ORDER SHEET
IN THE HIGH COURT OF SINDH, KARACHI
C. P. No. D – 3171 of 2016
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DATED: ORDER WITH SIGNATURE OF JUDGE
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Present:
Mr. Justice Ahmed Ali M. Sheikh &
Mr. Justice Muhammad Saleem Jessar
03rd November, 2016
Mr. Raheel Ali Bhatti, advocate for the petitioner.
Mr. Muhammad Rafiq Rajourvi, A.A.G.
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MUHAMMAD SALEEM JESSAR, J. Mr. Raza Muhammad Raza, advocate files vakalatnama on behalf of Yahya Akbar, which is taken on record. Ms. S. Chouhan, advocate also files vakalatnama on behalf of Hassan Mehtab and Hassan Saqib, which is also taken on record.
2. The crux of the case of the petitioner for filing of instant petition is encapsulated in para 4 of her petition, which reads as under:-
4. That in Tariq Road one Shop No.124/E Near English Boot House entered into contract with the name of Asad, the contract period of the said shop is 3 years, but the owner of the shop demands to vacate the shop, therefore, the petitioner filed case in the City Court and obtained stay order, while in presence of stay order the owner of the shop stolen the whole shop articles valued at Rs.55,80,000/- and cash Rs.24,00,000/- and burn the whole record/ computer, the owner of shop namely Yaha Akber and Ex-SP Mohsin, Mehtab Hassan, Saqib, who is belonging to MQM while Yahya Akber posed himself as Carnal (colonel) of Rangers brought the Govt. mobile and made said incident and stolen the whole shop articles, at that time the incident has been recorded by the mobile phone and the CD is annexed herewith for kind perusal and consideration of this Honourable Court.
3. The petitioner filed such an application in terms of section 22-A (6)(i) Cr.P.C before learned District & Sessions Judge/Ex-Officio Justice of Peace (Ex-Officio Justice of Peace) for issuance of directions to respondent No.1 for getting her case registered against respondent No.3 and others. After hearing to either side the learned Ex-Officio Justice of Peace declined to issue directions vide his order dated 27.04.2016 giving rise to file instant petition.
4. On the other hand, Mr. Muhammad Rafiq Rajourvi, learned A.A.G., Mr. Raza Muhammad Raza and Ms. S. Chouhan, learned counsel for Respondents, have opposed the petition on the ground that petitioner is neither tenant nor has entered into any business transaction or even has not been on any rent agreement with respondent No.3, therefore, she has no right to sue against respondent No.3. They have added that the petition is not maintainable and prayed that it being frivolous be dismissed with costs.
5. We have heard the learned counsel for the parties at length and scanned the record minutely.
6. At the very outset, we would acknowledge that normally a request for issuance of lodgment of F.I.R should not be refused by the Incharge Police station for which he otherwise is under legal obligation within spirit of provision of Section 154 Cr.P.C. A failure or negligence towards such obligation resulted in enactment of provision of Section 22 in the Code. However, even after recording an information of commission of cognizable offence, per informant, the Officer Incharge of a police station was/is not necessarily bound to blindly proceed further but has to act independently within meaning of four corners of law. The position shall stand clear from a referral to operative part of case of Haider Ali v. DPO Chakwal (2015 SCMR 1724) which is available at Rel. P-1733 as:
“While the registration of a FIR is mandatory, initiating investigation is not. Reading section 156 Cr.P.C. with section 157, Cr.P.C., it appears that the officer in charge of a police station shall proceed to initiate investigation of a case only where, inter alia, from information received, he has reason to suspect the commission of an offence. This interpretation is further fortified when we read clause (b) of the proviso to subsection (1) of section 157 Cr.PC., which provides that ‘if it appears to the officer in charge of a police station that there is not sufficient ground for entering on an investigation he shall not investigate the case.” Yet, what we often find is that on registration of a FIR, the relevant police officer without application of mind directly proceeds to arrest the accused.”
7. Since, the provision of Section 154 to 157 are always to be read together therefore, when a complaint of failure / negligence on part of officer in charge of a police station comes before Ex-Officio Justice of Peace regarding compliance of section 154 of the Code then it becomes the duty of Ex-Officio Justice of Peace to first see whether informant (applicant) gives a clear information of commission of cognizable offence or otherwise? because before holding the officer in charge failed in compliance of section 154 Cr.PC such opinion must exist. This is so because while exercising such jurisdiction the Ex-Officio Justice of Peace has to act as supervisory authority of Officer in charge of a police station which one can’t unless first comes to conclusion of failure or negligence , as the case may be.
8. At this juncture, let us make it clear that directing or instructing the officer in charge of a police station ‘to record FIR if cognizable offence is made out’ is in fact not a direction or instruction but simply a reminder to what the officer in charge of a police station otherwise is duty bound by section 154 of the Code. In such case, the Ex-Officio Justice of Peace leaves the discretion with officer in charge of a police station to examine whether cognizable offence is made out or otherwise? . However, issuing direction to record FIR , which the Ex-Officio Justice of Peace can competently, the position shall be different. Issuing such specific direction shall require examination of application and material attached therewith so as to see existence of commission of cognizable offence. A reference in this regard can well be made to the case of Gul Waiz and others v. Zuhra Bibi & others (2010 P Cr.LJ 45) wherein it is held as:
“12. The same principle would apply whenever Justice of Peace is seized of a complaint / petition under section 22-A of the code and he has to apply the same test by applying prudent mind in ascertaining as to whether the facts constitute a cognizable offence or not. If he comes to the conclusion that cognizable offence is clearly constituted from the facts mentioned in the petition before him, only in that case the Ex-Offico Justice of Peace may issue directions to the police to register a case……’
The above view was reaffirmed in another case of Bilal Ahmed v. Justice of Peace / Sessions Judge 2016 P Cr.LJ 771 wherein at Page-778 it is held :
“As stated above, the jurisdiction of Justice of Peace is limited only to the matter enumerated in the above-mentioned sections. A Justice of Peace can direct the police to register the case if a cognizable offence is made from the facts stated in the application, submitted before him. ….
However, it is needless to add that this exercise shall not permit the Justice of Peace to dive deep to determine truthfulness or otherwise of the information as this is absolute domain of Investigating Agency within meaning of Chapter-XIV of Code.
9. Now, we shall step a little further that while challenging an order of Ex-Officio Justice of Peace , a petition normally would not be sustainable if he (Justice of Peace) only hammered the provision of section 154 of the Code by stating that ‘to record FIR if cognizable offence is made out’ because hammering a commandment of law is not open to be challenged. However, if there has been an order for specific instruction to lodge the FIR or application for such relief has been declined then the petitioner shall have to establish ‘information of commission of cognizable offence or otherwise, as the case may be, couple with failure of Justice of Peace to attend such prima facie existence.
10. Now, on said touch-stone, we revert to the merit of the case. The perusal of record shows that it was one Asad Abbas who was in possession of shop in question as tenant and it was also he (Asad Abbas who filed civil suit No.170/2016 in the court of Civil Judge and J.M. XVIII Karachi (East)) whereby civil court has granted stay in favour of Asad Abbas, thus dispute, if any, was between said Asad Abbas and respondent No.3 which too is one falling within meaning of ‘civil dispute’ . The petitioner though had claimed to have been on agreement with Asad Abbas yet her such claim does not dress her up with status of ‘tenant’ or ‘occupant’ particularly when she has failed to produce any document in support of her such claim. The allegations of petitioner prima facie have not been asserted to bring the law into motion for investigation of an offence but are under specific claim of ‘partner in possession of shop’ which, in absence of proof, cannot prevail. In absence of direct claim, rights and interest she has to play under said Asad Ali who, in case of genuine dispossession, may resort to all legal remedies including that of damages.
11. Further, it is also a matter of record that the respondent No.3 was / is landlord hence, his such status, allows him but not to stranger to retain the possession of disputed shop if the tenant (Asad Abbas) disappeared leaving the premises abandoned. The landlord shall however be accountable to secure the material of tenant in such eventuality which dispute, too, shall be settled between landlord and tenant (or their successors) and not with a stranger even if he claims to have been on some agreement / understanding with tenant.
12. As regard the contention of the petitioner that respondent No.3 has obtained possession of the aforesaid shop without adopting legal procedure, it would suffice to say that even such grievance does not permit the present petitioner to lodge FIR against the landlord for retaining his own premises but the Asad Abbas can resort the procedure of Status-quo anti particularly when a Civil Suit No.170 of 2016 has been filed by him and interim order is passed in favour of the tenant (Asad Abbas).
13. Learned counsel for the petitioner has also stated before us that they have no clue or whereabouts of Asad Abbas. Such absence or disappearance of the Asad Abbas does not advance the case of the petitioner rather strengthens the case of respondent no.3 (landlord) that his act of occupying / retaining premises was justified as the landlord cannot let his premises remained abandoned for indefinite period nor is required to go in search of tenant but would be competent to retain possession subject to settlement of rights and liabilities by a competent forum, created under Rent Law.
14. It is a well settled principle of law that owner or landlord or tenant / farmer may take anything lying in the disputed premises and subsequently shift the same to other place or may have had kept it under safe custody or hand over to concerned then such act on their part would not constitute any offence as defined under Section 378 P.P.C because the tenant holds possession with consent of landlord hence they (tenant and landlord) would be presumed to be in joint possession and their rights and liabilities shall be governed by Rent Laws. A reference to the case of Muhammad Gulzar v. State (2009 P Cr.LJ 160) can be given in support of such view wherein it is held as:
“6. Offence of theft is defined in section 378, PPC the punishment for which is prescribed under section 379, PPC. Offence under section 378 PPC shall be made out if some movable property is taken away dishonestly out of the possession of person without that persons’ consent etc. A tenant admittedly is in possession of the land and the usufruct arising out of this land with the consent and permission of landlord/ owner of such property. He, therefore, jointly holds possession of such property with the consent of its owner. As ruled in the above referred case-law, if any movable property is taken away from such land against the consent of its owner, offence under section 378 PPC shall not be made out.”
In same case it is further held that:
‘9. Learned counsel for respondent No.5 while referring to Illustration (d) of section 378, P.P.C contended that the status of a tenant was like that of a servant, hence, removal of crops by the tenant against the consent of the landlord shall amount to theft in the light of the said illustration.
’10. I am unable to agree with the reasoning of learned counsel for respondent no.5 for the simple reason that status of a tenant cannot be equated with that of a private servant. The rights and liabilities of tenant and landlord are regulated by the Tenancy Act.
15. Perusal of 4 of the petition (supra) manifests that Asad Abbas had entered into rent agreement with respondent No.3 and when respondent No.3 demanded vacation of his rented premises Asad Abbas filed a civil suit and then he disappeared. The petitioner has no nexus or direct transaction with respondent No.3 therefore, she has no locus standi to sue or prosecute respondent No.3. If the contention of petitioner presumed to be true, even then she is not entitled for relief sought for. In this context we are persuaded with the dictum laid down by apex court in case of Rai Ashraf & others Vs. Muhammad Saleem Bhatti reported as PLD 2010 SC 691 which reads as under:-
“It is admitted fact that petitioners have alternate remedies to file private complaint before the competent court, therefore, constitutional petition was not maintainable and the High Court has erred in law to send the copy of the writ petition to the S.H.O. concerned. The direction of the High Court is not in consonance with the law laid down by this Court in Jamshaid Ahmed’s case (1975 SCMR 149). It is also a settled law that the learned High Court had no jurisdiction whatever to decide the disputed questions of fact in constitutional jurisdiction. In the case in hand, respondent no.1 has more than one alternate remedies as alleged by him in the application that he had secured restraining order against the petitioners from the civil court, therefore, Additional Sessions Judge/ Ex-official Justice of the Peace observed that respondent No.1 had to avail appropriate remedy for violation of status quo before the civil court under the provisions of C.P.C vide Order XXXIX, Rules 3 and 4 C.P.C. It is also admitted fact that there is a dispute qua the property in question between the parties as alleged by the petitioners and observed by the courts below. It is a settled law that constitutional jurisdiction is discretionary in character which is to be exercised after proper application of mind with cogent reasons and same should not be exercised arbitrarily. The learned High Court had erred in law to exercise discretion in favour of the respondent No.1 without realizing that the respondent No.1 had filed application before Additional Sessions Judge/ Ex-Officio Justice of the Peace to restrain the public functionaries not to take action against him in accordance with the LDA Act 1975, Rules and Regulations framed thereunder, therefore, respondent No.1 had filed petition with mala fide intention and this aspect was not considered by the learned High Court in its true perspective” .
16. Whatever has been discussed hereinabove, the petitioner has no locus standi to file an application before Ex-Officio Justice of Peace for seeking directions to get her case registered against respondent No.3 who on the contrary has committed no offence though alleged by the petitioner. Thus the petitioner has not come with clean hands and the impugned order does not appear to be lacking legal requirement or is perverse requiring interference by this court.
17. In the circumstances, in view of law citations (supra) and factual controversy, as has been admitted by the petitioner, for which civil suit is pending, we are of the view that the controversy pending adjudication before the concerned forum cannot be resolved by this court in its writ jurisdiction vested under Article 199, of the Constitution of Islamic Republic of Pakistan, 1973. Consequently instant petition is dismissed with no order as to costs.
Judge
Judge
A.K / P.S*