2017 P Cr.

L J 549

[Sindh (Hyderabad Bench)]

Before Nadeem Akhtar and Khadim Hussain M. Shaikh, JJ

DILBER @ DILAIR---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE KOTRI and 18 others---Respondents

C.P. No.D-864 of 2015, decided on 26th February, 2016.

(a) Criminal Procedure Code (V of 1898)---

----Ss. 22-A & 22-B---Direction issued by Ex-Officio Justice of Peace to police for protection of harvest of crops relating
to dispute of civil nature---Validity---Powers and duties of Ex-Officio Justice of Peace---Scope---Matter before the Ex-
Officio Justice of Peace involved dispute between the private parties over the landed property, and the civil court had been
approached by the respondent's father in the civil suit, which had already been decreed---Ex-Officio Justice of Peace was
not to enter into arena of civil disputes between the parties over the landed property which involved intricate questions of
fact relating to title and possession---Powers and duties of the Ex-Officio Justice of Peace in terms of Ss. 22-A & 22-B,
Cr.P.C. were limited within the scope of the said provisions---Ex-Officio Justice of Peace, in the present case, had
exercised the powers which were not vested in him and passed the impugned order without jurisdiction---Impugned order
was, therefore, of no legal effect and was void ab initio---Impugned order was set aside---Constitutional petition was
allowed in circumstances.

Khizer Hayat and others v. Inspector-General of Police (Punjab) Lahore and others PLD 2005 Lah. 470;
Muhammad Ramzan and others v. Member (Rev.)/CSS and others 1997 SCMR 1635; Rehmatullah and others v. Saleh
Khan and others 2007 SCMR 729 and Khyber Tractors (Pvt.) Ltd. v. Pakistan through Ministry of Finance PLD 2005 SC
842 rel.

(b) Jurisdiction---

----Jurisdiction of courts---Principles---Every court is under a duty to first determine its jurisdiction and then to proceed
ahead, as any order passed without jurisdiction would be void ab initio and nullity in the eye of law.

Muhammad Ramzan and others v. Member (Rev.)/CSS and others 1997 SCMR 1635; Rehmatullah and others v.
Saleh Khan and others 2007 SCMR 729 and Khyber Tractors (Pvt.) Ltd. v. Pakistan through Ministry of Finance PLD
2005 SC 842 rel.

Kashif Hussain Agha for Petitioner.

Ashfaq Nabi Kazi, Assistant A.G. for the Respondents.

Date of hearing: 26th February, 2016.

ORDER

KHADIM HUSSAIN M. SHAIKH, J.---Through the captioned petition, the petitioner has called in question the
order dated 09.04.2015, passed by ex-officio Justice of the Peace/Additional Sessions Judge, Kotri being without lawful
authority and illegal.

2. Briefly, the facts of the case are that one Shafi Muhammad son of Jumo Khan Leghari, the father of the petitioner
had filed an F.C. Suit, No.35 of 2009 re-Shafi Muhammad v. Province of Sindh and others including Abdullah, the father
of respondent No.18 for declaration, cancellation of entries and permanent injunction in the Court of Senior Civil Judge,
Sehwan Sharif with the following prayers.

a) That the Honourable Court may be pleased to declare that the plaintiff is the lawful owner of the suit
property to the extent of his share inherited from his late father and the act of defendant Nos.07/a to 07/d, 08/a to
11 of issuing threats of dispossession etc is illegal, null, without due course of law and purely based on mala fide
motive.

b) That the Honourable Court may further be pleased to direct the defendant No.05 for cancellation of the
entries shown in the names of private defendants relating to the inherited property of the plaintiff.

c) That the Honourable Court may further be pleased to issue permanent injunction against the defendant
Nos.07/a to 07/d, 08/a to 11 from interfering with the peaceful possession of the plaintiff over the suit property
and issuing threats by themselves or through their agents, collaborates and friends etc. or selling the suit property
 into any other hands.

d) That the permanent injunction may also be ordered directing the defendant Nos.05 and 06 preventing
from making any further entry or requesting any sale deed relating to suit property.

e) That the costs be borne by the private defendants.

f) That any other relief.

3. It is further the case of the petitioner that the aforesaid suit was decreed as prayed by the Court of Senior Civil
Judge, Sehwan Sharif vide Judgment dated 28.10.2010; the respondent No.18 had filed a Criminal Miscellaneous
Application No.169 of 2015 re-GuI Hassan v. Senior Superintendent of Police District Jamshoro and others including the
petitioner under the Provisions of sections 22-A and 22-B, Cr.P.C. before the learned ex-officio Justice of the
Peace/Sessions Judge, Jamshoro, which was entrusted to the learned ex-officio Justice of the Peace/Additional Sessions
Judge, Kotri, who vide an order dated 09.04.2015, disposed of the aforementioned Criminal Miscellaneous Application, in
the following manner:-

"Considering the report of Mukhtiarkar Revenue, Taluka Kotri and report of SHO Police Station Bhan Sayedabad
Iam satisfied that the absconders/proclaimed offenders mentioned above against whom, the large number of
criminal cases are pending, they are allegedly relatives of private respondents, the situation emerges from the
circumstances that the possibility cannot be ruled out that the applicant and his relatives are not being allowed to
harvest the wheat crop standing on the above mentioned survey numbers, in which the private respondents and
absconders mentioned above have nothing and have no concern. In these circumstances, I find it fit and proper to
direct the respondents Nos.1 to 3 to provide complete legal protection to the applicant and his relatives present in
Court, so that they could cultivate above survey numbers viz. S. Nos. 136, 137, 142, 147, 148, 152, 153 of Deh
Sayedabad, 326, 642, 643 of Deh Bhan. The Tapedar of the beat should be present at site along with SHO Police
Station Bhan and DSP Sehwan, to ensure that private respondents or anybody else on their behalf may not create
any hindrance while the wheat crop is harvested by the applicant and his relatives on above survey numbers. In
case, there is any attempt by the private respondents or anybody else creating hindrance in the process of harvest
and thrashing of lawful cultivation of applicant and his relatives on survey numbers as mentioned above, legal
action in the shape of FIR shall be taken against the persons involved. The DSP Sehwan and SHO Police Station
Bhan must keep in mind that in case, the order is not implemented in letter and spirit and any complaint is made
against them by the applicant, if the Court is satisfied that the order is not implemented in its letter and spirit,
strict action shall be taken against them. With these observations, application stands disposed of."

4. Having felt aggrieved by the aforesaid order dated 09.04.2015, passed by the learned ex-officio Justice of the
Peace/Additional Sessions Judge, Kotri, the petitioner has filed the instant petition, with the following prayers:-

A) That honorable court may be pleased to set aside the impugned order dated 09.04.2015 passed by the
respondent No.1, which is against the law and natural justice.

B) That this honorable court may be pleased to direct the respondent Nos.2 to 4 not to cause harassment to
the petitioner and his family members in respect of land as per judgment dated 28.10.2010 passed by SCJ Sehwan
in favor of petitioner father.

C) That this honorable court may be pleased to direct the respondent Nos.2 to 5 not to interfere with the
matter of petitioner, which is pure civil nature.

D) Any other relief which deemed fit and proper.

5. Learned advocate for the petitioner has mainly contended that the petitioner's father namely Shafi Muhammad son
of Jumo Khan Leghari had filed a suit in the Court of Senior Civil Judge, Sehwan Sharif, for declaration, cancellation of
entries and permanent injunctions against Abdullah, the father of respondent No.18 Gul Hasan in respect of the disputed
land, which per him, was decreed vide judgment dated 28.10.2010, by the aforesaid Civil Court; there is dispute between
the private parties over the title and possession of the landed property; the learned ex-officio Justice of the
Peace/Additional Sessions Judge, Kotri vide impugned order dated 09.04.2015 allowed the respondent No.18 Gul Hasan
to take over the possession of the subject land belonging to the petitioner party with the help of the police along with the
crops cultivated therein by the petitioner and his brothers; and, the impugned order dated 09.04.2015 is without
jurisdiction and illegal. He, therefore, prays that the petition may be allowed and the impugned order dated 09.04.2015,
passed by ex-officio Justice of the Peace/Additional Sessions Judge, Kotri, may be set aside.

6. Learned A.A.G adopting the arguments of the learned counsel for the petitioner further submitted that ex-officio
Justice of the Peace/Additional Sessions Judge, Kotri had limited jurisdiction within the scope of provisions of sections
22-A and section 22-B, Cr.P.C. and the impugned order; passed by him, is not sustainable.

7. Record reflects that the respondent No.18 namely Gul Hasan, who was the sole applicant and real contestant
before learned ex-officio Justice of the Peace/Additional Sessions Judge, Kotri, had appeared before this Court on two
dates of hearing viz. 13.05.2015 and 04.06.2015 and sought adjournments, but today he chose to remain absent without
any intimation.

8. The powers and duties of a Justice of the Peace and an ex-officio Justice of the Peace in Pakistan have been
discussed in detail by the Hon'ble Full Bench of Lahore High Court in case of Khizer Hayat and others v. Inspector-
General of Police (Punjab), Lahore and others (PLD 2005 Lahore 470). Some of the paragraphs of the said judgment,
which are relevant for the purpose of deciding the instant petition; are reproduced below for convenience and ready
reference:-

"35..................

(i) The powers and duties of a Justice of the Peace or an ex-officio Justice of the Peace in Pakistan stand
specified in sections 22-A and 22-B, Cr.P.C. and they possess no other additional power and perform no other
additional duty except that which is specifically conferred upon them by a statute,

(ii) The powers and duties of a Justice of the Peace or an ex-officio Justice of the Peace in Pakistan do not
involve any jurisdiction which can be termed as judicial and the functions performed by him are merely
administrative and ministerial in nature and character.

(iii) ...........................

(iv) The directions to be issued by an ex-officio Justice of the Peace under section 22-A(6), Cr.P.C. are to be
directions to the concerned police authorities to attend to the grievance of the complaining person in accordance
with the relevant law and through the jurisdiction under section 22-A(6), Cr.P.C. an ex-officio Justice of the Peace
cannot arrogate to himself the power of redressing the actual grievance itself ........

(v) ............................

(vi) The proceedings before an ex-officio Justice of the Peace under section 22-A(6), Cr.P.C. are essentially
summary in character. He is not required to treat such proceedings as regular lis and no elaborate orders having
semblance of a judgment are required to be passed."

9. Manifestly, the matter before the ex-officio Justice of the Peace/Additional Sessions Judge, Kotri involved dispute
between the private parties over the landed property and the Civil Court had already been approached by the petitioner's
father in the aforementioned suit, which, per the petitioner, was decreed vide judgment dated 28.10.2010, copy whereof
has been annexed by the petitioner with the petition as Annexure-"D" at pages-41 to 48.

10. In view of the above, it is crystal clear that it did not fall within the domain of ex-officio Justice of the Peace to
enter into arena of civil disputes between the private parties over the landed property involving intricate questions of fact
relating to title and possession etc., over the subject property and his powers and duties, having been specified in sections
22-A and 22-B, Cr.P.C., were limited within the scope of the said provisions of law, but ex-officio Justice of the
Peace/Additional Sessions Judge, Kotri arrogated to himself the powers which did not vest in him and has passed the
impugned order dated 09.04.2015, which from face of it is without jurisdiction and void.

11. It needs no reiteration that it is the duty of every court or forum to first determine its jurisdiction and then to
proceed ahead for the simple reason that the order, if any, passed without jurisdiction, would be void ab initio and nullity
in the eye of law and such an order shall neither have any binding force nor does it create or recognize any right and it
would rather be non-existent. Reference can be made to case of Muhammad Ramzan and others v. Member (Rev.)/CSS
and others (1997 SCMR 1635), wherein Hon'ble Supreme Court has held that "entire edifice constructed on the basis of
void order crumbles along with same and did not require to be set aside through appeal or any other proceedings."
Reference can also be made to a case of Rehmatullah and others v. Saleh Khan and others (2007 SCMR 729), wherein the
Hon'ble Supreme Court has held that "when the basic order is without lawful authority then all the superstructure shall fall
on the ground automatically." In case of Khyber Tractors (Pvt.) Ltd. v. Pakistan through Ministry of Finance (PLD 2005
Supreme Court 842), the Hon'ble Supreme Court has held that:-

"Question of jurisdiction of a forum is always considered to be very important and any order passed by a court or
a forum, having no jurisdiction, even if it is found to be correct on merits, is not sustainable. Jurisdiction of a
court lays down a foundation stone for a judicial or a quasi-judicial functionary to exercise its powers/authority
and no sooner the question of jurisdiction is determined in negative, the whole edifice, built on such defective
proceedings is bound to crumble down."

12. In view of what has been discussed above, we are of the considered view that the impugned order dated
09.04.2015, passed by the ex-officio Justice of the Peace/Additional Sessions Judge, Kotri is without any lawful authority
and of no legal effect, which is not sustainable and the instant petition deserves to be allowed.
13. Foregoing are the reasons of our short order dated 26.02.2016, whereby the instant petition was allowed and the
impugned order dated 09.04.2015 passed by ex-officio Justice of the Peace/Additional Sessions Judge, Kotri was set
aside.
14. Resultantly, the listed application having become infructuous stands disposed of.
SL/D-15/Sindh Petition allowed