Updated: Thursday July 20, 2017/AlKhamis
Shawwal 26, 1438/Bruhaspathivara
Asadha 29, 1939, at 05:53:56 AM
Present: Anwar Zaheer Jamali, C.J. Mian Saqib Nisar, Ejaz Afzal Khan, Mushir Alam and Manzoor Ahmad Malik JJ
YOUNAS ABBAS and others---Petitioner/Appellants Versus
ADDITIONAL SESSIONS JUDGE, CHAKWAL and others---Respondents
Civil Appeals Nos. 1491 of 2013, 63-L and 64-L/14, Civil Petitions
Nos.1945-L/11, 933-L, 1840-L/13, 372-L, 589-L,
736/14, 1155-L/13, 1483-L/14, 1524-L/14, 1535-L/14, 928-L/14,
719-L/14, 1053-L/14, 1112-L/14, 1338-L/14, 1429-L/14, Criminal Petitions Nos.74-P/12, 62-Q/13, 30-Q/14, 49-Q/14,
Civil Petitions Nos. 1325/14,
1831-L/14, 1727-L/14, 1732-L/14, 1861-L/14, 1883-L/14, 1921-L/14, 1958-L/14, 2116-L/14, 2161- L/14, 2213-L/14, 102-L/15, 249-L/15,
598-L/15, 908-L/15, 1139-L/15, 1197-L/15, 544-L/15, 1431-L/15, 1434- L/15, 937-L/15,
2202-L/15, 2270-L/15, 2276-L/15, 2380-L/15, 2489-L/15, 2585-L/15, 2580-L/15, 2552-L/15, 2715-L/15, 2776-L/15, 2939-L/15, 24-L/16, 1716-L/15, 2150-L/15,
1179-L/15, 1180-L/15, 1923-L/15,
C.M.A. 13/16 in C.Ps. 2852-L/15,
1966-L of 2015.
(On appeal against
the judgments/orders dated 01.10.2013, 3.10.2013, 23.10.2013, 17.6.2010, 16.06.2014, 25.06.2013, 25.01.2012, 03.04.2014, 30.04.2012, 9.10.2013, 27.06.2014, 16.12.2013, 11.02.2014, 27.5.2013, 19.9.2011, 17.03.2015,
10.06.2015,
11.11.2015,
12.5.2014,
30.10.2014,
24.6.2014,
28.10.2014,
29.4.2014,
7.7.2014, 3.7.2014, 19.6.2014,
6.6.2014, 18.8.2014, 10.4.2014,
28.5.2014, 28.10.2014, 19.11.2014, 24.11.2014, 17.10.2014, 07.11.2014, 21.10.2014, 10.12.2014,
11.12.2014,
25.3.2015,
6.4.2015,
29.4.2015,
21.4.2015,
4.2.2015, 6.4.2015, 10.08.2015, 13.7.2015, 15.9.2015, 5.10.2015, 7.9.2015, 14.10.2015, 13.10.2015, 06.10.2015, 14.10.2015, 18.11.2015, 9.11.2015, 29.7.2015, 8.6.2015, 21.04.2015, 21.4.2015, 30.07.2015 and 20.06.2014 of the Lahore High Court,
Rawalpindi Bench, Rawalpindi, Lahore High Court, Lahore, Lahore
High Court, Multan Bench, Multan,
Lahore High Court, Bahawalpur Bench, Bahawalpur, Peshawar High Court,
Peshawar, Peshawar High Court, Circuit Bench, Abbottabad, Islamabad High Court, Islamabad and High Court of Balochistan, Quetta, passed in I.C.As.
Nos. 248 of 2010, 764 of 2013,
(a) Law---
----Concept---Law was a set of commands of the sovereign---Law could endure and stay efficacious if it was not abstract and socially unrelated; it became all the more enduring and efficacious if it pulsated from the soil and reflected indigenous conditions around---Law, thus, evolved not only catered for what people needed for their peaceful co-existence but also endured till the time the conditions around changed --- On the contrary a law which was a patchwork of imported patches could neither cater for the legitimate needs of the people nor stay efficacious because of its feeble basis and frequent violation.
----Ss. 22-A (6) & 25---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 others v. Inspector
General of Police (Punjab),
Lahore and others PLD 2005 Lah. 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.
Khizar Hayat and others v. Inspector General of Police (Punjab),
Functions performed by Ex-officio
Justice of Peace under section 22-A(6),
Cr.P.C were complementary to those of the police and thus did not amount to interference in
the investigative domain of the police.
----Ss. 22-A (6) & 25---Powers exercised by Ex-officio Justice of Peace under S.22-A(6), Cr.P.C.---Issuing appropriate directions for registration of FIR or transfer
of investigation or to check the neglect,
failure or excesses
committed by the police authorities---Remedy for persons having
no means and resources---Brief account as to how powers exercised
by the Ex-officio Justice
of Peace under S.22-A(6), Cr.P.C
advanced dispensation
of justice and provided remedy to those
facing economic constraints
and compulsions.
----Ss. 22-A(6) & 25---Constitution of
----Ss. 22-A (6) & 25---Constitution of
Shahnaz Begum v. The Hon'ble Judges
of the High Court
of Sindh and Balochistan and another PLD 1971 SC 677; Brig. (Retd.) Imtiaz Ahmad v. Government of Pakistan
through Secretary, Interior Division, Islamabd and 2 others 1994 SCMR 2142; Anwar Ahmed Khan v. The
State 1996 SCMR 24; Col. Shah Sadiq v. Muhammad Ashiq and others 2006 SCMR 276; Saeed Hussain Shah. v. The State
1996 SCMR 504; Raja Rustam Ali Khan. v. Muhammad Hanif and 6 others 1997 SCMR 2008; Muhammad
Saeed Azhar v. Martial Law Administrator, Punjab and others 1979 SCMR 484; Mazhar Naeem Qureshi v. The State 1999 SCMR 828; Ajmeel Khan v. Abdur Rahim and others PLD 2009 SC 102; Hayatullah Khan and another v. Muhammad Khan and others 2011 SCMR 1354; Muhammad Ali v. Additional I.G. Faisalabad
and others PLD 2014 SC 753; and S.
N. Sharma v. Bipen Kumar Tiwari and others
AIR 1970 SC 786; Muhammad
Latif, ASI, Police
Station Sadar,
Sheikhupura v. Sharifan
Bibi and another 1998 SCMR 666; Nasrullah
Khan v. Manzoor Hussain and others
2004 SCMR 885 and Muhammad Ali v. Additional I.G. Faisalabad
and others PLD 2014 SC 753 ref.
----Art. 175 & Part II, Chap. 1 [Arts.8-28]---Vires of law---Provision of law could be declared
ultra vires if it was violative
of the provisions of the Constitution which guaranteed fundamental rights, independence of judiciary or
its separation from the
executive.
----Ss. 22-A (6) & 25---Constitution of
Provisions of sections
22-A(6) and 25, Cr.P.C did not infringe
any of the fundamental rights guaranteed by the Constitution; they on the contrary,
not only facilitated their enforcement but also guarded
against their infringement by providing
expeditious and inexpensive justice to the people
at their doorstep.
Provisions of sections
22-A(6) and 25, Cr.P.C did not even remotely impinge
upon the independence of judiciary
nor did they militate against the concept
of its separation from the executive. When the Ex-officio Justice
of Peace passed
orders, issued directions, or took actions under the aegis of judiciary
rather than the executive, he instead
of going under the thumb of the executive, in fact, brought
the executive under the thumb of law. Vires of provisions of sections
22-A(6) and 25, Cr.P.C could not be questioned even on the yardstick of the legislative competence
as there was no defect found in
them in such regard.
(h) Criminal Procedure Code (V of 1898)---
----Ss.
22-A (6) & 25---Police Order [22 of 2002]---Powers exercised by Ex-officio Justice of Peace under
S.22- A(6), Cr.P.C --- Issuing appropriate directions for registration of FIR or transfer of investigation---Such powers exercised by the Ex-officio Justice of Peace should not be unbridled or open-ended; they must be defined, structured and its contour delineated to obviate misuse by influential and unscrupulous elements---Parameters within which the Ex-officio Justice of Peace should exercise
his powers under S.22-A(6), Cr.P.C. when issuing directions
for registration
of FIR
or transfer of investigation stated.
Ex-officio Justice of Peace should exercise his powers
under section 22-A(6),
Cr.P.C. within certain parameters
when issuing a direction for registration of FIR or transfer of investigation.
The ex-officio Justice of the Peace, before issuance of a direction on a complaint
for the non-registration of a criminal case under section 22-A(6)(i), Cr.P.C must satisfy
himself that sufficient material was 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 aggrieved person, before
invoking the powers of Ex-officio Justice of the Peace, had
recourse to the highups
in the police hierarchy.
So far as transfer of investigation of a criminal case from one police officer to another police officer was concerned, a complete mechanism had been provided in the Police Order, 2002. However, section 22-A(6)(ii), Cr.P.C. had given powers to the Ex-officio Justice of the Pace to issue appropriate direction to the concerned police authorities for the transfer of investigation of a case from one police officer to another, but it did not prescribe a criterion or mechanism in so many words as to what might be the standard or what reasons should prevail with the Ex-officio Justice of the Peace while issuing such direction. To issue a direction regarding transfer of investigation by ex-officio Justice of the Peace without taking into consideration the attending circumstances of the case may be counter-productive and may defeat the purpose of the mechanism as provided in the Police Order, 2002, thus it may result in unnecessary interference with the working of an agency. Therefore, it would be appropriate for the Ex- officio Justice of the Peace, before issuance of any direction regarding the change of investigation, to satisfy himself from the available record that the grievance of the aggrieved person (who had filed the application for this purpose) had not been redressed by the Police Officers/authorities as provided in the Police Order, 2002.
Muhammad
Shahid Kamal, Advocate
Supreme Court for Appellants (in
C.A.No.1491 of 2013). 2013).
Sh. Zamir Hussain Senior Advocate Supreme Court for Respondents Nos. 4 and 7 (in C.A.No.1491 of Mian Shafaqat Jan, Advocate Supreme Court for Respondents Nos. 5 and 6 (in C.A.No.1491 of 2013).
Nemo for Appellants (in C.A.No.63-L of 2014)
For Respondents Nos. 1, 2 and 3 not represented (in C.A.No.63-L of 2014).
Aziz A. Malik Advocate Supreme Court for Appellants (in C.A.No.64-L of 2014).
For Respondents Nos. 2-3, 6-9 not represented (in C.A.No.64-L of 2014).
Aftab Ahmad Bajwa, Advocate Supreme Court for Respondent Nos.4-5 (in C.A.No.64-L of 2014)
Nemo for Petitioners (in C.P.No.1945-L of 2011).
For Respondents not represented (in C.P.No.1945-L of 2011).
Nemo for Petitioners (in C.P.No.933-L of 2013).
For Respondents not represented (in C.P.No.933-L of 2013).
Nemo for Petitioners (in C.P.No.1840-L of 2013).
For Respondents not represented (in C.P.No.1840-L of 2013).
Nemo for Petitioners (in C.P.No.372-L of 2014).
For Respondents not represented (in C.P.No.372-L of 2014).
Nemo for Petitioners (in C.P.No.589-L of 2014).
For Respondents not represented (in C.P.No.589-L of 2014).
Nemo for Petitioners (in C.P.No.736-L of 2014).
For Respondents not represented (in C.P.No.736-L of 2014).
Nemo for Petitioners (in C.P.No.1155-L of 2013).
For Respondents not represented (in C.P.No.1155-L of 2013).
Nemo for Petitioners (in Crl.P.No.74-P of 2012).
For Respondents not represented (in Crl.P.No.74-P of 2012).
Nemo for Petitioners (in Crl.P.No.62-Q of 2013).
For Respondents not represented (in Crl.Q.No.62-Q of 2013).
Zahoorul Haq Chisthti, Advocate Supreme Court for Petitioner (in Crl.P.No.30-Q of 2014)
For Respondents not represented (in Crl.P.No.30-Q of 2014).
Nemo for Petitioners (in Crl.P.No.1483-L of 2014).
For Respondents not represented (in Crl.P.No.1483-L of 2014).
Nemo for Petitioners (in C.Ps.Nos.1524-L and 1535-K of 2014.).
For Respondents not represented (in C.Ps. Nos.1524-L and 1535-L of 2014).
Salim Khan Cheechi, Advocate Supreme Court for Petitioners (in C.P.No.928-L of 2014).
For Respondents not represented (in C.P.No.928-L of 2014).
Nemo for Petitioners (in C.P.No.719-L of 2014).
For
Respondents not represented (in C.P.No.719-L of 2014).
Rana Aftab Ahmad Bajwa, Advocate Supreme Court for Petitioners (in C.P.No.1053-L of 2014).
For Respondents not represented (in C.P.No.1053-L of 2014).
Nemo for Petitioners (in C.P.No.1112-L of 2014).
For Respondents not represented (in C.P.No.1112-L of 2014).
Nemo for Petitioners (in C.A.No.1338-L of 2014).
For Respondents not represented (in C.P.No.1338-L of 2014).
Malik Jawad Khalid, Advocate Supreme Court for Petitioners (in C.P.No.1325-L of 2014).
For Respondents not represented (in C.P.No.1325-L of 2014).
Nemo for Petitioners (in C.P.No.1831-L of 2014).
For Respondents not represented (in C.P.No.1831-L of 2014).
Nemo
for Petitioners (in C.Ps.Nos.1727
and 1732-L of 2014).
For Respondents not represented (in C.Ps.Nos.1727 and 1732 of 2014).
Nemo for Petitioners (in C.P. 1861-L of 2014).
For Respondents not represented (in C.P.No.1861-L of 2014).
Nemo for Petitioners (in C.P.No.1883-L of 2014).
For Respondents not represented (in C.P.No.1883-L of 2014).
Nemo for Petitioners (in C.P.No.1921-L of 2014).
For Respondents not represented (in C.P.No.1921-L of 2014).
Nemo for Petitioners (in C.P.No.1958-L of 2014).
For Respondents not represented (in C.P.No.1958-L of 2014).
Nemo for Petitioners (in C.P.No.2116-L of 2014).
For Respondents not represented (in C.P.No.2116-L of 2014).
Nemo for Petitioners (in C.P.No.2161-L of 2014).
For Respondents not represented (in C.P.No.2161-L of 2014).
Zafar Mehmood Chaudhry, Advocate Supreme Court for Petitioners (in C.P.No.2213-L of 2014).
Javed A. Khan Advocate Supreme Court for Respondent No.2 (in C.P.No.2213-L of 2014).
Syed Nisar Ali Shah, Advocate Supreme Court for Petitioners (in C.P.No.102-L of 2015).
For Respondents not represented (in C.P.No.102-L of 2014).
Nemo for Petitioners (in C.P.No.598-L of 2015).
For Respondents not represented (in C.P.No.598-L of 2015).
Sahir Mahmood Bhatti, Advocate Supreme Court for Petitioners (in C.P.No.908-L of 2015).
M. Zahid Rana, Advocate Supreme for Respondent No.3 (in C.P.No.908-L of 2015).
Irshad Ahmed Cheema, Advocate Supreme Court for Petitioners (in C.P.No.1139-L of 2015).
For Respondents not represented (in C.P.No.1139-L of 2015).
Nemo for Petitioners (in C.P.No.1197-L of 2015).
For Respondents not represented (in C.P.No.1197-L of 2015).
Nemo for Petitioners (in C.P.No.544-L of 2015).
Respondents not represented (in C.P.No.544-L of 2015).
Nemo for Petitioners (in C.P.No.1431-L of 2015).
Respondents not represented (in C.P.No.1431-L of 2015).
Munir Ahmad Bhatti, Advocate Supreme Court for Petitioners (in C.P.No.1434-L of 2015).
For Respondents not represented (in C.P.No.1434-L of 2015).
Mian Muhammad Aslam, Advocate Supreme Court for Petitioners (in C.P.No.937-L of 2015).
For Respondents not represented (in C.P.No.937-L of 2015).
M. Sohail Dar, Advocate Supreme Court for Petitioners (in C.P.No.2202-L of 2015).
For
Respondents not represented (in C.P.No.2202-L of 2015).
Mrs. Kausar Iqbal Bhatti, Advocate Supreme Court for Petitioners (in C.P.No.2270-L of 2015).
For Respondents not represented (in C.P.No.2270-L of 2015).
Nemo for Petitioners (in C.P.No.2276-L of 2015).
For Respondents not represented (in C.P.No.2276-L of 2015).
Petitioners in person (in C.P.No.2380-L of 2015).
For Respondents not represented (in C.P.No.2380-L of 2015).
Saiful Malook, Advocate Supreme Court for Petitioners (in C.P.No.2489-L of 2015).
For Respondents not represented (in C.P.No.2489-L of 2015).
Nemo for Petitioners (in C.P.No.2585-L of 2015).
For Respondents not represented (in C.P.No.2585-L of 2015).
Nemo for Petitioners (in C.P.No.2580-L of 2015).
For Respondents not represented (in C.P.No.2580-L of 2015).
Petitioners in person (in C.P.No.2552-L of 2015).
For Respondents not represented (in C.P.No.2552-L of 2015).
Petitioners in person (in C.P.No.2715-L of 2015).
Respondents not represented (in C.P.No.2715-L of 2015).
Salim Khan Chechi, Advocate Supreme Court for Petitioners (in C.P.No.2776-L of 2015).
For Respondents not represented (in C.P.No.2776-L of 2015).
Petitioners in person (in C.P.No.2939-L of 2015).
For Respondents not represented (in C.P.No.2939-L of 2015).
Petitioners in person (in C.P.No.24-L of 2016).
For Respondents not represented (in C.P.No.24-L of 2016).
Nemo for Petitioners (in C.P.No.1716-L of 2015).
For Respondents not represented (in C.P.No.1716-L of 2015).
Nemo for Petitioners (in C.P.No.2150-L of 2015).
For Respondents not represented (in C.P.No.2150-L of 2015).
Nemo for Petitioners (in C.Ps.Nos.1179-L of 2015 and No.1180-L of 2015).
For Respondents not represented (in C.Ps.Nos.1179-L and 1180-L of 2015).
Nemo for Petitioners (in C.P.No.1923-L of 2015).
For Respondents not represented (in C.P.No.1923-L of 2015).
Ahmad Nawaz Chaudhry, Advocate-on-Record for Applicant/P: (in C.M.A. No.13 of 2016 in C.P. No.2852-L of 2015).
For Respondents not represented (in C.M.A. No.13 of 2016 in C.P. No.2852-L of 2015)
Muhammad Sohail Dar, Advocate Supreme Court for Petitioners (in C.P.No.1966-L of 2015).
For Respondents not represented (in C.P.No.1966-L of 2015).
Razzaq A. Mirza, Addl. A.G. for
Abdul Jabbar Qureshi, Asstt. A.G. for
Waqar
Ahmed Khan, Addl. A.G. for
Ayaz Swati,
Addl. A.G. for
Kh. Haris Ahmed, Senior Advocate Supreme Court.
Date of hearing: 12th February, 2016 (Judgment Reserved).
EJAZ AFZAL KHAN, J.--Though the appellants and the petitioners in many cases voiced their individual grievances against the orders directing or refusing the registration of cases but appellants in Civil Appeal No. 491 of 2013 also questioned the vires of Section 22-A in general and 22-A(6) of the Cr.P.C. in particular. This Court after hearing the learned Advocates Supreme Court for the parties crystallized the formulations as under:-
"3. We have gone through the leave granting order dated 13.12.2013, wherein the afore-referred questions
have been adverted to for consideration, however, while hearing
the appellant's learned
counsel, we find that certain
issues relatable to the vires of Section 22-A, Cr.P.C. and the manner it is being used, require consideration. In this view of the matter, we are persuaded to direct the learned counsel for the parties to address the Court, inter alia, on the following issues:-
(a) Whether Section 22-A, Cr.P.C. is ultra vires of the Constitution inasmuch as it confers Executive powers to a Judicial Officer? and
(b) Whether its alleged misuse is not in consonance with the canons of expeditious justice? and
(c)
Whether the exercise
of power under Section
22-A, Cr.P.C. amounts to interference in the investigative domain of police, which
is violative of this Court's
judgment in Muhammad Bashir v. Station House Officer,
Okara (PLD 2007 SC 539) and Imtiaz
Ahmad. v. Government of
2. Notices were issued to the Advocates General of the Provinces whereas Kh. Haris Ahmed and Mr. Farogh Naseem were appointed as amicus curiae. This case was heard on 20.11.2014 by a Bench of this Court, which ordered it to be heard by a Larger Bench by observing as under:-
"2. We have heard the learned amicus curiae. Both the learned counsel have submitted that the powers exercisable under Section 22-A (6) read with Section 25 of the Cr.P.C. are quasi judicial in nature and therefore do not violate the provision of Article 175(3) of the Constitution; and that if these powers are declared to be executive or administrative in nature, the same would not be in consonance with the provision of Article 175(3) of the Constitution. During the course of arguments two judgments were brought to our notice; one by the Lahore High Court authored by Hon'ble Justice Asif Saeed Khan Khosa, as Judge of that Court, which was reaffirmed by a three member bench of this Court in the case of Muhammad Ali. v. Additional I.G. Faisalabad and others (PLD 2014 SC 753) declaring that the said powers are administrative and executive in nature. Since the said judgment has been handed down by a three member bench, it would be appropriate that this case be heard by a larger bench, in order to determine whether the powers under Section 22-A(6) of Cr.P.C. are quasi judicial in nature, and if not, would it violate the provision of Article 175(3) of the Constitution."
3. The learned Advocates Supreme Court appearing in the appeals as well as civil petitions and criminal petitions addressed arguments in support of and against the formulations. The main theme and thrust of the arguments addressed in support of the formulations was that the Ex-officio Justice of Peace while exercising powers under Section 22-A (6) Cr.P.C. interferes with investigation, delays dispensation of justice, and thereby abuses the process of the Court which is violative of the dicta rendered in the cases of Muhammad Bashir v. Station House Officer, Okara Cantt. and others (PLD 2007 SC 539) and Brig. (Retd) Imtiaz Ahmad v. Government of Pakistan through Secretary, Interior Division, Islamabad and 2 others (1994 SCMR 2142). Some of the ASCs also went to the extent of calling this provision as ultra vires in the sense that these powers being executive and administrative in nature militate against the concept of independence of judiciary and its separation from the executive as enshrined in Article 175 of the Constitution of the Islamic Republic of Pakistan.
4. Sheikh Zamir Hussain, learned Advocate Supreme Court appearing on behalf of respondents Nos. 4 and 7 in C. A. No. 1491 of 2013 contended that the people could live and lump up with the powers of the Ex-officio Justice of Peace under Section 22-A(6) Cr.P.C. but not with their abuse and misuse especially when he assumes the role of investigator, prosecutor and the Court before the case is sent thereto or any other Court for trial and thereby defeats the purpose this provision was enacted for.
5. Mr. Saiful Malook, learned Advocate Supreme Court appearing on behalf of the petitioner in C.P. No. 2489-L of 2015 by highlighting the excesses committed by the Ex-officio Justice of Peace in exercise of his powers, vehemently pleaded for prescribing parameters in this behalf lest it does more harm than good.
6. Mr. Muhammad Shahid Kamal, learned Advocate Supreme Court appearing on behalf of the appellant in C.A. No. 1491 of 2013 contended that enactment of Sections 22-A, 22-B and 25 of the Criminal Procedure Code is well intentioned, if their efficacy in facilitating the cause of justice is looked at and that there may be deviations here and there, but they can well be corrected through judicial review.
7. The learned Advocates General of the respective Provinces contended that these provisions cannot be treated as heal-all inasmuch as their side effects have added to the backlog which is already mountain-high as was also observed by this Court in the case of Muhammad Bashir. v. Station House Officer, Okara Cantt. and others (supra) .
8.
Kh. Haris Ahmed, learned Advocate Supreme Court appearing
as amicus curiae
having cited a good number of judgments sought to canvass at the bar that interference with investigation at any level has not been approved
of by this Court unless of course it is mala fide and without jurisdiction. He next contended that even the powers conferred
on the High Court under Section 561-A of Cr.P.C. cannot be used to impede or hamper the investigation, but to prevent the abuse of the process
of the Court. The learned
ASC to support his point of view referred
to the cases of Muhammad
Bashir v. Station House Officer,
Okara Cantt. and others, Brig. (Retd) Imtiaz Ahmad v. Government of Pakistan through Secretary, Interior Division,
Islamabad and 2 others (supra), Emperor v. Khawaja
Nazir Ahmad (AIR 1945 PC 18), Shahnaz Begum v. The Hon'ble
Judges of the High Court of Sindh and
9. We have gone through the record carefully and considered the submissions of the learned Advocate Supreme Courts for the parties, the learned Advocates General as well as the learned amicus curiae.
10. Law is undoubtedly a set of commands of the sovereign. It can endure and stay efficacious if it is not abstract and socially unrelated. It becomes all the more enduring and efficacious if it pulsates from the soil and reflects indigenous conditions around. A law thus evolved not only caters for what people need for their peaceful co-existence but also endures till the time the conditions around change. On the contrary, a law which is a patchwork of imported patches can neither cater for the legitimate needs of the people nor stay efficacious because of its feeble basis and frequent violation. Before we examine these provisions in this background and in the light of the arguments addressed at the bar, it is worthwhile to refer to the provisions which read as under:-
"22-A. Powers of Justice of the Peace.--(1) A Justice of the Peace for any local area shall, for the purposes of making an arrest, have within such area all the powers of a Police Officer referred to in section 54 and an officer in-charge of a police-station referred to in section 55.
(2) A Justice of the Peace making an arrest in exercise of any powers under subsection (1) shall, forthwith, take or cause to be taken the person arrested before the officer in-charge of the nearest police-station and furnish such officer with a report as to the circumstances of the arrest and such officer shall thereupon re-arrest the person.
(3) A Justice of the Peace for any local area shall have powers, within such area, to call upon any member of the police force on duty to aid him:---
(a) in taking or preventing the escape of any person who has participated in the commission of any cognizable offence or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists of his having so participated; and
(b) in the prevention of crime in general and, in particular, in the prevention of a breach of the peace or a disturbance of the public tranquility.
(4) Where a member of the police force on duty has been called upon to render aid under subsection (3), such call shall be deemed to have been made by a competent authority.
(5) A Justice of the Peace for any local area may, in accordance with such rules as may be made by the Provincial Government:
(a) ) issue a certificate as to the identity of any person residing within such area, or
(b) verify any document brought before him by any such person, or
(c) attest any such document required by or under any law for the time being in force to be attested by a Magistrate, and until the contrary is proved, any certificate so issued shall be presumed to be correct and any document so verified shall be deemed to be duly verified, and any document so attested shall be deemed to have been as fully attested as if he had been a Magistrate.
[(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 a 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.]
22-B. Duties of Justices of the Peace.-- Subject to such rules as may be made by the Provincial Government, every Justice of the Peace for any local area shall-
(a) on receipt of information of the occurrence of any incident involving a breach of the peace, or of the commission of any offence within such local area, forthwith make inquiries into the matter and report in writing the result of his inquiries to the nearest Magistrate and to officer in charge of the nearest police-station.
(b) if the offence referred to in clause (a) is a cognizable offence, also prevent the removal of any thing from, or the interference in any way with, the place of occurrence of the offence;
(c) when so required in writing by a police-officer making an investigation under Chapter XIV in respect of any offence committed within such local area.
(i) render all assistance to the police-officer in making such an investigation.
(ii) record any statement made under expectation of death by a person in respect of whom a crime is believed to have been committed'.]
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".
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 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 Lah. 470) and Muhammad Ali v. Additional I. G. (PLD 2015 SC 753) inasmuch as it holds that the functions performed by the Ex-officio Justice of Peace are executive, administrative or ministerial.
12. Now we are to see whether the insertion of this provision has advanced and hastened or obstructed and delayed dispensation of justice. A brief look into the past and its comparison with the present would answer the question. In the past if a person aggrieved went to report the commission of a cognizable case his report was not registered. If he had means he could file a petition for issuance of an appropriate writ in the respective High Court. By the time his petition matured for being heard and decided in his favour, a great deal of evidence was either lost or destroyed. The relief so granted was almost equal to the relief declined barring exceptions, which were not more than a few. With the insertion of subsection (6), an aggrieved person could get in time at his doorstep, what he could not get despite approaching the High Court. As against that, grievance of a person having no means and resources went unattended and un-redressed altogether. Wealthy, well off and well connected people exploited this situation. They committed the crime and yet went scot-free. But ever since the day the Sessions Judges and on nomination by them the Additional Sessions Judges became the Ex-officio Justices of Peace, no rich and well off person could break the law with impunity or obstruct the person oppressed and assaulted from seeking remedy at his doorstep. If the SHO of a Police Station, owing to the influence and affluence of any, refused to register a case, resort could be had to the Ex-officio Justice of Peace for the issuance of an appropriate order or direction by moving a simple application. Aggrieved persons, who could not afford the luxury of engaging a lawyer in the past for filing a writ petition in a High Court to get the desired relief, could seek an order or direction from the Ex-officio Justice of Peace without spending much. He could complain against the neglect, failure or excess committed by the Police Authorities in relation to its functions and duties which in the past was no less than living in Rome and fighting with the Pope.
13.
Transfer of investigation from one police officer to another was, no doubt, in vogue but it was done only at the bidding of wealthy and well off people. A poor man, whose entry in the well guarded offices of the high- ranking police officers
was well nigh impossible, could never dream of getting
such relief even in the wildest of his dreams. Article 18(6) of the Police Order also provides
a remedy for change of investigation but it, in a set up where the police do not have operational independence, is illusory and inadequate. It is more so where even the high-ranking police officers are posted and transferred with the intervention of the class wielding influence
inside and outside the lounges
of power. In this state of despair,
a legislation establishing equality before
the law and breaking
the idols of influence
and affluence was desperately needed. The legislature rose to the occasion,
enacted subsection
(6) of Sections 22-A and 25 of the Cr.P.C. and enabled the poor and the downtrodden to see eye to eye with those who infringed their rights with impunity
in the past. We need not discuss how the Justice
of the Peace acts or acted in the
14. The argument that the people could live and lump up with the powers of the Ex-officio Justice of Peace under Section 22-A(6) Cr.P.C. but not with their abuse and misuse especially when he assumes the role of investigator, prosecutor and the Court before the case is sent thereto or any other Court for trial and thereby defeats the purpose this provision was enacted for, is misconceived when the orders passed, directions issued and actions taken by the Justice of Peace in excess of his powers being justiciable can well be quashed through judicial review.
15. Granted that jurisdiction to issue a writ is traditionally a high prerogative jurisdiction of a High Court dating back to antiquity is now recognized by the Constitution, as has been held in the case of Khizar Hayat and others v. Inspector General of Police (Punjab), Lahore and others (supra), but such jurisdiction has now been conferred on the Ex-officio Justices of Peace, as the power to issue direction in the nature of habeas corpus has been conferred on the Sessions Judges and Additional Sessions Judges under Section 491(1-A) of the Cr.P.C. The rationale behind conferment of such powers on the Ex-officio Justices of Peace under subsection (6) of Section 22-A and on the Sessions Judges as well as Additional Sessions Judges under Section 491(1-A) of the Cr.P.C. was to provide the remedy to an aggrieved person at his doorstep. Exercise of such powers, by no stretch of imagination, interferes with investigation or delays dispensation of justice.
16. The argument pleading for prescribing parameters for exercising such powers by the Ex-officio Justices of Peace may have some substance, but where the parameters laid down for the High Courts are equally applicable to the Ex-officio Justice of Peace exercising almost similar powers, another effort in this behalf would be absolutely unnecessary. What are the parameters in this behalf and how far the exercise of such powers is complementary to the functions of the police are the questions which have been elaborately dealt with in a number of cases. In the case of Emperor v. Khawaja Nazir Ahmad (AIR 1945 PC 18), the Privy Council by prescribing the parameters and highlighting the complimentary nature of the functions of the judiciary and the police held as under:-
"In their Lordship's opinion however, the more serious aspect the case is to be found in the resultant interference by the Court with the duties of the police. Just as it is essential that every one accused of a crime should have free access to a Court of justice so that he may be duly acquitted if found not guilty of the offence with which he is charged, so it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes upon them the duty of enquiry. In India as has been shown there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities, and it would, as their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court. The functions of the judiciary and the police are complementary not overlapping and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always, of course, subject to the right of the Court to intervene in an appropriate case when moved under S.491, Criminal P.C., to give directions in the nature of habeas corpus. In such a case as the present, however, the Court's functions begin when a charge is preferred before it and not until then. It has sometimes been thought that S. 561-A has given increased powers to the Court which it did not possess before that section was enacted. But this is not so. The section gives no new powers, it only provides that those which the Court already inherently possess shall be preserved and is inserted, as their Lordships think, lest it should be considered that the only powers possessed by the Court are those expressly conferred by the Criminal Procedure Code, and that no inherent power had survived the passing of that Act. No doubt, if no cognizable offence is disclosed, and still more if no offence of any kind is disclosed, the police would have no authority to undertake an investigation and for this reason Newsam, J. may well have decided rightly in AIR 1938 Mad. 129. But that is not this case".
17. In the case of Ghulam Mohammad v. Muzzamil Khan (PLD 1967 SC 317), this Court after examining the ratio of various judgments on a similar issue held as under:-
"The inherent jurisdiction given by section 561-A is not an alternative jurisdiction or an additional jurisdiction but it is a jurisdiction preserved in the interest of justice to redress
grievances for which no other procedure
is available or has been provided by the Code itself. The power given by this section can certainly
not be utilized as to interrupt or divert the procedural statute. The High Court, as has repeatedly
been pointed out in a number of decisions, should be extremely
reluctant to interfere in a case where a competent Court has after examining
the evidence adduced before it, come to the view that a prime facie case is disclosed
and has framed charges or summoned the accused
to appear, unless it can be said that the charge on its face or the evidence, even if believed,
does not disclose any offence. This the High Court has not found in the present case but has merely proceeded
on an erroneous conception that in a case where a complaint
has been filed the police has no jurisdiction to investigate into any other offence
which comes to its notice in the course of the investigation of the complaint, particularly, if the offence
disclosed is of a non-cognizable nature. The High Court itself has referred
to a
Full Bench authority of the
Madras High Court where a contrary
view was taken but has not
quoted any other authority in support of its own view. We are in agreement
with the views expressed by the Madras
High Court for, we can see no legal bar to the police submitting a challan in respect of offences other than
those mentioned in the First Information Report, if the same should come to its notice during the course of investigation on the basis of complaint except in the cases mentioned
in Sections 196 to 199, Cr.P.C. Section
190(1)(b) of the Code of Criminal Procedure clearly gives jurisdiction to the Magistrate mentioned
therein to take cognizance of an offence
on the basis of a police report
whether the offence
be cognizable or non- cognizable. In the present
case, the Magistrate was an Additional District Magistrate and one of the offences
in respect of which the challan
was submitted was under section 408, P.P.C., which was cognizable. Thus even the obstacle posed by section 155(2), Cr.P.C., did not stand in the way. The challan submitted by the police was, therefore,
lawfully submitted and legally enquired into".
18.
In the case of Shahnaz
Begum v. The Hon'ble Judges of the High Court of Sindh and Baluchistan and another (PLD
1971 SC 677) this Court held as under:-
"If an investigation is launched
mala fide or is clearly beyond
the jurisdiction of the investigating agencies concerned then it may be possible
for the action of the investigating agencies to be corrected by a proper
proceeding either under Article
98 of the Constitution of 1962 or under the provisions of section 491 of the Criminal Procedure Code, if the applicant is in the latter case in detention, but not by invoking
the inherent power under section 561-A of the Criminal Procedure
Code.
If this be the position with regard to the quashing of an investigation we have no manner of doubt that section 561-A of the Cr. P.C. does not give any power to transfer an investigation as claimed by the learned Advocate General of Sindh. Section 561-A of the Criminal Procedure Code runs as follows:-
"561-A. Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice"
It will be observed that the power given thereby can be invoked to give effect to any order under the Code to prevent an abuse of the process of any Court or otherwise to secure the ends of justice. The ends of justice necessarily means justice as administered by the Courts and not justice in the abstract sense or justice administered by agencies other than Courts. The words "otherwise to secure the ends of justice", have to be read along with the earlier objects mentioned in this section and must have some co-rrelation with them and it is in this sense that this Court in the case of M. S. Khawaja v. The State (PLD 1965 SC 287) opined that the ends to secure which the inherent power may be invoked "have reference to the purposes which the judicial process is intended to secure, and it is difficult to include actions of investigating agencies within the scope of judicial process."
19. In the case of Brig. (Retd) Imtiaz Ahmad v. Government of Pakistan through Secretary, Interior Division, Islamabad and 2 others (1994 SCMR 2142) this Court while reiterating the earlier view held as under:--
"The power under Article 199 of the Constitution is the power of judicial review, that power "is a great weapon in the hands of Judges, but the Judges must observe the Constitutional limits set by our parliamentary system on their exercise of this beneficial power, namely, the separation of powers between the Parliament, the Executive and the Courts". (Lord Scarman in Nottinghamshire C.C. v. Secretary of State (1986) (All ER 199, 204). Judicial review must, therefore, remain strictly judicial and in its exercise, Judges must take care not to intrude upon the domain of the other branches of Government. As was succinctly put by Hamoodur Rahman, J. (as he then was) in Mir Abdul Baqi Baluch v. The Government of Pakistan (PLD 1968 SC 313, 324), under a Constitutional system which provides for judicial review of executive actions:-
"It is, in my opinion, a fallacy to think that such a judicial review must be in the nature of an appeal against the decision of the executive authority. It is not the purpose of judicial authority reviewing executive actions to sit on appeal over the executive or to substitute the discretion of the Court for that of the administrative agency".
While dealing
with transfer of investigation from one police officer
to another, this Court
applied the same principles by holding
that the Investigating Authorities do not have an unfettered authority
of running investigation according to their whim and caprice. They can be pushed
back to their allotted turf if and when they overstep it. In the case of Anwar Ahmed Khan v. The
State (1996 SCMR 24), this Court held that the High Court in exercise of its jurisdiction was competent to pass necessary orders where investigation was mala fide or without jurisdiction to ensure justice
and fair play. It was also held in the case of Muhammad Latif, ASI, Police Station
Sadar, Sheikhupura v. Sharifan
Bibi and another
(supra) that the High Court in exercise
of its constitutional jurisdiction could pass appropriate orders where investigation is mala fide. In the case of Nasrullah Khan v. Manzoor Hussain and others (supra) this Court declined to interfere
with the order of the High Court
directing entrustment of the investigation of the case to some responsible officer of repute. In the case of Col. Shah Sadiq v. Muhammad Ashiq and others (2006 SCMR 276) this Court after referring
to a string of judgments of this Court,
Privy Council and Indian
Supreme Court
reiterated the same principle. The same view was also reaffirmed in the cases of Saeed Hussain Shah v. The State (1996 SCMR 504), Raja Rustam Ali Khan. v. Muhammad Hanif
and 6 others (1997
SCMR 2008), Muhammad Saeed Azhar v. Martial Law Administrator,
20. Next comes the vires of the provisions contained in sub-section (6) of Section 22-A and Section 25 of the Cr.P.C. A provision of law can be declared ultra vires if it is violative of the provisions of the Constitution which guarantee fundamental rights, independence of judiciary or its separation from the executive. An examination and empirical verification of these provisions will show that they do not infringe any of the fundamental rights guaranteed by the Constitution. They on the contrary, not only facilitate their enforcement but also guard against their infringement by providing expeditious and inexpensive justice to the people at their doorstep. It does not even remotely impinge upon the independence of judiciary nor does it militate against the concept of its separation from the executive. When the Ex-officio Justice of Peace passes orders, issues directions, or takes actions under the aegis of judiciary rather than the executive, he instead of going under the thumb of the executive, in fact, brings the executive under the thumb of law. We, therefore, without a moment's hesitation hold that these provisions cannot be declared ultra vires on either of the criteria mentioned above. Their vires even on the yardstick of the legislative competence cannot be questioned when we don't find any defect in the legislative competence nor has it been imputed thereto by any of the parties before us.
21. Having thus considered, we hold that the functions performed by the Ex-officio Justice of Peace being quasi judicial in nature cannot be termed as executive, administrative or ministerial; that such functions being complementary to those of the police do not amount to interference in the investigative domain of the latter and thus cannot be held to be violative of the judgments of this Court rendered in the cases of Muhammad Bashir v. Station House Officer, Okara Cantt. and others and Brig. (Retd) Imtiaz Ahmad v. Government of Pakistan through Secretary, Interior Division, Islamabad and 2 others (supra) and that insertion of subsection (6) of Sections 22-A and 25 of the Cr.P.C. through the Code of Criminal Procedure (3rd Amendment Ordinance) CXXXI of 2002 is not ultra vires by any attribute. In this view of the matter, we direct that the cases be listed before the benches for decision in accordance with law. We, while parting with the judgment appreciate the enlightened assistance rendered by Khawaja Haris Ahmad, learned Sr. ASC who despite his heavy pre- occupations honoured the words of this Court.
Sd/-
Anwar Zaheer Jamali, C.J. Chief Justice
Sd/- Sd/-
Mian Saqib Nisar, J Ejaz Afzal Khan, J Sd/-
Mushir Alam, J
I
agree. However, I have added a
separate note.
Sd/-
Manzoor Ahmad Malik, J
MANZOOR AHMAD MALIK, J.-- I have had the pivilege of going through the erudite judgment rendered by my learned brother Hon'ble Mr. Justice Ejaz Afzal Khan. While agreeing with the conclusion drawn by his lordship, I am adding following note to attend to certain aspects which are germane to the lis.
2. The past experience of around 14 years (since the insertion of these provisions into the Code of Criminal Procedure) would unmistakeably reveal that these provisions especially Section 22-A of the Code of Criminal Procedure, though beneficial and advantageous to the public at large, yet in myriad cases, it has been misused and abused.
Once a false criminal
case is registered against an individual, it becomes
exceedingly difficult
for him/her to get rid of it. The time and money which is spent on acquiring a clean chit by way of cancellation of the case or acquittal
is not hard to fathom. There is no denying the fact that at times false and frivolous cases are got registered just to humble and harass the opposite
party. In such a milieu, powers given to an ex-officio Justice
of the Peace under subsection (6) of Section 22-A, Code of Criminal
Procedure, 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.
Therefore:-
(i)
The ex-officio Justice of the 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 aggrieved
person, before invoking
the powers of ex-officio Justice of the Peace, had recourse
to the high ups in the police hierarchy.
(ii)
So far as transfer of investigation of a criminal
case from one police officer
to another police officer is concerned, a complete mechanism has been provided
in the Police Order, 2002. However,
Clause (ii) of Subsection (6) of Section
22-A, Code of Criminal Procedure has given power to the ex-officio Justice of the Peace to issue appropriate direction to the concerned police authorities for the transfer of investigation of a case from one police officer
to another, but it does not prescribe a criterion
or mechanism in so many words as to what might be the standard or what reasons
should prevail with the ex-officio Justice
of the Peace while issuing such a direction. To issue a direction
regarding transfer of investigation by ex-officio Justice of the Peace without taking into consideration the attending circumstances of the case may be counter-productive and may defeat the purpose
of the mechanism
as provided in the Police Order, 2002, thus may result into unnecessary interference with the working
of an agency.
Therefore, it would be appropriate for the ex-officio Justice of the Peace, before issuance
of any direction
regarding the change
of investigation, to satisfy
himself from the available record that the grievance of the aggrieved person (who has filed the application for this purpose) has not been
redressed by the Police
Officers/authorities as provided in the Police Order, 2002.
(
Manzoor Ahmad Malik, J
MWA/Y-1/S Order accordingly
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