2010 P Cr (PLP)

DOST MUHAMMAD KHAN, J.

There was a consistent loud cry from the public that police was in the habit of not registering cases in cognizable offences. To check the meanace, the legislature enacted subsection (6) of section 22-A, Cr.P.C. vide Code of Criminal Procedure (Third Amendment) Ordinance, CXXXI of 2002. To understand the intent of law-maker, it is necessary to reproduce below the said provision of law:-- "(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 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.

2. The Sessions Judges have been nominated thereunder as Ex-Officio Justices of Peace and they were also invested with the powers to nominate Additional Sessions Judges for the same object which process has been carried out.

3. While exercising powers under the new law, the Ex-officio Justices of Peace ordinarily travel much beyond the jurisdiction allotted to them, the fact has been noticed with the degree of concern by this Court in various petitions filed against their orders. In view of this phenomenon, this Court deems it necessary to lay down proper guidelines and give a binding dicta so that the process under the new law is put to proper channels. The following petitions were clubbed together for decision. (i) Gul Waiz v. Mst. Zuhra Bibi and others Criminal Miscellaneous (Quashment) No.193 of 2008. (ii) Mirza. Hakeem v. D.P.O. Karak and others Criminal Miscellaneous (Quashment) No.199 of 2008. (iii) Faizullah and 2 others v. Rehmat Gul and 2 others Criminal Miscellaneous (Quashment) No.159 of 2008. (iv) Dr. Irtaza Ajmal Khan v. The State and others Criminal Miscellaneous (Quashment) No.166 of 2007. (v) Muhammad Ilyas v. Misal Khan and another Criminal Miscellaneous (Quashment) No.208 of 2008. (vi) Muhammad Jehanzeb and others v. S.H.O. Police Station, Pahari Pura Peshawar and others Criminal Miscellaneous (Quashment) No.157 of 2008. Arguments heard and record of all the petitions perused in detail.

4. In the case at Serial No.1, the local police recovered certain articles from the house of respondent No.2 which were then entrusted to the Nazim of the local Union Council. However, on a petition under section 22 4, Cr.P.C., the Justice of Peace/Additional Sessions Judge, Peshawar directed the police to return the same to respondent No.2.

5. In the case at Serial No.2, while entertaining petition, the Justice of Peace/Additional Sessions Judge, Karak through order, dated 13-10-2008 directed D.P.O. Karak/respondent No.1 to take disciplinary action against the S.H.O./respondent No.2.

6. In the case at Serial No.3, the Justice of Peace/Additional Sessions Judge-V, Kohat has passed order, dated 15-9-2008 for registration of a criminal case against the petitioner.

7. In the case at Serial No.4, Justice of Peace/Additional Sessions Judge-VIT, Peshawar dismissed the petition through order, dated 8-6-2007 and registration of a criminal case was refused. . In the case at Serial No.5, the Justice of Peace/Additional Sessions Judge-V, Kohat vide order, dated 19-3-2008 directed registration of criminal case against the petitioner under section 365-A, P.F.C. And

9. In the case at Serial No.6, the Justice of Peace/Additional Sessions Judge-X, Peshawar through order, dated 14-7-2008 directed registration of a case under sections 506/448, P.P.C. against the petitioner.

10. Before discussing the merits of each case, appropriate and desirable it would be to read the provisions of law and discover the true intent of the Legislature behind enacting the same' and its historical background, however, before construing it one has to look at the machinery provisions of the Criminal Procedure Code providing criminal justice system relating to prevention, reporting and investigating into the crime by the police. In this regard, besides Chapter-V, the most important provisions are contained in Chapter-XIV of the Code which has squarely defined the duties/obligations and powers of the police in this regard. The first provision having direct nexus with the point in issue is section 154 of the Code which reads as follows:

"Section 154 Information in cognizable cases.

Every information relating to the commission of a cognizable offence if given orally to an Officer incharge 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.

11. The police is left with no discretion to refuse registration of a case once the information given clearly constitutes a cognizable offence. However, much importance has to be attached to the words "cognizable offence". Thus, the Officer Incharge of a Police Station (O.I.P.S.) is under statutory obligation to register a case if the information laid before him clearly constitutes a cognizable offence. However, if the information given to the police (O.I.P.S.) does not constitute cognizable offence, then the police (O.I.P.S.) is not bound to register the case but to follow the procedure laid down by the provisions of section 155 of the Code by recording the report/information in the daily diary register which he has to forward to Illaqa Magistrate for appropriate action because police has not been authorized by the law to investigate into non-cognizable case.

12. The same principle would apply whenever Justice of Peace is seized of a complaint/petition under section 22-A of the Code and he has to apply the same test by applying prudent mind in ascertaining as to whether the facts constitute a cognizable offence or not. If he comes to the conclusion that cognizable offence is clearly constituted from the facts mentioned in the petition before him, only in that case the Ex-officio Justice of Peace may issue directions to the police to register a case. However, keeping in view the language of all the three clauses of subsection (6) of section 22-A of the Code, the Ex-officio Justice of Peace while issuing such directions shall refrain from giving directions to the police to register the case under one or the other section of penal law. This process/exercise shall be left to the discretion of the police which shall be exercised by the police in a fair and honest manner.

13. In many cases, the Ex-officio Justices of Peace conveniently ignore the allotted sphere of their jurisdiction conferred upon them under the three clauses of subsection (6) of section 22-A of the Code and indulge in deep interference into the police inquiry/investigation as well as jurisdiction conferred upon it by different provisions of the Code. This kind of interference amounts to usurp/pre-empt the statutory powers of the police which is unwarranted in law.

14. Under the provisions of Chapter-XIV and other related provisions contained in the Code, the Legislature has allotted powers to the police to prevent, investigate, arrest criminals and effect seizure and at the conclusion of investigation, correct facts are laid before the Court in the charge-sheet/Challan enabling it to take or refuse to take cognizance of the case on the established facts. This phase relates to the investigation stage and the Courts of law are not supposed to interfere therewith unless petition/complaint is lodged before it wherein the police has disregarded the mandatory Statutory law or it is guilty of misconduct or has committed dishonesty in the course of investigation, however, such allegations, must be based on established facts.

15. Our criminal justice system has been divided into three phases. The first one is called investigation phase followed by inquiry phase and the final and the 3rd stage relates to the trial phase. For all the three phases, different authorities like police, Illaqa Magistrate and Sessions Courts have been constituted and established by the law and their respective authorities/powers have been clearly defined and a line of demarcation in-between the three phases has been drawn with much clarity. The object and intent of the Legislature behind such scheme is that all the three authorities shall not interfere into the allotted field of jurisdiction of one another. Of course during investigation phase, the police have no unbridled powers and the Illaqa Magistrate and in some cases, the trial Court/Sessions Courts have been invested with authority to oversee and check this process but to the extent of well-defined limits. For example, after arrest of an accused, police cannot detain an accused person for more than 24 hours and for the extension of custody, it has to obtain the sanction of the local Magistrate. Similarly, the period for investigation has been fixed by the provisions of section 344 and section 167 of the Code and each extension must emanate from the Illaqa Magistrate or trial/inquiry Court. However, the police has been invested with powers to form its own opinion at the conclusion of investigation and if on the basis of evidence/material collected by it, case is made out against an accused person, it may file a charge-sheet against him while to the contrary, if the evidence is deficient in all aspects, then it may file a cancellation report. However, the final decision to approve or disapprove the police opinion is to be given by the Illaqa Magistrate or the Court competent to take cognizance of the case. This process cannot be interfered with by Ex-officio Justice of Peace nor it can dictate to the police as to under what provisions of penal law, the charge-sheet against an accused shall be filed because while doing so, it will definitely trespass into the field of the police exercising statutory authority and the judicial authority of the Court or Magistrate who have been conferred upon such powers under sections 190 and 193 of the Code.

16. Similarly under the provisions of Chapter-XLIII of the Code, seizure of property by the police and its disposal is squarely regulated, therefore, the Ex-officio Justice of Peace under no circumstances shall interfere with such matters and be left to the authorities both executive and judicial constituted thereunder.

17. Keeping in view the provisions of section 155 read with section 154 of the Code, whenever the police (O.I.P.S.) refuses to register a case on the ground that the information given does not constitute cognizable offence or in his opinion, the dispute is of a civil nature, then the report must be recorded by it in the daily diary register and copy thereof shall be supplied to the complainant/informer which shall be annexed with the petition to be filed under section 22-A of the Code and in such a case, it would be more appropriate to ask for the written comments of the police (O.I.P.S.) to ascertain the reasons made basis for refusal to register a case. In some case, the Ex-officio Justice of Peace while giving directions to the police for registration of cognizable cases, deep assessment/appreciation of evidence is made with definite opinion which is unwarranted in law. At such a stage, the Justice of Peace shall make tentative assessment of the facts/material placed before him because in such capacity they, act as administrative officers but after all, they hold judicial office and if after the registration of the case and at the conclusion of investigation, charge-sheet is filed before the same Court presided over by the Justice of Peace which has rendered such an opinion earlier, then it would be difficult for him to wriggle out from that. The cardinal principle of justice also requires that each accused shall be deemed to be innocent unless proved guilty at the trial before a competent Court, therefore, in all circumstances, the Ex-officio Justice of Peace shall not express conclusive opinion on the facts before it while giving directions to the police to register a case.

18. The Ex-officio Justice of Peace shall always keep in mind that the powers exercised by them under section 22-A of the Code are neither additional nor have superimposing effect on the powers of the executive and judicial authorities which have been expressly conferred upon those authorities regulating particular subject-matter. In the capacity of administration officer it can oversee and check the atrocities committed by the police and to direct them to abide by the law and not to disregard it but to a very limited extent.

19. Before the addition of subsection (6) to section 22-A of the Code, the consistent view of the superior Courts has been that it shall not control the process of investigation so minutely to stifle down the course provided in the Code itself. The first case in this regard is that of Shahnaz Begum's case PLD 1971 SC 677 where this view was taken for the first time. However, the Honourable Supreme Court in the case of Brig. (Rtd.) Imtiaz Ahmad v. Government of Pakistan through Secretary Interior Division, Islamabad and 2 others 1994 SCMR 2142 has laid down this principle much elaborately. The same is to the following effect:-- (a) Constitution of Pakistan (1973)

Art. 199-Power of judicial review under Art.199 of the Constitution

Scope

Judicial restraint essential to the continuance of rule of law. 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 the parliamentary system on their exercise of this beneficial power namely, the separation of powers between the Parliament, the Executive and the Court. 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. Under a constitutional system which provides for judicial review of executive actions, it is, 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. Judicial restraint is so essential "to the continuance of rule of law", for "the continued public confidence in the political impartiality of the judiciary" and the voluntary respect for the law as laid down and applied by the Courts. (b) Criminal Procedure Code (V of 1898)

S. 154

Criminal trial

Registration of case-Effect--Investigation-Phases. The effect of the registration of a case is to set in train an investigation by the police in accordance with law. In every investigation there are by and large three different phases. First of all, the administrative phase; next, the judicial phase; and finally, the executive phase when the orders of the Court or the Tribunal are, if necessary, executed or promulgated. Quite plainly fairness to the suspect demands that he should be given a chance of starting his case before the final period: the execution. Equally fairness demands that the suspect shall be given a chance of putting his side of the case before the judicial inquiry is over. But on the other side, and the other side is entitled to fairness just as the suspect is. Fairness to the inquirer demands that during the administrative period he should be able to investigate without having at every stage to inquire from the suspect what his side of the matter may be. Of course it may be difficult to find out the particular point at which the administrative phase ends and the judicial phase begins. Every public officer who has to decide whether to prosecute or raise proceedings ought first to decide whether there is a prima facie case, but no one supposes that justice requires that he should first seek the comments of the accused or the defendant on the material before him. So there is nothing inherently unjust in reaching such a decision in the absence of the other party."

20. Unless and until a glaring case of neglect, failure to discharge statutory obligation or disregard of mandatory provision of law by the police is fairly established, ordinarily the Ex-officio Justice of Peace shall not exercise its powers transferring investigation from one Police Officer to another. Frequent interference in this regard would encourage unscrupulous persons/litigants to make resort to filing petitions under section 22-A of the Code. It is also advisable that at the first instance the aggrieved party shall avail the help of the superior officer of the police under the provisions of clauses (e) and (h) of Article 440 of the Police Order, 2002 which is an alternative effective remedy for redressal of such grievance. Even under the provisions of section 551 of the Code, the Police Officers higher in rank has the powers of Investigating Officer for the entire local area to which they are attached and even the Inspector-General of Police/P.P.O. being the Provincial Chief may direct the transfer of investigation from one Police Officer to another or from, one branch of investigating agency to another including the crime branch, a high skilled investigating agency. Another remedy has been provided for redressal of such grievance through the Public Safety Commission established under Police Order, 2002. Similarly under the various provisions of the N.-W.F.P. Prosecution Service (Constitution, Functions and Powers) Act, 2005, the District Public Prosecutor or the Public Prosecutor of the area may exercise the same powers to redress the grievance of an aggrieved person complaining against the mishandling of investigation by a Police officer. Thus, the Ex-officio Justice of Peace shall exercise some degree of restraint while exercising powers under clause (iii) of section 22-A of the Code. In other words, such powers be exercised in a rare and exceptional case where the exercise of such powers becomes imperative otherwise, frequent and undue interference in the course of investigation, may cause prejudice to one or the other party or/and may pose a threat to the system itself.

21. It has been noted with grave concern the Ex-officio Justices of Peace in many cases frequently issue directions to the superior officers of the police seized of the investigation of a case to take departmental disciplinary action against him/them. Such powers have not been expressly conferred upon the Ex-officio Justice of Peace, therefore, they shall refrain from issuing such orders because it would result into penalty/penal consequences. In very exceptional case, it may record its own observations and shall leave the matter to the officers superior in rank either to initiate or not any departmental disciplinary action against the Police Officer complained against. A fair and effective check in this regard has been provided in the Police Order to maintain strict discipline in the police force. The said law also contains penal provisions which can be pressed into service by the competent authority against the Police Officer who has committed an uncondonable act of omission or commission. In any case, any mistaken view held by the Ex-officio Justice of Peace in a summary way and the directions so issued by it may ruin the career of a Police Officer albeit he might not be guilty of the act complained against. In any case, the internal departmental check and balance system within the police hierarchy is not to be usurped by the Ex-officio Justice of Peace in a routine manner.

22. Now coming to the merits of the petitions under consideration. In the petition at Serial No.1 Criminal Miscellaneous (Q) No.193 of 2008 Gul Waiz v. Mst. Zuhra Bibi, the articles recovered by the police from the petitioner were given in the custody of local Union Council Nazim, however, on a petition under section 22-A, Cr.P.C. the Justice of Peace/Additional Sessions Judge, Peshawar directed the police that the same be handed over to respondent No.2. The impugned order is without lawful authority and without jurisdiction. The provisions of section 22-A, Cr.P.C. cannot override the specific provisions contained in Chapter-LXIII which squarely and fully regulate the process as to whom articles are to be given in custody and on what condition. This authority, judicial in nature, has been exclusively conferred upon the Area Magistrate. The impugned order is in disregard of the statutory provisions of law contained in the above Chapter, therefore, is not sustainable. Accordingly, this petition is allowed and the impugned order is set at naught. The aggrieved party may make recourse to the Illaqa Magistrate through an application who shall decide the matter strictly in accordance with law.

23. In the petition at Serial No.2 Criminal Miscellaneous No.109 of 2008 Mirza Hakim v. D.P.O. Karak and; others the Justice of Peace/ Additional Sessions Judge, Karak has directed the D.P.O. Karak to take disciplinary action against respondent No.2/S.H.O. As held above, that it is not the domain of Justice of Peace to issue direction of this nature to the superior officer of any Police Officer to be proceeded against under the E&D Rules, therefore, the impugned order dated 13-10-2008 has been passed without lawful authority and without jurisdiction, therefore, is set aside. If any breach of duty has been committed by the S.H.O., then it is for the D.P.O. alone to initiate or not to initiate disciplinary proceedings keeping in view the facts and circumstances of the case. Petition is allowed in the said terms.

24. In the petition at Serial No.3, Criminal Miscellaneous (Q) No.159 of 2008 Faizullah and 2 others v. Rehmat Gul and 2 others on a complaint of respondent No.1, Additional Sessions Judge-V/Justice of Peace, Kohat has issued order, dated 15-9-2008 for registration of case against the petitioners.' All the three petitioners are Police Officers/officials in Traffic Department at Kohat. The nature of allegation. levelled in the petition filed before Justice of Peace are two-fold. The first allegation is that bribe was allegedly demanded by the petitioners from respondent No.1 while he was travelling in a jeep along with one Jan Muhammad which they refused to abide. The second allegation is that the complainant talked to Faizullah Inspector on telephone about his humiliating attitude towards him where after the said Inspector along with two constables went to the shop of the complainant, he was dragged and beaten and attempted to take him to the police station, however, due to intervention of the local people he was freed.

25. The Justice of Peace/Additional Sessions Judge-V, Kohat vide impugned order, dated 15-9-2008 which is absolutely a non-speaking one, having been passed without application of mind is thus, not sustainable in law on this score. Also a case of bribery was set up, therefore, it was not the domain of Justice of Peace to register a criminal case on both counts and that too without specification because Anti-Corruption Establishment has to deal with such-like cases. Under the ACE Rule, 1999, altogether a different procedure has been laid down for registration of such-like cases whereunder, first the Director Anti-Corruption has to direct a preliminary inquiry, followed by open inquiry and if any case is made out against a public servant on the materials collected during the inquiry, then he has to accord sanction for registration of the case, therefore, the impugned order besides being cryptic in nature and substance clearly invades upon the statutory authority of the Director Anti-Corruption Establishment and to that extent, it is null and void, thus, the same is set at naught.

26. In the petition at Serial No.4 Criminal Miscellaneous (Q) No.166 of 2007 Dr. Irtiza Ajmal Khan v. The State and 3 others vide order, dated 8-6-2007, the Justice of Peace/Additional Sessions Judge, Peshawar has dismissed the complaint of the petitioner for registration of a criminal case against the respondents. Suffice it to say that earlier the petitioner had filed Writ Petition No.1078 of 2007 in the High Court and after elaborate discussion similar prayer of the petitioner was dismissed and he was advised to avail the remedy by filing a private complaint before the competent Court. The record particularly the two judgments of acquittal were perused and it is shocking to note that the petitioner was acquitted in one case vide judgment, dated 4-4-2006 on hyper-technical grounds which are not sustainable in law. However, no appeal has been filed against the judgment of acquittal. Hence, at this stage, it is not desirable to take cognizance of that case and set it at naught. In any case, the criminal prosecution of the petitioner in both the cases was not based on malice nor it has been held that the petitioner was maliciously prosecuted to provide him a cause to get registered a criminal case against the official respondents, therefore, this petition being bereft of legal merit is dismissed.

27. In the case at Serial 5 Criminal Miscellaneous (Q) No.208 of 2008, Muhammad Ilyas v. Misal Khan and the State the Justice of Peace/Additional Sessions Judge-V, Kohat vide order, dated 19-3-2008 directed registration of criminal case against the petitioner under section 365-A, Cr.P.C. The facts of the case narrated in the complaint are that there was a transaction of sale of HV testing machine sold by the complainant to the present petitioner for Rs.17/18 lacs and the price was not paid to .the complainant's son namely Rehan rather it was pledged with the local bank. On the other hand, the petitioner admitted that the machine was defective and he took it back. However, his son promised to remove the defect as it was not returnable which resulted into the dispute. It is alleged that Rehan, the son of the complainant, was abducted for ransom. However, the abductee was found in the custody of a political agent concerned where bail application of the abductee was dismissed and a writ petition thereagainst was filed in this Court. However, no order of the Court has been annexed. On one hand, the complainant has alleged that his son, Rehan, has been abducted for ransom by the petitioner accused while on the other hand, from his own narration in the complaint it proved that the abductee is in the custody of political agent and has been put to trial. His bail application has also been turned down. Therefore, it appears to be a transaction of a civil nature. However, the Justice of Peace without looking at the substance of the complaint and the relevant materials, directed registration of the criminal case for abduction of Rehan and in this way, a civil dispute has been converted into a criminal case and that too under section 365-A, Cr.P.C. which is a very heinous crime. Judged from all angles and on perusal of entire facts/materials, no cognizable offence has been constituted. Thus, the impugned order is bad in law and being without jurisdiction is set aside/quashed.

28. In the case at Serial No.6, Criminal Miscellaneous (Q) No.157 of 2008 Muhammad Jehanzeb and 4 others v. S.H.O. Police Station Paharipura and others Justice of Peace/Additional Sessions Judge-X, Peshawar has directed the registration of criminal case vide order, dated 14-7-2008 against the petitioners under sections 506/448, P.P.C. which has been registered vide F.I.R. NO.530, dated 18-7-2008. Six persons have been charged in this case for giving threat to the complainant after making the alleged criminal trespass. In this case civil suit was filed by the petitioner on 28-2-1995 wherein a gift-deed was challenged. However, it was dismissed and appeal thereagainst was also dismissed by the District Appeal Court on 6-11-2002. Neither the respondent/ complainant has been evicted/ejected from the house nor any injury was caused to him during the alleged act of trespass/threat. However, the order has been given effect and the case has been registered despite the fact that prayer in the petition made was for future protection only. Therefore, this petition is disposed of with the directions to the police to complete investigation without any further delay and if on the basis of materials collected during that course, no case is made out, then it shall file a cancellation report before the Illaqa Magistrate or proceed the other way. Petition disposed of.

29. Before closing this judgment, it is directed that all Justices of Peace shall keep in mind that the provisions of section 22-A, Cr.P.C. have no superimposing or overriding effect on other provisions of the Cr.P.C. relating to the investigation, inquiry and trial, rather these are ancillary and supplementary in nature. The object behind it is to provide a check over the police but of limited nature and within the defined parameters contained in all the three clauses of subsection (6) thereof, it shall not be construed to be wider in scope giving absolute powers to the Justice of Peace to interfere with the scheme clearly laying down the procedure, privileges, duties, powers and obligations of Police Officer connected with the course of registration of criminal cases, investigating the same and filing of charge-sheet/cancellation reports before the Court competent to take cognizance. The right to investigate the crime, identify the suspects, catch and interrogate them and once their investigations are m complete, they have to file the charge-sheet against the accused or if no case is made out to file a cancellation report. The different stages of investigation in this regard have been well-defined and clearly laid down in Chapter-XVIII of the Cr.P.C. The Justice of Peace shall not interfere with the police investigation if it is conducted in accordance with the requirements of the provisions of the said chapter and in case of any complaint in that regard, the Justice of Peace has to oversee the said course with a limited scope of interference whenever it becomes imperative on well-established facts. With these observations, these petitions stand disposed of.

30. Registrar of this Court is directed to circulate copy of this judgment throughout the Province for future guidance of the Justices of Peace with directions to follow and strictly adhere to the guidelines given above. H.B.T./87/P Order accordingly.