Mukhtiar Ali Kolachi (Applicant) VS The State & others (Respondent)

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Criminal Misc.Application No.S-51 of 2018

Applicant : Mukhtiar Ali s/o Amanullah Kolachi

Through Mr.Habibullah Ghouri, Advocate

Respondents : Through Mr.Abdul Rasheed Soomro,

Advocate for private respondent

The State through Mr.Raja Imtiaz Ali Solangi,

A.P.G.

Date of hearing

Date of order : 18.09.2018

O R D E R

IRSHAD ALI SHAH, J.- The facts in brief necessary for disposal of instant Criminal Misc.Applicatoin are that the private respondent filed an application u/s.22-A(6)(iii) Cr.PC before learned Sessions Judge/Ex-Officio Justice of Peace, Qamber Shahdadkot @ Qamber, praying therein for the grant of following relief;

a) That this Honourable Court may be pleased to call the respondent (the Mukhtiarkar Taluka Kamber) and direct him to keep such entry in the revenue record in the light of registered sale deed which was duly executed as per the orders of the Honourable Court after issuance of Fard Certificate from the office of respondent, in accordance with law and relevant rules.

b) That this Honourable Court may be pleased to take an action in accordance with law against the respondent, who had not kept such entry of applicant in the revenue record since last 11 months so also not obeying the order of Honourable Court and presuming himself above the law.

c) Any other relief, which this Honourable Court deems fit and proper.

2.The learned Ex-Officio Justice of Peace/Sessions Judge, Qamber Shahdadkot @ Qamber, after due hearing to the private respondent and others disposed of the above said application vide order dated 30.03.2017, the operative part whereof reads as under;

“I am at the humble view that Mukhtiarkar Revenue Taluka Kamber is duty bound to affect the entry in the record of rights of the revenue department in the light of registered deed to which was executed by the Nazir of Court on 27.04.2016 and about one year has been passed and he is avoiding to affect such entry reasons best known to him and he is hereby directed to maintain the record of rights in favour of person who has succeeded to get the execution of registered sale deed in his favour and to submit the copy of such record of rights with this Court within a period of 10 days after receipt of the order of this Court”.

3.The applicant being aggrieved of above said order has impugned the same before this Court by way of instant Crl.Misc.Applicatoin u/s.561-A Cr.PC, which is objected by the private respondents by way of filing his written objections.

4.It is contended by learned counsel for the applicant that the learned Ex-Officio Justice of Peace/Sessions Judge, Qamber Shahdadkot @ Qamber, was having no authority to have determined the civil right of the parties by resorting to provisions of Section 22-A & B (6) (iii) Cr.PC. By contending so, he sought for setting aside of the impugned order.

5.Learned counsel for the private respondent has sought for dismissal of the application u/s.561-A Cr.PC, by contending that neither it is filed within time nor the applicant was party before learned Ex-Officio Justice of Peace/Sessions Judge, Qamber Shahdadkot @ Qamber. By contending so, an impression was given that the applicant is not an aggrieved person to have filed the instant application.

6.In rebuttal to above, it is contended by learned counsel for the applicant that the private respondent has obtained the decree from Court of learned 1st Senior Civil Judge Kamber and he has sought for setting aside of decree by way of filing an application u/s.12(2) CPC. By contending so, an impression was given that the applicant being aggrieved person is having a every right to challenge the impugned order.

7.Learned A.P.G did not support the impugned order.

8. I

have considered the above arguments and perused the record.

9.Section 22-A (6) (iii) Cr.PC reads as under;

“[(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.]”

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 u/s.22-A(6)(iii) Cr.PC. In that situation, it is rightly being contended by learned counsel for the applicant that learned Ex-officio Justice of Peace/Sessions Judge Qamber Shahdadkot @ Qamber has passed impugned order in excess of its jurisdiction. 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 before learned Ex-officio Justice of Peace/Sessions Judge Qamber Shahdadkot @ Qamber, perhaps knowingly to cover up his wrong doing. In these circumstances, the impugned order could not be sustained, it is set aside.

11.The instant Crl.Misc.Application is disposed of accordingly.

J U D

G E