Complaint Cell at ' District Headquarters under Martial Law Instruction No, 33, dated 27-9-1977. Any pending complaints are to be handed over to the Deputy Commissioner concerned. Apart from their judicial function, the Honorary Magistrates will be required to dispose of Public complaints. Following procedure in this respect may be followed :-
(i) Within the District the complaints should be addressed to the Deputy Commissioner or the Honorary Magistrate of the area in which the complainant is residing. In his petition, the complainant will give an undertaking that the complainant is not sub judice or frivolous.
(ii) When the complaint is received by the Deputy Commissioner, he shall forward it to the concerned Honorary Magistrate, for action. In case there are more than one Honorary Magistrates in a Tehsil the Deputy Commissioner will demarcate their area of jurisdiction.
(iii) Each Honorary Magistrate shall maintain a register of complaints. It will show among other features, name of the complainant, the date of the receipt of complaint, the point at dispute, the name of the person complained against, any adjournment with reasons thereon, and finally the decision/advice of the Honorary Magistrate. This register will be inspected by District Magistrate/Commissioner as and when required or by any officer authorised by them.
(iv)The Honorary Magistrate, if need be, shall call the parties concerned and will act as an arbitrator so that an amicable settlement between the parties may be arrived at. In this context the Local Police Authorities and the District Administration shall render all possible assistance to the Honorary Magistrate.
(v) The Commissioner/District Magistrate shall review the work/ performance of the Honorary Magistrate from time to time.
' It is pointed out that the function of Honorary Magistrates in disposal of public complaints is to provide a form for the parties to discuss their grievances against each other and find an amicable solution without resorting to litigation. The role of Honorary Magistrate in this regard is mainly that of conciliator. The Commissioners/Deputy Commissioners are requested to kindly keep watch over the progress of the working of the Honorary Magistrates. The main function with regard to complaints, of the Honorary Magistrates would be to provide an alternate channel to the general public for settlement of their disputes.
' You are requested to kindly to brief the Honorary/Special Magistrates on the above referred lines."
6. Faced with this difficulty, the learned counsel for the petitioner submitted that the respondent No, 3 had tried to force the decision on the petitioner and on 20-5-1978 had issued warrants of arrest against his client so as to compel him to pay the money.
7. In the instance, the record of the file which has been examined with the assistance of the counsel for both the parties reveals that the respondent No, 3 was not dealing with the private complaint of respondents Nos. 1 and 2 as a Judicial Magistrate, but as a Conciliator, on the basis of the Provincial Government's letter, dated 27-10-1977, as stated above. He was performing purely executive functions. According to the said letter, respondent No, 3 can even secure the assistance of the Local Police Authority and the District Administration in resolving disputes before him. The Honorary Magistrate, according to the powers vested in him, had two-fold functions. He performs certain judicial duties. He acts as a Special Magistrate of the 1st Class appointed under section 14(1), Cr. P.
C. And also deals with cases summarily under section 260, Cr. P. C. In the criminal jurisdiction in the Sub-Division or Tehsil where he is appointed. He also acts as a Chairman of the Arbitration Council under the Muslim Family Laws Ordinance, 1961, in the civil jurisdiction only in the Tehsil where he is appointed. In addition, h performs certain executive duties. He deals with public complaints to remove difficulties of the public as also to provide forum for the parties to discuss their grievances against each other and find an amicable solution without resorting to litigation. In cases dealing with monetary claims, his powers are not of a Court but he can act as an arbitrator, if the parties accept him in that capacity, or as a conciliator. He can seek the assistance of the Local Police Authorities or the District Administration in trying eliminate public grievances and resolve disputes, but in matters relating to the resolution of monetary claims he cannot secure their services so as t coerce or harass any party to admit a claim or make any payment which otherwise legally he would not be compelled to admit or make. The order of the Honorary Magistrate respondent No, 3 dated 30-4-1978 clearly show that he acted as a conciliator, that the petitioner confessed before him that Rs, 10,815.44 was due to the respondents, but the payment was the responsibility of the factory owner and that the respondent No, 3 finally opined that it was entirely the responsibility of the petitioner. The final sentence of respondent No, 3's Order is significant in this connection. It states "I have advised the respondent to make the payment to the petitioner. The next date of hearing is 15-5-1978." This order clearly shows that respondent No, 3, was not using any coercive process against the petitioner, but merely advising him to make the payment.
8. As regards the reference by the learned counsel for the petitioner that summons were issued on 20-5-1978 by respondent No, 3 for the arrest of the petitioner, in order to compel him to make the payment of the amount, this statement is not correct. What does appear is that respondent No, 3 issued the summons for the arrest of the petitioner, merely to enforce his presence before him, and for no other purpose. It would be worthless to invest an Honorary Magistrate with certain executive functions without C providing him with the machinery for enforcing the presence of parties before him, if they do not turn up on his request. The Honorary Magistrate, is also a Special Magistrate of the 1st Class under section 14(1), Cr. P. C. As such, he has powers to enforce the attendance of persons before him, through judicial process. The enforcement of this power by the Honorary Magistrate for the limited purpose of dealing with and disposing of complaints before him cannot be taken exception to.
9. Since, as already stated, the Honorary Magistrate was acting in his executive capacity, section 561-A, Cr. P. C. Is not attracted. For these reasons this petition is dismissed.