ORDER SHEET

IN THE HIGH COURT OF SINDH, KARACHI

C. P. No. D – 3171 of 2016

__________________________________________________________________

DATED: ORDER WITH SIGNATURE OF JUDGE

__________________________________________________________________

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.

--------------------

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*