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2024 P Cr. L J 756

[Lahore]
Before Tariq Saleem Sheikh, J
HUMAIR YOUSAF---Petitioner
Versus
STATION HOUSE OFFICER and 3 others---Respondents
Writ Petition No. 46941 of 2021, decided on 12th August, 2022.
Criminal Procedure Code (V of 1898)---
----Ss. 22-A & 22-B---Penal Code (XLV of 1860), S. 489-F---Dishonoring of
cheque---Right of hearing to accused---Ex-officio Justice of Peace, duty of---
Scope---Petitioner was aggrieved of order passed by Ex-officio Justice of Peace
directing S.H.O. of police station concerned to register criminal case for issuing
cheques which were dishonored on presentation---Validity---Ex-officio Justice of
Peace does not have absolute duty to hear accused while deciding an application
under S. 22-A(6), Cr.P.C.---Ex-officio Justice of Peace may afford accused
audience only if circumstances demand and no hard and fast rule can be laid down
in such respect---Ex-officio Justice of Peace cannot conduct a "mini-trial" while
hearing a complaint regarding non-registration of criminal case---Any mandate to
hold a detailed inquiry to ascertain veracity of allegations militates against very
scheme of Cr.P.C.---Payment of two cheques was stopped by the drawer while the
third was returned for the reason that the account was closed---"Stop payment" or
"closure of account" does not, per se, take the case out of the ambit of S. 489-F,
P.P.C.---Such circumstance made it imperative for Ex-officio Justice of Peace to
hear the other side, therefore, petitioner had been prejudiced---High Court set aside
order for registration of FIR and remanded the matter to Ex-officio Justice of Peace
for decision afresh---Constitutional petition was allowed accordingly.
Younas Abbas and others v. Additional Sessions Judge, Chakwal, and others
PLD 2016 SC 581; Abad Ali alias Imran and another v. City Police Officer,
Faisalabad and 6 others PLD 2021 Lah. 274; Dawood Abdul Ghafoor v. Justice of
Peace and others 2021 PCr.LJ 1527; M. Anwar Barrister-at-Law v. The Station
House Officer, Civil Lines Police Station, Lahore, and another PLD 1972 Lah. 493;
Saeed Ahmad and others v. Naseer Ahmad and others PLD 2000 Lah. 208;
Muhammad Bashir v. Station House Officer, Okara Cantt. and others PLD 2007 SC
539; Khizer Hayat and others v. Inspector-General of Police (Punjab), Lahore and
others PLD 2005 Lah. 470; PLJ 2003 Fed. St. 281; Fazal Muhammad Chaudhari v.
Ch. Khadim Hussain and 3 others 1997 SCMR 1368; Sardar Muhammad Nawaz v.
Mst. Firdous Begum 2008 SCMR 404; Chairman, State Life Insurance Corporation
and others v. Hamayun Irfan and 2 others 2010 SCMR 1495; National Bank of
Pakistan v. Nasim Arif Abbasi and others 2011 SCMR 446; Dr. Zahid Javed v. Dr.
Tahir Riaz Chaudhary and others PLD 2016 SC 637; H.W.R. Wade & C.F. Forsyth,
Administrative Law, Eleventh Edition, p.31; Namit Sharma v. Union of India
[2013] 13 SCR 1; Commissioner of Income Tax, East Pakistan v. Fazlur Rahman

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PLD 1964 SC 410; The University of Dacca through its Vice-Chancellor v. Zakir
Ahmad PLD 1965 SC 90; Anisa Rehman v. PIAC and another 1994 SCMR 2232;
Abdul Haque Indhar and others v. Province of Sindh and 3 others 2000 SCMR 907;
Justice Khurshid Anwar Bhinder and others v. Federation of Pakistan and another
PLD 2010 SC 483; High Flying Solar Development Pakistan Ltd. and others v.
National Electric Power Regulatory Authority and others 2016 CLC 1805; Abdul
Hafeez Abbasi and others v. Managing Director, PIAC, Karachi, and others 2002
SCMR 1034; Abdul Waheed and 4 others v. City District Government 2014 PLC
(C.S.) 820; Karachi City Cricket Association, Karachi v. Mujeebur Rahman,
Chairman Adhoc Committee, Pakistan Cricket Board PLD 2003 Kar. 721;
Dharampal Satyapal Ltd. v. Deputy Commissioner of Central Excise, Gauhati, and
others [2015 (8) SCC 519; Mureed Hussain v. Additional Sessions Judge/Justice of
Peace Jampur and 3 others 2014 PCr.LJ 1146; Malik Muhammad Usman v. The
State and others PLD 1965 (W.P.) Lahore 229; Dosso's case PLD 1958 SC (Pak)
533; Ch. Nisar Ali Khan v. Federation of Pakistan and others PLD 2013 SC 568 and
Shahid Orakzai and another v. Pakistan through Secretary Law, Ministry of Law,
Islamabad and another PLD 2011 SC 365 rel.
Kh. Haris Ahmad and Muhammad Zubair Khalid for Petitioner.
Mukhtar Ahmad Ranjha, Assistant Advocate General for Respondents Nos.1 and
2.
Tariq Kamal Qazi and Sharjeel Adnan Sheikh for Respondent No.3.
Date of hearing: 17th June, 2022.
JUDGMENT
TARIQ SALEEM SHEIKH, J.---This petition under Article 199 of the
Constitution of Islamic Republic of Pakistan, 1973 (the "Constitution"), is directed
against order dated 15.7.2021 passed by the Ex-officio Justice of Peace, Lahore.
The facts
2. On 8.7.2021 Respondent No.3 [Hayat Kimya Pakistan (Private) Limited]
moved an application under section 22-A of the Code of Criminal Procedure, 1898
(hereinafter referred to as "Cr.P.C." or the "Code"), before Respondent No.4 (Ex-
officio Justice of Peace) stating that it had appointed Apex Distribution and
Marketing Services (Private) Limited (hereinafter referred to as "Apex") as its non-
exclusive distributor for the sale and distribution of its products in terms of
Agreement dated 15.5.2019. In due course of business a sum of Rs.15.00 million
became outstanding against Apex whereupon the Petitioner (Humair Yousaf) and
Mrs. Tabassum Yousaf delivered three cheques (Cheque Nos. 97479699,
1688258316 and CA0053594927) for Rs.5.00 million each to Respondent No.3 to
liquidate its liability but they were dishonoured on presentation. The application
did not mention the precise date of those cheques. Respondent No.3 contended that
the Petitioner and Mrs. Tabassum Yousaf had dishonestly given it bad cheques and
thus committed a cognizable offence for which they were liable to be prosecuted.
Accordingly, it prayed for a direction to the Respondent SHO for registration of a

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criminal case against them. Respondent No.4 accepted that application vide Order
dated 15.7.2021 (the "Impugned Order"). Hence, this petition.
3. It is pertinent to point out that Cheque No. 97479699 was drawn on the
Petitioner's personal account with the Summit Bank Limited while Cheque Nos.
CA0053594927 and 1688258316 were drawn on Apex's two corporate accounts
maintained with Faysal Bank Limited and MCB Bank Limited respectively and
issued under the hand of Mrs. Tabassum Yousaf.
The submissions
4. The counsel for the Petitioner, Kh. Haris Ahmad, Advocate, contended that the
Impugned Order was illegal and without jurisdiction for two reasons. First, the law
laid down by the Hon'ble Supreme Court of Pakistan in Younas Abbas and others v.
Additional Sessions Judge, Chakwal, and others (PLD 2016 SC 581) and this Court
in Abad Ali alias Imran and another v. City Police Officer, Faisalabad, and 6 others
(PLD 2021 Lahore 274) mandates that where the Officer In-charge of a police
station refuses to register FIR the aggrieved person must approach his superior
officers in the hierarchy before making an application under section 22-A(6),
Cr.P.C. to the Ex-officio Justice of Peace ("JOP"). In the present case Respondent
No.3 moved Respondent No.4 directly so that application was not competent.
Secondly, on 8.7.2021 when the application of Respondent No.3 came up for
hearing before Respondent No.4 for the first time he directed Respondents Nos.1
and 2 (the police officials) to file their report/comments and simultaneously ordered
service of the "proposed accused" for the next date of hearing. On 15.7.2021
Respondent No.4 proceeded to pass the Impugned Order although neither the
Petitioner (and co-accused Tabassum Yousaf) was served nor the police had
submitted the requisite report. In these circumstances, Mr. Ahmad contended,
Respondent No.4 could not decide the matter.
5. Mr. Ahmad assailed the Impugned Order on merits also on numerous grounds.
His first contention was that Cheque Nos. 97479699, 1688258316 and
CA0053594927 were given to Respondent No.3 on different dates as security in
terms of Distribution Agreement dated 15.5.2019. Section 489-F, P.P.C. was
inapplicable to security cheques. Secondly, Respondent No.3 had procured the
Impugned Order through fraud, forgery and misrepresentation. He submitted that
Respondent No.3 deliberately concealed the date of receipt of the cheques in its
application before Respondent No.4 and attempted to suggest that they were issued
on the date mentioned on them, i.e. 4.5.2021. It was not so. According to the
learned counsel, there was documentary evidence that they were delivered to
Respondent No.3 on different occasions and were undated as they were not meant
for encashment. On 23.6.2021 Respondent No.3 presented the cheques although it
was fully aware of the fact that a dispute in respect thereof had arisen and Apex had
served a notice for arbitration upon it and instructed the bankers to stop payment
against two of the said instruments. Cheque No. CA0053594927 related to an
account which was closed on 25.1.2020 so such instruction was not required for it.
Mr. Ahmad contended that Respondent No.3 had no authority to fill up the date on
the cheques because no liability had accrued against Apex. Thirdly, "dishonest
intention" was the foundational element of section 489-F, P.P.C. but there was

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nothing on record to suggest that the Petitioner and Mrs. Tabassum Yousaf
harboured such intention when they handed over the said cheques to Respondent
No.3. Lastly, the dispute between the parties was of civil nature and they had filed
cross suits which were pending. The application moved by Respondent No.3 under
section 22-A(6) Cr.P.C. was mala fide as it wanted to mount pressure on the
Petitioner by implicating him in a criminal case.
6. Mr. Tariq Kamal Qazi, Advocate, who represented Respondent No.3,
controverted the above contentions. He contended that the Impugned Order was
lawful and did not suffer from any jurisdictional defect. As regards the Younas
Abbas case, he submitted that it was being grossly misread and misconstrued. Even
a learned Single Judge of this Court misunderstood it in Abad Ali alias Imran and
another v. City Police Officer, Faisalabad and 6 others (PLD 2021 Lahore 274).
According to him, there was nothing in Younas Abbas case to suggest that it was
mandatory for the aggrieved party to approach senior police officials against the
inaction of the Officer In-charge of a police station before moving the JOP under
section 22-A, Cr.P.C. Mr. Qazi further contended that the Impugned Order could
not be quashed on the ground that Respondent No.4 did not await the police report
because it was a mere irregularity. Similarly, the fact that he did not hear the
Petitioner and co-accused Mrs. Tabassum Yousaf was of no legal consequence as
Dawood Abdul Ghafoor v. Justice of Peace and others (2021 PCr.LJ 1527)
unequivocally held that he had no such obligation.
7. Mr. Qazi next contended that the cheques were not issued by way of security
as the Petitioner suggested. They represented the primary payment obligation of
Apex. The said company was its distributor and the cheques represented the price
of goods which it had purchased from Respondent No.3 for further sale to the end
users. Mr. Qazi vehemently denied the allegations of fraud, forgery and
misrepresentation levelled against Respondent No.3. He explained that when a
person delivers a duly signed inchoate instrument to another person the latter is
competent to fill up the amount and the date under section 20 of the Negotiable
Instruments Act, 1881. The counsel pointed out that it was not the Petitioner's case
that Respondent No.3 did not supply the goods to Apex.
8. Mr. Qazi submitted that the purpose of section 22-A, Cr.P.C. was to ensure
immediate registration of FIR and it was a bulwark against interference in the
administration of criminal justice by the influential. He argued that the offence
under section 489-F, P.P.C. is complete when the cheque is dishonoured and the
bank issues a memo confirming that fact. In such a situation the JOP should
forthwith issue a direction for registration of criminal case and allow the law to
take its own course. The parties have an opportunity to prove their respective
claims during the investigation. The JOP cannot assume the role of the police and
conduct any inquiry himself. The Petitioner would have the same opportunity and
the issues which he has raised in response to the complaint of Respondent No.3
would be considered at the right time. Mr. Qazi lastly contended that recordation of

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FIR could not be blocked merely because civil litigation was pending. A party
could avail civil and criminal remedies simultaneously.
Opinion
9. The Code classifies criminal offences into two categories for certain purposes,
namely cognizable and non-cognizable offences. Sections 154 and 155(1), Cr.P.C.
separately prescribe the procedure for dealing with them. Section 154 is relevant
for our present purpose which is reproduced below:
154. Information in cognizable cases.---Every information relating to the
commission of a cognizable offence if given orally to an officer in-charge of
a police station, shall be reduced to 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.
Provided that
Provided further that
10. This Court considered section 154 Cr.P.C. in M. Anwar Barrister-at-Law v.
The Station House Officer, Civil Lines Police Station, Lahore, and another (PLD
1972 Lahore 493) and explicated:
"If there is an information relating to the commission of a cognizable offence, it
falls under section 154 of the Code of Criminal Procedure and a police
officer is under a statutory obligation to enter it in the prescribed register.
The condition precedent is simply two-fold: first, it must be an information
and, secondly, it must relate to a cognizable offence on the face of it and not
merely in the light of subsequent events. A police officer is bound to receive
a complaint when it is preferred to him, or where the commission of an
offence is reported to him orally, he is bound to take down the complaint. If
he does not incorporate in the register a complaint so made, he fails to
perform a statutory duty as a public servant and, therefore, renders himself
to be dealt with by his superior officers for neglect of duty. Thus, it does not
depend on the sweet will of a police officer who may or may not record it."
The above statement of law was reaffirmed by a Divisional Bench of this Court
in Saeed Ahmad and others v. Naseer Ahmad and others (PLD 2000 Lahore 208).
11. The expression "First Information Report" (FIR) does not appear in the
Code. It is, in fact, the name given to the "information" mentioned in section 154
Cr.P.C. by Chapter XXIV of the Police Rules of 1934. In Muhammad Bashir v.

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Station House Officer, Okara Cantt. and others (PLD 2007 SC 539) the Hon'ble
Supreme Court of Pakistan elucidated the law relating to FIR as follows:
"(a) No authority vests with an Officer In-charge of a police station or with
anyone else to refuse to record a FIR where the information conveyed
discloses the commission of a cognizable offence;
(b) No authority vests with an Officer In-charge of a police station or with
anyone else to hold any inquiry into the correctness or otherwise of the
information which is conveyed to the SHO for the purposes of recording of
an FIR;
(c) Any FIR registered after such an exercise, i.e. determination of the truth or
falsity of the information conveyed to the SHO, would be hit by the
provisions of section 162 Cr.P.C.;
(d) Existence of a FIR is not a condition precedent for holding of an
investigation nor is the same a prerequisite for the arrest of a person
concerned with the commission of a cognizable offence;
(e) The recording of an FIR does not mean that the SHO or the police officer
deputed by him is obliged to investigate the case or to go through the whole
length of investigation of the case mentioned therein or that any accused
person nominated therein must be arrested; and
(f) The check against lodging of false FIRs is not refusal to record such FIRs but
punishment of such informants under section 182, P.P.C. etc. which should
be, if enforced, a deterrent against misuse of the provisions of section 154,
Cr.P.C."
12. There is a general complaint that the police do not register FIR when the
commission of a cognizable offence is reported to them although it is their statutory
obligation under section 154, Cr.P.C. In the past the people used to file petitions
under Article 199 of the Constitution in the High Court for an order in the nature of
mandamus against their inaction/refusal. The High Court would consider every case
on its own facts and then either issued the writ or dismissed the petition as it
deemed appropriate. The High Court's burden increased with the passage of time so
the need for legal reform arose.
13. In the Indo-Pak sub-continent the original role of the Justices of Peace under
the Code was primarily to assist the police in maintaining peace and, in the event of
infraction of law, to help them.1 However, their role was subsequently enlarged and
made more comprehensive through various amendments in the Code. On
21.11.2002, the Criminal Procedure (Third Amendment) Ordinance, 2002 (Federal
Ordinance No. CXXXI of 2002)2 added subsection (6) in section 22-A, Cr.P.C. and

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conferred additional powers on the Ex-officio Justices of Peace. The said provision
reads as under:
(6) An Ex-officio Justice of Peace may issue appropriate directions to the police
authorities concerned on a complaint regarding:
(i) non-registration of criminal case;3
(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 25 Cr.P.C. defines Ex-officio Justice of Peace as follows:
25. Ex-officio Justice of the Peace.---By virtue of their respective offices, the
Sessions Judges and on nomination by them, the Additional sessions Judges,
are Justices of the Peace within and for whole of the District of the Province
in which they are serving.
14. Clause (i) of section 22-A(6), Cr.P.C. created a new forum where an
aggrieved person could seek remedy against the Officer In-charge of a police
station who refused registration of FIR but a huge controversy arose as to how the
JOP should exercise that power or, to put it in another way, what was the nature of
functions that he performed. Initially the preponderant view was that the JOP's
functions were ministerial but in Younas Abbas and others v. Additional Sessions
Judge, Chakwal, and others (PLD 2016 SC 581) a larger Bench of the Hon'ble
Supreme Court ruled that they were quasi-judicial. The relevant excerpt is
reproduced below:
"11. The duties, the Justice of Peace performs, are executive, administrative,
preventive and ministerial as is evident from sub-sections (1), (2), (3), (4)
and (5) of sections 22-A and 22-B of the Cr.P.C. Such duties have not been a
subject-matter of controversy nor have they ever been caviled at by
anybody. Controversy emerged with the insertion of subsection (6) in
section 22-A and section 25 of the Cr.P.C. when the Sessions Judges and on
nomination by them the Additional Sessions Judges became the Ex-officio
Justices of Peace. The functions, the Ex-officio Justice of Peace performs,
are not executive, administrative or ministerial inasmuch as he does not
carry out, manage or deal with things mechanically. His functions as
described in Clauses (i), (ii) and (iii) of subsection (6) of section 22-A,
Cr.P.C. are quasi-judicial as he entertains applications, examines the record,
hears the parties, passes orders and issues directions with due application of
mind. Every lis before him demands discretion and judgment. Functions so
performed cannot be termed as executive, administrative or ministerial on
any account. We thus don't agree with the ratio of the judgments rendered in
the cases of Khizar Hayat and 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) inasmuch as it holds (sic) that the

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functions performed by the Ex-officio Justice of Peace are executive,

administrative or ministerial."
15. Article 189 of the Constitution ordains that the decisions of the Hon'ble
Supreme Court, to the extent that they decide a question of law or enunciate a
principle of law, are binding on all courts in Pakistan. And, under the law of
precedents if there is a conflict in the judgments of the Supreme Court, the one
delivered by larger Bench prevails.4 Hence, the reported cases on section 22-A(6)
Cr.P.C. must be classified as pre- and post-Younas Abbas judgment. All the
previous cases (which we have in plenty) stand overruled that hold that the
jurisdiction of the JOP is limited to the examination of the complaint/information
laid before him and should right away direct the Officer In-charge of police station
to register FIR if it discloses commission of a cognizable offence. Muhammad
Bashir's case, which I have referred above, also falls in this bucket and
consequently stands overruled to this extent. Similarly, the Full Bench decision of
this Court in Khizer Hayat and others v. Inspector-General of Police (Punjab),
Lahore and others (PLD 2005 Lahore 470), which is one of the most important
cases relating to section 22-A(6), Cr.P.C. as it examines every possible aspect
thereof, also stands overruled by Younas Abbas case insofar as it says that the
powers of the JOP are ministerial. However, its remaining part is still good law.
16. It is important to understand the significance of the holding in Younas Abbas
case. Generally speaking, an authority is described as quasi-judicial when it has
some trappings or attributes of a court though not all of them. According to Wade
and Forsyth, "a quasi-judicial function is an administrative function which the law
requires to be exercised in some respects as if it were judicial."5 In Dr. Zahid Javed
v. Dr. Tahir Riaz Chaudhary and others (PLD 2016 SC 637) the Hon'ble Supreme
Court of Pakistan held: "The word 'quasi' is defined 'as if', 'as though', 'as it were',
'in a manner', 'in a certain sense or degree', 'seeming', 'seemingly', 'analogous to'
and it may mean 'resemblance'. The quasi-judicial power is a duty conferred by
words or by implication on an officer to look into facts and to act on them in the
exercise of discretion, and it lies in the judgment and discretion of an officer other
than a judicial officer. A 'quasi-judicial power' is one imposed on an officer or an
authority involving the exercise of discretion, judicial in its nature, in connection
with, and as incidental to, the administration of matters assigned or entrusted to
such officer or authority. A 'quasi-judicial act' is usually not one of a judicial
tribunal, but of a public authority or officer, which is presumably the product or
result of investigation, consideration, and human judgment, based on evidentiary
facts of some sort in a matter within the discretionary power of such authority or
officer. A quasi-judicial power is not necessarily judicial, but one in the discharge
of which there is an element of judgment and discretion; more specifically, a power
conferred or imposed on an officer or an authority involving the exercise of
discretion, and as incidental to the administration of matters assigned or entrusted
to such officer or authority." The Hon'ble Supreme Court's declaration that the JOP
exercises quasi-judicial functions under section 22-A(6), Cr.P.C. clears up that this
provision is not only independent of section 154, Cr.P.C. but radically different
from it. The powers of the JOP are discretionary. He is not bound to issue a
direction for registration of FIR in every case that is brought to him. On the other

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hand, section 154, Cr.P.C. is couched in mandatory terms and the obligation of the
Officer In-charge of a police station to record FIR is absolute where the alleged
offence is cognizable.
17. Interestingly, although there was a controversy regarding the precise nature
of the JOP's functions, as mentioned above, the courts always held that the powers
under section 22-A(6), Cr.P.C. were discretionary. In Khizer Hayat's case the
learned Full Bench of this Court said:
"The use of the word 'may' in section 22-A(6), Cr.P.C. clearly shows that the
jurisdiction of an Ex-officio Justice of the Peace in that regard is
discretionary in nature, and understandably so. It is unfortunate that
concepts and notions of truth and justice are becoming more and more
subjective in our society and the machinery of criminal law with its coercive
process is increasingly being utilized by motivated persons or parties for
achieving objectives which are self-serving. Thus, there is a pressing need
on the part of the Ex-officio Justices of the Peace to exercise caution and
restraint before issuing a direction regarding registration of a criminal case
... We may also add that in an appropriate case, depending upon the
circumstances thereof, an Ex-officio Justice of the Peace may refuse to issue
a direction regarding registration of a criminal case and may dismiss the
complaint under section 22-A(6), Cr.P.C. reminding the complaining person
of his alternate statutory remedies under sections 156(3) and 190, Cr.P.C."
18. The next question is how the JOP should decide the applications under
section 22-A(6), Cr.P.C. In Namit Sharma v. Union of India [2013] 13 SCR 1, the
Supreme Court of India observed that a quasi-judicial act requires that "a decision
is to be given not arbitrarily or in mere discretion of the authority but according to
the facts and circumstances of the case as determined upon an inquiry held by the
authority after giving an opportunity to the affected parties of being heard or
wherever necessary of leading evidence in support of their contention." Mr. Ahmad
submits that before Younas Abbas case it was the courts' consistent view that the
"proposed accused" does not have the right to be heard by the JOP when he
considers an application seeking registration of a case. However, Younas Abbas has
changed the situation. The use of the words "examines the record, hears the parties"
by the Supreme Court in paragraph 11 of the judgment6 contemplates hearing the
proposed accused and going beyond the contents of the application for registration
of case to determine whether sufficient incriminating material exists to justify the
direction.
19. Audi alteram partem (Latin phrase meaning "listen to the other side") is one
of the basic principles of natural justice - the other being nemo judex in causa sua
(Latin for "no one should be a judge in his own cause"). The said principle
postulates that no person shall be judged without a fair hearing. It is meant to give
each party an opportunity to respond to the case set up by the other side. In
Commissioner of Income Tax, East Pakistan v. Fazlur Rahman (PLD 1964 SC 410)
the Hon'ble Supreme Court held that "the right to be heard is not confined to the
proceedings which are judicial in form." In The University of Dacca through its
Vice-Chancellor v. Zakir Ahmad (PLD 1965 SC 90) it said that "in all proceedings

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by whomsoever held, whether judicial or administrative, the principles of natural

justice have to be observed if the proceedings might result in consequences
affecting the person or property or other right of the parties concerned. This rule
applies even though there may be no positive words in the statute or legal document
whereby the power is vested to take such proceedings, for, in such cases this
requirement is to be implied into it as the minimum requirement of fairness." In
Anisa Rehman v. PIAC and another (1994 SCMR 2232) the august Supreme Court
ruled that there is "judicial consensus" that the maxim audi alteram partem is
applicable to all judicial and non-judicial proceedings and that it shall be read into
every statute if the right of hearing has not been expressly provided in it.7
However, in Abdul Haque Indhar and others v. Province of Sindh and 3 others
(2000 SCMR 907) the Court held that this principle has some exceptions and one of
them is that the person concerned must show that he has a vested right to defend
the action. Subsequently, in Justice Khurshid Anwar Bhinder and others v.
Federation of Pakistan and another (PLD 2010 SC 483) a larger Bench of the
Supreme Court enumerated various other exceptions to the above rule. In High
Flying Solar Development Pakistan Ltd. and others v. National Electric Power
Regulatory Authority and others (2016 CLC 1805) the Islamabad High Court held
that "the principles of natural justice are flexible and not rigid. The determination
of the application of these principles depends on the circumstances of each case,
and various factors may be taken into consideration for this purpose, such as the
nature of the enquiry, the subject-matter being dealt with, whether anything unfair
can be inferred if the opportunity is not afforded, whether there is no apprehension
of injustice etc." Similarly, in Dharampal Satyapal Ltd. v. Deputy Commissioner of
Central Excise, Gauhati and others [2015 (8) SCC 519] the Indian Supreme Court
held that "every violation of a facet of natural justice may not lead to the
conclusion that the order passed is always null and void. The validity of the order
has to be decided on the touchstone of 'prejudice'."
20. The legal jurisprudence in our country is well settled that registration of FIR
is not an adverse order. In this view of the matter, the Full Bench in Khizer Hayat's
case held that it is neither obligatory for the Officer In-charge of police station nor
the JOP to afford an opportunity of hearing to the accused party before the
registration of a criminal case or issuing a direction in that regard. The Hon'ble
Supreme Court's holding in Younas Abbas case that the JOP exercises quasi-judicial
functions does not overrule the said principle.
21. In a nub, the JOP does not have the absolute duty to hear the accused while
deciding an application under section 22-A(6), Cr.P.C. He may afford him audience
only if the circumstances demand. No hard and fast rule can be laid down in that
respect.
22. It may be emphasized that the JOP cannot conduct a "mini-trial" while
hearing a complaint regarding non-registration of criminal case. Any mandate to
hold a detailed inquiry to ascertain veracity of the allegations would militate
against the very scheme of the Code. Khizer Hayat's case categorically states that
the proceedings before the JOP are summary in nature. He is not required to treat

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them as regular lis and pass elaborate orders having semblance of a judgment. The
learned Full Bench has laid down the following guidelines for him:
"We, therefore, deem it prudent and advisable for an Ex-officio Justice of the
Peace to call for comments of the Officer In-charge of the relevant police
station in respect of complaints of this nature before taking any decision of
his own in that regard so that he may be apprised of the reasons why the
local police have not registered a criminal case in respect of the
complainant's allegations. It may well be that the complainant has been
economizing with the truth and the comments of the local police may help in
completing the picture and making the situation clearer for the Ex-officio
Justice of the Peace facilitating him in issuing a just and correct direction, if
any. If, however, the comments furnished by the Officer In-charge of the
relevant police station disclose no justifiable reason for not registering a
criminal case on the basis of the information supplied by the complaining
person then an Ex-officio Justice of the Peace would be entirely justified in
issuing a direction that a criminal case be registered and investigated. We
may clarify that it is not obligatory for the Officer In-charge of a police
station or for an Ex-officio Justice of the Peace to afford an opportunity of
hearing to the accused party before registration of a criminal case or before
issuing a direction in that regard."
23. Here it would be appropriate to refer to Mureed Hussain v. Additional
Sessions Judge/Justice of Peace Jampur and 3 others (2014 PCr.LJ 1146) which
adds that the JOP is not bound to seek report from the police when an application
under section 22-A(6) Cr.P.C. is presented to him but when he does he must give
reasons if he is not inclined to rely on it.
24. Let's now turn to the case at hand. The Petitioner's foremost contention is that
the Impugned Order is without jurisdiction inasmuch as Respondent No.3 could not
move a direct application under section 22-A(6) Cr.P.C. before Respondent No.4
when the SHO refused to register the FIR. According to him, it was incumbent on it
to make a complaint to the higher police officers (i.e. DPO, RPO etc.) in the first
instance. Admittedly, there is no such stipulation in section 22-A Cr.P.C. or any other
part of the Code. The Petitioner's contention is based on the following portion of the
additional note authored by Mr. Justice Manzoor Ahmad Malik (as his Lordship was
then) in Younas Abbas case:
"These provisions [section 22-A(6) Cr.P.C.] must be defined, structured and its
contour delineated to obviate misuse by influential and unscrupulous
elements. Therefore:
(i) The ex-officio Justice of Peace, before issuance of a direction on a complaint
for the non-registration of a criminal case under subsection (6)(i) of section
22-A Code of Criminal Procedure must satisfy himself that sufficient
material is available on the record, such as application to the concerned
SHO for registration of the criminal case and on his refusal or reluctance,
complaint to the higher police officers i.e. DPO, RPO etc., to show that the

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aggrieved person, before invoking the powers of ex-officio Justice of the

Peace, had recourse to the high-ups in the police hierarchy."
25. The Petitioner also relies on Abad Ali alias Imran and another v. City Police
Officer, Faisalabad and 6 others (PLD 2021 Lahore 274) to buttress his contention
in which a learned Single Judge of this Court made the following observations:
"The apex Court in a celebrated judgment handed down in the case titled
'Younas Abbas and others v. Additional Sessions Judge, Chakwal and others'
(PLD 2016 Supreme Court 581) has held that until and unless due recourse
is exercised within the police hierarchy for initiation of proceedings under
section 154 Cr.P.C. petition under sections 22-A, 22-B, Cr.P.C. is not
maintainable. Hence, in view of guidelines given by the apex Court in the
supra judgment, it is obligatory for the court functioning as Ex-officio
Justice of Peace, before taking cognizance in the matter of application under
sections 22-A, 22-B, Cr.P.C., to satisfy that the petitioner has already
approached the concerned quarter(s) meant for redressal of his grievance i.e.
filed application before SHO for registration of case, which was registered
under a proper diary and the inaction by the SHO was further agitated
before the higher police hierarchy (Superintendent of Police) under due
receipt but with no effect."
26. Justice Malik's additional note reproduced above is in plain and simple
language. It says that the JOP should not issue a direction for registration of
criminal case mechanically. He should examine all the material placed before him
carefully and make an order only when it is warranted. There is nothing in the said
note which may suggest that his Lordship wanted to make complaint to senior
police officers a condition precedent for invoking the JOP's jurisdiction under
section 22-A(6) Cr.P.C. In fact he could not do so because the Judges cannot
legislate. They have the mandate only to interpret the law. They cannot insert or
omit anything in the statute at will. Justice Malik's note, it appears, seeks to point
out other forums that are available to an aggrieved person for redress of his
grievances.8 Abad Ali's case clearly misconstrues the note.
27. The question as to what is the legal significance of the minority observations
in a judgment also requires a thought. In Malik Muhammad Usman v. The State and
others [PLD 1965 (W.P.) Lahore 229] the Attorney General cited the Dosso's case
[PLD 1958 SC (Pak) 533] before the High Court in a reference in which the vires
of the Frontier Crimes Regulation, 1901, was under challenge. One may recall that
Dosso's case was heard by a four-member Bench. Cornelius J., agreed with the
resulting order of the Bench but dissented on certain points and recorded his own
reasons. The Attorney General urged that the views of Cornelius J. regarding which
the other learned Judges did not express dissent must be taken to have agreed by
them so they were binding on the High Court. His contention was repelled. The
five-member Bench of the High Court unanimously held that Cornelius J.'s remarks
were "entitled to the very highest respect" but they were not the decision of

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Supreme Court within the meaning of Article 63 of the Constitution of 1962 (which
was parallel to Article 189 of the Constitution of 1973).
28. In Ch. Nisar Ali Khan v. Federation of Pakistan and others (PLD 2013 SC
568) the Hon'ble Supreme Court was called upon to consider the question as to
what was the import of the suggestions and recommendations which it had made in
various judgments9 that the Hon'ble Chief Justice of Pakistan should also be
consulted in the appointment of the Chairman, National Accountability Bureau. The
Supreme Court held:
"It goes without saying that a suggestion or a recommendation made by this Court
in a judgment, though entitled to due respect, deference and consideration,
does not travel beyond a suggestion or a recommendation and it does not by
itself assume the status of law. By its nature and form a suggestion or a
recommendation is simply what it is, nothing more and nothing less."
29. Justice Malik's note in Younas Abbas has to be read in the light of the
principles set out in the judgments mentioned in the last two paragraphs. Abad Ali's
case cannot be treated as a precedent because the learned Single Judge has not
considered these authorities which were binding on him.
30. The Petitioner's next objection relates to the manner in which Respondent
No.4 dealt with the application of Respondent No.3. His grievance is that vide
Order dated 8.7.2021 he issued notice to him and Mrs. Tabassum Yousaf and
directed Respondents Nos.1 and 2 (the police officials) to file their
report/comments but then decided the matter without them. This objection can be
sustained only if it is shown that Respondent No.4 duly applied his mind before
making the said order. Here it appears that he acted mechanically so the Impugned
Order cannot be annulled on the aforesaid ground. Nevertheless, there is another
aspect which calls for intervention by this Court.
31. In the cases where an offence under section 489-F, P.P.C. is alleged it is
normally enough for the aggrieved person to produce the following documents
before the JOP for seeking a direction for registration of FIR: the original cheque,
the bank's return slip and a copy of the notice under section 30 of the Negotiable
Instruments Act, 1881. In the instant case, admittedly, Cheque No. 97479699 was
issued by the Petitioner and drawn on his personal account while Cheque Nos.
1688258316 and CA0053594927 were drawn on Apex's corporate accounts and
executed by Mrs. Tabassum Yousaf. The documents which Respondent No.3
appended with its application under section 22-A(6) Cr.P.C. reflected that the
payment of two of those cheques was stopped by the drawer while the third
(Cheque No. CA0053594927) was returned for the reason that the account was
closed. It is true that "stop payment" or "closure of account" does not, per se, take
the case out of the ambit of section 489-F, P.P.C. but that circumstance made it
imperative for Respondent No.4 to hear the other side.
32. Having looked at the documents before me, I am of the considered opinion
that the Petitioner has been prejudiced. Therefore, without touching the merits lest

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any observation may affect the rights of either party, I am inclined to remand the
matter to Respondent No.4 for a fresh decision.
33. In view of the above, this petition is accepted. The application under section
22-A(6) Cr.P.C. filed by Respondent No.3 before Respondent No.4 shall be deemed
to be pending. The parties shall appear before him on 07.09.2022 and submit all the
documents on which they rely. Respondent No.4 shall expeditiously decide that
application afresh in accordance with law after considering those documents and
affording an opportunity of hearing to the learned counsel.
MH/H-21/L Case remanded.

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