Page 1 of 8

ORDER SHEET
IN THE HIGH COURT OF SINDH KARACHI
Criminal Misc. Application No.736 of 2021
&
C.P.No.S-09 of 2022

Date Order with signature of Judge

APPEARANCE:

Mr. Aamir Mansoob Qureshi advocate for the applicant in Crl. Misc.
Application No. 736/2021 and for respondent No. 4 in CP.No.S-09 of
2022.
Mr. Haider Waheed advocate for respondents No. 2 and 3 in Crl.
Misc. Application No. 2 & 3 in Crl. Misc. Application No. 736/2021
and for petitioner in CP.No.S-09/2022.
Mr. Gazain Z. Magsi advocate for respondent No.5 in Crl. Misc.
Application No. 736 of 2021.
Mr. Aamir Raza Dayo advocate for respondent No.6 in Crl. Misc.
Application No. 736/2021.
Ms. Seema Zaidi DPG
Syed Mohsin Shah, AAG

Date of hearing: 14th March 2022.

Date of order:- 17th March 2022
---------

Salahuddin Panhwar, J.- Applicant has assailed the order dated

26.03.2021, whereby application moved by the applicant under
Sections 22-A and 22-B, Cr.P.C. for registration of FIR against
respondents No. 2 to 6 was dismissed by the learned Ex-Officio
Justice of Peace/X-Additional Sessions Judge, Karachi South in
Criminal Misc. Application No. 229 of 2021 .

2. Succinct facts of the case as enumerated in the application are

that; for the last 15 years the applicant is working as Security
Incharge for Creek Marina Project situated in DHA, Phase-VIII,
Karachi. On 17.01.2021 at 4:30 p.m. 15/20 unknown persons led by
respondents No.4 and 5 Major Rtd. Nadeem and Umair Iqbal entered
into Creek Marina office by claiming that they were acting on behalf
of respondents No.2 and 3, owners of Siddique Sons Ltd and cause
harassment to the applicant as well as other guests who were present
in the office to attend Hi-Tea, they demolished the office, succeeded
in stopping the construction of Creek Marina Project and thereafter
they left the office while extending threats of dire consequences.
Incident was immediately reported to the concerned Police Station by
 Page 2 of 8

moving written application supported with pictures for registration of

the FIR, but no action was taken, hence he approached SSP South,
however, no fruitful result could be achieved.

3. The applicant then approached the Ex-Officio Justice of

Peace/X-Additional Sessions Judge, Karachi South by filing Criminal
Misc. Application No. 229/2021 under sections 22-A and 22-B,
Cr.P.C for issuance of direction to the concerned SHO to lodge FIR
against the respondents. The learned Ex-Officio Justice of Peace/X-
Additional Sessions Judge, Karachi South, after hearing learned
counsel for the parties, declined the prayer of the applicant with
regard to lodging the FIR, however, concerned authorities were
directed to provide legal protection to the applicant and staff
members of Creek Marina in accordance with law.

4. The learned counsel for the applicant, inter alia contends that
with regard to criminal offence, Station House Officer (SHO) of
concerned police station is bound to record the statement of the
applicant. He has relied upon case law reported as Younus Abbas
Case PLD 2016 SC 581. He has further contended that photographs
were available with Ex-Officio Peace of Justice but the learned Ex-
Officio Justice of Peace erroneously declined prayer of the applicant
for lodgment of the FIR on the premise that civil litigation is pending
between the parties which is hardly a ground to refuse the relief
sought by the applicant, even otherwise; it was a good case for
issuance of direction to the concerned SHO for recording the
statement of the applicant. He has further contended that the order
of learned Ex-Officio Justice of Peace is illegal and without legal
justification. He has lastly contended that the applicant has prima
facie made out a case of cognizable offence, as such; the SHO
concerned cannot refuse to register FIR who is duty bound under
section 154, Cr.P.C. to record the statement of the applicant.

5. In contra learned counsel for the respondents also relied upon

PLD 2016 SC 581 on the plea that FIR cannot be used as a tool of
harassment, no offence was committed. With regard to subject matter
property stay order passed by this Court in Civil Suit was operating,
therefore, the respondent along with police approached there and
police maintain the situation of affray, hence, alleged offence is a
managed story in order to convert civil litigation into criminal
litigation. The sponsors of Company Creek Marina Pvt Limited had
 Page 3 of 8

embezzled billion of rupees and in this regard, civil /criminal

proceedings are initiated against them, they in order to save their
skin have made a frivolous application to the learned Ex-Officio
Justice of Peace, which was rightly declined through impugned order.
He has further contended that in view of case law reported in 1975
SCMR 149 in cases of grave injustice, this Court is competent to
disturb the findings of the Ex-Officio of Justice, whereas; Ex-Officio
Peace of Justice has passed order while applying his mind in
accordance with law.

6. Learned AAG and DPG have also opposed the instant

application and contended that applicant has alternate remedy
available under the law i.e. the Private Complaint to be filed before
the competent court of law. However, they state that the official
respondents will act strictly in accordance with law.

7. Heard and perused the record.

8. Admittedly, an officer incharge of the Police Station is under

legal and statutory obligation to record the information provided to
him by any person related to the commission of a cognizable offence,
without going into its veracity that it is true or false. Likewise section
22-A (6) Cr.P.C. empowers Justice of Peace for issuance of
appropriate direction to the police authorities concerned, on
complaint, for registration of a criminal case. But all these powers
would not be exercised in random manner without application of
independent mind. The powers under section 154, Cr.P.C and section
22-A(6), Cr.P.C. are vested in the police authorities and Justice of
Peace, respectively, for dispensation of justice, but on the same time,
the Court would keep in mind that the said powers are never meant
to be exercised in aid of injustice. Article 1999 of the Constitution
empowers High Court to review or set-aside order passed U/S 22-A
Cr.PC but such powers can only be exercised if lower Court has not
applied mind or had overlooked some material aspects of the case.
When the lower Court has passed a well-reasoned order keeping in
view the fact of the case, no interference is required by this Court and
approaching this Court should be discouraged. Reliance can be
placed on the Case of Syed Zafar Ali Shah v. Falak Sher Farooka,
Additional District & Sessions Judge, Multan and 4 others
(2005 MLD 1593). In the case reported as Younas Abbas vs.
Additional Sessions Judge, Chakwal (PLD 2016 SC 581), where
 Page 4 of 8

in the note added by Honourable Justice Rtd. Manzoor Ahmed Malik

(as his Lordship then was), it was inter-alia observed that:

“……….powers under Section 22-A (6) Cr.P.C given to an Ex-

Officio Justice of Peace to issue appropriate directions on a
complaint filed by an aggrieved person for registration of a
criminal case (Clause-i) and for transfer of investigation from
one police officer to another (Clause-ii) though efficacious and
expeditious besides being at the doorstep, but at the same time,
these provisions should not be unbridled or open-ended. These
provisions must be defined, structured and its contour
delineated to obviate misuse by influential and unscrupulous
elements…….”

9. In the case reported as Jamal Khan vs. Secretary Home

Department (2021 SCMR 468), the Honourable Supreme Court, in a
matter involving civil dispute, refused to interfere in the findings
whereby registration of a criminal case was declined. In the present
case, perusal of record reflects that after filing of an Application
under sections 22-A and 22-B, Cr.P.C. before learned Ex-Officio
Justice of Peace, report was called from concerned SHO. It would be
conducive to reproduce the relevant portion of the report as under:

“……..as per inquiry it reveals that on 17-01-2021 a complaint

was received on madadgar 15 in response Police reached at the
spot, complainant major Naveed showed stay order copy of
court and reported that other party (plaintiff) is violating the
court stay order while other party (plaintiff) representatives
were there, as the matter was already in court, complainant
party was advised to approach court for violation of stay order
and the other party (plaintiff) was also advised to approach
court against the stay order if they have any reservations, both
parties were further advised to maintain peace, Police went to
maintain law & order situation. The SD entry No. was also
been made (Copy Enclosed).

As per orders passed by Honorable Court on 04-02-2021 the

inquiry was conducted the statement of complainant Nawab Ali
S/o Hashim Khan was recorded through which it came to notice
that 1. Major (R) Nadeem, 2. Omair Iqbal, 3.Adnan along with
some unknown came at the site on 17-01-2021 & forcefully
interrupted the sales office and stopped construction work and
also harassed the office staff through statement of Nawab Ali
no cognizable offence has been made so FIR cannot be
registered, however; the other party was also tried to contact
but due to shortage of time statement was not recorded.

PRAYER

It is therefore, prayed before the Honorable Court that in view

of the above facts as both parties are business partners and the
case is already in the Honorable High Court Suit No.134/2021
which is same as Application No. 229/2021 U/S 22-A Cr.P.C. It
is further humbly requested that the application may kindly be
filed as the matter is of civil nature and there is business
dispute between both parties.
 Page 5 of 8

10. Impugned order reflects that the substance of the allegations

was considered and weighed in juxtaposition with the material
available. Admittedly, criminal/civil litigations are pending
adjudication against sponsors of Marina Creek Pvt. Limited regarding
embezzlement. A list of six suits and FIR No.80/2020 under Section
489-F/420 PPC is also available on record. The report submitted by
the police categorically depicts that no incident as alleged by the
applicant had taken place.

11. Needless to mention here that when the FIR is refused to be

registered by the police then other remedies are available for the
aggrieved party; firstly, by approaching the Sessions Judge/Ex-
Officio Justice of Peace, for exercising of power U/s 22-A (6) Cr.PC;
secondly, by approaching the Magistrate for exercising of power
under section 156 (3) Cr.PC; and lastly, by filing a direct complaint
U/S 200 Cr.PC. Allegedly, the applicant in the first instance
approached the concerned SHO for registration of the FIR but he was
refused, thereafter the applicant has availed the second remedy of
filing application U/S 22-A & 22-B Cr.PC before Ex-Officio Justice of
Peace/Sessions Judge, where his application was dismissed.
Thereafter the applicant has not availed two other remedies available
for him for redressal of his grievance. In such circumstances,
invoking of writ jurisdiction in the presence of adequate remedy being
available is not desirement of law. Reliance can be placed on the Case
of Ghulam Ali alias Sadoro and others v. S.H.O., Police Station
Veehar, District Larkana and others (2003 YLR 2168).

12. Record further reflects that Criminal Misc. Application filed by

the applicant was dismissed vide impugned order dated 26.03.2021
however, the instant Criminal Misc. Application has been filed by the
applicant on 30.11.2021 after delay of eight months for which no
plausible explanation has been furnished by the applicant. In any
event, normally this Court does not exercise its inherent jurisdiction
unless there is gross miscarriage of justice and interference by this
Court seems to be necessary to prevent abuse of process of Court or
to secure the ends of justice. Jurisdiction under Section 561-A Cr.P.C
is neither alternative nor additional in its nature and is to be rarely
invoked only to secure the ends of justice so as to seek redressal of
grievance for which no other procedure is available and that the
provision should not be used to obstruction or divert the ordinary
 Page 6 of 8

course of criminal procedure. This kind of jurisdiction is extra-

ordinary in nature and designed to do substantial justice. Reliance is
placed upon the case reported as Maqbool Rehman vs. The State
(2002 SCMR 1076).

13. Powers under S. 561-A Cr.PC should ordinarily not be invoked

as an alternate or additional jurisdiction to interrupt or divert the
normal course of procedure as laid down in the relevant statute and
are ought not to be exercised capriciously or arbitrarily but should be
exercised ex debito justitiae to do real and substantial justice. In
order to seek interference under section 561-A Cr.PC three conditions
had to be fulfilled;

Firstly, the injustice which came to light was not of a

trivial nature;

Secondly, the injustice was of a clear and palpable

character and not of doubtful character, and

Thirdly, there did not exist any other provision of law by

which aggrieved party could have sought relief.

From the record, it is apparent that in the present case, the applicant
has not fulfilled the third condition that he has an alternate remedy
of filing a direct complaint under S.200, Cr.P.C. provided that there is
some incriminating material against the Respondents Nos. 2 to 6
available with the applicant. The learned Ex-Officio Justice of Peace
has passed a legal order keeping in view all material facts of the case.
Where the lower Court has passed a well-reasoned order keeping in
view the facts of the case no interference is required. In similar
circumstances, in Case of Rai Ashraf and others v. Muhammad Saleem
Bhatti and others (PLD 2010 Supreme Court 691), it has been held by the
Honourable Supreme Court of Pakistan that: “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
whatsoever 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 rest raining
order against the petitioners from the civil Court, therefore, Add itional Sessions
 Page 7 of 8

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” . Hence
in such circumstance, I do not see any reason to exercise discretion
under section 561- A, Cr.P.C.

14. In view of what has been discussed herein above, I am of the

view that instant application is misconceived, therefore, the order
dated 26.03.2021 does not require any interference by this Court.
Consequently, the instant Criminal Misc. Application is dismissed.

15. With regard to petition, the Petitioner has prayed as under:-

1. To declare the actions of the Respondents No. 2 to 3 in

assisting the private Respondents through filing of FIRs
in matters where judicial intervention has already been
declined as illegal, and to also declare such actions as
blatant contempt of court.

2. To initiate proceedings under Section 204 of Constitution

of Pakistan and/or the Contempt of Court Ordinance
against the Respondents, in respect of acting in contempt
of judicial orders in the institution of FIR against the
Petitioners on already adjudicated facts.

3. To declare the actions of the Respondents No. 2 to 3 in

assisting the private Respondents through filing of FIRs
which are based on allegations which, even if taken to be
true, cannot constitute an offence, particularly the
offence of defamation, as illegal.

4. To grant injunction against the Respondents from

registering of any FIR pertaining directly or indirectly to
subject matter of the instant Petition, without first
obtaining permission from this Honourable Court.

5. To direct the Respondents, in the case of any FIR having

been registered against the Petitioners, to file the same
before the Honorable Court.

6. To restrain the Respondents from taking any coercive

action during the pendency of the instant Petition,
against the Petitioners.

7. To grant any further, additional or better reliefs which

this Honorable Court may find just and appropriate in
the circumstances.

16. The learned counsel for the petitioners contended that

respondents intend to lodge FIR against the petitioners even when
order passed by the Ex-Officio of Justice of Peace is in existence. It is
 Page 8 of 8

pertinent to mention that police officials refused to lodge FIR as no

cognizable offence was made out, which issue was adjudicated by the
Ex-Officio Peace of Justice in view of Younus Abbas case (supra) and
found that no incident as alleged had occurred, hence no case for
interference by Ex-Officio Justice of Peace is called for. The provisions
of section 22-A, Cr.P.C. have been misused in a number of cases. The
wisdom of legislature was not that any person who in discharging of duties
takes an action against the accused would be subjected to harassment by
invoking provision of section 22-A, Cr.P.C. The Courts in mechanical manner
should not allow application under sections 22-A & B and should apply its
mind as to whether the applicant has approached the Court with clean hands
or it is tainted with malice. Unless such practice is discouraged, it would
have far reaching effect on the police officials who in discharge of duties take
actions against them. The law has to be interpreted in a manner that its
protection extends to everyone. Reliance is placed on the Case of Imtiaz
Ahmed Cheema, S. H.O. v. S.H.O., Police Station Dharki, Ghotki 2 others
(2010 YLR 189). Accordingly, with regard to same allegations, the police
officials are not competent to lodge FIR; hence, present petition is
also disposed of in the above terms.

JUDGE

Sajid