ORDER-SHEET
IN THE HIGH COURT OF SINDH CIRCUIT COURT HYDERABAD
Criminal Miscellaneous Application No.S-698 of 2018
Date of hearing: 17.12.2018.
Date of order: 17.12.2018.
Applicant: Muhammad Qasim through Mr. Naseer A.Narejo, Advocate.
Respondents No.1to4&5: Through Shahzado Saleem Nahiyon, Deputy Prosecutor General, Sindh.
Respondent No.5: Shahbaz Ahmed through Mr. Kamran Lakho, Advocate.
O R D E R
Fahim Ahmed Siddiqui, J: - The applicant is a police officer and posted as SHO PS Kario Ganhwar. He has challenged the order dated 23.11.2018 passed by learned Additional Sessions Judge–II (Ex-officio Justice of Peace), Badin, in Criminal Misc. Application No.1142/2018. Through the impugned order, the learned Ex-officio Justice of Peace declined the application filed by respondent No. 5 for direction to register F.I.R. but simultaneously, some pejorative remarks were passed against the applicant. By filing the instant application, the applicant is belittling such remarks and seeking their blue-pencilling from the impugned order.
2. The respondent No 5 has filed an application before the learned Ex-officio Justice of Peace for lodging of F.I.R. regarding the respondent No.5 and his other associates’ illegal confinement at police station Kario Ganhwar. It is alleged by the respondent No. 5 in his application that he and some other ex-employees of Schlumberger Company as well as Zim’s Company at Khaskheli Oil Field were protesting for their reinstatement. On 05.11.2018 at about 12:30 PM, they were protesting and sitting peacefully on hunger strike in front of Schlumberger Company gate at Khaskheli Oil Field near Kario Ganhwar Town. Meanwhile, the applicant and other police officials came at the scene and, on the instigation of some officers of the aforesaid companies, manhandled them and brought them at police station where they were confined for some time and subsequently released on the protest of local people.
3. I have heard the learned counsel for the applicant as well as the counsel for respondent No. 5 and learned DPG.
4. The contention of the learned counsel for the applicant is that the remarks against the applicant were passed without providing him an opportunity of hearing. He further submits that the proper course available with the learned Ex-Officio Justice of Peace is to conduct an inquiry and then pass an appropriate order. According to him, there was some law and order situation and the applicant has discharged his duty as per directions of high-ups and it was done to protect the foreigners who are working at oil field and the protection of life, liberty and interest of the foreign investors and their employees is having national importance. He further submits that the Ex-Officio Justice of Peace is not competent to pass any such order and any remarks given by him regarding discharge of his duty is beyond his jurisdiction.
5. The learned counsel for the respondent No. 5 submits that there was no law and order situation and hunger strike was peaceful.
6. The learned DPG submits that the applicant has just discharged his duty and it is not proper for protestors to create hurdles and block pathways, roads, gates and entrances. According to him, the order appears to be harsh in nature and the same may be revised.
7. The application of the respondent No. 5 was declined with directions to him to avail alternate remedy of filing private complaint. Nevertheless, after disposal of the application of respondent No. 5; the learned Additional Sessions Judge-II, Badin has given the following observation against the applicant.
"Before parting with this order, it may be observed that in the instant event, the SHO Muhammad Qasim Panhwar of PS Kario Ganhwar has not properly handled the peaceful protesting mob of people rather he acted illegally and forcefully to disburse the peaceful mob of people who were demonstrating for their alleged rights. Therefore, in my opinion, SHO Muhammad Qasim Panhwar is not capable to perform his duties as Station House Officer of a police station and if such type of persons are allowed to remain posted on such responsible posts, they will not only create trouble for the public but for their own police department. I, therefore recommend to the SSP Badin for immediate transfer of SHO Muhammad Qasim Panhwar from the post of SHO to side post in the public interest. The copy of this order be sent to Senior Superintendent of Police Badin and Deputy Inspector General Police, Sindh, Hyderabad Region, Hyderabad for information and necessary action under intimation to this court."
8. It is worth noting that the above order is contrary to the legal norms and beyond the scope of Ex-Officio Justice of Peace, who while discharging a 'quasi-judicial' function is undoubtedly not performing the duties of a judge sitting under the canopy of justice. Nevertheless, he is fully competent to discharge his function as Ex-Officio Justice of Peace, described within the statute and he cannot travel beyond the same. The functions of Ex-Officio Justice of Peace are described in sub-section 6 of Section 22-A of Cr.P.C. For the sake of brevity, I would like to reproduce Section 22-A (6), which deals with the power of Ex-Officio Justice of Peace, which is as under:-
" 22A. Powers of Justices of the Peace. (1) A Justice of the Peace…………
(2) …………..
(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 a 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."
9. In the present case, since no direction to SHO was issued; therefore, no question of neglect or failure arises. As far as 'excess committed by a police authority' is concerned, it is necessary that the same should be established under certain enquiry after receiving a complaint regarding the same. The application filed before Ex-Officio Justice of Peace was for registration of F.I.R. and the applicant (respondent No. 5) have neither made a complaint against the present applicant for excess committed by him nor he sought any enquiry in this regard. I am of the view that the order passed by the learned Additional Sessions Judge in the capacity of Ex-Officio Justice of Peace without holding an enquiry and without giving an opportunity of hearing to the applicant, has considered the contention of the respondent No. 5 that they were protesting peacefully as 'gospel truth', which is contrary to the scheme of law, as such, the same is not sustainable. It is worth noting that the Ex-Officio Justice of Peace is not a Judicial Magistrate, who can take cognizance upon his own knowledge or information communicated to him. The functions of Ex-Officio Justice of Peace are defined by the Hon’ble Supreme Court in a case reported as Younas Abbas and others v. Additional Sessions Judge, Chakwal and others (PLD 2016 SC 581), wherein it is held as:
“The duties, the Justice of Peace performs, are executive, administrative, preventive and ministerial as is evident from sub-sections (1), (2), (3), (4) and (5) of Sections 22-A and 22-B of the Cr.P.C. Such duties have not been a subject matter of controversy nor have they ever been caviled at by anybody. Controversy emerged with the insertion of subsection (6) in Section 22-A and Section 25 of the Cr.P.C. when Sessions Judges and on nomination by them the Additional Sessions Judges became the Ex-officio Justices of Peace. The functions, the Ex-officio Justice of Peace performs, are not executive, administrative or ministerial inasmuch as he does not carry out, manage or deal with things mechanically. His functions as described in Clauses (i), (ii) and (iii) of subsection (6) of Section 22-A, Cr.P.C., are quasi-judicial as he entertains applications, examines the record, hears the parties, passes orders and issues directions with due application of mind.”
10. However, I am not in agreement with the learned counsel for the applicant that no direction can be issued by the Ex-Officio Justice of Peace and he is not competent to pass an order against a police officer. I am of the view that any order passed by a Sessions Judge in the capacity of Ex-Officio Justice of Peace should be respected as the same is passed by him while performing a quasi-judicial function but only in a case when a complaint is made before him in writing for excess committed by a police official/officer. Without any lis before him and without due application of his mind, he cannot pass an order against any police officer. In such a situation, it will be appropriate to provide the said police official/officer an opportunity to clarify his position by holding an inquiry by himself or through some other authority. I further observe that in this respect, any suggestion or direction given by the Ex-Officio Justice of Peace is required to be respected similar to a judicial order and should be followed in letter and spirit otherwise the person disobeying the same, may expose himself for appropriate action as per law.
11. With these observations, the instant criminal miscellaneous application is allowed and the impugned order is altered, wherefrom para No.6 is deleted. The rest of the impugned order will remain intact.
JUDGE
*Abdullah Channa/PS*
Hyderabad.
Dated: 20.12.2018