2013 P Cr (PLP)

IBAD-UR-REHMAN LODHI, J.

By means of this single order, I intend to dispose of Writ Petitions Nos.27238, 27303, 27307, 27194 and 27406 of 2012, as almost daily this Court is to deal with the petitions involving the following position:-- (i) The orders passed by learned Ex-Officio Justice of Peace in view of section 22-A of Criminal Procedure Code are sought to be implemented through this Court in view of its Constitutional jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973. (ii) In some petitions, the order passed by learned Ex-Officio Justice of Peace directing the police authorities to proceed in accordance with law is sought to be set aside. There is an increasing tendency in filing the Constitutional petitions of the nature as has been noted above and the petitions under reference are separated to pass a detailed order after examining the requirements of relevant law and the jurisdiction of the different forums to get implemented the orders passed by learned Ex-Officio Justice of Peace or to deal with the orders wherein directions to the police are issued for performance of their certain duties assigned under law.

2. When subsection (6) was added in section 22-A, Cr.P.C. through Ordinance No.CXXXI of 2002 on 21-11-2002, the institution of Ex-Officio Justice of Peace was made competent to issue appropriate directions to the police authorities concerned on a complaint filed before it. For ready reference section 22-A(6) of Criminal Procedure Code is reproduced hereinbelow:-- "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. This clearly shows that in case of any neglect, failure or excess committed by a police authority in relation to its functions and duties, can appropriately be looked into by learned Ex-Officio Justice of Peace, who has passed the directions in view of the preceding provisions of section 22-A of Criminal Procedure Code. The rush to this Court seeking implementation of the orders passed by learned Ex-Officio Justice of Peace is, thus, in complete negation of Sub-Clause (iii) thereof. This Court cannot be expected to be an execution Court with regard to the orders passed by learned Ex-Officio Justice of Peace. When the law givers have provided a jurisdiction to the same forum to pass appropriate direction in case of such neglect, etc., on the part of police, then the same forum is to be approached for said purpose. The Constitutional petitions even on the principle of availability of alternate remedy to the persons concerned are not maintainable. It is, thus, held that if learned Ex-Officio Justice of Peace has issued any direction to the police authorities and there is a complaint of neglect, failure or excess committed by said police authority in relation to its functions and duties, it must be placed before learned Ex-Officio Justice of Peace and Constitutional petition under Article 199 of the Constitution of the Islamic of Pakistan, 1973 in this Court would not be maintainable.

3. In certain cases where learned Ex-Officio Justice of Peace has issued directions to the police authorities to perform the statutory function in accordance with law, the persons feeling themselves aggrieved of such orders or directions file the Constitutional petitions seeking setting aside of the said directions/orders of learned Ex-Officio Justice of Peace.

4. This Court in view of Article 199 (1)(a)(i) is authorized to make an order directing a person performing within the territorial jurisdiction of the Court, functions in connection with affairs of Federation or a Province or a local authority, to refrain from doing anything he is not permitted by law to do, or to do anything he is required by law to do. If the request made in Constitutional petition seeking setting aside of the directions of learned Ex-Officio Justice of Peace directing the police authorities to do in accordance with law is granted, the necessary implication would be that this Court is in fact directing the police authorities not to proceed in accordance with law. This is not the Constitutional mandate of this Court. The performance of function in accordance with law can be ordered but restraining any authority from doing in accordance with law is not the mandate of this Court, as such, the prayers, which have been made in such like petitions are in fact outside the scope of jurisdiction vested in this Court under the Constitution. While performing the functions under law, the police authorities are bound to adhere to all the legal provisions enabling it to proceed with the matter of commission of crime and the person complained against has every right to place his version before the police authorities and it is for the investigating agency to give any findings on the collected material. Against such findings of the police, no doubt, the person, who feels himself aggrieved, has independent remedies to avail again, but at pre-mature stage restraining the police authorities and that too from proceeding in accordance with law would be a negation from the Constitutional mandate of this Court. As such, the petitions seeking setting aside of the directions passed by learned Ex-Officio Justice of Peace directing the police authority to proceed in accordance with law are held to be not maintainable and violative to the Constitutional mandate of this Court.

5. Before parting with this order, I would like to observe that there is general impression that whenever the cases of neglect, failure or excess are brought into the notice of learned Ex-Officio Justice of Peace, it always dealt with in a casual manner and thus delinquent police authorities are not being dealt with in a proper way. Needless to observe that the orders passed by learned Ex-Officio Justice of Peace must be jealously guarded and if once it is established that any police official/officer is responsible for such neglect, failure or excess, he must be dealt with severely by learned Ex-Officio Justice of Peace itself and also departmental proceedings be also recommended under the provisions of Police Order, 2002.

6. Resultantly, these petitions having no force and the same are dismissed. SAK/S-21/L Petitions dismissed.