IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Crl. Misc: Application No.S-60 of 2020.

Applicants: Mir Muhammad Shaikh Through, Mr. Abdul Wahab Shaikh Advocate.

Respondent No.3: Dilawar Hussain through, Mr. Shabir Ali Bozdar Advocate.

The State: Through Mr. Abdul Rehman Kolachi, DPG

Date of hearing 14.02.2020

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O R D E R

ZULFIQAR ALI SANGI, J; The facts in brief necessary for the disposal of CriminalMisc. Applicationare that, the Respondent No: 3 filed application under section 22-A and B Cr.P.C before the Session Judge Khairpur, the same was entrusted to Additional Session Judge, Mirwah for disposal in accordance with law, wherein learned Additional Session Judge, Mirwah after hearing parties passed order dated10.01.2020 which is impugned, the same was challenged by the Mukhtiarkar (Revenue), Faiz Gunj before this court.

2. Respondent No.3 in the aforesaid application made prayers as under:-

(i). That this Honourable Court may graciously be pleased to direct respondent No. 2 to record statement of theapplicant U/S 154 Cr.P.C in his true verbatim, under the relevant sections, as prelaw.

(ii). Thatthis Honourable Court may be pleased to provide legal protection to the applicant at the high hindrance of respondents.

(iii). That this Honourable court may be pleased to direct respondents to remained in their legal domain and legally to oblige the applicant in accordance with law, as they are bound under the law.

(iv). To grant any other relief, which this Honourable Court deems, fit and proper in circumstances of the case.

(v). To award the cost of this application.

3. The Additional Session Judge/Justice of Peace,Mirwah after hearing parties passed the following order, same is impugned before this court.

“Today petitioner present and submitted application that if the Mukhtiarkar is willing to maintain entry in the record of rights according to the documents available with him, he do not want registration of FIR, he filed such application and Mukhtiarkar (Revenue) TalukaFaizGunj submitted report and statement that he is willing to proceed and redress grievance of the petitioner subject to verification of sale deed and sale certificate. On his statement of the Mukhtiarkar (Revenue) FaizGunj, petitioner satisfied. On the statement petition in hand stand allowed and Mukhtiarkar shall act accordingly and he is put at notice that his statement is now part of the order of this court and in failure to comply he will face the consequences”.

4. Learned Counsel for applicant contended that applicant has never submitted such report and theundertaking; that the applicant and Assistant Commissioner,FaizGunj filed objections on the application before Justice of Peace which were not considered properly and impugned order was passed; that the Respondent No.3 installed the petrol pump and weight Kanta (scale) in the Government land having no title document or any sale deed which he has to show before the Justice of Peace however he placed other document of some other land; that Respondent No. 3 wants to pressurized the applicant to keep the entry of said Government Land by showing the said deed which belongs to some other land. Lastly, he contended that the Justice of peace has no jurisdiction to entertain the matters of civil nature while exercisingjurisdiction falling under section 22-A& B Cr.P.C and submitted that the impugned order may be setaside.

5. Learned counsel for the Respondent No.3contended that applicant is real owner of the plot having registered sale deed; that applicant invested huge amount in installing the petrol pump and weight scale and revenue officials were kept mum at the time when work was carried out by the applicant and petrol pump is still functioning smoothly; that there was no proper demarcationof the disputed land and the same may be cleared if survey department conducts proper demarcation; He conceded that the order passed by the Justice of peace is beyond his jurisdiction; that applicant will never lodged FIR against the revenue officials and will avail appropriate remedy under the law for demarcation; that he has no objection if the impugned orderis setaside.

6. Learned Deputy Prosecutor General for the State contended that while exercising jurisdiction under section 22-A&B Cr.P.C. the Justice of Peace has no power to issue a directions to the revenue authorities to keep the entry in the record of rights; that illegal order was passed by the Justice of peace and the same is liable to be setaside. He relied upon the case of MukhtiarAli V. The State and 4 others (2019 P.Cr.L.J 1201).

7. I have heard learned Counsel of the parties and perused the relevant record with their able assistance.

8. Applicant placed on record a copy of the latter/objection submitted before the learned Justice of Peace dated 20.12.2019 signed by him and Assistant Commissioner FaizGunj wherein it is very much clear that allegation leveled by the applicant (Respondent No.3) are vague and baseless. Since, the valuable Government property is involved inthe matter secondly the matter is pending before the Civil Court, they also requested the Justice of peace that at this stage they are handicapped to redress the grievances of the applicant and application may be dismissed.

9. I have surprised to see order dated14.09.2019 passed by the same Justice of peace,Mirwah in Crl. Misc. Application No.2076 of 2019,available at page-35 of the application filed by one Advocate Muhammad SachalShar against illegal construction of the same Petrol Pump over Government property against the respondent No.3 (Now applicant before the Justice of peace) and reports from Mukhtiakar and Assistant Commissioner were called and the said Justice of Peace on the same issue in hand after hearing the parties passed following order:-

“In present matter, the prayer of applicant is to remove encroachment over Government property. The report was called from the Assistant Commissioner, FaizGunj who has categorically submitted that patrol pump is built over Government property, therefore, before passing any order, the fair chance is given to private respondent who appeared alongwith Mr. A.D Shar, Advocate and furnished some documents including the letter, issued by the Assistant Commissioner to deputy Commissioner for action against illegal patrol agencies. NOC of Oil Company, Retailer agreement, sale deed and submitted that property is legal, owned by Private Respondent namely SadiqJatt. He submitted that competent authority issued such no objection and pump is running since 2008-2009.

There is no cavil in proposition that any court within territorial jurisdiction of Pakistan is guardian of any Government property and if any illegality is found this count on record and the court is supposed to act strictly in accordance with law.

Present subject matter is for revocation of construction over Government property which is admitted by the Assistant Commissioner and that patrol pump is running since 2008-2009 and he has been recently posted, though there were other officials of his rank posted there, but none of them had taken action. Since the private respondents hasfurnished some documentary proof, hence without prejudice and relevancy of such documents which are resulting of such property and in presence of registered documents. Let firstly remedy be availding from competent civil court regarding authenticity of document and since this court being criminal court did not taken any action in such civil matter, hence in my wisdom, the applicant is directed to seek remedy from competent civil court regarding ownership and then approached to the Assistant Commissioner for removal of any construction, if any order passed against private Respondent, Consequently, the application in hand stands disposed-off in the above term, the above observation are tentative in nature, which will not affect the merits of the case of either party”.

10. Deputy Commissioner,Khairpur was called along with relevant records by this court who submitted statements along with the record. He mentioned in his statementthe entire facts and further submitted that a Civil Suit No.16 of 2020 is also pending before the Court of Senior Civil Judge,Mirwah. He mentioned in the statement that he has verified from the revenue staff that the houses of the DilawarHussain S/oSadiq Ali Jatt who got Deh From-II vide No.113 of an area 7387 Sq. ft” in respect of residential Plot from Sikni property of village Bhango Behan located at another side, too away from the location as per boundaries shown in deh Form-II vide No.113, as well registered sale deedNo.693 dated 17-08-2015. The Deputy Commissioner mentioned in his statement that the survey No. 172 of dehBhango is adjacent to Sikni area of village BhangoBehan TalukaFaizGunj, the disputed property shown in registered sale deed is residential property from Sikni area of village BhangoBehan, hence there is need to carry out the demarcation at the site through technical staff of Survey Superintendent Khairpur to ascertain the actual location of disputed property whether same is existing in S.No. 172 of dehBhengoBehan of SirkarNamdar or fallen in Sikni property of village Bhango Behan TalukaFaizGunj.

11. In the above circumstance, it is crystal clear that without demarcation, the actual location of the disputed property cannot be ascertained therefore, it is left for the parties including the revenue authorities to go into the process of demarcation and if found the patrol pump installed illegally in the Government Land than the revenue authorities are at liberty to take legal action in accordance with law.

12. Turning to the point of jurisdiction exercised by the Justice of Peace while entertaining the matter of Civil natureand issuing direction to the Mukhtiakar(revenue) to keep the entry in the revenue record by exercising the powers under section 22-A (6)(iii), Cr.P.C,and the same has been challengedby the applicant before this Court in the instant application it is observed that an Ex-officio Justice of Peace in Pakistan (i.e. Sessions Judge and nominated Additional Sessions Judge in a relevant Districts), deriving jurisdiction under section 25, Cr. P.C., exercises, by and large, his powers under section 22-A(6), Cr.P.C., which reads as under:-

22-A. Powers of Justices of the Peace: (1) A Justice on the Peace for any local area shall, for the purpose of making an arrest have within such area all the powers of a police officer referred to in section 54 and an officer-in-charge of a police station referred to in section 55.

(2) A Justice of the Peace making an arrest in exercise of any powers under subsection (1) shall, forthwith, take or cause to be taken the person arrested before the officer in-charge of the nearest police station and furnish such officer with a report as to the circumstances of the arrest and such officer shall thereupon re-arrest the person.

(3) A Justice of the Peace for any local area shall have powers,within such area, to call upon any member of the police force on duty to aid him.

(a) in taking or preventing the escape of any person who has participated in the commission of any cognizable offence or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists of his having so participated; and

(b) in the prevention of crime in general and, in particular, in the prevention of a breach of the peace or a disturbance of the public tranquility.

(4) Where a member of the police force on duty has been called upon to render and aid under subsection (3), such call shall be deemed to have been made by a competent authority.

(5) A Justice of the Peace for any local area may, in accordance with such rules as may be made by the Provincial Government,

(a) issue a certificate as to the identity of any person residing within such area, or

(b) verify any document brought before him by any such person, or

(c) attest any such document required by or under any law for the time being in force to be attested by a Magistrate, and until the contrary is proved, any certificate so issued shall be presumed to be correct and any document so verified shall be deemed to be duly verified, and any document so attested shall be deemed to have been as fully attested as if he had been a Magistrate.

(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.

13. From perusal of the above provision, it is clear that an Ex-Officio Justice of Peace has the power to issue appropriate directions to the police authorities concerned on a complaint regarding non-registration of criminal case, transfer of investigation from one police officer to another and neglect, failure or excess committed by a police authority in relation to its function and duties. The said powers of Ex-Officio Justice of Peace are very much limited which have been given to aid, assist and authorize the criminal jurisdiction system. As such, section 22-A(6), Cr.P.C, does not confer any jurisdiction on the Ex-officio Justice of Peace vested in it to entertain any complaint/ application aimed to pass any direction to a person or official relating to his duties in respect of any dispute regarding any immovable property.

14. In the case in hand, it does not reflect from the available record as to how and with what authority the Additional Sessions Judge/Ex-Officio Justice of Peace, Mirwahentertained the application of the Respondent No.3, and exceptionally when it revealed that the dispute between the parties did not fall within the defined domain of Ex-officio Justice of Peace under section 22-A(6), Cr.P.C.,the application should have been dismissed by him at limine stage for want of jurisdiction, directing him to adopt proper course to redress his grievance as has earlier been decided by the same justice of peace on the application about the same property, Even from the perusal of memo of application it is clear that there was no any prayer in this regard for which order was passed by the Justice of Peace.

15. For what has been discussed above, this application is allowed and the impugned order passed by the Additional Sessions Judge/Ex-officio Justice of Peace, Mirwah dated 10.01.2020 is hereby declared as without lawful authority and havingno legal effect, resultantly, same is set-aside. Since, undertaking has been given by the counsel of respondent No.3 that respondent No. 3 will not register FIR against the Revenue officials to the extent of allegations in the application therefore, the application of respondent No.3 deemed to be dismissed.

16. This order shall, however, not come in the way of passing an order in the pending litigation or any party moved the Civil Court if so advised. Copy of this order be sent to the Session Judge,Khairpur and concerned Justice of Peace.

Application is allowed.

J U D G E

Ihsan