Muhammad Younas VS DPO Abbotabad

PESHAIYAR HIGH COURT ABBOTTABAD

BENCH

JUDICIAL DEPARTA,IENT

SHEET

WP No. ll8-A/2015.

Date of hearing 22.11.2018.

Petitioner/s (Muhammad Younis) by Mslik Masood ur Rehman Awan, Advocate.

Respondent/s (District Police ofJicer & others) Mr.Yasir Zaltoor Abhassi, As sist : AG for ofJic ial respo nd e nts.

SYED MUHAMMAD ATTIQUE SHAH.J.

Through the instant petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973,the petitioner namely Muharnmad Younis has prayed as under:-

"That on acceplance of the instant writ pelition, the impugned order daled:

09.01,2015 passed by learned respondent No. 3 may graciously be sel-oside and respondenl No, 3 direcled to forthwith order registralion of case againsl rccused menlioned in the paitiott under section 22- A Cr. P,C"

2.Brief facts of the present case are that the petitioner namely Muhammad Younis filed an application under section 22-A Cr. P.C before learned Sessions

Judge, Abbottabad for registration ofcase against Khalil ur Rehman and others which was entrusted to leamed Additional Sessions Judge-III, Abbottabad, who called comments from respondenUSHO Police Station, Mirpur, Abbottabad. That in the meanwhile, on 09.01.2015, Malik Muhammad Naseer, Advocate appeared in the Court and submitted wakalatnama on behalf of above persons, which was objected by leamed counsel for petitioner but the leamed Justice of Peace allowed the opposite counsel to argue the case, hence, the present writ Petition.

3.Arguments heard and record available gone through.

4.Leamed counsel for Petitioner vehemently argued that under section 22- A Cr. P.C, the leamed Justice of Peace acts in an administrative capacity and his functions are not Judicial ot quasi- judicial, therefore, he could neither issue notice to the respondents nor he can accept wakalatnama on their behalf in proceedings under section 22-A Cr. P.C' Leamed AAG appeared on behalf of State and assisted by learned counsel for private resPondents however' controverted the arguments of learned counsel for petitioner by arguing that there is no bar to issue notices to the private resPondents or accePt wakalatnama on their behalf'

5.Perusal of the impugned order sheet dated: 09.01.2015 would reveal that though the leamed Justice of Peace has not issued any notice to the respondent but on the date fixed leamed counsel appeared on behalf of respondents and submitted wakalatuama and the leamed Justice of Peace allowed him for arguments.

6.The question that whether the functions of Ex-fficio Justice of Peace under section 22-A Cr. P.C are executive, administrative or quasi-judicial in nature has thoroughly been discussed and decided by the august apex in its judgment titled: Younas Abbas & others versus Additional Sessions Judge' Chataml, reported in PLD 2016 SC 581, operative part of which is as under:- "Function Performed b1t Ex'fficio Justice of Peace under section 22'A (6) Cr.P.C----Such functions being quasi'judicial in nature could not be termed as executiYe,

administrative or ministerial-'Said ftmctions were comPlementarY to those of the Police and thus did not amount to interference in the investigative domain of the police' Functions Performed bY the Ex- Oficio Justice of Peace were not executive, administrative or ministerial inasmuch as he did not I carry out, manage or deal with things mechattically' Such functions

as described in clauses (i), (ii) and (iii) of Section 22-A (6), Cr.P.C were qast-judicial as Ex-Oficio justice oJ- Peace entertained applications, examined the record, heard the psrties. passed orders and issued direction,t with due application of mind. Even lis before him demanded discretion and judgment. Functions so performed could not be termed as executtve, administrative or ministerial on any count ".

7.Reliance is also placed on case titled: Malik Muhammad Sadiq versus Station House fficer & others reported in 2013 P Cr. L J 1177 which is as under:-

5.Lcnv casts holY dutY uPon the learned Justice of Peace for examining the petition ancl other material available on record for determining ,f anY cognizahle offince is made out therefrom or not. In this connection, learned Justice of Peace is bound bY law to take into consideration contents of petition frled under section 22-A and 22-8, Cr.P.C. as well as to examine the complainant/petitioner d needed. He maY seek a rePort from the SHO of Police Station concerned in lhe mqttet. No doubt spirit of promulgating provisions of section 154, Cr.P.C. is th1t rePort should not be enteretfregistered afrer hotding prelininary enquiry but this provision qf law has grossly been misused bY first informants, vho just to satisfY their ego or to take retenge from its oPPonent. laY false information. Even such first inJbrmation is also Pro:'ided in cases involving civil disputes like one relating to execution of an dgreemenl to sell and business transqction etc., as such in ordet to sift the cha.ff from grain, it has become imPerative for Court to have a rePort front Police Station'

Further in dppropriate cases, the person against whonr o direction for registration of case is sought, may also be summoned in the Court for shov,ing cause as to u,hy direction .for registration of case should not be issuerl against him. The colling of aggrieved person is based on analogt that SHO before submitling report to Court, summons both parties and afier hearing thenr dispatches same to Cou|t tvith his own finding thus if that report of SHO, is considered, in which both pqrties have already been heard then there is no harm in calling that pdnr\' in the Courl for arriving at just conclusion. This u,ould help in curbing multiplicity of litigation and work load could be managed besides saving precious public tine. This practice if adopted would aclvance the principle of natural juslice i.e. audi alteram partem.

6.h lus further been experienced that learned Justice of Peace now-a-days have adopted a proctice of referring the matters to police quthorities for implementation of their directions for registration of case, when petitioner again complains through sepdrate applicalion, comPlains indffirent attitude of SHO tou'ards implementation of direction. This practice adopted bY Courts has increasecl, tremendousll', workload in higher .iudiciary. It is Justice o.f Peace, u,ho is competent and equally enjoys jurisdiction to call upon SHO o.f Police Station concerned, where direction was sent for implementation, to aqPear in person in Court for showing cause as to v,hy he did not comply vith the orders ond to take coercive measures against him tillthe is direction imPlemented. The Courts shotrld be assertiYe and should jealousll' $'atch of implementations their own orders. The matter cannot be left at s$'eet-will of Persons, Y'ho are J\ alread), reluctant in Performing their duties, bestovecl uPon them by, law. I.f a Judicial Olficer fails to implement his ou'tt order, then he

could be tt'eated as an ineflicient Judiciol O/licer, which observation may be rqflected in his annual conJidential report by his initiating authority.

7.Tlnts cnx of the discussiort is thqt a Justice of Peace should apply his legal mind to .facts and circumstances of matters under his consideration, detennitp cognizability o.f an offence himself e't'en ,f he has to exantine complainant or to surnrnon respondent and then to malre clear and unambiguous direction, Jbr taking proceedings under section 151, Cr.P.C. tvhich he shall himself itnplement instead of taking help of officials o.f police hierarchy" .

8.In view of the above, we are of the firm opinion that the functions performed by Ex-fficio Justice of Peace wdet section 22-ACr. P.C are quasi-}udicialin nature and leamed Justice of Peace in the instant case has not committed any illegality or iregularity while accepting the wakalatnama on behalf of respondents and allowed the leamed counsel for arguments, as there is no bar to hear the other side before passing al1 appropriate order.

g. Thus, the instant writ petition being bereft of any merit is hereby dismissed' Announced.

22.11.2018. Jn'v- tuYen Tahil PS

/ft//.-

JADGE

Hon'ble Justice Lal Jan Khattak & Syed Muhammad Attique Shah'