Form No: HCJD/C-121

ORDER SHEET.
IN THE ISLAMABAD HIGH COURT, ISLAMABAD,
(JUDICIAL DEPARTMENT).

Writ Petition No. 4041 of 2021.

Muhammad Ashar Halim Quraishi

Versus
Ex-Officio Justice of Peace / Learned Additional Sessions Judge, East-
Islamabad and others.

[Link]. of Date of Order with signature of Judge and

order/ order/ that of parties or counsel where
proceeding proceeding necessary.
(07) 19.01.2022 M/s. Barrister Afzal Hussain and
Waheed Ur Rehman, Advocates for the
petitioner.
Mr. Muhammad Ejaz, Advocate for the
respondent No. 4.
Mr. Fahad Ali, learned State Counsel.
Abid Hussain, D.S.P. / SDPO, Sihala
Circle, Islamabad.
Zahid Hussain Shah, S.I., Police Station
Sihala, Islamabad.

The petitioner, through the

instant writ petition under Article 199

of the Constitution of Islamic Republic

of Pakistan, 1973 has challenged order

dated 11.11.2021, whereby petition

U/S 22-A/B Cr.P.C for registration of

F.I.R., filed by the respondent No. 4

was disposed of with the direction to

S.H.O P/S concerned to record

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Writ Petition No. 4041 of 2021

statement of respondent No. 4 U/S 154

Cr.P.C and then to proceed in

accordance with law. In case

information provided by respondent

No. 4 found false, proceedings under

Section 182 Cr.P.C may be initiated

against him.

02. Succinctly stated facts of the

matter are that the petitioner is a law

graduate, and working as an

established businessman. In 2016, he

purchased plot with the intention of

constructing a Mosque for public

purpose. Peaceful possession of the

plot along with constructed room and

two side boundary wall was handed

over to him. Plot is located at the

roadside going towards the Cadet

College, Humak, Sihala, Islamabad.

Further, the petitioner has no dispute

with the sellers of the plot or their legal

heirs, however, it revealed that part of

the plot was purchased by the sellers,

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Writ Petition No. 4041 of 2021

from the father of Adnan Shah and

Imran Shah / accused.

03. On 03.10.2021, the petitioner

filed compliant to S.H.O. P/S Sihala,

Islamabad against Adnan Shah and

Imran Shah for registration of FIR /

criminal case with the contention that

the accused tried to illegally occupy the

plot purchased by him and issued

threats of murder and dire

consequences, upon the said

compliant, F.I.R No. 506/2021, dated

07.10.2021, offence under Sections

447, 511 & 506 P.P.C, at Police Station

Sihala, Islamabad has been registered,

against the accused namely Adnan

Shah and Imran Shah.

04. Thereafter, just to counter the

petitioner’s application / case against

the accused, on 06.10.2021, Waqeel

Khan / respondent No. 4, who is

employee / servant of the accused

namely Adnan Shah and Imran Shah

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Writ Petition No. 4041 of 2021

filed an application before the S.H.O. /

respondent No. 3, by leveling false and

frivolous allegations but the police did

not register the FIR, consequently

petition U/S 22-A/B Cr.P.C was filed,

wherein the impugned order was

passed, hence the petitioner being

aggrieved has filed the instant writ

petition, for setting aside of the

impugned order dated 11.11.2021.

05. Learned counsel for the petitioner

inter alia contends that the police has

thoroughly investigated the matter and

filed a report in the Court of learned

Additional Sessions Judge / Ex-Officio

Justice of Peace, East-Islamabad,

stating therein that no such

occurrence, as mentioned in the

compliant of respondent No. 4 has

taken place and no cognizable offence

has made out; learned Additional

Sessions Judge / Ex-Officio Justice of

peace, East-Islamabad has not

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Writ Petition No. 4041 of 2021

mentioned single reason for not relying

upon the report submitted by

Superintendent of Police (Complaint),

Islamabad and passed the impugned

order in a hasty manner, which is

erroneous in law and liable to be set-

aside.

06. Conversely, learned counsel for

respondent No. 4 has controverted the

arguments advanced by learned

counsel for the petitioner and has

stated that under Section 154 Cr.P.C,

the police is bound to register the FIR;

the impugned order has been passed in

accordance with law, as the proposed

F.I.R clearly constitute cognizable

offence and has prayed for dismissal of

instant writ petition.

07. Arguments advanced by learned

counsel for the petitioner, learned

State Counsel and learned counsel for

the respondent No. 4 have been heard

and record has been perused with their

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Writ Petition No. 4041 of 2021

able assistance.

08. It is evident from record that the

petitioner is owner / purchaser of the

plot in village Sihala, Tehsil & District

Islamabad and sellers of the plot and

their legal heirs have no dispute with

the petitioner / purchaser.

09. The petitioner filed an application

to the S.H.O., P/S Sihala, Islamabad

that the accused Adnan Shah and

Imran Shah tried to raise illegal

construction and forcibly occupied the

plot purchased by the petitioner,

whereupon case vide F.I.R No.

506/2021, dated 07.10.2021, offence

under Sections 447, 511 & 506 P.P.C,

at Police Station Sihala, Islamabad was

registered.

10. Respondent No. 4, who is servant

/ employee of the accused, nominated

in the FIR filed an application for

registration of F.I.R. against the

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Writ Petition No. 4041 of 2021

petitioner, however, the police did not

register the F.I.R., consequently

petition under Sections 22-A/B Cr.P.C

was filed and learned Additional

Sessions Judge / Ex-officio Justice of

Peace, East-Islamabad sought a report

from Superintended of Police

(Complaint), Islamabad, in pursuance

thereto, a report was submitted,

wherein it was mentioned that just in

order to counter the case registered

against the accused, their servant filed

an application against the petitioner.

The police has thoroughly enquired

into the matter and submitted a report

that no cognizable offence has been

made out and prayed for dismissal of

the application filed under Section 22-

A/B Cr.P.C.

11. Learned Additional Sessions

Judge / Ex-Officio Justice of Peace,

East-Islamabad while passing the

impugned order has not mentioned any

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Writ Petition No. 4041 of 2021

plausible reasons for not relying on the

report, submitted by Superintendent of

Police (Complaint), Islamabad rather

passed the impugned order in a

mechanical manner.

12. During pendency of the instant

writ petition, DSP/SDPO Sihala Circle,

Islamabad was directed vide order

dated 02.12.2021, to personally

conduct an inquiry, visit the site, call

both the parties, record statements of

the witnesses and submit his detailed

report whether the offence as alleged

by Waqeel Khan / respondent No. 4

against the petitioner has been

committed or not.

13. Today, DSP / SDPO, Sihala Circle,

Islamabad present before the Court,

stated that he has personally

conducted an inquiry into the matter

and also produced detailed inquiry

report containing statements of the

witnesses of locality and the parties,

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Writ Petition No. 4041 of 2021

pictures of the plot and the alleged

crime scene has also been enclosed

with the inquiry report. DSP / SDPO,

Sihala, Islamabad has given his

findings that the accused nominated in

the F.I.R namely Adnan Shah has filed

different applications in this regard on

different forums, whereupon the

Superintendent of Police Rural

Islamabad has also conducted an

inquiry, respondent No. 4 / Wakeel

Khan who is servant of Adnan Shah

and Imran Shah has failed to produce

any independent, legal, cogent and

convincing evidence in support of his

contention, no such occurrence took

place.

14. Learned Ex-officio Justice of

Peace once called for the police report,

cannot ordinarily brushed aside the

same, in case he proposed to give his

opinion contrary to the police report he

was supposed to furnish tangible

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Writ Petition No. 4041 of 2021

reason for not relying upon the police

report.

15. There is distinction in Sections

22-A(6) and 154 Cr.P.C, for

convenience both the sections are

reproduced here under:

 Section-22-A(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.”

 Section 154 Cr.P.C Information

in cognizable cases:

Every information relating to

the commission of a cognizable
offence if given orally to an
officer incharge of a police
station, shall be reduced into
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Writ Petition No. 4041 of 2021

writing by him or under his

direction, and be read over to
the informant, and every such
information, whether given in
writing or reduced to writing as
aforesaid shall be signed by the
person giving it, and the
substance thereof shall be
entered in a book to be kept by
such officer in such form as the
Provincial Government may
prescribe in this behalf.”

16. The Larger Bench of Hon'ble

Supreme Court of Pakistan in a case

titled as Younas Abbass and others

Vs. Additional Sessions Judge,

Chakwal and others (PLD 2016

SC 581), has held that:

“Functions performed by Ex-

officio Justice of Peace under
S.22-A (6) Cr.P.C.---Such
functions being quasi-judicial
in nature could not be termed
as executive, administrative or
ministerial.. Said functions
were complementary to those
of the police and thus did not
amount to interference in the
investigative domain of the
police ... Khizar Hayat and
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Writ Petition No. 4041 of 2021

others v. Inspector General of

Police (Punjab), Lahore and
others PLD 2005 Lahore. 470
and Muhammad Ali v.
Additional I.G, PLD 2015 SC
753 dissented from.
Functions performed by the
Ex-officio Justice of Peace
were not executive,
administrative or ministerial
inasmuch as he did not carry
out, manage or deal with
things mechanically. Such
functions as described in
clauses (i), (ii) and (iii) of
section 22-A(6) Cr.P.C, were
quasi-judicial as Ex-officio
Justice of Peace entertained
applications, examined the
record, heard the parties,
passed orders and issued
directions with due application
of mind. Every lis before him
demanded discretion and
judgment. Functions so
performed could not be termed
as executive, administrative or
ministerial on any account.”

17. Proceedings before Justice of

Peace are quasi-judicial and are not

executive, administrative or

ministerial to deal with the matters

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Writ Petition No. 4041 of 2021

mechanically rather the same are

quasi-judicial powers, in the every

case before him demands discretion

and judicial observations.

18. Even the petitioner has

alternative statutory remedies under

Sections 156(3) & 190 Cr.P.C as well as

remedy to file criminal / private

complaint under Section 200 Cr.P.C to

press and prove its allegation before

the Court of Competent jurisdiction.

19. For the reasons, discussed above,

the instant writ petition is allowed,

the impugned order dated 11.11.2021

passed by learned Additional Sessions

Judge / Ex-Officio Justice of Peace,

East-Islamabad, is set-aside, further

the respondents No. 4 is at liberty to

file a private compliant, if so advised,

before the competent forum.

(TARIQ MEHMOOD JAHANGIRI)

JUDGE
Bilal /-

Approved for reporting.