Monday, 24 March 2014

What are the Functions of Justice of Peace?

P L D 2005 Lahore 470
Before Iftikhar Hussain Chaudhry, C. J., Asif Saeed Khan Khosa and Sheikh Abdul
Rashid, JJ
KHIZER HAYAT and others---Petitioners
Versus
INSPECTOR-GENERAL OF POLICE (PUNJAB), LAHORE and others---
Respondents
Writ Petitions Nos. 11862, 14415, 17169 and 16453 of 2004, decided on 1st June, 2005.
(a) Criminal Procedure Code (V of1898)---
----Ss. 22, 22-A, 22-B & 25---Justices of the Peace---Historical and global perspective in
respect of the role of a Justice of the Peace in keeping the peace in the society, if any,
surveyed.
Justice of the Peace, as the name' itself suggests, was an institution conceived and
conjured up centuries ago mainly to assist the police and the other law enforcing agencies
in maintaining peace in the society but over the last many centuries this concept has
witnessed many developments, and variations in different parts of the world. In some
countries the role of a Justice of the Peace is still restricted to an administrative function
and relevant only till a stage when a crime is not yet committed or where it has been
committed and not yet reported to the police and not beyond that stage but in others the
role of a Justice of the Peace has been enlarged and extended to exercise of some judicial
and other powers including trial of petty offences and trifling civil disputes as well.
The concept of a Justice of the Peace has evolved and developed over the last many
centuries; it had originated in England and had been introduced by the British colonists in
some of their colonies; the original role of a Justice of the Peace was conservation of the
peace within the area of his jurisdiction through administrative and ministerial measures
but gradually his role was enlarged in some countries to include a minor judicial role qua
summary trial of petty civil and criminal cases; and every enlargement of his role had
been achieved through express legislation. It is quite clear that beyond the express
authority, both administrative and judicial, conferred upon him by a statute a Justice of
the Peace does not possess any implied or inherent jurisdiction to dispense justice among
the people in his local area.
During their rule over the Indo-Pak sub-continent the British colonists had also
introduced the concept of Justices of the Peace in the local system of governance and
conservation of the peace. However, with almost simultaneous introduction of .an
elaborate system of hierarchy of Magistrates the role of Justices of the Peace never
assumed any significant importance in the Indo-Pak sub-continent and Justices of the
Peace were never conferred any judicial power. Although since their original induction in
the system some additional powers have been bestowed upon Justices of the Peace from
time to time yet their role essentially remains restricted so far to conservation of the
peace and in case of breach of the peace their role ends by apprehending the culprit, if
possible, and by reporting the breach of the peace to the police. It can, thus, be observed
without any fear of contradiction that at least in the context of Pakistan the role of a
Justice of the Peace at the present juncture in Pakistan history is primarily of rendering
assistance to the police in the matters of keeping the peace and, in case of breach of the
peace, apprehending the culprit and rendering assistance to the police in investigation of
the crime. On November 21, 2002 ex-officio Justices of the Peace in Pakistan were
conferred an additional role through promulgation of the Criminal Procedure (Third
Amendment) Ordinance (Federal Ordinance No. CXXXI) of 2002 and this role was in
respect of entertaining complaints and issuance of appropriate directions to the police
authorities concerned regarding registration of criminal cases, transfer of investigation of
criminal cases and in respect of neglect, failure or excess committed by a police authority
in relation to its functions and duties. These and other roles of a Justice of the Peace and
an ex-officio Justice of the Peace in Pakistan are evident from provisions of Ss.22, 22-A
and 22-B of the Code of Criminal Procedure, 1898.
Halsbury's Laws of England 4th Edn., Vol.29; Jowitt's Dictionary of English Law 2nd
Edn., Vol. 1; Encyclopaedia Britannica, Vol. 13; The New Encyclopaedia Britannica 15th
Edn., Vol. 6; Corpus Juris Secundum Vol. 51; The Encyclopaedia Americana
(International Edn.); American Jurisprudence 2nd Edn., Vol. 47; Words and Phrases
(Permanent Edn.); Grolier Encyclopaedia of Knowledge; Collier's Encyclopedia Vol. 13;
The Law Lexicon of British India; Venkataramaiya's Law Lexicon with Legal Maxims,
2nd Edn; K.J. Aiyar's Judicial Dictionary, 11th Edn.; Law Terms and Phrases Judicially
Interpreted with Legal Maxims and Legal Words and Phrases in Ordinary Usage; Hand
Bhook of Legal Terms and Phrases by M. Ilyas Khan and Words and Phrases Legally
defined 2nd Edn. ref.
(b) Criminal Procedure Code (V of 1898)---
----Ss. 22, 22-A, 22-B & 25---Justice of the peace/ex-officio Justice of the Peace---Role
statutorily defined in Pakistan for a Justice of the Peach/ex-officio Justice of the Peace,
detailed.
Provisions of Ss.22, 22-A, 22-B and 25 of the Code of Criminal Procedure, 1898 show
that the roles statutorily defined in Pakistan for a Justice of the Peace are, by and large, as
follows:
A Justice of the Peace in Pakistan has the powers
(a) to make an arrest in circumstances enumerated in sections 54 and 55, Cr.P.C. and to
hand over custody of the arrested person to the officer in charge of the nearest Police
Station;
(b) to call upon any member of the police force on duty to aid him in arresting or
preventing the escape of a person involved in commission of a cognizable offence;
(c) to call upon any member of the police force on duty to aid him in the prevention of
crime, breach of the peace or disturbance of the public tranquility; and
(d) to issue a certificate of identification of a person, to verify any document and to attest
any document.
An ex-officio Justice of the Peace in Pakistan (i.e., Sessions Judges and nominated
Additional Sessions Judges in the relevant Districts under section 25, Cr.P.C.) has the
power to issue appropriate directions, to the police authorities concerned on a complaint
regarding non-registration of criminal case, transfer of investigation from one police
officer to another and neglect, failure or excess committed by a police authority in
relation to its functions and duties.
The duties of a Justice of the Peace in Pakistan are
(a) to make inquiries and- to report in writing to the nearest Magistrate and to the officer
in charge of the nearest police station whenever he receives information of an occurrence
of any incident involving a breach of the peace or of commission of any offence within
his local area;
(b) if the information received by him is in respect of commission of a cognizable offence
then to also prevent any interference with the place of occurrence or removal of anything
therefrom;
(c) to render assistance to a police officer,, if so required in writing by him, making an
investigation in respect of any offence within the relevant local area; and
(d) to record any statement, if so required in writing by a police officer making an
investigation in respect of any offence within the relevant local area, made under
expectation of death by a person in respect of whom a crime is believed to have been
committed.
(c) Criminal Procedure Code (V of 1898)---
----Ss. 22, 22-A & 22-B---Justice of the Peace---Functions to be performed---Nature---
Powers and duties of a Justice of the Peace or an ex-officio Justice of the Peace in
Pakistan as provided in Ss.22-A & 22-B, Cr.P.C. do not involve any jurisdiction which
can be termed as judicial in nature or character---Functions to be performed by a Justice
of the Peace or an ex-officio Justice of the Peace are merely administrative and
ministerial in nature and character---Principles.
The powers and duties of a Justice of the Peace or an ex-officio Justice of the Peace in
Pakistan as provided in sections 22-A and 22-B, Cr.P.C. do not involve any jurisdiction
which can be termed as judicial in nature or character. In this context the role of a Justice
of the Peace or an ex-officio Justice of the Peace in Pakistan is sharply different from that
now enjoyed by their counterparts in the United Kingdom and the United States of
America where some . judicial role regarding summary trial of petty 'civil and criminal
cases has been conferred upon the Justices of the Peace through legislative intervention.
That surely is not the case in Pakistan where no statute confers any judicial power upon a
Justice of the Peace or an ex-officio Justice of the Peace. Functions to be performed by a
Justice of the Peace or an ex-officio Justice of the Peace in Pakistan are merely
administrative and ministerial in nature and character. Such view is fortified by, the
provisions of section 6, Cr.P.C. which categorizes the classes of criminal courts and
Magistrates in Pakistan and a Justice of the Peace or an ex-officio Justice of the Peace is
not included in any such class of courts or Magistrates. Apart from that sections 28 and
29, Cr.P.C. specify as to which Courts are to try which offences and in those, sections too
a Justice of the Peace or an ex-officio Justice of the Peace does not figure at all.
Pir Abdul Qayyum Shah v. S.H.O. and 4 others 2005 PCr.LJ 357 ref.
(d) Criminal Procedure Code (V of 1898)---
----Ss. 22-A(6) & 25---Justice of the Peace/ex-officio Justice of the Peace---Extent and
scope of direct interference by an ex-officio Justice of the Peace under S.22-A(6), Cr.P.C.
explored.
A Justice of the Peace or an ex-officio Justice of the Peace in Pakistan performs functions
which art administrative and ministerial in nature and not judicial in character. Even the
superior Courts of Pakistan having constitutional, legal, supervisory and inherent judicial
jurisdiction have consistently and consciously refrained from directly interfering with
investigation of a criminal case by the police and, therefore, it is but obvious that Justices
of the Peace or ex-officio Justices of the Peace possessing only administrative and
ministerial powers should be twice shy of such direct interference.
Thus, if despite possessing constitutional, legal, supervisory and inherent judicial powers
the superior Courts of Pakistan have generally considered it imprudent and ill-advised to
directly interfere with investigation of a crime by the police then it appears to be nothing
but stating the obvious that a Justice of the Peace or an ex-officio Justice of the Peace
possessing merely administrative and ministerial powers should all the more be reluctant
and hesitant in issuing directions to the police as to how and by whom a criminal case is
to be investigated. It must not be lost sight of that a Justice of the Peace in Pakistan has
no judicial powers and an ex-officio Justice of the Peace is a Justice of the Peace only by
virtue of the office that he already holds and his powers as such do not become judicial
simply because the other office already held by him happens to be a judicial office. By
virtue of his jurisdiction under section 22-A(6), Cr.P.C. an ex-officio Justice of the Peace
can issue appropriate directions to the police authorities concerned on the basis of
complaints regarding non-registration of a criminal case, transfer of investigation from
one police officer to another and neglect, failure or excess committed by a police
authority in relation to its functions and duties but the directions to be issued by an exofficio
Justice of the Peace under section 22-A(6), Cr.P.C. are to be directions to the
concerned police authorities to attend to the grievance of the complaining person in
accordance with the relevant law and through the jurisdiction under section 22-A(6),
Cr.P.C. An ex-officio Justice of the Peace cannot arrogate to himself the power of
redressing the actual grievance itself. An exception to this can be visualized in cases of a
clear legal obligation on the part of a police officer to act in a particular manner in which
situation a direction may be issued by an ex-officio Justice of the Peace to the concerned
police officer to do the needful. Under section 22-A(6), Cr.P.C. an ex-officio Justice of
the Peace is to perform the role of a facilitator and that of a bridge or a conduit between
the complaining persons and the police authorities concerned and the jurisdiction under
section 22-A(6), Cr.P.C. does not allow an ex-officio Justice of the Peace to put on the
mantle of a higher police authority himself and to start exercising all those executive
powers himself which the relevant law has vested in the concerned- police authorities.
This interpretation appears to be a correct statement of the law as the same is in accord
with the ratio decidendi of the precedent cases besides being a safe and prudent approach
vis-a-vis the well-entrenched constitutional doctrine of separation of powers. If in their
capacity as ex-officio Justices of the Peace judicial officers like Sessions Judges and
Additional Sessions Judges are allowed to play a proactive, hands on and upbeat role of
direct interference in the administrative working of the police then such executive role of
judicial officers may militate against the constitutional mandate of separation of the
Judiciary from the. Executive enshrined in Article 175(3) of the Constitution of the
Islamic Republic of Pakistan, 1973. In that eventuality the provisions of section 22-A(6),
Cr.P.C. may themselves become vulnerable to a serious challenge on the touchstone of
the Constitution.
Emperor v. Khwaja Nazir Ahmad AIR (32) 1945 PC 18; Federation of Pakistan v. Shah
Muhammad Khan and others PLD 1960 SC (Pak) 85; Shahnaz Begum v. The Hon'ble
Judges of the High Court of Sindh and Balochistan and another PLD 1971 SC 677;
Muhammad Saeed Azhar v. Martial Law Administration, Punjab and others 1979 SCMR
484; Malik Shaukat Ali Dogar and 12 others v. Ghulam Qasim Khan Khakwani and
others PLD 1994 SC 281; Brig. (Retd.) Imtiaz Ahmad v. Government of Pakistan through
Secretary, Interior Division, Islamabad and 2 others 1994 SCMR 2142; Anwar Ahmad
Khan v. The State and another 1996 SCMR 24; Muhammad Latif v. Sharifan Bibi and
another 1998 SCMR 666; Muhammad Ali and 12 others v. District Magistrate,
Faisalabad and 3 others PLD 1978 Lah. 1325.; Nasir Ali Inspector-General of Police,
`Punjab, Lahore and 8 others 2000 YLR 225 ref.
(e) Criminal Procedure Code (V of 1898)--
----S. 22-A(6)---General complaints in the context of criminal justice, against the
working of the Police in the Province of Punjab and kind of "directions" can/should an
ex-officio Justice of the Peace issue in respect of such complaints while exercising his
jurisdiction under S.22-A(6), Cr.P.C.---High Court, for facility of cognition and for
guidance of the ex-officio Justice of the Peace in the Province of Punjab recorded resume
and conclusions on the subject.
High Court had framed the following questions and had required the counsel for the
parties to address arguments in respect of the same so as to assist the Court in arriving at
an appropriate decision:
(a) Looked at in historical and global perspective what is the role of a Justice of the Peace
in keeping the peace in the society, in maintenance of law and order and in the criminal
justice system, if any?
(b) Whether in .Pakistan a Justice .of the Peace or an ex-officio Justice of the Peace
exercises judicial powers or his functions are merely administrative and ministerial in
nature and character?
(c) What, in the context of-his jurisdiction under section 22-A(6), Cr.P.C., is the extent
and scope of direct interference by an ex-officio Justice of the Peace in Pakistan with
investigation of a criminal case by the police?
(d) What, in the framework of criminal justice, are the general complaints against the
working of the police in the Province of the Punjab and what kind of "directions"
can/should an ex-officio Justice of the Peace issue in respect of such complaints while
exercising his jurisdiction under section 22-A(6), Cr.P.C.?
(e) What are the remedies against non-compliance of directions issued by an ex-officio
Justice of the Peace under section 22-A(6), Cr.P.C.?
(f) Whether the orders passed by different ex-officio Justices of the Peace impugned
through the present and the connected writ petitions are legally sustainable or not?
Generally the public at large brings the following kinds of complaints against the police
before the High Court while invoking writ jurisdiction of High Court under Article 199 of
the Constitution and now similar complaints are being brought before ex-officio Justices
of the Peace by filing petitions under section 22-A(6), Cr.P.C.:
(i) complaints about unjustified harassment by the police in the absence of any criminal
case having been registered against the aggrieved person;
(ii) complaints regarding failure of the police to register a criminal case despite
commission of a cognizable offence having been reported to it;
(iii) complaints pertaining to failure by the investigating officer to add appropriate penal
provisions to an FIR or a cross-version of the accused party;
(iv) complaints about failure by the investigating officer to record a cross-version of the
accused party;
(v) complaints regarding failure to arrest an accused person nominated in the FIR or in
the cross-version of the accused party;
(vi) complaints pertaining to unfair, biased and improper investigation and, thus, seeking
transfer of the investigation; and
(vii), complaints about failure to finalize investigation of a criminal case and to submit a
Challan within a reasonable time.
High Court adverted to each one of such complaints one by one so as to examine what
kind of directions can/should be issued by an ex officio Justice of the Peace under section
22-A(6), Cr.P.C. in respect of such complaints. While exercising its constitutional
jurisdiction regarding judicial review of administrative action a High Court is not to
substitute its own decision for that of the competent authority and that, after stating the
correct legal position, the High Court is to issue a direction to the competent authority to
pass an appropriate order in terms of the legal position so declared. Likewise, except in
cases of a clear legal obligation on the part of a police officer to act in a particular manner
in which situation a direction may be issued by an ex-officio Justice of the Peace to the
concerned police officer to do the needful, it would be inappropriate to the verge of being
illegal for an, ex-officio Justice of the Peace to issue directions to the police arrogating to
himself the role of a supervisor or superintendent- of the police in the matter of actual
investigation of a crime. While exercising his jurisdiction under section 22-A(6), Cr.P.C.
an ex-officio Justice of the Peace is only to activate the available legal remedy or
procedure so that the grievance of the complaining person can be attended to and
redressed, if found genuine; by the competent authority of the police. In this view of the
matter if an ex-officio Justice of the Peace can issue the desired direction under section
22-A(6), Cr.P.C. activating the available legal remedy or procedure which the High Court
would also have done if seized of a writ petition filed in that regard under Article 199 of
the Constitution then the remedy before an ex-officio Justice of the Peace under section
22-A(6), Cr.P.C. can ordinarily be termed and accepted as an adequate alternate statutory
remedy busting a direct recourse by an aggrieved person to the High Court by invoking
its extraordinary jurisdiction under Article 199 of the Constitution. - It is, therefore,
declared that in the matters of complaints against the working of the police covered by
the provisions of section 22-A(6), Cr.P.C. an aggrieved person, except where the High
Court feels satisfied that it is an exceptional case arising out of extraordinary
circumstances warranting direct interference by the High Court and rendering the remedy
under section 22-A(6), Cr.P.C. inadequate, cannot tile a writ petition before this Court
under Article 199. of the Constitution before availing of the normally adequate alternate
statutory remedy before an ex-officio Justice of the Peace under section 22-A(6), Cr.P.C.
For facility, of cognition and for guidance of the ex-officio Justices of the Peace in the
Province of the Punjab the discussion is summed up with the following resume and
conclusions:
(i) The powers and dudes of a Justice of the Peace or an ex-officio Justice of the Peace in
Pakistan stand specified in sections 22-A and 22-B, Cr.P.C. and they possess no other
additional power and perform no other additional duty except that which is specifically
conferred upon them by a statute.
(ii) The powers and duties of a Justice of the Peace or an ex-officio Justice of the Peace in
Pakistan do not involve any jurisdiction which can be termed as judicial and the functions
performed by him are merely administrative and ministerial in nature and character.
(iii) The superior Courts of Pakistan having constitutional, legal, supervisory, and
inherent judicial jurisdiction have consistently and consciously refrained from directly
interfering with investigation of a criminal case by the police and, therefore, Justices of
the Peace or ex-officio Justices of the Peace possessing only administrative and
ministerial powers should be twice shy of such direct interference.
(iv) The directions to be issued by an ex-officio Justice of the Peace under section 22-
A(6), Cr.P.C. are to be directions to the concerned police authorities to attend to the
.grievance of the complaining person in accordance with the relevant law and through the
jurisdiction under section 22-A(6), Cr.P.C. An ex-officio Justice of the Peace cannot
arrogate to himself the power of redressing the actual grievance itself. An exception to
this is a case of a clear legal obligation on the part of a police officer to act in a particular
manner in which situation a direction may be issued by an ex-officio Justice of the Peace
to the concerned police officer to do the needful. Under section 22-A(6), Cr.P.C. an exofficio
Justice of the Peace is to perform the role of a facilitator and that of a bridge or a
conduit between the complaining persons and the police authorities concerned and the
jurisdiction under section 22-A(6), Cr.P.C. does not allow an ex-officio justice of the
Peace to put on the mantle of a higher police authority himself and to start exercising all
those executive powers 1oimself which the relevant. law has vested in the concerned
police authorities.
(v) Barring exceptional and extraordinary cases, the remedy before an ex-officio Justice
of the Peace under section 22-A(6), Cr.P.C. can ordinarily be termed and accepted as an.
adequate alternate statutory remedy ousting a direct recourse by an aggrieved person to
the High Court by invoking its -extraordinary jurisdiction under Article 199 of the
Constitution.
(vi) The proceedings before an, ex-officio Justice of the Peace under section 22-A(6),
Cr.P.C. are essentially summary in character. He is not required to treat such proceedings
as regular lis and no elaborate orders having semblance of a judgment are required to be
passed.
(vii) In such proceedings notice, if required, may be issued only to the concerned police
officer and not to any private party as no direction adverse to any private party is to be
issued in such proceedings. A direction to the relevant police officer regarding activating
any legal remedy of the complaining person cannot be termed as a direction adverse to
any party. Even a direction to a police officer to comply with a mandatory provision of
law cannot be called a direction adverse to any person. Under Articles 4 and 5 of the
Constitution it is an inalienable right of every citizen to be treated in accordance with the
law and obedience to the law is an inviolable obligation of every citizen.
(viii) Complaints about unjustified harassment by the police.--A complaint before an
ex-officio Justice of the Peace under section 22-A(6), Cr.P.C. which does not contain all
the necessary factual details regarding the date, time and place of the alleged harassment
as well as full particulars of the concerned police officer who is being complained against
is to be out-rightly dismissed. In an appropriate complaint of this nature the ex-officio
Justice of the Peace may require the concerned police officer to submit his comments to
the complaint. If through his comments the relevant police officer fails to satisfy the exofficio
Justice of the Peace regarding falsity of the allegations leveled against him then
the ex-officio Justice of the Peace may, depending upon the circumstances of the case,
either warn the relevant police officer not to transgress the limits of the law in future or
may issue a direction to the relevant higher police authority or the relevant Public Safety
and Police Complaints Commission to consider the complaint and to take appropriate
action against the delinquent police officer under the relevant provisions of the Police
Order, 2002. In an extreme case of highhandedness and totally unjustified harassment the
ex-officio Justice of the Peace may issue a direction to the relevant police authority to
register a criminal case against the delinquent police officer if he had seemingly
committed some cognizable offence during the harassment perpetrated by him.
(ix) Complaints regarding failure of the police to register a criminal case.--The
officer in charge of the relevant Police Station may be under a statutory obligation to
register an F.I.R. whenever information disclosing commission of a cognizable offence is
provided to him but the provisions of section 22-A(6), Cr.P.C. do not make it obligatory
for an ex-officio Justice of, the Peace to necessarily or blind-foldedly issue a direction
regarding registration of a criminal case whenever a complaint is filed before him in that
regard. An ex-officio Justice of the Peace should exercise caution and restraint in this
regard and he may 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. If 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 justified in issuing a
direction that a criminal case be registered and investigated. 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. In an appropriate case; depending upon the
circumstances thereof, an exofficio 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. The impression entertained by a large section of the
legal community in our country that in case of filing of a private complaint the accused
person cannot be arrested and recovery cannot be effected from him is nothing but
erroneous and fallacious.
(x) Complaints about failure by an investigating officer to add appropriate penal
provisions to an F.I.R. or a cross-version of the accused party.--Such complaints are
not worthy of being taken with any degree of seriousness by an ex-officio Justice of the
Peace. The stands taken by the complaining persons in this regard normally touch the.
merits of the allegations and an ex-officio Justice of the Peace would be' well advised to
refrain front entering into any such controversy at a premature stage. The overall incharge
of a criminal case is the Area Magistrate who, even during the progress of an
investigation, gets many opportunities to go through the record of investigation
conducted by the police and in an appropriate case and at an appropriate stage he can
require the investigating officer to consider addition or deletion of any, penal provision.
After submission of a report under section 173, Cr.P.C./Challan the Magistrate taking
cognizance of the offence or the trial Court taking cognizance of the case can take
cognizance of any offence disclosed by the material available on the record of
investigation even if the police have not invoked the relevant penal provision. Even at the
time of framing of the charge a trial Court can frame a charge in respect of any offence
disclosed by the record even if the same finds no mention in the report submitted under
section 173, Cr.P.C./Challan. With so many opportunities being available with the
Magistrate and the trial Court regarding rectification of a mistake, deliberate or
otherwise, committed by the police in this connection it would be unwise for an exofficio
Justice of the Peace to interfere with such a matter at an inappropriate and premature
stage. In case of receipt of such a complaint an ex-officio Justice of the Peace may advise
the complaining person to approach the Area Magistrate or the trial Court, as the case
may be, rather than entertaining such a complaint himself.
(xi) Complaints about failure by the investigating officer to record a cross-version of
the accused party.--While dealing with a complaint of this nature an ex-officio Justice of
the Peace should call for comments of the investigating officer explaining as to why he
has not recorded the version of the accused party and if such comments confirm the
complaint that despite having been approached in that regard by the accused party the
investigating officer has not recorded the version of the accused party and there is no
valid or justifiable reason for such default on his part then a direction may be issued by
the ex-officio Justice of the Peace to the investigating officer to do the needful or in the
alternative the Superintendent of Police (Investigation) of the relevant District may be
directed by the ex-officio Justice of the Peace to attend to this aspect of the matter and to
ensure that the needful is done by the investigating officer without further ado.
(xii) Complaints regarding failure by the police to arrest an accused person.--A
general impression entertained by some quarters that an arrest of a suspect or an accused
person is necessary or sine qua non for investigation of a crime is misconceived. A
suspect is not to be arrested straightaway upon registration of an F.I.R. or as a matter of
course and, unless the situation on the grounds so warrants, the arrest is to be deferred till
such time that sufficient material or evidence becomes available on the record of
investigation prima facie satisfying the investigating officer regarding correctness of the
allegation levelled by the complainant party against such suspect or regarding his
involvement in the crime in issue. The law requires an investigating officer to be
generally slow in depriving a person of his liberty on the basis unsubstantiated allegations
and, thus, insistence by the interest complainant party regarding his immediate arrest
should not persuade the investigating officer to abdicate his discretion and jurisdiction in
the matter before the whims or wishes of the complainant party. An ex officio Justice of
the Peace should not ordinarily force an investigating officer in that regard where the
investigating officer has not so far felt the necessity, of an arrest or has not yet formed a
tentative opinion about correctness of the allegation against the suspect. However, in an
appropriate case, after obtaining comments from the investigating officer, an ex-officio
Justice of the Peace seized of a complaint in this regard may issue a direction to the
Superintendent of Police (investigation) of the relevant District to attend to this aspect of
the matter. It must always be remembered that delaying the arrest till after formation of
an opinion regarding prima facie correctness of the allegation against a suspect goes a
long way in deterring false, frivolous and motivated complaints and also that there may
not be any adequate recompense or reparation for an unjustified arrest. It would be
preposterous arid a mockery of justice if a person may be deprived of his liberty first and
later on the allegation against him may be found by the arresting agency itself to be
bogus; trumped up or false. Such an approach would amount to putting the cart before the
horse.
(xiii) Complaints seeking transfer of investigation of criminal cases.--The job of an
investigating officer is not to satisfy the parties to the case or to render any opinion about
guilt or innocence of an accused person but his duty is only to collect all the relevant
evidence. In the reports to be submitted by the police in connection with investigation of
a criminal case it can comment about sufficiency or otherwise of the evidence available
against an accused person but it cannot comment upon believability or otherwise of the
evidence becoming available on the record against such accused person. The question of
believability or otherwise of such evidence is to be attended to by the relevant Magistrate
or the trial Court. The trend of getting a fresh investigation of a criminal case conducted
after submission of a Challan and after taking of cognizance by the trial Court is not to be
encouraged. By virtue of the provisions of Article 18(5) of the Police Order, 2002 a
District Police Officer cannot interfere with the process of investigation and, thus, an exofficio
Justice of the Peace cannot direct a District Police Officer to attend to the
complaining person's grievance regarding an investigation. Article 18(6) of the Police
Order, 2002 specifies the only manner in which investigation of a criminal case can be
changed. There is no other law authorizing or empowering any other police officer or
authority to change the investigation of a criminal case. Any change or transfer of
investigation of a criminal case by any officer or authority other than those mentioned in
Article 18(6) of the Police Order, 2002 is to be void and a nullity. `Verification' of
investigation, if necessary, must be confined to verification of the record of investigation
and such an exercise cannot be allowed to be conducted in a manner giving it a colour of
fresh investigation with fresh conclusions. The verifying officer has to confine himself, to
the record of investigation already conducted and cannot substitute his own conclusions
for those of the investigating officer and if he finds any serious fault with the
investigation already conducted then the verifying officer can bring such fault to the
notice of the Superintendent of Police (Investigation) of the concerned District who can
then initiate the process contemplated by the provisions of Article 18(6) of the Police
Order, 2002 for change of investigation. An ex-officio Justice of the Peace cannot step
into the shoes of a competent police authority so as to himself pass an order transferring
investigation of a criminal case and his role in this regard is confined only to getting the
process under Article 18(6) of the Police Order, 2002 activated if the complaint before
him establishes that the complaining person's recourse under section 18(6) of the Police
Order, 2002 has remained unattended to so far. If the complaining person has not yet
even applied before the competent authorities under Article 18(6) of the Police Order,
2002 seeking change of investigation then his complaint under section 22-A(6), Cr.P.C. is
not to be entertained by an ex-officio Justice of the Peace as no occasion has so far arisen
for interference in the matter by an ex-officio Justice of the Peace. If the competent
authorities under Article 18(6) of the Police Order, 2002 have already attended to the
request of the complaining person regarding transfer of investigation and have not found
the case to be a fit case for transfer of investigation then too an ex-officio Justice of the
Peace cannot interfere in the matter as the competent authorities have already consciously
attended to the matter and there is nothing left for the ex-officio Justice of .the Peace to
get activated or initiated. An ex officio Justice of the peace is not to assume the role of an
appellate, revisional or supervisory authority in that respect. An ex-officio Justice of the
Peace, like any judicial or other authority outside the police hierarchy, should be
extremely slow in directly interfering with the matter of transfer of investigation and in
an appropriate case he may interfere only where the authorities mentioned in Article
18(6) of the Police Order, 2002 have already been approached by the complaining person
but such authorities have failed to attend to his grievance and the application of the
complaining person is lying unattended to. Even in such a case an Justice of the Peace
may refuse to interfere in the matter unless it is established to his satisfaction that some
specific and particular material pieces of evidence had been missed out by the
investigating officer and the same remain to be collected by the police. An ex-officio
Justice of the Peace may not interfere in such a matter unless he feels satisfied that the
required evidence had either not been collected or that further evidence is required to be
collected in a given case and the recourse of the complaining person to the authorities
mentioned in Article 18(6) of the Police Order, 2002 in that regard has so far remained
unattended to. In such, a ease an ex-officio Justice of the Peace may issue a direction to
the concerned police authority to get the process under. Article 18(6) of the Police Order,
2002 activated so that an appropriate and suitable decision on the complaining person's
grievance can be made by the competent authorities under Article 18(6) of the Police
Order, 2002 one way or the other. While attending to such a complaint an ex-officio
Justice of the .Peace cannot issue a direction changing the investigation of a criminal case
on his own. Any attempt by a party to get the investigation changed only to obtain a
favourable opinion from an investigating officer regarding guilt or innocence of an
accused person is to be nipped in the bud.
(xiv) Complaints about failure of the police to finalize investigation of a criminal
case and to submit a Challan in time.--An ex-officio Justice of the Peace seized of a
complaint regarding failure of the police to finalize investigation' of a criminal case and
to submit a Challan within the stipulated period should require the investigating officer of
the relevant case to explain the reason for the delay in that regard and he may .also
require him to explain as to why a recommendation may not be made to the concerned
quarters for appropriate action in terms of the action taken by the Supreme Court of
Pakistan in the case of Hakim Mumtaz Ahmed and another v. The State (PLD 2002
Supreme Court 590). If the explanation submitted by the investigating officer is found by
the ex-officio Justice of the Peace to be unsatisfactory then he may issue a direction to.
the Superintendent of Police (Investigation) of the relevant District to ensure finalization
of investigation and submission of Challan at the earliest possible and may also,
depending upon the circumstances of the case, either warn the relevant investigating
officer to be careful in that regard in future or issue a direction to the relevant higher
police, authority or the relevant Public Safety and Police Complaints Commission to
consider the complaint and to take appropriate action against the delinquent police officer
under the relevant provisions of the Police Order, 2002 or under any other law applicable
to such misconduct.
(xv) An ex-officio Justice of the Peace in Pakistan does not perform or discharge any
judicial function and, therefore, the law relating to Contempt of Court is inapplicable to
an alleged non-compliance of any direction issued by him under section 22-A(6), Cr.P.C.
However, a direction issued by him under section 22-A(6), Cr.P.C. is grounded in lawful
authority conferred upon him by the said legal provision and by virtue of the provisions
of Article 4(1)(m) of the Police Order, 2002 every police officer is under a duty to obey
and promptly execute all lawful orders. There are, therefore, threefold remedies available
against non-compliance of directions issued by an ex-officio Justice of the Peace under
section 22-A(6), Cr.P.C., i.e. firstly, upon a complaint received by him regarding noncompliance
of his earlier direction an ax-officio Justice of the Peace can issue a direction
to the relevant police authority to register a criminal case against the delinquent police
officer under Article 155(c) of the Police Order, 2002 or, secondly, he can issue a
direction to the relevant higher police authority or the relevant Public Safety and Police
Complaints Commission to take appropriate. action against the delinquent police officer
under the relevant provisions of the Police Order, 2002 or under any other law relevant to
such misconduct and, thirdly, the complaining person can approach this Court under
Article 199 of the Constitution seeking issuance of an appropriate writ directing the
defaulting police officer to do what the law requires him to do.
(xvi) It needs to be clarified that a petition filed under section 22-A(6), Cr.P.C. before an
ex-officio Justice of the Peace is to be termed only a `petition' and such a petition cannot
be branded, dubbed or called a `Writ Petition'. It must be borne in mind that jurisdiction
to issue a `writ' is traditionally a high prerogative jurisdiction of a High Court which
dates back to antiquity and is now recognized by the Constitution. Thus, the writ
jurisdiction of a High Court must not be confused with a statutory jurisdiction of an exofficio
Justice of the Peace which is exercised by Sessions Judges and Additional
Sessions Judges.
Halsbury's Laws of England 4th Edn., Vol.29; Jowitt's Dictionary of English Law 2nd
Edn., Vol. 1; Encyclopaedia Britannica, Vol. 13; The New Encyclopaedia, Britannica
15th Edn., Vol. 6; Corpus Juris Secundum Vol. 51; The Encyclopaedia Americana
(International Edn.); American Jurisprudence 2nd Edn., Vol. 47; Words and Phrases
(Permanent Edn.); Grolier Encyclopaedia of Knowledge; Collier's Encyclopaedia Vol.
13; The Law Lexicon of British India; Venkataramaiya's Law Lexicon with Legal
Maxims, 2nd Edn; K.J: Aiyar's Judictal Dictionary, 11th Edn.; Law Terms and Phrases
Judicially interpreted with Legal Maxims and Legal Words and Phrases in Ordinance
Usage by Sardar Muhammad Iqbal Khan Mokel; Hand Bhook of Legal Terms and
Phrases by M. Ilyas Khan; Words and Phrases Legally defined 2nd Edn.; Pir Abdul
Qayyum Shah v. S.H.O. and 4 others 2005 PCr.LJ 357; .Emperor v. Khwaja Nazir
Ahmad AIR (32) 1945 PC 18; Federation of Pakistan v. Shah Muhammad Khan and
others PLD 1960 SC (Pak) 85; Shahnaz Begum v. The Hon'ble Judges of the High Court
of Sindh and Balochistan and another PLD 1971 SC 677; Muhammad Saeed Azhar v.
Martial Law Administration, Punjab and others 1979 SCMR 484; Malik Shaukat Ali.
Dogar and 12 others v. Ghulam Qasim Khan Khakwani and others PLD 1994 SC 281;
Brig. (Retd.) Imtiaz Ahmad v. Government of Pakistan through Secretary, Interior
Division, Islamabad and 2 others 1994 SCMR 2142; Anwar Ahmad Khan v. The State
and another 1996 SCMR 24; Muhammad Latif v. Sharifan Bibi and another 1998
SCMR.666; Muhammad Ali and 12 others v. District Magistrate, Faisalabad and 3 others
PLD 1978 Lah. 1325; Nasir Ali v. Inspector-General of Police, Punjab, Lahore and 8
others 2000 YLR 225; Muhammad Yousaf v. Dr. Madad Ali alias Gulab Laskani and 8
others PLD 2002 Kar. 328; Shahnawaz v. Raja Tanveer and 7 others 2005 PCr.LJ 487;
Saeed Ahmad and others v. Naseer Ahmad and others PLD 2000 Lah. 208; Muhammad
Aslam v. Additional Sessions Judge and others 2004 PCr.LJ f214; Union of India and
another v. W.N. Chadha 1993 SCMR 285; Hazoor Bakhsh v. Senior Superintendent of
Police Rahimyar Khan and 12 others PLD 1999 Lah. 417; Noor Nabi and 3 others v. The
State 2005 PCr.LJ 505; Nadeem Sarwar v. Station House Officer, Police Station Sadar,
Hafizabad and 2 others 2000 YLR 756; Abdul Qayyum v. S.H.O., Police Station
Shalimar, Lahore 1993 PCr.LJ 91; Muhammad Shafi v. Muhammad Boota and another
PLD 1975 Lah. 729; Muhammad Siddiq v. Province of Sindh through Home Secretary,
Karachi and 2 others PLD 1992 Kar. 358; Mst. Razia Pervez and another v. The Senior
Superintendent of Police, Multan and 5 others 1992 PCr.LJ 131; Brig. (Retd.) F.B. Ali
and another v. The State PLD 1975 SC 506; Mst. Asho and 3 others v. The State 1987
PCr.LJ 538; Riaz Hussain and others v. The State 1986 SCMR 1934; Hakim Mumtaz
Ahmed and another v. The State PLD 2002 SC 590; Muhammad Yousaf v. Inspector-
General of Police and 4 others PLD 1997 Lah. 135; Muhammad Arif v. Inspector-
General of Police, Punjab, Lahore and 3 others 2000 YLR 1960; Muhammad Younas and
others v. I.-G. Police and others 1999 PCr.LJ 163; Muhammad Alain and another v.
Additional Secretary to Government of N.-W.F.P., Home & Tribal Affairs Department
and 4 others PLD 1987 SC 103.; Nasira Surriya v. Muhammad Aslam and 7 others 1990
SCMR 12; Syed Waqar Hussain Shah v. The State PLD 1988 Lah. 666; Mst. Kausar Bibi
v. The Deputy Inspector-General of Police, Crimes Branch, Punjab; Lahore and 2 others
1996 PCr.LJ 124; Ali Muhammad v. Inspector-General of Police, Punjab, Lahore and
another 2001 PCr.LJ 1054 and Mehr Allah Bakhsh v. D.I.G., Multan and five others 2001
PCr.LJ 801 ref.
(f) Criminal Procedure Code (V of 1898)---
----Ss. 22-A(6)---Complaint about unjustified harassment by the Police in the absence of
any criminal case having been registered against the aggrieved person---Kind of
"directions" can/should an ex-officio Justice of Peace issue in respect of such complaint
while exercising his jurisdiction under S.22-A(6), Cr.P.C. elaborated.
As regards the jurisdiction of an ex-officio Justice of the Peace regarding complaints
about unjustified harassment by the police in the absence of any criminal case having
been registered against the aggrieved person more often than' not such complaints are
couched in vague, unspecific and generalized terms and sometimes such complaints are
motivated with considerations other than bona fide. An ex-officio Justice of the Peace
must remain watchful, alert and vigilant in this respect while handling all such
complaints. It goes without saying that an allegation of fact levelled in such a complaint
must contain all the necessary factual details regarding the date, time and place of the
alleged harassment as well as full particulars of the concerned police officer who is being
complained against. In the absence of such precision and exactitude in the complaint the
relevant police officer, when required by the ex-officio Justice of the Peace to submit his
comments, can remain contented with a bare and bald denial of the allegations leaving
the exofficio Justice of the Peace with no other option but to dismiss such a complaint as
having remained unsubstantiated. However, if the complaint contains the necessary
factual details. and through his comments the relevant police officer fails to satisfy the
ex-officio Justice of the Peace regarding falsity of the allegations levelled against him
then the exofficio Justice of the Peace may, depending upon the circumstances of the
case, either warn the relevant police officer not to transgress the limits of, the law in
future or may issue a direction to the relevant higher police authority or the relevant
Public Safety and Police Complaints Commission to consider the complaint and to take
appropriate action against the delinquent police officer under the relevant provisions of
the Police Order, 2002. In an extreme case of highhandedness and totally unjustified
harassment the ex-officio Justice of the Peace may issue a direction to the relevant police
authority to register a criminal case against the delinquent police officer if he had
seemingly committed some cognizable offence during the harassment perpetrated by him.
(g) Criminal Procedure Code (V of 1898)---
----S. 22-A(6)---Complaint regarding failure of the police to register a criminal case
despite commission of a cognizable offence having been reported to, it---Kind of
"directions" can/should an ex-officio Justice of the Peace issue in respect of such
complaint while exercising his jurisdiction under S.22-A(6), Cr.P.C. elaborated.
As regards the complaints regarding failure of the police to register a criminal case
despite commission of a cognizable offence having been reported to it there is no
gainsaying the fact that the provisions of section 154, Cr.P.C. in that respect are quite
explicit and the duty of the officer in charge of the local Police Station in that regard is
mandatory in nature. However, the officer in charge of the relevant Police Station may be
under a statutory obligation to register an F.I.R. whenever information disclosing
commission of a cognizable offence is provided to him but the provisions of section 22-
A(6), Cr.P.C. do not make it obligatory for an ex-officio Justice of the Peace to
necessarily or blind-foldedly issue a direction regarding registration of a criminal case
whenever a complaint is filed before him in that regard. 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
the 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 selfserving.
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. It is prudent and advisable for an exofficio 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 has 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. It is clarified that it
is not obligatory for the officer in charge of a Police Station or for an exofficio 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. 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. Experience shows
that there are cases where the complainant party may be better off in pressing its
allegations and remaining in control of its case by tiling a private complaint rather than
forcing the police to register a criminal case and to investigate when the police is itself
not convinced of the complainant party's allegations being correct. The impression
entertained by a large section of the legal community in Pakistan that in case of filing of a
private complaint the accused person cannot be arrested and recovery cannot be effected
from him is nothing but erroneous and fallacious. By virtue of the provisions of section
202(1), Cr.P.C. a Court seized of a private complaint can "direct an inquiry or
investigation to be made by any Justice of the Peace or, by a police officer or by such
other person as it thinks fit". The powers available during an investigation, enumerated in
Part V, Chapter XIV of the Code of Criminal Procedure, 1898 read with section 4(1)(1)
of the same Code, include the powers to arrest an accused person and to effect recovery
from his possession or at his instance. Such powers of the investigating officer or the
investigating person recognize no distinction between an investigation in a State case' and
an investigation in a complaint case. That section 91, Cr.P.C. deals only with procuring
attendance of a person before the Court and after his availability before the Court the
matter of his admission to bail or not rests in the hands of the Court and that the
impression about automatic admission of an accused person to bail in a case of a private
complaint is erroneous. Thus, in appropriate cases the ex-officio Justices of the Peace
would be serving the interests of justice well by dispelling wrong impressions about
inadequacy of the remedy of filing a private complaint and by encouraging the
complaining persons to take charge of their allegations against the accused party by filing
a private complaint rather than forcing an unwilling or unconvinced police officer to be in
control of their cases.
(h) Criminal Procedure Code (V of 1898)---
----S.22-A(6)---Complaint pertaining to failure by the Investigating Officer to add
appropriate penal provisions to an F.I.R. or a cross-version of the accused party---Kind of
"directions" can/should an exofficio Justice of the Peace issue in respect of such
complaint while exercising his jurisdiction under S.22-A(6), Cr.P.C., elaborated.
The complaints about failure by an investigating officer to add appropriate penal
provisions to an F.I.R. or a cross-version of the accused party are not uncommon but they
are normally not worthy of being taken with any degree of seriousness by an ex-officio
Justice of the Peace. The stands taken by the complaining persons in this regard normally
touch the merits of the allegations and an ex-officio Justice of the Peace would be well
advised to refrain from entering into any such controversy at a premature stage and to
consider, by, appreciating the factual aspects of a given case, as to which offences are or
are not disclosed by the allegations contained in an F.I.R. or a cross-version. It goes
without saying that the overall incharge of a criminal case is the Area Magistrate who,
even during the progress of an investigation, gets many opportunities to go through the
record of investigation conducted by the police and in an appropriate case and at an
appropriate stage he can. require the investigating officer to consider addition or deletion
of any penal provision. Be that as it may, after submission of a report under section 173,
Cr.P.C./Challan the Magistrate taking cognizance of the offence or the trial Court taking
cognizance of the case can take cognizance of any offence disclosed by the material
available on the record of investigation even if the police have not invoked the relevant
penal provision. Even at the time of framing of the charge a trial Court can frame a
charge in respect of an offence disclosed by the record even if the same finds no mention
in the report submitted under section 173, Cr.P.C./Challan. With so many opportunities
being available with the Magistrate and the trial Court regarding rectification of a
mistake, deliberate or otherwise, committed by the police in this connection it would be
unwise for an ex-officio Justice of the Peace to interfere with such a matter at an
inappropriate and premature stage.
An ex-officio Justice of the Peace may follow suit while dealing with complaints of the
like nature, In case of receipt of such a complaint an ex-officio Justice of the Peace may
advise the complaining person to approach the Area Magistrate or the trial Court, as the
case may be, rather than entertaining such a complaint himself.
(i) Criminal Procedure Code (V of 1898)---
----S. 22-A(6)---Complaint about failure by the Investigating Officer to record a cross
version of the accused party---Kind of "directions" can/should an ex-officio Justice of the
Peace issue in respect of such complaint while exercising his jurisdiction under S.22-
A(6), Cr.P.C. elaborated.
While dealing with a complaint of this nature an ex-officio Justice of the Peace should
call for comments of the investigating officer explaining as to why he has not recorded
the version of the accused party and if such comments confirm the complaint that despite
having been approached in that regard by the accused party the investigating officer has
not recorded the version of the accused party and there is no valid or justifiable reason for
such default on his part then a direction may be issued by the ex-officio Justice of the
Peace to the investigating officer to do the needful or in the alternative the Superintendent
of Police (Investigation) of the relevant District may be directed by the ex-officio Justice
of the Peace to attend to this aspect of the matter and to ensure that the needful is done by
the investigating officer without further ado.
(j) Criminal Procedure Code (V of 1898)---
----S. 22-A(6)---Complaint regarding failure to arrest an accused person nominated in the
F.I.R. or in the cross-version of the accused party--Kind of "directions" can/should au exofficio
Justice of the Peace issue in respect of such complaint while exercising his
jurisdiction under S.22-A(6), Cr.P.C. elaborated.
The complaints filed before ex-officio Justices of the Peace regarding failure by the
police to arrest an accused person nominated in an F.I.R. or implicated through a crossversion
of the accused party are quite frequent and it has been observed that more often
than not such complaints stem from a basic misconception about the circumstances in
which an accused person is allowed by the ,taw to be arrested in a criminal case. For the
purpose of removal of such misinterpretation and misconstruction of the relevant legal
provisions the legal position in this regard in some detail is restated hereunder.
Under section 22-A(1), Cr.P.C. a Justice of the Peace has the jurisdiction to exercise all
those powers of arrest in the relevant local area which powers are available to a police
officer referred to in section 54, Cr.P.C. and to an officer in charge of a Police Station
referred to in section 55, Cr.P.C. The powers of arrest in both the said sections are the
same but they relate to different situations.
An arrest of a person in connection with a criminal case is not to be a matter of course
and the power to arrest is conditional upon fulfilment of the requisite legal requirements.
One of the cardinal principles of criminal law and jurisprudence is that an accused person
is presumed. to be innocent until .proved guilty before a Court of law. However, of late a
growing tendency has been noticed on the part of the complainant party to insist upon
arrest of an" accused person nominated by it in the F.I.R. and an increasing willingness,
nay eagerness, on the part of the investigating officer of a criminal case to effect arrest of
the accused person even before initiating or launching a proper investigation of the
allegations levelled in the F.I.R. Such an approach has been found to be absolutely
against the spirit of the relevant law, to be wrought with inherent dangers to cherished
liberty of citizens who may ultimately be found to be innocent and to amount to putting
the cart before the horse.
A general impression entertained by some quarters that an arrest of a suspect or an
accused .person is necessary or sine qua non for investigation of a crime is misconceived
and the same portrays scant knowledge of the relevant statutory provisions. Section 46,
Cr.P.C. provides as to how an arrest is to be made, section 54, Cr.P.C. deals with arrest
by a police officer without a warrant, section 55, Cr.P.C. pertains to arrest of vagabonds,
etc. by an officer in charge of a Police Station, section 59, Cr.P.C. caters for a situation
where a private person may effect an arrest and section 151, Cr.P.C. authorizes a police
officer `to arrest a person in order to prevent commission of a cognizable offence. Section
169, Cr.P.C. visualizes a situation where a suspect may be released if the investigating
officer finds no sufficient evidence or reasonable ground for suspicion against him.
According to Article 4(1)(j) of the Police Order; 2002 it is a duty of every police officer
to "apprehend all persons whom. he is legally authorised to apprehend and for whose
apprehension sufficient grounds exist". Rules 24.1, 24.4 and 24.7 of the Police Rules,
1934 (which are still in vogue due to the provisions of Article 185 of the Police Order,
2002) clearly contemplate situations where an information received by the police
regarding commission of a cognizable offence may be doubted or even found false. Rule
25.2(1) of the Police Rules authorizes-an investigating officer to associate "any person".
with the investigation and Rule 25.2(2) categorically provides that "No avoidable trouble
shall be given to any person from whom enquiries are made and no person shall be
unnecessarily detained". Rule 25.2(3) clinches the issue by clarifying that "It is the duty
of an ,investigating officer to find out the truth of the matter under investigation. His
object shall be to discover the actual facts of the case and to arrest the real offender or
offenders. He shall not commit himself prematurely to any view of the facts for or against
any person. As if this were not enough, Rule 26.1 emphasizes that "Section 54, Code of
Criminal Procedure, authorizes any police officer to arrest without a warrant any person
who has been concerned in 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 been so concerned. The authority given under this section
to the police to arrest without a warrant is, however, permissive and not obligatory.
Whenever escape from justice or inconvenient delay is likely to result from the police
failing to arrest, they are bound to do so; but in no other cases. The, law allows a police
officer to apply to a Magistrate for a warrant or a summons instead of making the arrest
immediately, and this discretion shall -be exercised whenever possible and expedient.
The law also allows a police officer in any bailable case to take security under section
170, Criminal Procedure Code from an accused person to appear before a, Magistrate
without first arresting him" (emphasis has been supplied by us). Rules 26.2 and 26.9
provide further guidelines to the police officers involved in investigation of crimes
requiring. them not to unnecessarily interfere with the liberty of suspects "until the
investigation is sufficiently complete" and "the facts justify arrest". According to Rule
26.1 the facts justifying an immediate arrest may include a possibility of the suspect
escaping from justice or inconvenient delay likely to result from the police failing to
arrest.
All the statutory provisions And the precedent cases manifestly point towards the
intention of the law that a suspect is not to be arrested straightaway upon registration of
an F.I.R. or as a matter of course and that, unless the situation on the grounds so warrants,
the arrest is to be deferred till such . time that sufficient material or evidence becomes
available on the record of investigation prima facie satisfying the investigating officer
regarding correctness of the allegations levelled by the complainant party against such
suspect or regarding his involvement in the crime in issue. If the law itself requires an
investigating officer to be generally slow in depriving a person of his liberty on the basis
of unsubstantiated allegations then insistence by the interested complainant party
regarding his immediate ,arrest should not persuade the investigating officer to abdicate
his discretion and jurisdiction in the matter before the whims or wishes of the
complainant party. It, therefore, follows that an ex-officio Justice of the Peace should not
ordinarily force an investigating officer in that regard where the investigating officer has
not so far felt the necessity of an arrest or has not yet formed a tentative opinion about
correctness of the allegation against the suspect. However; in an appropriate case, after
obtaining comments from the investigating officer, an ex-officio Justice of the Peace
seized of a complaint in this regard may issue a direction to the Superintendent of Police
(Investigation) of the relevant District to attend to this aspect of the matter. It must
always be remembered that delaying the arrest till after formation of an opinion regarding
prima facie correctness of the allegation against a suspect goes a long way in deterring
false, frivolous and motivated complaints and also that there may not be any adequate
recompense or reparation for an unjustified arrest. It would be preposterous and a
mockery of justice if a person may be derived of his liberty first and later on the
allegations against him may be found by the arresting agency itself to be bogus, trumped
up or false. That surely would be, as observed above, putting the cart before the horse.
(k) Criminal Procedure Code (V of 1898)---
----S. 22-A(6)---Complaint pertaining to unfair, biased and improper investigation and
thus, seeking transfer of the investigation---Said issue engaged the High Court's serious,
particular and detailed consideration-Kind of "directions" can/should an ex-officio Justice
of the Peace issue in respect of such complaint while exercising his jurisdiction under
S.22-A(6), Cr.P.C. elaborated.
The complaints about unfair, biased and improper investigation and, thus, seeking
transfer of investigation of the relevant criminal case are generally the most frequent
complaints that are filed before the exofficio Justices of the Peace under section 22-A(6),
Cr.P.C. and are often subject-matter of writ petitions filed before High Court and,
therefore, this area has also engaged Court's serious, particular and detailed
consideration. Filing of such complaints is generally grounded in a basic
misunderstanding that the parties to a criminal case must feel satisfied with the
investigation thereof. Unfortunately the concepts of truth and justice are becoming more
and more subjective in the 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.. Left to the parties to a criminal case they would never
be satisfied with the investigation unless their version is accepted by the police as correct.
The term `investigation' has been defined by section 4(1)(1) of the Code of Criminal
Procedure, 1898 as "--- all proceedings under this Code for the collection of evidence by
a police officer or by any person (other than a Magistrate) who is authorized by a
Magistrate in this behalf". The job of an investigating officer is, thus, only to collect all
the relevant evidence pertaining to the allegation levelled regarding the crime in issue so
as to dig out the truth enabling and facilitating the relevant Court to administer justice
between the parties. His job is not to satisfy the parties to the case or to arrogate to
himself the role of an adjudicator rendering an opinion regarding guilt or innocence of
any person. In the reports to be submitted by the police in connection with investigation
of a criminal case it can comment about sufficiency or otherwise of the evidence
available against an accused person but it cannot comment upon believability or
otherwise of the evidence becoming available on the record against such accused person.
The question 'of believability or otherwise of such evidence is to be attended to by the
relevant Magistrate or the trial Court. It is very rare that a complaint of the nature under
discussion points out that any particular evidence is available in the case and the same is
not being collected by the investigating officer but the bids of the parties seeking transfer
of investigation are by far, directed mainly to obtain a favourable opinion from the
investigating officer supporting a party's version. An investigating officer of a criminal
case is not to render any opinion regarding guilt or innocence of an accused person and
under the relevant statutory provisions contained in the Code of Criminal Procedure,
1898, the Police Order, 2002 and the Police Rules, 1934 he is only to collect all the
relevant evidence and to submit his report and the collected evidence and material before
the relevant Magistrate so that the Magistrate or the trial Court can then form their own
independent opinions regarding sufficiency or otherwise of the evidence and material in
order to decide whether to take cognizance of the offence and of the case or not, to
summon any person to face a trial or pot and to frame a charge against a person or not.
Column No. 2 of the Challan submitted in a criminal case is generally misunderstood and
the same is erroneously being construed as meant for those accused persons who are
found by the police to be innocent. It is generally being ignored that the said column of
the Challan is to contain the names of the absconding accused persons against whom
Challan is not being submitted because they could not be associated with the
investigation and is also to contain the details of the accused persons being forwarded in
custody or released on bond with or without sureties. Such details have absolutely no
relevance to the question of innocence or otherwise of the accused persons. Section
172,(1), Cr.P.C. requires that "Every police officer making an investigation under this
Chapter shall day by day enter his proceedings in the investigation in a diary, setting forth
the time at which the information reached him, the time at which he began and closed his
investigation, the place or places visited by him, and a statement of the circumstances
ascertained through his investigation". There is no mention in section 172(1), Cr.P.C. of
any opinion of the investigating officer about guilt or innocence of an accused person.
Likewise, in section 173, Cr.P.C., under. which the. police is required to submit its final
or interim report about the investigation before a Magistrate which report is also called a
Challan, there is absolutely no mention of any opinion of the police regarding guilt or
innocence of an accused person. There is No. 1aw or legal instrument in existence in this
country requiring an investigating officer of a criminal case or any police officer to
record his opinion about guilt or innocence of an accused person. Be that as it may, the
law is firmly settled on the point to the extent of being trite that an opinion of the police
regarding guilt or innocence of an accused person is inadmissible in evidence being
irrelevant and that an accused person whose name has been placed in column No. 2 of the
Challan or an accused person not even mentioned in any column of the Challan can also
be summoned by a trial Court to face a trial if, in the opinion of the Court, sufficient
material is available on the record to proceed against him. A misconceived competition
and race between the parties to obtain a favourable opinion from the investigating officer,
despite such opinion being inadmissible in evidence being, irrelevant, has been found to
be the real reason for most of the bids made by the parties to a criminal case to get the
investigation of such case transferred. Such trends and tendencies have to be curbed with
all the firmness that is required as they are playing havoc with investigations, breeding
corruption amongst the police, introducing extraneous influences in the working of the
police, delaying finalization of investigations and trials and choking the exofficio Justices
of the Peace as well High Court with unwarranted complaints and writ petitions.
No law or regulation gives a complainant a vested right, which can be enforced by a writ
to have his complaint investigated by a particular branch of the Police.
The necessity for making a direction can only arise in a case where no investigation has
started. The power to issue a direction cannot be invoked where investigation has already
commenced in accordance with law by authorities competent to investigate under the
Criminal Procedure Code nor does the power to "direct" include the power to "transfer"
from one competent investigating. agency to another. This would be unwanted
interference with the investigation.
The system of re-investigation in criminal cases is a recent innovation which is always
taken up at the instance of influential people and favourable reports obtained. This in no
way assists the Courts in coming to a correct conclusion, it rather creates more
complications to the Court administering justice.
Delay in filing police report/challan is being caused for another reason namely that on the
behest of the accused/complainant/State investigations in the cases are transferred from
one police agency to another under section 158, Cr.P.C. on account of showing nonconfidence
by one for the other party in the Investigating Agencies particularly in the
Province of Punjab. Such device is followed invariably in every case and this reason
independently also causes delay in submission of challan or commencement of trial of
accused persons.
The purpose of investigation of. a criminal case, as is evident from section 4(1)(1) of
Cr.P.C. is mere collection of evidence and nothing more. The duty of the officer
investigating a criminal case is to collect all such evidence and then to submit the same
before a Court of competent jurisdiction which Court alone then has the powers to
determine the guilt or innocence of the person accused of the commission of such an
offence. It is true that section 169 of the Cr.P.C. authorizes an Investigating Officer or the
officer incharge of the police station to release an accused person on his executing a
bond, with or without a surety, if in the opinion of such a police officer sufficient
evidence or reasonable grounds of suspicion justifying the forwarding of an accused to, a
Magistrate were not available. This however, cannot be equated with a power of final
determination of the guilt or innocence of the accused persons which power, as has been
mentioned above, stands reserved exclusively for the Magistrates and the trial Courts.
These very provisions of section 169 of the Cr.P.C. are a clear indicator to the said effect
because release of an accused person under this section is subject to the orders of a
Magistrate, who may refuse to take cognizance of the case in terms of the report of the
concerned police officer or may still take cognizance and try an accused person or send
him for trial. It may be added that the provisions of section 63 of the Cr.P.C. which
provide that an accused person could be discharged only under the special order of a
Magistrate and the provisions of Rule 24.7 of the Police Rules, 1934 which provides that
an F.I.R. can be cancelled only by a Magistrate, even if the Investigating Officer or the
S.H.O. were of the opinion that such an F.I.R. deserved to be cancelled, are further
evidence of the fact that the final word in respect of the fate of an accused person is either
of a Magistrate or of the learned trial Court and the S.H.O. or the investigating Officer
were mere instruments to assist such Magistrates or Courts of law in reaching a final
conclusion.
It will, therefore, be noticed that while the Investigating Officers have powers to
investigate cases and while the officers incharge of police stations including the superior
police officers, who are also S.H.Os. by virtue of section 551 of the Cr.P.C. have powers
to withdraw investigations from one police officer and to entrust the same to another
police officer and also to order further investigations in a matter, the sole purposes of
such-like transfer of investigations and directing of further investigations is to be the
collection of evidence and nothing more. These powers vesting in the S.H.Os. and the
superior police officers can, therefore, be exercised only and only where it is found that
the required evidence had either not been collected or that further evidence was vi
required to be collected in a given case.
Of late, frequent situations have started coming to the notice of the Courts where repeated
investigations arc ordered and where investigations are repeatedly transferred from one
police officer to another without disclosing any reason for such orders which leads to an
inference that such-like orders were passed not for the purposes for which the requisite
powers had been conferred on the police officers but for purposes other than legal and
bona ode. Needless to add that suchlike repeated investigations and such like transfers of
investigations do not only complicate issues making the task of the Courts of law snore
arduous but also result in wastage of time and inordinate delays towards the final
conclusion of cases.
This evil can be, successfully, combated by making it incumbent upon the authority
transferring the investigation or ordering reinvestigation should comment upon the
quality of the investigation and pinpoint the shortcomings or lapses made by the
Investigating Officer. The authority if convinced after going through the record that
either the Investigating Officer is inefficient, incapable or mixed up with one of the
parties for any reason and only then investigation may be transferred and that too after
recording reasons in writing. It shall propose action against Investigating Officer for
misconduct, inefficiency and corruption as the case may be. That would be effective
measures to check the illegal tendency of transferring the investigation or ordering reinvestigation
without any study of the `Zimnis' and appreciating the efforts made by the
Investigating Officer.
Trend of getting a fresh investigation of a criminal case conducted after submission of a
challan and taking of cognizance by the trial Court cannot be approved. In the absence of
any particular material piece of evidence shown to have been missed out by the
investigating officer and yet to be collected by the police there can hardly be any
occasion for holding a fresh investigation at such a stage. If such fresh investigation is
meant only to obtain a fresh opinion of an investigating officer regarding guilt or
innocence of an accused person then, apart from the reasons mentioned above, such fresh
investigation is likely to be legally inconsequential because an F.I.R. cannot be cancelled
or an accused person discharged at such a stage for the reason that after taking of
cognizance of the case by a trial Court the question of guilt or innocence of an accused
person or the matter of his release can be determined only by the Court and none else.
By virtue of the provisions of Article 18(5) of the Police Order, 2002 a District Police
Officer cannot interfere with the process of investigation. According to Article 18(6) of
the Police Order, 2002 the first change of investigation can, in areas other than the
Capital City District, be ordered only by the Additional Inspector-General of Police
(Investigation Branch) and that too only after deliberations and recommendations by a
Board headed by an officer not below the rank of Senior Superintendent of Police and
including two Superintendents of Police, one being in charge of the investigation in the
concerned District. According to the same Article second change of investigation may
only be allowed with the approval of the Provincial Police Officer (Inspector-General of
the Police in a Province) or the Capital City Police Officer, as the case may be. There is
no other law authorizing or empowering any other police officer or authority to change
the investigation of a criminal case. Any change or transfer of investigation of a criminal
case by any officer or authority other than those mentioned in Article 18(6) of the Police
Order, 2002 is to be void and a nullity. In some cases police officers other than those
mentioned in Article 18(6) of the Police Order, 2002 have been changing investigation of
criminal cases in the name of `verification' of investigation. The law is quite settled on
the point that where the law requires a thing to be done in a particular manner then that
thing must be done in that manner alone or not at all. In any case if an investigation by an
investigating officer is to be verified by some other officer then such verification must be
confined to verification of the record of investigation and such an exercise cannot be
allowed to be conducted in a manner giving it a colour of fresh investigation with fresh
conclusions. The verifying officer has to confine himself to the record of investigation
already conducted and cannot substitute his own conclusions for those of the
investigating officer and if he finds any serious fault with the investigation already
conducted then the verifying officer can bring such fault to the notice of the
Superintendent of Police (Investigation) of the concerned District who can then initiate
the process contemplated by the provisions of Article 18(6) of the Police Order, 2002 for
change of investigation. In some cases an impression is being entertained among some
senior police officers that the provisions of Article 18(6) of the Police Order, 2002
pertain to `vertical' change of investigation and not to `horizontal' transfer of
investigation, the former standing for change of investigation by authorities outside and
above the relevant District and the latter denoting transfer of investigation by officers
performing duties within the relevant District. Such a distinction is innovative but totally
artificial and self-created and a distinction motivated to defeat the very purposes of
Article 18(6) of the Police Order, 2002 so as to perpetuate the maladies for the removal
of which the said Article had been introduced. High Court categorically rejected all
notions regarding such a distinction.
An ex-officio Justice of the Peace cannot step into the shoes of a competent police
authority so as to himself pass an order transferring investigation of a criminal case and
that his role in this regard is confined only to get the process under Article 18(6) of the
Police Order, 2002 activated if the complaint before him establishes that the complaining
person's recourse under section 18(6) of the Police Order, 2002 has remained unattended
to so far. It, thus, follows that if the complaining person has not yet even applied before
the competent authorities under Article 18(6) of the Police Order, 2002 seeking change of
investigation then his complaint under section 22-A(6), Cr.P.C. is not to be entertained by
an ex-officio Justice of the Peace as no occasion has so far arisen for interference in the
matter by an ex-officio Justice of the Peace. The same principle has consistently been
followed by High Court while dealing with writ petitions seeking transfer of
investigations.
If the competent authorities under Article 18(6) of the Police Order, 2002 have already
attended to the request of the complaining person regarding transfer of investigation and
have not found the case to be a tit case for transfer of investigation then too an ex-officio
Justice of the Peace cannot interfere in the matter as the competent authorities have
already consciously attended to the matter and there is nothing left for the ex-officio
Justice of the Peace to get activated or initiated. An exofficio Justice of the Peace is not to
assume the role of an appellate, revisional or supervisory authority in that respect.
An ex-officio Justice of the Peace, like any judicial or other authority outside the police
hierarchy, should be extremely slow in directly interfering with the matter of transfer of
investigation and in an appropriate case he may interfere only where the authorities
mentioned in Article 18(6) of the Police Order, 2002 have already been approached by
the complaining person but such authorities have failed to attend to his grievance and the
application of the complaining person is lying unattended to. Even in such a case an exofficio
Justice of the Peace may refuse to interfere in the matter unless it is established to
his satisfaction that some specific and particular material pieces of evidence had been
missed out by the investigating officer and the same remain to be collected by the police.
An ex-officio Justice of the Peace may not interfere in such a matter unless he feels
satisfied that the required evidence had either not been collected or that further evidence
is required to be collected in a given case. In such a case an ex-officio Justice of the
Peace may issue a direction to the concerned police authority to get the process under
Article 18(6) of the Police Order, 2002 activated so that an appropriate and suitable
decision on the complaining person's grievance can be made by the competent authorities
under Article 18(6) of the Police Order, 2002 one way or the other. While attending to
such a complaint an ex-officio Justice of the Peace cannot issue a direction changing the
investigation of a criminal case on his own.
(l) Criminal Procedure Code (V of 1898)---
----S. 22-A(6)---Complaint about failure to finalize investigation of a criminal case and to
submit a challan within a reasonable time---Kind of "directions" can/should an ex-officio
Justice of the Peace issue in respect of such complaint while exercising his jurisdiction
under S.22-A(6), Cr.P.C. elaborated.
An ex-officio Justice of the Peace seized of a complaint regarding failure of the Police to
finalize investigation of a criminal case and to submit a challan, within the stipulated time
should require the investigating officer of the relevant case to explain the reason for the
delay in that regard and also to explain as to why a recommendation may not be made by
him to the concerned quarters for appropriate action in terms of the action taken by the
Hon'ble Supreme Court of Pakistan in the above mentioned case. If the explanation
submitted by the investigating officer is found by the ex-officio Justice of the Peace to be
unsatisfactory then he may issue a direction to the Superintendent of Police
(Investigation) of the relevant District to ensure finalization of investigation and
submission of Challan at the earliest possible time and may also, depending upon the
circumstances of the case, either warn the relevant investigating officer to be careful in
that regard in future or issue a direction to the relevant higher police authority or the
relevant Public Safety and Police Complaints Commission to consider the complaint and
to take appropriate action against the delinquent police officer under the relevant
provisions of the Police Order, 2002 or under any other law applicable to such
misconduct.
(m) Criminal Procedure Code (V of 1898)---
----S. 22-A(6)---Remedies against non-compliance of directions issued by an ex officio
Justice of the Peace enumerated.
An ex-officio Justice of the Peace in Pakistan does not perform or discharge any judicial
function and, therefore, the law relating to Contempt of Court is inapplicable to an
alleged non-compliance of any direction issued by him under section 22-A(6), Cr.P.C.
However, a direction issued by him under section 22-A(6), Cr.P.C. is grounded in lawful
authority conferred upon him by the said legal provision and by virtue of the provisions
of Article 4(1)(m) of the Police Order, 2002 "every police officer" is under a "duty" to
"obey and promptly execute all lawful orders". There are, therefore, threefold remedies
available against non-compliance of directions issued by an ex-officio Justice of the
Peace under section 22-A(6), Cr.P.C., i.e. firstly, upon a complaint received by him
regarding non-compliance of his earlier direction an ex-officio Justice of the Peace can
issue a direction to the relevant police authority to register a criminal case against the
delinquent police officer under Article 155(c) of the Police Order, 2002 or, secondly, he
can issue a direction to the relevant higher police authority or the relevant Public Safety
and Police Complaints Commission to take appropriate action against the delinquent
police officer under the relevant provisions of the Police Order, 2002 or under any other,
law relevant to such misconduct and, thirdly; the complaining person can approach this
Court under Article 199 of the Constitution seeking issuance of an appropriate writ
directing the defaulting police officer to do what the law requires him to do.
(n) Criminal Procedure Code (V of 1898)---
----S. 22-A(6)---Unsustainability or otherwise of the impugned orders passed by different
ex-officio Justices of the Peace mentioned.
Nemo for Petitioner (in Writ Petition No. 11862 of 2004)
Nemo for Petitioner (in Writ Petition No. 14415 of 2004).
Erum Sajjad Gul for Petitioner (in Writ Petition No. 17169 of 2004).
Tanvir Ahmad Sheikh for Petitioner (in Writ Petition No. 16453 of 2004).
Muhammad Hanif Khatana, Additional Advocate-General, Punjab with Tahir Mahmood
Gondal, Assistant Advocate-General for Respondents No. 1 to 6 and 8 (in Writ Petition
No. 11862 of 2004), Respondents No. 1 to 4 (in Writ Petition No. 14415 of 2004),
Respondent No. 1 (in Writ Petition No. 17169 of 2004) and Respondents Nos. 1 to 4 (in
Writ Petition No. 16453 of 2004).
Muhammad Javed Kasuri for Respondent No. 5 (in Writ Petition No. 14415 of 2004).
Zaheer-ud-Din Babar for Respondent No. 5 (in Writ Petition No. 16453 of 2004).
Nemo for the Remaining Respondents (in all the Writ Petitions).
Dates of hearing: 11th, 18th, 24th February and 3rd March, 2005.
JUDGMENT
ASIF SAEED KHAN KHOSA, J.---The question involved in these writ petitions is not
quis custodiet ipsos custodies, i.e. who will watch the watchmen but the issue is how the
watchmen are to be watched. The watchmen in this case arc the police and those who
have been assigned the duty to watch such watchmen, in the context of the present case,
are the ex-officio Justices of the Peace who have recently been entrusted by the
legislature the jurisdiction to entertain complaints against conduct of the police and to
issue appropriate directions in that regard to the police authorities concerned. Justice of
the Peace, as the name itself suggests, was an institution conceived and conjured up
centuries ago mainly to assist the police and the other law .enforcing agencies in
maintaining peace in the society but over the last many centuries this concept has
witnessed many developments and variations in different parts of the world. In some
countries the role of a Justice of the Peace is still restricted to an administrative function
and relevant only till a stage when a crime is not yet committed or where it has been
committed and not yet reported to the police and not beyond that stage but in others the
role of a Justice of the Peace has been enlarged and extended to exercise of some ,judicial
and other powers including trial of petty offences and trifling civil disputes as well. In the
case in hand we have been called upon to determine the nature, scope and extent of the
functions and jurisdiction of a Justice of the Peace or an ex-officio Justice of the Peace
vis-a-vis the working of the police in our country.
2. The facts giving rise to Writ Petition No. 11862 of 2004 arc that the petitioner therein
is the complainant of and respondent No. 7 therein is an accused person in case F.I.R. No.
388 registered at Police Station Sadar Kamalia, District Toba Tek Singh on 20.12.2003 in
respect of offences under sections 395, 353, 324, 186, 148, 149, 337-F(iv), 337-F(v) and
337-L(2), PPC and section 7 of the Anti-Terrorism Act, 1997. It was alleged in the FIR
that the accused party had launched an assault upon a police party performing its lawful
duty. The investigation of that case was taken in hand by the Investigation Wing of Toba
Tek Singh police but respondent No. 7 felt dissatisfied with the same and he moved an
application before the Deputy Inspector-General of Police, Faisalabad Range, Faisalabad
seeking transfer of the investigation. The said application was referred to the Standing
Board as contemplated by the Police Order, 2002 and Circular No. 1/2002 issued by the
Provincial Police Officer (Inspector-General of Police), Punjab. After due deliberations
the Standing Board recommended transfer of the investigation of that case to Range
Crime, Faisalabad. The, Deputy Inspector-General of Police; Faisalabad Range,
Faisalabad agreed with the recommendation of the Standing Board and thereafter the
Additional Inspector-General of Police, Investigation Branch, Punjab, Lahore passed an
order on 14-4-2004 transferring investigation of that case and entrusting the same to the
Regional Investigation Branch, Faisalabad. On 22-5-2004 respondent No. 7 submitted an
application under section 22-A(6), Cr.P.C. before the learned Sessions Judge, Toba Tek
Singh in his capacity as an ex-officio Justice of the Peace complaining therein that in the
cross-version of the same incident advanced by the accused party the investigating
agency had failed to add section 354-A, P.P.C. and had also failed to arrest the accused
persons mentioned in the cross-version. Labouring under a mistaken impression that the
investigation of the above mentioned criminal case had been transferred by the Deputy
Inspector-General of Police, Faisalabad Range, Faisalabad and not by the Additional
Inspector-General of Police, Investigation Branch, Punjab, Lahore as contemplated by the
provisions of the Police Order, 2002 and Circular No. 1/2002 issued by the Provincial
Police Officer, Punjab the learned Sessions Judge, Toba Tek Singh, instead of attending
to the grievances actually voiced by respondent No. 7 against respondent No. 6, passed
an order on 27-5-2004 withdrawing investigation of the relevant criminal case from the
Regional Investigation Branch, Faisalabad and entrusting the same to the District Police
Officer, Toba Tek Singh in person. The operative part of the said order passed by the
learned Sessions Judge, Toba Tek Singh reads as follows:
"Under the Police Order, 2002, DIG could not transfer the investigation of the relevant
case from one police official to the other and, thus, Mohammad Hanif, DSP Crime
Branch Faisalabad, respondent No. 3 has been entrusted with the investigation of the
relevant case illegally and without lawful authority. It has been submitted by counsel for
the petitioner that investigation of the relevant case be made over to DPO, T.T. Singh
with a direction to investigate the relevant case independently and honestly. In these
circumstances I withdraw the investigation of the relevant case from Muhammad Hanif,
DSP Crime Branch, Faisalabad respondent No. 3 and make over the same to District
Police Officer, Toba Tek Singh and he is directed to carry out the investigation of this
case by himself independently, honestly and fairly. The I.O./Muhammad Hanif, DSP
Crime Branch, Faisalabad respondent No. 3 is directed to hand over the police file to
DPO, T. T. Singh. "
After receipt of that order the District Police Officer, Toba Tek Singh, instead of
conducting the investigation personally, required respondent No.6 to do the needful and
this prompted respondent No. 7 to file an application before the learned Sessions Judge,
Toba Tek Singh on 28-6-2004 seeking implementation of the earlier order passed by the
learned Sessions Judge, Toba Tek Singh on 27-5-2004. On 5-7-2004 the learned Sessions
Judge, Toba Tek Singh disposed of that application of respondent No.7 with a direction
to the District Police Officer, Toba Tek Singh. The operative part of the said order reads
as follows:
"The grievance of the petitioner is that DPO T.T. Singh has not been investigating the
relevant case by himself and has made over the investigation of this case to DSP
Investigation respondent No. 2. It has been submitted by DSP respondent No.2 that he
has already brought it to the notice of DPO, T.T. Singh that relevant case is to be
investigated by him (DPO T.T. Singh). DPO T.T. Singh is directed to carry out the
investigation of the relevant case in compliance with the order of this court dated 27-5-
2004, otherwise legal action may be taken against him."
The orders dated 27-5-2004 and 5-7-2004 passed by the learned Sessions Judge, Toba
Tek Singh have been assailed by the petitioner before this Court through the above
mentioned writ petition. In the connected Writ Petition No. 14415 of 2004 the order dated
9-8-2004 passed by the learned Sessions Judge, Toba Tek Singh, in Writ Petition No.
17169 of 2004 the order dated 13-9-2004 passed boy the learned Additional Sessions
Judge, Lahore and in Writ Petition No. 16453 of 2004 the order dated 15-9-2004 passed
by the learned Sessions Judge, Hafizabad have been challenged before this Court.
Through the said impugned orders different ex-officio Justices of the Peace had
transferred investigation of the relevant criminal cases themselves when one party. or the
other had felt dissatisfied with investigation of such cases. All these petitions have been
clubbed together for a consolidated hearing and we propose to decide the same together
through the present consolidated judgment. In view of some jurisprudential and legal
issues of public importance involved in these petitions the present Full Bench has been
constituted to render an authoritative pronouncement on all such issues and the related
subjects so as to remove the prevalent confusion in such respects and to provide guidance
to all concerned in these regards.
3. During the course of hearing of these writ petitions on 11-2-2005 we had framed the
following questions and had required the learned counsel. for the parties to address
arguments in respect of the same .so as to assist us in arriving at an appropriate decision
of these petitions:
(a) Looked at in historical and global perspective what is the role of a Justice of the Peace
in keeping the peace in the society, in maintenance of law and order and in the criminal
justice system, if any?.
(b) Whether in Pakistan a Justice of the Peace or an ex-officio Justice of the Peace
exercises judicial powers or his functions are merely administrative and ministerial in
nature and character?
(c) What, in the context of his jurisdiction under section 22-A(6), Cr.P.C., is the extent
and scope of direct interference by an ex officio Justice of the Peace in Pakistan with
investigation of a criminal case by the police?
(d) What, in the framework of criminal justice, are the general complaints against the
working of the police in the Province of the Punjab and what land of "directions"
can/should an ex-officio Justice of the Peace issue in respect of such complaints while
exercising his jurisdiction under section 22-A(6), Cr.P.C.?
(e) What are the remedies against non-compliance of directions issued by an ex-officio
Justice of the Peace under section 22-A(6), Cr.P.C.?
(f) Whether the orders passed by different ex-officio Justices of the Peace impugned
through the present and the connected writ petitions are legally sustainable or not?
4. Elaborate arguments have been addressed before us by the learned counsel for the
parties and the learned Additional Advocate-General, Punjab on these questions and
some supporting material has been produced by them in elucidation of their respective
submissions and contentions.
5. It has been argued by the learned counsel for .the petitioners that in our country a
Justice of the Peace is only to assist the police in maintaining peace in the locality and
under section 22-A(6), Cr.P.C. an ex-officio Justice of the Peace can only get the process
and procedure of the relevant law activated but he cannot supervise or superintend the
police by issuing binding commands to it in respect of investigation of a criminal case.
They have maintained in unison that an ex-officio Justice of the Peace cannot transfer
investigation of a criminal case on his own and he can only require the relevant police
authority to initiate or finalize the procedure provided for the purpose by Article 18(6) of
the Police Order, 2002. They have further argued that while issuing a direction to the
police in his capacity as an ex-officio Justice of the Peace under section 22-A(6), Cr.P.C.
a Sessions Judge or an Additional Sessions Judge does not functioning as a Court and
that the said jurisdiction is only administrative and ministerial in nature and character.
They have gone on to submit that after the recent introduction of section 22-A(6) in the
Code of Criminal Procedure, 1898 there is a lot of confusion prevailing among the legal
community as well as the ex-officio Justices of the Peace themselves regarding the true
nature and scope of the newly conferred jurisdiction under section 22-A(6), Cr.P.C. and
such confusion ought to be removed by this Court for the guidance of all concerned.
6. The learned counsel for the private respondents have maintained that the investigations
being conducted in the relevant criminal cases were unfair and partial and in that
backdrop the relevant ex-officio Justices of the Peace had felt persuaded to transfer the
investigations so as to ensure fairness of the same. They have submitted that the
impugned orders passed by the relevant ex-officio Justices of the Peace fostered the ends
of justice and, therefore, they are not liable to be interfered with by this Court. They have
claimed that under section 22-A(6), Cr.P.C. an ex-officio Justice of the Peace is well
within his jurisdiction to ensure that the course of investigation of a criminal case remains
fair and correct.
7. The learned Additional Advocate-General, Punjab has argued before us that by virtue
of his jurisdiction under section 22-A(6), Cr.P.C. an ex-officio Justice of the Peace can
issue appropriate directions to the police authorities concerned on the basis of complaints
regarding non-registration of a criminal case, transfer of investigation from one police
officer to another and neglect, failure or excess committed by a police authority in
relation to its functions and duties. He has, however, taken a categorical stand before us
that the directions to be issued by an ex-officio Justice of the Peace under section 22-
A(6), Cr.P.C. are to be directions to the concerned police authorities to attend to the
grievance of the complaining person in accordance with the relevant law, and through his
jurisdiction under section 22-A(6), Cr.P.C. an ex-officio Justice of the Peace cannot
arrogate to himself the power of, redressing of the actual grievance itself. According to
the learned Additional Advocate-General, under section 22-A(6), Cr.P.C. an ex-officio
Justice of the Peace is to perform the role of a facilitator and that of a bridge between the
complaining persons and the police authorities concerned and the jurisdiction under
section 22-A(6), Cr.P.C. does not allow an ex-officio Justice of the Peace to put on the
mantle of a higher police authority himself and to start exercising all those executive
powers himself which the relevant law has vested in the concerned police authorities. He
has also maintained that the jurisdiction of an ex-officio Justice of the Peace under
section 22-A(6), Cr.P.C. is an administrative jurisdiction and the directions issued in
exercise of such jurisdiction are not judicial in nature or character. With these
submissions the learned Additional Advocate-General has maintained that through the
orders impugned through the present writ petitions the learned Sessions Judges and
Additional Sessions Judges had issued directions which were beyond the pale of their
authority under section 22-A(6), Cr.P.C. and, therefore, the impugned orders are not
sustainable in law.
8. We have attended to the facts of these cases as well as the submissions made by the
learned counsel -for the parties and have also gone through the material referred to before
us with due scrutiny and consideration. In respect of question number (a) regarding the
historical and global perspective in respect of the role of a Justice of the Peace in keeping
the peace in the society, in maintenance of law and order and in the criminal justice
system, if any, we have been able to lay our hands on the following information and
material and, despite a lot of overlapping and repetition therein, we deem it advantageous
to reproduce the same here for facility of reference and consolidation of information:
Halsbury's Laws of England (Fourth Edition, Volume 29, published in 1979 by
Butterworths, London, UK):
"The name "Justice of the peace" was first given to the office of magistrate by the
Justices of the Peace Act, 1361.---
In ancient times the duty of conserving the peace lay primarily upon the holders of
certain offices, some of which were held by royal appointment and some by election.
Examples of the former were the Lord Chancellor, the Lord Steward, the Lord Marshall,
and the justices of the King's Bench, who had jurisdiction throughout the kingdom.
Justices of the Common Pleas and barons of the Exchequer were conservators within the
limits of their courts and justices of assize and goal delivery within the limits of their
commissions. Sheriffs and coroners were examples of elected officers who were peace
conservators within their counties and constables within their townships or hundreds.
There were also persons elected by the general body of freeholders of each county to act
as peace conservators for the county. Furthermore, there were conservators of the peace
by prescription and by tenure of land.
The process by which the ancient keepers of the peace with executive functions were
transformed into justices with judicial powers can be traced in the history of the
fourteenth century. In 1327 the King, who is "by his office and dignity royal the principal
conservator of the peace within his dominions", assumed the right of appointing all
conservators.
In 1344 it was enacted that "two or three of the best of reputation in the counties shall be
assigned keepers of the peace by the King's commission; and at what time need shall be,
the same, with other wise and learned in the law, shall be assigned by the King's
commission to hear and determine felonies and trespasses done against the peace in the
same counties, and to inflict punishment reasonably according to [law and reason, and]
the manner of the deed".
After the transformation of keepers of the peace into justices with judicial powers, other
statutes followed by which. the number and authority of justices were regulated. By the
Jurisdiction in Liberties Act, 1535 it was again enacted that no person or persons, of what
estate, degree or condition so-ever they be, should have any power or authority to make
justices of the peace, but that all such officers should be made by letters patent under the
King's Great Seal in the name and by the authority of the King and his heirs. The Act
contained a saving for the County Palatine of Lancaster, where the right of appointment
is vested in the Sovereign in right of the Duchy. This right, which has thug been vested in
the Crown, may not, without legislation to that end, be delegated to any other authority.
At the beginning of the twentieth century the law concerning justices of the peace was
derived from a number of statutes, some of them centuries old. The effect of legislation in
the middle years of this century was to simplify and consolidate this branch of the law
and subsequently to reform it notably by extending the powers of magistrates sitting in
magistrates' courts.
The appointment and instruction of justices, and the keeping of the supplemental list, are
regulated by the Administration of Justice Act, 1973, as are the appointment, retirement
and superannuation of stipendiary magistrates.
The Justices of the Peace Acts, 1949 and 1968 govern the residence qualification of
justices, disqualification, the size and chairmanship of benches and the administration of
magistrates' courts. The Administration of Justice Act, 1964 deals with the
indemnification of justices out of local funds. ---
Justices of the peace for any commission area, other than stipendiary magistrates and ex
officio justices, are appointed on behalf and in the name of Her Majesty under the hand
of the Lord Chancellor or, in greater Manchester, Merseyside or Lancaster, the
Chancellor of the Duchy of Lancaster. ---
The commission of the peace is the authority under which justices exercise their
jurisdiction. It is the commission which gives justices the ancient common law powers of
conservators of the peace in addition to the statutory powers more recently conferred. ---"
Jowitt's Dictionary of English Law (Second Edition, Volume 1, published in 1977 by
Sweet & Maxwell Limited, London, UK):
"Justices of the Peace. Justices of the peace were first appointed by the statute 1327, 1
Edw. 3, st. 2, : c. 16. In England and Wales a commission of the peace is issued under the
Great Seal addressed generally, and not by name, to all such persons as may from time to
time hold office as justices of the peace for the commission area. The commission areas
are the metropolitan and non-metropolitan counties, the London commission areas and
the City of London. --- The form of the commission of the peace was settled by all the
judges in 1590 and continues with little alteration. Justices for any commission area
(other than stipendiary magistrates) are appointed on behalf of the Crown and in the name
of Her Majesty by instrument under the hand of the Lord Chancellor.---. In the counties
of Greater Manchester, Merseyside and Lancashire the appointments are made by the
Chancellor of the Duchy of Lancaster ---. The Lord Mayor and aldermen continue to be
ex-officio justices in the City of London---
The authority of justices of the peace is either ministerial or judicial. They are said to act
ministerially when, in the case of indictable offences, they merely initiate the proceedings
by issuing a warrant of apprehension, taking the depositions and committing for trial.
They act judicially when they exercise their summary jurisdiction, whether criminal or
civil. ---
By virtue of their commission, justices of the, peace have jurisdiction in all matters
relating to the preservation of the public peace; and in case of an actual or apprehended
breach of the peace within their own view, they may commit the offender without
warrant or information. Most commonly, however, their jurisdiction is exercised by
binding over persons to keep the peace. ---
Before a justice who has been appointed is at liberty to act he must take the oath of
allegiance and judicial oath in the form respectively prescribed.---
The property qualification of a justice of the peace required by the Justices Qualification
Acts, 1744 and 1785 was abolished by the Justices of the Peace Act, 1906. A clergyman
is not as a rule appointed if a layman is available.
Except under a direction by the Lord Chancellor a justice of the peace must reside in or
within fifteen miles of the area for which he is appointed. ---
The Justices of the Peace Act, 1968 abolished ex officio justices of the peace, lowered the
retiring age of justices and provided for the payment to justices of a financial loss
allowance: Apart from that justices of the peace act gratuitously, receiving no salary or
fee. ---
Women may be appointed justices of the peace. ---
The office of justice of the peace subsists during the pleasure of the Crown. A justice
may be removed from office by instrument under the hand of the Lord .Chancellor. The
office is also determinable (1) by express writ under the Great Seal; (2) by writ of
supersedeas (q.v.); (3) by accession to the office of sheriff during the year of shrievalty.
The duties of a justice of the peace are of a varied character. They are of four principal
kinds: (1) To commit offenders to trial before a judge and jury, upon being satisfied that
there is a prima facie case against them; (2) To try and punish summarily; (3) To sit with
the judge of the Crown Court on the hearing of appeals from magistrates' courts, on
proceedings on committal for sentence and in other cases on the direction of the Lord
Chancellor ---; (4) To deal with the licensing of places for the sale of intoxicating liquor,
and of persons to deal in game, etc. ---
The management of such administrative business as the licensing of theatres and the
levying of county rates, was transferred from the justices to county councils by the Local
Government Act, 1888, s. 3, as amended by the Local Government Act, 1933."
Encyclopaedia Britannica (Volume 13, published, in 1966 by Encyclopaedia Britannica
Inc., Chicago, USA):
"Justice of the Peace, in England, 'a magistrate appointed by special commission under
the. great seal to keep the peace within the jurisdiction for which he is appointed. Justices
for counties are appointed by the crown on the advice of the lord chancellor, with the
recommendation. of the lord lieutenant of the county. Justices for boroughs having
municipal corporations and separate commissions of the peace are appointed by the
crown, the lord chancellor adopting the recommendation of the town council, the local
advisory committee, or acting independently.
Apart from a small body of professional (stipendiary) magistrates, mainly in London and
large towns, J.Ps. are unpaid and have no professional legal qualification. For guidance
on law and on the rules of evidence, they rely on their salaried clerk. The latter must be
either a barrister of not less than 14 years' standing, or a solicitor of the supreme court, or
have served for not less than seven years as clerk to a metropolitan or stipendiary
magistrate, or have been attached to a metropolitan magistrate's court.
The jurisdiction of the petty sessional courts, in which the J.Ps. sit, is wide and
multifarious, embracing both criminal and civil work, and a number of matters, such as
licensing, which are administrative rather than strictly judicial and derive from the period
when the justices were often the only properly constituted local authority. The criminal
jurisdiction is of two types: (1) committing persons accused of the more serious offences
to trial at higher courts where there is a prima facie case for the prosecution; (2) hearing
and determining summarily the less serious charges. Magistrates may not impose a
sentence of more than . six months' imprisonment. Selected magistrates sit in juvenile
courts to deal with matters, by no means exclusively criminal charges, involving young
persons under the age of 17, and these courts have special rules. Of the civil jurisdiction,
other than that affecting children and young persons, that in matrimonial cases is the most
important.
In the United States, justices of the peace usually are elected, although sometimes they
.are appointed by executive authority. They constitute the lowest of the state courts, and
their maximum award in civil cases is generally limited to about $300; in criminal
matters they may try only misdemeanours Ordinarily they may not impose a jail sentence
in criminal case if the person tried prefers to pay the fine imposed. Other duties and
powers commonly include the performance of marriage services, the issuance of.
warrants for arrest, and the holding of inquests."
The New Encyclopaedia Britannica (15th Edition, Volume 6, published in 1994 by
Encyclopaedia Britannica, Inc., Chicago, USA):
"justice of the peace, in Anglo-American legal systems, a local magistrate empowered
chiefly to administer criminal or civil justice in minor cases. A justice of the peace may,
in some jurisdictions, also administer oaths and perform marriages.
In England and Wales a magistrate is appointed by the lord chancellor, on behalf of the
crown, to keep the peace within a specified district. The duties of the modern-day justices
of the peace, who preside in the magistrates' courts of England and Wales, evolved from
those first bestowed upon them under the Justice of the Peace Act of 1361. In essence, the
justices continue to deal mostly with minor criminal matters and continue to send more
serious cases to a higher court for disposition --- since 1971, to the Crown Court or any of
the courts that make up the High Court of Justice.
The modern justice of the peace in England and Wales, as formerly, is usually a lay
person. But each appointee now undergoes a training course in basic law and in the
administrative duties of the magistrates' court. On matters of law, advice is provided by a
clerk to the justice. Lay magistrates must number at least two to hear a case. Paid, fulltime
magistrates may hear cases alone. In some less serious criminal matters, a justice of
the peace may sit with a judge of the Crown Court.
In England and Wales there are some 28,500 justices of the peace, one-third of whom are
women. The rising case load of juvenile matters now takes a larger proportion of
magistrates' Court time. The justices who hear these cases, or rule on the care of children,
also take special courses in juvenile law.
In Australia the main function of the justice of the peace is to authenticate the execution
of documents.
United States,. justices of the peace are elected or appointed and sit on the lowest of the
state courts hearing minor civil matters and petty criminal cases, usually misdemeanours.
They officiate at weddings, issue arrest warrants, deal with traffic offences, and hold
inquests."
Corpus Juris Secundum (Volume 51, published in 1967 by The American Law Book
Company, Brooklyn, N.Y., USA):
"A justice of the peace has been defined as a judicial officer of inferior rank, holding a
court not of record, and usually having civil jurisdiction of limited nature, for the trial of
minor cases, to an extent prescribed by statute, and for the conservation of the peace and
the preliminary hearing of criminal complaints and the commitment of offenders.---
The office of justice of the peace is one of great antiquity, and his jurisdiction has varied
from time to time, depending either on the terms of commission or particular statutes. In
England prior to the act of I Edward III, there were no justices, ec nominee, but there
existed a class of officers known as conservators or wardens of the peace, in addition to
which were certain other common-law officers, such as sheriffs, constable and coroners,
who by virtue of their office had the powers t conservators. The `act of I Edward III
chapter 16 directed the certain persons be assigned or appointed in each county ;
conservators or wardens of the peace; and from this time peat officers were appointed and
commissioned by the King. However, neither the officers designated by this act nor those
exercising the same powers prior thereto had any judicial functions, their powers being
purely ministerial. Subsequent statutes enacted during the reign of Edward III conferred
judicial powers on persons appointed as conservators, and the appellation of "justices of
the peace" was given them. Gradually their powers were still further enlarged, and they
came to constitute a very important agency in the administration of local Government. It
does not appear, however, that they had any civil jurisdiction.--
In the United States the powers and duties of such officers have been so enlarged and so
fully defined by the statute of the various states that they are in effect wholly statutory;
and especially this is true as to the jurisdiction of justices in civil causes, which is of
purely statutory origin. So, the office of justice of the peace is subject to limitations in its
scope and perquisites, and to the imposition of conditions."
The Encyclopaedia Americana (International Edition published in 1997 by Grolier
Incorporated, International Headquarters, Danbury, Connecticut, USA):
"Justice of the Peace, an official who has jurisdiction over the trial of small civil suits and
of criminal cases involving minor offences. His or her judicial power extends to actions
based on contract or on the taking, detaining, or injuring of personal property, provided in
both types of cases that the amount involved is within a defined limit. In general, justices
of the peace are prohibited from trying cases where the title to land is involved. Their
jurisdiction over criminal cases is similarly limited, being determined by the maximum
punishment that can be imposed in a particular case. In addition to their authority to try
cases, justices of the peace have other powers and duties, including the preliminary
examination of persons' accused of crime, the holding of inquests, the issuing of search
warrants, and the solemnization of marriages.
The primary functions of justices of the peace are judicial, but holders of the office also
frequently act in an administrative capacity. The number of justices for a given territory,
such as a town or precinct, is determined by constitutional or - statutory provisions.
Justices are generally elected by the vote of the people but they are sometimes appointed.
The origin of the office can be traced back to England in the 13th century. At that time
officials now known as justices of the peace were called keepers, or conservators, of the
peace, and statutory provision was made for their appointment by the crown in each
county. In the 14th century they became known a> justices of the peace, in recognition of
their increased judicial powers. Thereafter their police, judicial, and administrative duties
were considerably enlarged by the legislature. During the 16th, 17th, and 18th centuries
justices of the peace became virtual rulers of the counties. Toward the end of the 19th
century, however, most of their administrative powers were transferred by statute to
elected councils, although they retained their judicial powers.
In what is now the United States the office of justice of the peace existed from earliest
colonial times. In the 20th century this office, which is provided for by state constitutions
and statutes, is connected with the judicial departments of state governments. "
American Jurisprudence (Second Edition, Volume 47, published in 1969 by The
Lawyers Co-operative Publishing Company, Rochester, USA):
"In the early judicial system of England, justices of the peace were mere conservators of
the peace, as the name implies, exercising no judicial functions. Eventually, however,
they were invested with judicial powers, and the office of justice of the peace was a part
of the legal system brought here by the English colonists. In most states, the office is
provided for by the Constitution and general laws, and is regarded as of importance to the
people at large, since it opens the door of justice near their homes; and not only affords
an inexpensive and speedy remedy for minor grievances as to rights of property, but also
renders substantial aid in prevention and punishment of crime.
Today, the office of justice of the peace is a public office connected with the judicial
department of the state government, and a justice of the peace is, to a certain extent, a
judicial officer. Most of his powers and duties are of a judicial nature, although he also
acts in many instances in an administrative capacity.---
Justices bf the peace are generally elected by the people although provision is also made,
in some instances, for their selection by appointment.---
Justices of the peace --- are not in a strict sense judges, since their duties are
administrative as well as judicial.---
It is sometimes provided that the incumbent of some other public office shall be ex
officio a justice of the peace.
The jurisdiction of justices of the peace as judicial officers is the result of constitutional
or statutory provision. The governing provision usually limits not only the class of cases
that ;justices may hear and determine, but also the procedure they must observe.
Although a liberal construction should be given to provisions that relate to the
jurisdiction of justices of the peace, with a view aimed at the promotion of justice, the
justices have and can exercise no powers except those conferred. Accordingly, their acts
in a case over which they do not have jurisdiction are, in general, void, notwithstanding
that the attempted exercise of jurisdiction was made in good faith.---
It has been broadly stated that a justice of the peace has no jurisdiction of any action
unknown at common law and not authorized by statute. And, as a rule, a court of a justice
of the peace does not have equitable jurisdiction.---
A writ of certiorari has been held a proper remedy to review the judgment of a justice of
the peace.---
The powers and duties of justices --- (of the peace in the United States of America at
present include) the preliminary examination of persons accused of crime, the holding of
inquests, the appointment of special constables, the issuance of search warrants, the
imposition of punishment for contempt, the taking of acknowledgments and
solemnization of marriages.---
In civil matters a justice of the peace has been conferred the jurisdiction in matters
involving actions based upon contracts, tort, recovery of exemplary damages, attachment
and garnishment but in most of such matters the jurisdiction has been limited to a
maximum dollar value.
The jurisdiction of justices of the peace in criminal proceedings is generally prescribed
and regulated by constitutional and statutory provisions. The authority of justices of the
peace to try criminal matters is often limited to minor offences, notwithstanding that their
criminal jurisdiction as committing magistrates may extend to crimes of higher grades."
Words and Phrases (Permanent Edition, published in 1967 by West Publishing
Company, Minn., USA):
"The true conception indicated by the term "justice of the peace", as disclosed by our
Constitution and statutes, is that of an officer having both judicial and political functions
--- judicial, in that he holds a court and decides matters of litigation arising between
parties; political, in that he is a member of the quarterly county court, which is the
governing agency or legislative body of the county. ---
A "justice of the peace" is defined to be a public officer invested with judicial powers for
the purpose of preventing breaches of the peace and bringing to punishment those who
have violated the law. Their common-law powers relate exclusively to matters affecting
the public peace, and to the arrest and punishment of wrongdoers. ---
The origin of the office of justice of the peace is stated by' Blackstone in 1 Comm. 349:
"The common law hath ever had a special care and regard for the conservation of the
peace, for peace is the very end and foundation of civil society; and therefore, before the
present constitution of justices was invented, there were peculiar officers appointed by
the common law for the maintenance of the public peace. Of these some had and still
have this power annexed to other offices which they hold; others had it merely by itself,
and were thence named `keepers of the peace'. Those that were so virtue officer, still
continue; but the latter sort are superseded by the modern justices." ---
At common law `justices of the peace' were merely conservators or keepers of the peace.
---
The original understanding of the official designation "justices of the peace" semis to
have been that they were conservators of the peace. Before they had justices of the peace
in England there was a class of officers known as "conservators of the peace". In the
reign of Edward the Third an act of Parliament ordained "that every shire of the realm
good men and lawful, which were no, maintainers of evil nor barrators on the county,
should be assigned to keep the peace, to repress all intention of uproar and force even in
the first seed thereof and before it should grow up to any offer of danger"--- The statute
referred to gave to justices of the peace the common-law. powers which conservators had
exercised, and subsequent acts greatly enlarged them, but they have not, as is held in the
English books, any jurisdiction save that which statutes give them. ---
Justices of the peace have been 'known to the common law of England for a century and a
half before America was discovered. They were in their original institution mere
conservators of the peace, exercising no judicial function. It is said in 3 Burn, J.P., 19th
Edn., p. 4, that by the statute of 1 Edw. III, which is the first statute that ordains the
assignment of justices of the peace by the King's. commission, they had no other power
but only to keep the peace. But from time to time their powers were enlarged,, and they
came to constitute a very important agency in the administration of local government in
England. They discharged a great variety of duties connected with the support of the
poor, the reparation of the highways, the imposition and levying of parochial rates, and
other local affairs. They were invested with judicial powers for the first time, it seems, by
the statute of 34 Edw. III, c. 1, which gave them power to try felonies, but then only
when two or more acted together, and not singly; and it is said by Blackstone (Volume 1,
p. 349) they then acquired the more honourable appellation of `justices'. In England
justices of the peace had never exercised jurisdiction over civil cases. The office of
justices of peace was brought to America by the English colonists. From the earliest
colonial period it has existed in America. Justices of the peace in America, as in England,
have been invested with various and important functions connected with local
administration, quite independent of their judicial authority. It is important to notice that
the judicial function exercised by justices of the peace was a graft upon their original
authority, and that the enlargement of their powers has not been in this direction alone,
but that by gradual accretion they have come to constitute a most important factor in the
corporate administrative life in towns and counties."
Grolier Encyclopaedia of Knowledge (published in 1993 by Grolier Incorporated,
Danbury, Connecticut, USA):
"A justice of the peace is a local magistrate with limited judicial power. Justices of the
peace are usually elected officials in the United States, although in some states they are
appointed. They usually have the power to try minor criminal cases and civil cases
involving small amounts of money. Their other duties include issuing arrest and search
warrants, holding preliminary hearings in criminal cases, holding inquests, and
performing marriage ceremonies. The office was created in 14th century England, where
subsequent justices of the peace were powerful agents of. the King, responsible for
keeping the peace in each county. By the end of the 19th century they had lost their
administrative (but not judicial) authority."
Collier's Encyclopaedia (Volume 13, published in 1993 by P. F. Collier, New York,
N.Y., USA):
"JUSTICE OF THE PEACE, a local judicial tribunal of limited jurisdiction which
stands at the bottom of the U.S. system of state courts. Developed as a court of first
instance in medieval England, this office has had a rich and varied history. Transplanted
to North America in colonial days, it has been widely used, particularly during the
simpler, agricultural phase of development, when limited transportation facilities made
quite clear the need for a court close to every man's door that could settle disputes
expeditiously, economically, and effectively. With increasing industrialization and
concentration of population in cities, the office has tended to be supplemented by the
mayor's court, the police court, and the municipal courts. Originally organized to conform
to a theory of local self-government, which required the popular election of all offices
and provided compensation for them by a fee system, the office has frequently been held
by a man of the neighborhood without formal legal training who served during his spare
time. While this system met the needs of pioneer days, it is not viewed as satisfactory for
an urban society. But the office is still employed as a court of limited and inferior
jurisdiction in civil and criminal cases. In criminal cases its jurisdiction is usually limited
to misdemeanours and to preliminary hearings for more serious offences. In civil cases its
jurisdiction is confined to disputes involving very small amounts. Its jurisdiction in all
cases is usually limited by statute, and it does not constitute a court of record."
The Law Lexicon of British India (published in 1940 by The Madras Law Journal
office, Mylapore, India): '
"A justice of the peace is a judicial officer of inferior rank, holding a court, and having
usually civil jurisdiction of a limited nature, for the trial of minor cases, to an extent
prescribed by special or general statutes, and for the conservation of the peace and the
preliminary hearing of criminal complaints and the commitment of offenders; a judicial
officer of special and limited jurisdiction, both civil and criminal. In English law justices
of the peace are judges of record appointed by the crown to the justices within a certain
district for the conservation of the peace, and for the execution of the divers things,
comprehended within their commission and within divers statutes, committed to their
charge.
Justice of the peace is an inferior magistrate appointed by special commission under the
Great Seal to keep the peace within the county, borough, or liberty for which he is
appointed. "The whole Christian world", says Lord Coke, "hath not the like office as
justice of the peace, if duly executed".
A `justice of the peace' is defined to be a public officer invested with judicial powers for
the purpose of preventing breaches of the peace and bringing to punishment those who
have violated the law."
Venkataramaiya's Law Lexicon with Legal Maxims (Second Edition, published in
1996 by Law Publishers (India) Private Limited, Allahabad, India)
"Justice of the Peace. Person who by appointment is a justice within a certain district for
the conservation of the peace and for the execution of other prescribed duties; he may act
ministerially (e.g. by issuing a warrant, or in the preliminary investigation of indictable
offences), and in civil summary proceedings."
K. J. Aiyar's Judicial Dictionary (Eleventh Edition, published in 1997 by The Law
Book Company (Private) Limited, Allahabad, India):
"Justice of the Peace. High placed officials by virtue of their offices or private men
appointed by special commission from the State Government for keeping the peace and
to inquire into and determine felonies and other misdemeanours."
Law Terms & Phrases Judicially Interpreted with Legal Maxims and Legal Words
and Phrases in ordinary usage (by Sardar Muhammad Iqbal Khan Mokal, published in
1996 by PLD Publishers, Lahore, Pakistan):
"Justice of the peace. High placed officials by virtue of their offices or private men
appointed by special commission from the state Government for keeping the peace and to
inquire into and determine felonies and other misdemeanours."
Hand Book of Legal Terms & Phrases (by M. Ilyas Khan, published by PLD
Publishers, Lahore in 1994):
"Justice of peace.-- Generally abbreviated as J.P., it is a person appointed by the State
within a certain district for the conservation of peace and for certain other duties
especially empowered to perform. "
Words and Phrases Legally Defined (Second Edition, published in 1969 by
Butterworths, London, UK):
"The name "justice of the peace" was first given to the office of magistrate by the Justices
of the Peace Act, 1361. -------"
9. From the information and material referred to above it emerges that the concept of a
Justice of the Peace has evolved and developed over the last many centuries; it had
originated in England and had been introduced by the British colonists in some of their
colonies; the original role of a Justice of the Peace was conservation of the peace within
the area of his jurisdiction through administrative and ministerial measures but. gradually
his role was enlarged in some countries to include a minor judicial role qua summary trial
of petty civil and criminal cases; and every enlargement of his role had been achieved
through express legislation. It is quite clear that beyond the express authority, both
administrative and judicial, conferred upon him by a statute a Justice of the Peace does
not possess any implied or inherent jurisdiction to dispense justice among the people in
his local area.
10. During its rule over the Indo-Pak sub-continent the British colonists had also
introduced the concept of Justices of the Peace in the local system of governance and
conservation of the peace. However, with almost simultaneous introduction of an
elaborate system of hierarchy of Magistrates the role of Justices of the Peace never
assumed any significant importance in the Indo-Pak sub-continent and Justices of the
Peace were never conferred any judicial power. Although since their original induction in
the system some additional powers have been bestowed upon Justices of the Peace from
time to time yet their role essentially remains restricted so far to conservation of the
peace and in case of breach of the peace their role ends by apprehending the culprit, if
possible, and by reporting the breach of the peace to the police. It can, thus, be observed
without any fear of contradiction that at least in the context of Pakistan the role of a
Justice of the Peace at the present juncture in our history is primarily of rendering
assistance to the police in the matters of keeping the peace and, in case of breach of the
peace, apprehending the culprit and rendering assistance to the police in investigation of
the crime. On November 21, 2002 ex-officio Justices of the Peace in Pakistan were
conferred an additional role through promulgation of the Criminal Procedure (Third
Amendment) Ordinance (Federal Ordinance No. CXXXI) of 2002 and this role was in
respect of entertaining complaints and issuance of appropriate directions to the police
authorities concerned regarding registration of criminal cases, transfer of investigation of
criminal cases and in respect of neglect, failure or excess committed by a police authority
in relation to its functions and duties. These and other roles of a Justice of the Peace and
an ex-officio Justice of the Peace in our country are evident from the following
provisions of the Code of Criminal Procedure, 1898 (commonly abbreviated as Cr.P.C.):
Section 22, Cr.P.C.:
"A Provincial Government so far as regards the territories subject to its administration
may by notification in the official Gazette, appoint such persons resident within Pakistan
and not being the subjects of any foreign State as it thinks fit to be Justices of the Peace
within and for the local area mentioned in such notification."
Section 22, Cr.P.C. (Punjab amendment):
"Appointment of Justices of the Peace. The Provincial Government may, by
notification in the official Gazette, appoint for such period as may be specified in the
notification, and subject to such rules as may be made by it any person who is a citizen of
Pakistan and as to whose integrity and suitability it is satisfied, to be a Justice of the
Peace for a local area to be specified in. the notification, and more than one Justice of the
Peace may be appointed for the same local area."
Section 22-A, Cr.P.C.:
"Powers of Justice of the Peace. (1) A Justice of the Peace for any local area shall, for
the purpose 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 of 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 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."
Section 22-B, Cr.P.C.:
"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 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."
Section 25 Cr.P.C.:
"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 the whole of the District of the Province in which they are serving."
11. The above mentioned provisions of the Code of Criminal Procedure, 1898 show that
the roles statutorily defined in Pakistan for a Justice of the Peace are, by and large, as
follows:
A Justice of the Peace in Pakistan has the powers
(a) to make an arrest in circumstances enumerated in sections 54 and 55, Cr.P.C. and to
hand over custody of the arrested person to the officer in charge of the nearest Police
Station;
(b) to call upon any member of the police force an duty to aid him in arresting or
preventing the escape of a person involved in commission of a cognizable offence;
(c) to call upon any member of the police force on duty to aid him in the prevention of
crime, breach of the peace or disturbance of the public tranquility; and
(d) to issue a certificate of identification of a person, to verify any document and to attest
any document.
An ex-officio Justice of the Peace in Pakistan. (i.e., Sessions Judges and nominated
Additional Sessions Judges in the relevant Districts under section 25, Cr.P.C.) has the
power to issue appropriate directions to the police authorities concerned on a complaint
regarding non-registration of criminal case, transfer of investigation from one police
officer to another and neglect, failure or excess committed by a police authority in
relation to its functions and duties.
The duties of a Justice of the Peace in Pakistan are
(a) to make inquiries and to report in writing to the nearest Magistrate and to the officer
in charge of the nearest police station whenever he receives information of an occurrence
opt any incident involving a breach of the peace or of commission of any offence within
his local area;
(b) if the information received by him is in respect of commission of a cognizable offence
then to also prevent any interference with the place of occurrence or removal of anything
therefrom;
(c) to render assistance to a police officer, if so required in writing by him, making an
investigation in respect of any offence within the relevant local area; and
(d) to record any statement, if so required in writing by a police officer making an
investigation in respect of any offence within the relevant local area, made under
expectation of death by a person in respect of whom a crime is believed to have been
committed.
The learned Additional Advocate-General, Punjab as well as the learned counsel for the
parties in the present writ petitions have not been able to refer to any other material
before us showing that a Justice of the Peace or an ex-officio Justice of the Peace in
Pakistan has any other power or duty besides those alluded to by us above.
12. Adverting now to question number (b) framed by us as to whether in Pakistan a
Justice of the Peace or an. ex-officio Justice of the Peace exercises judicial powers or his
functions are merely administrative and ministerial in nature and character we have
already observed above in our discussion in respect of question number (a) that the
powers and duties of a Justice of the Peace or an ex-officio Justice of the Peace in
Pakistan as provided in sections 22-A and 22-B, Cr.P.C. do not involve any jurisdiction
which can be termed as judicial in nature or character. In this context the role of a Justice
of the Peace or an ex-officio Justice of the Peace in Pakistan is sharply different from that
now enjoyed by their counterparts in the United Kingdom and the United States of
America where some judicial role regarding summary trial of petty civil and criminal
cases has been conferred upon the Justices of the Peace through legislative intervention.
That surely is not the case in Pakistan where no statute confers any judicial power upon a
Justice of the Peace or an ex-officio Justice of the Peace. We can, therefore, safely hold
that functions to be performed by a Justice of the Peace or an ex officio Justice of the
Peace in Pakistan are merely administrative and ministerial in nature and character. We
feel fortified in so holding by the provisions of section 6, Cr.P.C. which categorizes the
classes of criminal courts and Magistrates in Pakistan and a Justice of the Peace or an exofficio
Justice of the Peace is not included in any such class of courts or Magistrates.
Apart from that sections 28. and 29, Cr.P.C. specify as to which courts are .to try which
offences and in those sections too a Justice of the Peace or an ex-officio Justice of the
Peace does not figure at all. In the case of Pir Abdul Qayyum Shah v. S.H.O. and four
others [2005 PCr.LJ 357] a learned Judge-in-Chamber of this Court has already held that
a revision petition is not competent against an order, passed by an ex-officio Justice of
the Peace under section 22-A(6), Cr. P.C. because the jurisdiction conferred under the
said provision of law is administrative in nature and not judicial and, thus, not amenable
to revisional jurisdiction of this Court.
13. Through question number (c) mentioned above we wanted to explore the extent and
scope of direct interference by an ex-officio Justice of the Peace under section 22-A(6),
Cr.P.C. with investigation of a criminal case by the police. We have already concluded
above that a Justice of the Peace or an ex-officio Justice of the Peace in Pakistan
performs functions which are administrative and ministerial in nature and not judicial in
character. The case-law referred to by us hereinbelow would show that even the superior
courts of Pakistan having constitutional, legal, supervisory and inherent judicial
jurisdiction have consistently and consciously refrained from directly interfering with
investigation of a criminal case by the police and, therefore, it is but obvious that Justices
of the Peace or ex-officio Justices of the Peace possessing only administrative and
ministerial powers should be twice shy of such direct interference. The following
precedent cases may advantageously be referred to in this context:
Emperor v. Khwaja Nazir Ahmad [AIR (32) 1945 Privy Council 18]:
"In their Lordships' opinion however; the more serious aspect of 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 has been 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 there 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 begun
when a charge is preferred before it and not until then."
Federation of Pakistan v. Shah Muhammad Khan and others [PLD 1960 Supreme Court
(Pak.) 85]:
"No law or regulation gives a complainant a vested right, which can be enforced by a writ
to have his complaint investigated by a particular branch of the Police, and the law gives
powers to the Central Government by a general or special order to take away the
jurisdiction and powers of' investigation and arrest of the Special Police Establishment by
the Proviso to section 2(2) of the Ordinance referred to above [Pakistan Special Police
Establishment Ordinance (VIII of 1948)]. The respondent No. 1, therefore, had no right
to maintain a petition for writ and the High Court was in error in issuing a direction on
such a petition. The order of the High Court is, therefore, set aside and this appeal is
allowed."
Shahnaz Begum v The Hon'ble Judges of the High Court of Sind and Baluchistan and
another [PLD 1971 Supreme Court 677]:
"We are in respectful agreement with this view and have no difficulty at all in holding
that the word "direct" in clause 22 [of the Letters Patent of the High Courts of West
Pakistan] also bears the same sense and, therefore, the necessity for snaking a direction
can only arise in a case where no investigation has started. The power to issue a direction
cannot be invoked where investigation has already commenced in accordance with law
by authorities competent to investigate under the Criminal Procedure Code nor does the
power to "direct" include the power to "transfer" from one competent investigating
agency to another. This would be unwanted interference with the investigation which has
been disapproved of by the Judicial Committee of the Privy Council in the case of
Emperor v. Kh. Nazir Ahmad. "
Muhammad Saeed Azhar v. Martial Law Administrator, Punjab and others [1979 SCMR
484]:
"The learned Judge in the High Court also appears to us to be right in taking the view that
the question of the alleged mala fide on the part of the local police also requires factual
investigation, which could not be undertaken by the High Court in the exercise of its writ
jurisdiction."
Malik Shaukat Ali Dogar and 12 others v. Ghulam Qasim Khan Khakwani and others
[PLD 1994 Supreme Court 281]:
"As regards the abiding control over the investigation which was sought to be exercised
by mandating periodical reports to be submitted on the progress of investigation, we were
in doubt in view of the precedent law laid down by this Court. To that limited extent, we
had directed notice to issue to the respondents "whether such supervision and control
over investigation and directions pertaining to it is permissible in view of the
observations made by this Court in Shahnaz Begum v. The Hon'ble Judges of the High
Court of Sindh and Balochistan and another PLD 1971 SC 677".
In response to our notice, Syed Niaz Ali Shah, Additional Advocate-General has
appeared and submitted that though the registration of the case on the directions of the
High Court could not be seriously objected to, the continued control over investigation
before challan was submitted was something which the law and the, precedent of this
Court do not permit. We have converted these petitions into appeals.---
As regards the nature of the continued control exercised by the Court over the
investigation---
We consider that the t continued control over the investigation exercised by the Court as
in this case was prejudicial to the accused and detrimental to the fairness of the procedure
apart from being without jurisdiction."
Brig. (Retd.) Imtiaz Ahmad v. Government of Pakistan through Secretary, Interior
Division, Islamabad and 2 others [1994 SCMR 2142]:
"The significance of the above-quoted observations lies in the fact that one of the
declarations sought by the petitioner was to direct the Government "to place all
incriminating material before the High Court to enable it to exercise judicial review to
ensure that the criminal proceedings are not being initiated for reasons and purposes
extraneous to statute". In other words what the petitioner wanted the High Court to do
was to assume the role of Investigator. This could obviously not be done, for the
authority to register and investigate a criminal case in law vests in the police and not in
Court. We must hold, therefore, that the learned judges in the High Court were entirely
justified in not assuming that role."
Anwar Ahmad Khan v. The State and another [1996 SCMR 24]:
"The orders sought to be quashed are nothing but an effort on the part of the learned
Judges to obtain information and ensure that inquiry is held and report is submitted by the
inquiry officers in proper time. It. has been observed that in cases involving offences of
serious and sensational nature, often inquiry officers are appointed leading to no result at
all. The proceedings suffer from delays, laches and unnecessary adjournments and noncooperation
by the officers. and public alike. When the case under investigations is under
judicial scrutiny by a superior Court, it can direct concerned authorities to finalize their
reports within a reasonable time. The High Court in passing the impugned order did not
interfere with the investigation. It merely required the concerned officer to be more alert,
vigilant, prompt and dutiful. There had been complaint of harassment by the police of the
relations of the deceased forcing them to compound. If the matter had been allowed to be
delayed, such tactics may have succeeded.
The learned counsel's contention that the High Court has been supervising the inquiry is
completely misconceived. The High Court had given time to the Advocate-General to get
information about the progress made by the inquiry officer appointed by the Government.
It also noted how far the Investigating Officer was at variance with the opinion of the
judicial inquiries and whether any action was taken in pursuance of the judicial inquiry, if
not, for what reason. The learned counsel has referred to Shahnaz Begum v. The
Honourable Judges of High Court of Sindh and Baluchistan PLD 1971 Supreme Court
677. The facts of that case were completely different and the principles laid down there
do not apply in the present case. ---
It is well-settled principle that where investigation is mala fide or without jurisdiction, the
High Court in exercise of its Constitution jurisdiction under Article 199 is competent to
correct such proceedings and pass necessary order to ensure justice and fairplay. The
investigating authorities do not have the entire and total authority of running investigation
according to their whims.
The contention that the High Court has been directing to register criminal case against
Anwar Ahmad; S.H.O., is not correct. There is no such direction in any of the orders
passed by the learned Judges.---Such querry made by the Court cannot tantamount to be a
direction to arrest and prosecute the petitioner.---"
In the case of Muhammad Latif v. Sharifan Bibi and another [1998 SCMR 666] a
direction was issued by this Court to the Senior Superintendent of Police, Sheikhupura to
register a criminal case against a police officer for falsely involving a citizen in an
entirely cooked up criminal case and to get such a case investigated by a gazetted police
officer. The Hon'ble Supreme Court, of Pakistan upheld the said order of this Court while
observing that:
"The apprehensions expressed on behalf 'of the petitioner are unfounded. It is true that it
is not appropriate for the High Court to start parallel enquiry at investigation stage. Here;
the impugned order passed by the High Court for investigation of the. case by a gazetted
Police Officer did not amount to interference with the investigation. The High. Court in
exercise of its Constitutional jurisdiction was right in issuing the aforesaid directions in
order to ensure justice and fairplay, particularly, in view of the subsequent statement
made by the D.S.P. that a false case was registered against the detenu Amjad with ulterior
motive."
Muhammad Ali and 12 others v. District Magistrate, Faisalabad, and 3 others [PLD 1978
Lahore 1325]:
"It has often been stressed by superior Courts that the police investigation in the crime
would not be interfered with or stifled by superior Courts in extraordinary jurisdiction,
either under section 561-A; Cr.P.C:, or under writ jurisdiction. --- Repeated interference
through orders of various types in writ jurisdiction would, on the one hand, bring the
investigating agencies and trial agencies to a grinding halt; on the other, would also
choke the normal relief giving channels of the superior Courts. A simple exercise of a
visualization of accused and complainants, in all types of cases, coming to the High Court
for correction in writ jurisdiction, at almost all conceivable stages (a discriminatory
reaction of shutting out cases of other sections of society, involving violence, property,
etc., as examples, would not then be possible) would present a colossal problem to tackle
with, which could not be the intention of the law-maker. Fourthly, the machinery for
tracing and collection of evidence in crimes available with superior Courts cannot be a
safe substitution for mass of ordinary laws/rules in this behalf applied at the regular
investigation and trial of crimes. And lastly, without the necessary machinery and
requisite time for holding detailed enquiries, it would be hazardous exercise for a superior
Court to take upon itself the duty to investigate such like matters in the world of crime
and criminals. Without doing so, it would be almost impossible to interfere with the
police actions and investigations in writ jurisdiction. That is why after giving due caution,
their Lordships of the Supreme Court used extremely guarded language in imagining a
possibility and that too, only very rare, for such an action, in Shahnaz Begum's case (PLD
1971 SC 677)."
Nasir Ali v. Inspector-General of Police, Punjab, Lahore and 8 others [PLJ 2000 Lahore
865)
"I cannot help observing that this petition is diabolically misconceived. It is not the
function of this Court to sit in judgment over the findings or conclusions of the
Investigating Officers of criminal cases. It had been settled over half a century ago that
while investigating a crime reported to it the police performs a statutory duty and its
operational and investigational independence in that respect is worthy of as much sanctity
and respect as the independence of the judiciary in its adjudicatory domain. A reference
in this respect may be made to the case of Emperor v. Khawaja Nazir Ahmad (AIR (32)
1945 Privy Council 18). In pursuance of that principle this Court is generally slow in
interfering with the police investigation. No exceptional circumstance has been pointed
out in this case so as to warrant a departure from the said beaten track."
Thus, if despite possessing constitutional, legal, supervisory and inherent judicial powers
the superior courts of this country have generally considered it imprudent and ill-advised
to directly interfere with investigation of a crime by the police then it appears to be
nothing but stating the obvious that a Justice of the Peace or an ex-officio Justice of the
Peace possessing merely administrative and ministerial powers should all the more be
reluctant and hesitant in issuing directions to the police as to how and by whom a
criminal case is to be investigated. It must not be lost sight of that a Justice of the Peace
in Pakistan has no judicial powers and an ex-officio Justice of the Peace is a Justice of the
Peace only by virtue of the office that he already holds and his powers as such do not
become judicial simply because the other office already held by him happens to be a
judicial office. In this view of the matter the learned Additional Advocate-General,
Punjab has appeared to us to be entirely justified in maintaining that by virtue of his
jurisdiction under section 22-A(6), Cr.P.C. an ex-officio Justice of the Peace can issue
appropriate directions to the police authorities concerned on the basis of complaints
regarding non-registration of a criminal case, transfer of investigation from one police
officer to another and neglect, failure or excess committed by a police authority in
relation to its functions and duties but the directions to be issued by an ex-officio Justice
of the Peace under section 22-A(6), Cr.P.C. are to be directions to the concerned police
authorities to attend to the grievance of the complaining person in accordance with the
relevant law and through the jurisdiction under section 22-A(6), Cr.P.C. an ex-officio
Justice of the Peace cannot arrogate to himself the power of redressing the actual
grievance itself. An exception to this can be visualized by us in cases of a clear legal
obligation on the part of a police officer to act in a particular manner in which situation a
direction may be issued by an ex-officio Justice of the Peace to the concerned police
officer to do the needful. The learned Additional Advocate-General has also been found
by us to be quite correct in maintaining that under section 22-A(6), Cr.P.C. an ex-officio
Justice of the Peace is to perform the role of a facilitator and that of a bridge or a conduit
between the complaining persons and the police authorities concerned and the
jurisdiction under section 22-A(6), Cr.P.C. does not allow an ex-officio Justice of the
Peace to put on the mantle of a higher police authority himself, and to start exercising all
those executive powers himself which the relevant law has vested in the concerned police
authorities. This interpretation appears to us to be a correct statement of the law as the
same is in accord with the ratio decidendi of the above mentioned precedent cases besides
being a safe and prudent approach vis-a-vis the well entrenched constitutional doctrine of
separation of powers. We may add that if in their capacity as ex-officio Justices of the
Peace Judicial officers like Sessions Judges and Additional Sessions Judges are allowed
to play a proactive, hands-on and upbeat role of direct interference in the administrative
working of the police then such executive role of judicial officers may militate against the
constitutional mandate of separation of the Judiciary from the Executive enshrined in
Article 175(3) of the Constitution of the Islamic Republic of Pakistan, 1973. In that
eventuality the provisions of section 22-A(6), Cr.P.C. may themselves become vulnerable
to a serious challenge on the touchstone of the Constitution.
14. This brings us to question number (d) as to what, in the context of criminal justice,
are the general complaints against the working of the police in the Province of the Punjab
and what kind of "directions" can/should an ex-officio Justice of the Peace issue in
respect of such complaints while exercising his jurisdiction under section 22-A(6),
Cr.P.C. Our experience at the Bench of this Court shows that generally the public at large
brings the following kinds of complaints against the police before this Court while
invoking writ jurisdiction of this Court under Article 199 of the Constitution and now
similar complaints are being brought before ex-officio Justices of the Peace by filing
petitions finder section 22-A(6), Cr.P.C.:
(i) complaints about unjustified harassment by the police in the absence of any criminal
case having been registered against the aggrieved person;
(ii) complaints regarding failure of the police to register a criminal case despite
commission of a cognizable offence having been reported to it;
(iii) complaints pertaining to failure by the investigating officer to add appropriate penal
provisions to an FIR or a cross-version of the accused party;
(iv) complaints about failure by the investigating officer to record a cross-version of the
accused party;
(v) complaints regarding failure to arrest an accused person nominated in the FIR or in
the cross-version of the accused party;
(vi) complaints pertaining to unfair, biased and improper investigation and, thus, seeking
transfer of the investigation; and
(vii) complaints about failure to finalize investigation of a criminal case and to submit a
Challan within a reasonable time.
We intend to advert to each one of such complaints one by one so as to examine what
kind of directions can/should be issued by an ex-officio Justice of the Peace under section
22-A(6), Cr.P.C. in respect of such complaints. But before that we may observe with
emphasis that it is by slow a settled proposition of law that while exercising its
constitutional jurisdiction regarding judicial review of administrative action a High Court
is not to substitute its own decision for that of the competent authority and that, after
stating the correct legal position, the High Court is to issue a direction to the competent
authority to pass an appropriate order in terms of the legal position so declared. Likewise,
except in cases of a clear legal obligation on the part of a police officer to act in a
particular manner in which situation a direction may be issued by an ex-officio Justice of
the Peace to the concerned police officer to do the needful, it would be inappropriate to
the verge of being illegal for an ex-officio Justice of the Peace to issue directions to the
police arrogating to himself the role of a supervisor or superintendent of the police in the
matter of actual investigation of a crime. We have already observed above that while
exercising his jurisdiction under section 22-A(6), Cr.P.C. an ex-officio Justice of the
Peace is only to activate the available regal remedy or procedure so that the grievance of
the complaining 'person can be attended to and redressed, if found genuine, by the
competent authority of the police. In this view of the matter if an ex officio Justice of the
Peace can issue the desired direction under action 22-A(6); Cr.P.C. activating the
available legal remedy or procedure which the High Court would also have done if seized
of a writ petition filed in that regard under Article 199 of the Constitution lien the remedy
before an ex-officio Justice of the Peace under section 22-A(6), Cr.P.C. can ordinarily be
termed and accepted as in adequate alternate statutory remedy ousting a direct recourse
by an aggrieved person to the High Court by invoking its extraordinary jurisdiction under
Article 199 of the Constitution. A similar view in this regard has already been expressed
by a learned Judge-in-Chamber of the Hon'ble Sindh High Court in the case of
Muhammad Yousaf v. Dr. Madad Ali alias Gulab Laskani and 8 others [PLD 2002
Karachi 328] and also by another learned Judge-in-Chamber of the same Court in the
case of Shahnawaz v. Raja Tanveer and seven others [2005 PCr.LJ 487] and we
respectfully endorse the said view. It is, therefore, declared that in the matters of
complaints against the working of the police covered by the provisions of section 22-
A(6), Cr.P.C. an aggrieved person, except where the High Court feels satisfied that it is
an exceptional case arising out of extraordinary circumstances warranting direct
interference by the High Court and rendering the remedy under section 22-A(6), Cr.P.C.
inadequate, cannot file a writ petition before this Court under Article 199 of the
Constitution before availing of the normally adequate alternate statutory remedy before
an ex-officio Justice of the Peace under section 22-A(6), Cr.P.C.
15. As regards the jurisdiction of an ex-officio Justice of the Peace regarding complaints
about unjustified harassment by the police in the absence of any criminal case having
been registered against the aggrieved person we may observe on the basis of our
experience that more often than not such complaints are couched in vague, unspecific and
generalized terms and sometimes such complaints are motivated with considerations
other than bona fide. An ex-officio Justice of the Peace must remain watchful, alert and
vigilant in this respect while handling all such complaints. It goes without saying that an
allegation of fact levelled in such a complaint must contain all the necessary factual
details regarding the date, time and place of the alleged harassment as well as full
particulars of the concerned police officer who is being complained against. In the
absence of such precision and exactitude in the complaint the relevant police officer,
when required by the ex-officio Justice of the Peace to submit his comments, can remain
contented with a bare and bald denial of the allegations leaving the ex-officio Justice of
the Peace with no other option but to dismiss such a complaint as having remained
unsubstantiated. However, if the complaint contains the necessary factual details and
through his comments the relevant police officer fails to satisfy the ex-officio Justice of
the Peace regarding falsity of the allegations levelled against him then the ex-officio
Justice of the Peace may, depending upon the circumstances of the case, either warn the
relevant police officer not to transgress the limits of the law in future or may issue a
direction to the relevant higher police authority or the relevant Public Safety and Police
Complaints Commission to consider the complaint and to take appropriate action against
the delinquent police officer under the relevant provisions of the Police Order, 2002. In
an extreme case of highhandedness and totally unjustified harassment the ex-officio
Justice of the Peace may issue a direction to the relevant police authority to register a
criminal case against the delinquent police officer if he had seemingly committed some
cognizable offence during the harassment perpetrated by him.
16. As regards the complaints regarding failure of the police to register a criminal case
despite commission of a cognizable offence having been reported to it there is no
gainsaying the fact that the provisions of section 154, Cr.P.C. in that respect are quite
explicit and the duty of the officer in charge of the local Police Station in that regard is
mandatory in nature. However, we may hasten to add that the officer in charge of the
relevant Police Station may be under a statutory obligation to register an F.I.R. whenever
information disclosing commission of a cognizable offence is provided to him but the
provisions of section 22-A(6), Cr.P.C. do not make it obligatory for an ex-officio Justice
of the Peace to necessarily or blind-foldedly issue a direction regarding registration of a
criminal case whenever a complaint is filed before him in that regard. The use of the
word "may" in section 22-A(6), Cr.P.C. clearly shows that the jurisdiction of an exofficio
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 exofficio
Justices of the Peace to exercise caution and restraint before issuing a direction
regarding registration of a criminal case. 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 exofficio 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. The law in this respect stands settled and we may refer in this context to the cases
of Saeed Ahmad and others v. Naseer Ahmad and others [PLD 2000 Lahore 208 (DB)]
and Muhammad Aslam v. Additional Sessions Judge and others [2004 PCr.LJ 1214].
Even the Hon'ble Supreme Court of India has expressed the same view in the case of
Union of India and another v. W. N. Chadha [ 1993 SCMR 285). 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.
Experience shows that there are cases where the complainant party may be better of in
pressing its allegations and remaining in control of its case by filing a private complaint
rather than forcing the police to register a criminal case and to investigate when the
police is itself not convinced of the complainant party's allegations being correct. The
case of Hazoor Bakhsh v. Senior Superintendent of Police, Rahimyar Khan and 12 others
[PLD 1999 Lahore 417 (DB)] elaborately deals with the question of adequacy of the
remedy of a private complaint in such situations. We may also clarify that the impression
entertained by a large section of the legal community in our country that in case of filing
of a private complaint the accused person cannot be arrested and recovery cannot be
effected from him is nothing but erroneous and fallacious. By virtue of the provisions of
section 202(1), Cr.P.C. a Court seized of a private complaint can "direct an inquiry or
investigation to be made by any Justice of the Peace or by a police officer or by such
other person as it thinks fit". The powers available during an investigation, enumerated in
Part V, Chapter XIV of the Code of Criminal Procedure, 1898 read with section 4(1)(1)
of the same Code, include the powers to arrest an accused person and to effect recovery
from his possession or at his instance. Such powers of the investigating officer or the
investigating person recognize no distinction between an investigation in a State case and
an investigation in a complaint case. In the case of Noor Nabi and three others v. The
State [2005 PCr.LJ 505] a learned Judge-in-Chamber of the Hon'ble Sindh High Court
has already clarified that section 91, Cr.P.C. deals only with procuring attendance of a
person before the Court and after his availability before the Court the matter of his
admission to bail or not rests in the hands of the Court and that the impression about
automatic admission of an accused person to bail in a case of a private complaint is
erroneous. Thus, in appropriate cases the ex-officio Justices of the Peace would be
serving the interests of justice well by dispelling wrong impressions about inadequacy of
the remedy of filing a private complaint and by encouraging the complaining persons to
take charge of their allegations against the accused party by filing a private complaint
rather than forcing an unwilling or unconvinced police to be in control of their cases.
17. The complaints about failure by an investigating officer to add appropriate penal
provisions to an F.I.R. or a cross-version of the accused, party are not uncommon but
they are normally not worthy of being taken with any degree of seriousness by an exofficio
Justice of the Peace. The stands taken by the complaining persons in this regard
normally touch the merits of the allegations and an ex-officio Justice of the Peace would
be well advised to refrain from entering into any such controversy at a premature stage
and to consider, by appreciating the factual aspects of a given case, as to which offences
are or are not disclosed by the allegations contained in an F.I.R. or a cross-version. It
goes without saying that the overall incharge of a criminal case is the Area Magistrate
who, even during the progress of an investigation, gets many opportunities to go through
the record of investigation conducted by the police and in an appropriate case and at an
appropriate stage he can require the investigating. officer to consider addition or deletion
of any penal provision. Be that 8 it may, after submission of a report under section 173,
Cr.P.C./Challan the Magistrate taking cognizance of the offence or the trial court taking
cognizance of the case can take cognizance of any offence disclosed by the material
available on the record of investigation even if the police have not invoked the relevant
penal provision. Even at the time of framing of the charge a trial Court can frame a
charge in respect of an offence disclosed by the record even if the same finds no mention
in the report submitted under section 173, Cr.P.C./Challan. With so many opportunities
being available with the Magistrate and the trial Court regarding rectification of a
mistake, deliberate or otherwise, committed by the police in this connection it would be
unwise for an ex-officio Justice of the Peace to interfere with such a matter at an
inappropriate and premature stage. In the case of Nadeem Sarwar v. Station House
Officer, Police Station Sadar, Hafizabad and 2 others [2000 YLR 756] this Court had
handled a similar complaint in the following manner:
"The petitioner is an accused person in case F.I.R. No.466 registered at Police Station
Sadar, Hafizabad on 14-12-1999 for offences under sections 322/279, PPC. It has been
prayed by the petitioner through the present petition that section 322, P.P.C. may be
ordered to be deleted from the said F. I. R. as the same is not attracted to the facts alleged
in the F.I.R. At the outset I must observe that this petition is diabolically misconceived to
this extent. Controlling the insertion or deletion of a section of a penal statute in Column
No. 3 of an F.I.R. is surely not a function of this Court while exercising its writ
jurisdiction under Article 199 of the Constitution. All that is required in a situation and at
the stage like the, one in the present case is that the petitioner is to convince the
Investigating Officer of the case that a certain provision invoked in the F.I.R. may not be
pressed against him as the same is not. attracted to the allegations contained in the
narrative part of the F.I.R.. The real F.I.R. is the narrative part of the F.I.R. and not
Columns Nos. 1 to 5 thereof which are to be filled in by a Moharrir or other police
official. A similar objection can. surely be raised by the petitioner not only before the
Investigating Officer but also before the Court dealing with his bail application or
holding his trial. This petition calls for no occasion by this Court to interfere in the matter
at such a stage."
An ex-officio Justice of the Peace may follow suit while dealing with complaints of the
like nature. In case of receipt of such a complaint an ex-officio Justice of the Peace may
advise the complaining person to approach the Area Magistrate or the trial Court, as the
case may be, rather than entertaining such a complaint himself.
18. As far as the complaints received by an ex-officio Justice of the Peace about failure
by the investigating officer to record a cross-version of the accused party are concerned
suffice it to observe that the following observations made by this Court in the above
mentioned case of Nadeem Sarwar v. Station House Officer Police Station Sadar
Hafizabad and 2 others [2000 YLR 756] show the way as to how such complaints are to
be dealt with by the ex-officio Justices of the Peace:
"Another grievance voiced by the petitioner in the present petition is that the
Investigating Officer of the above mentioned criminal case, respondent No. 1 herein, is
not associating the petitioner with the investigation of the said case. Although I have
remained unconvinced of such an assertion by the petitioner but for the benefit of all
concerned it is hereby observed that it is a statutory duty of every Investigating Officer of
a criminal case to associate the accused person with the investigation and also to record
his version of the incident in question. I have no doubt in my mind that if the petitioner
approaches respondent No.1 in this regard then respondent No.1 shall associate him with
the investigation of the above mentioned criminal case and shall also record his version
of the incident."
While dealing with a complaint of this nature an ex-officio Justice of the Peace should
call for comments of the investigating officer explaining as to why he has not recorded
the version of the accused party and if such comments confirm the complaint that despite
having been approached in that regard by the accused party the investigating officer has
not recorded the version of the accused party and there is no valid or justifiable reason for
such default on his part then a direction may be issued by the ex-officio Justice of the
Peace to the investigating officer to do the needful or in the alternative the Superintendent
of Police (Investigation) of the relevant District may be directed by the ex-officio Justice
of the Peace to attend to this aspect of the matter and to ensure that the needful is done by
the investigating officer without further ado.
19. The complaints filed before ex-officio Justices of the Peace regarding failure by the
police to arrest an accused person nominated in an F.I.R. or implicated through a crossversion
of the accused party are quite frequent and we have observed that more often than
not such complaints stem from a basic misconception about. the circumstances in which
an accused person is allowed by the law to be arrested in a criminal case. For the purpose
of removal of such misinterpretation and misconstruction of the relevant legal provisions
we have decided to restate the legal position in this regard in some detail.
20. Under section 22-A(1), Cr.P.C. a Justice of the Peace has the jurisdiction to exercise
all those powers of arrest in the relevant local area which powers are available to a police
officer referred to in section 54, Cr.P.C. and to an officer in charge of a Police Station
referred to in section 55, Cr.P.C. The powers of arrest in both the said sections are the
same but they relate to different situations. In the case of Abdul Qayyum v. S.H.O. Police
Station Shalimar, Lahore [1993 PCr.LJ 91] this Court had an opportunity to attend to the
requirements of section 54, Cr.P.C. and it was observed by this Court as follows:
"Under the provisions of clause first of section 54, Cr.P.C., the Police Officer can arrest a
person in the following four conditions:-
(a) The accused is involved in a cognizable offence;
(b) Against the accused a reasonable complaint has been made for the said offence;
(e) A credible information is received by the Police Officer that he is involved in a
cognizable offence; and
(d) Reasonable suspicion exists that the said person is involved in the cognizable offence.
The expression `credible information' is not a technical legal expression importing that
the information must be given upon oath or affirmation. It includes any information
which in the judgment of the officer to whom it is given appears entitled to credit in the
particular instance and which he believes. The credible information mentioned therein
need not be in writing.--
The object of section 54, Cr.P.C. is to give the widest powers to the Police Officers to
arrest the persons who are involved in cognizable cases and the only limitation placed
upon their power is the necessary requirement of reasonability and credibility to prevent
the misuse of the powers by the Police Officers.
As the powers mentioned above given to the Police Officers under section 54, Cr.P.C.
encroaches upon the liberty of a person, this wide power has to be construed, interpreted
and defined strictly. A general definition of what constitutes reasonableness in a
complaint or suspicion and credibility of information cannot be given. Both must depend
upon the existence of tangible legal evidence within the cognizance of the Police Officer
and, he must judge whether the evidence is sufficient to establish the reasonableness and
credibility of the charge, information or suspicion. It has been laid down by this Court in
1992 PCr.LJ 131: An arrest which is beyond the provisions of section 54, Cr.P.C. would
be illegal and void per se'."
Prior to that in the case of Muhammad Shafi v. Muhammad Boota and another [PLD
1975 Lahore 729] this Court had observed that
"The words "reasonable suspicion" (in section 54, Cr.P.C.) do not mean a mere vague
surmise, but a bona fide belief on the part of the Police Officer that an offence has been
committed or is about to be committed. Such belief has to be founded on some definite
averments tending to show suspicion on the person arrested.--- The action of a police
Officer under section 54, Cr.P.C. must be guarded inasmuch as he should first satisfy
himself about the credibility of the information which, as staled already, should relate to
definite facts. It was not at all the intention of the law-giver that the Police Officer should
at his own sweet will arrest anybody he likes, although he may be a peace loving citizen
of the country."
The Hon'ble Sindh High Court had also observed in the case of Muhammad Siddiq v.
Province of Sindh through Home Secretary, Karachi and 2 others [PLD 1992 Karachi 358
(DB)] that
"It will thus be seen that the first sub-clause of section 54(1), Cr.P.C. a person can be
arrested without a warrant in the following circumstances:-
(a) If he be concerned in any cognizable offence.
(b) Against whom a reasonable complaint has been made.
(c) Against whom credible information has been received that he is concerned with
commission of such offence.
(d) If reasonable suspicion exists about him being so concerned.
It is true that a Police Officer has been conferred sufficient powers to arrest a person in
the investigation of a cognizable offence if he be concerned with commission of such
offence. But such a power can be exercised only in those cases where a Police Officer is
possessed of some evidence indicating involvement of a person under the four situations
mentioned in section 54(1), Criminal Procedure Code."
In the case of Mst. Razia Pervez and another v. The Senior Superintendent of Police,
Multan and 5 others [1992 P.Cr.L.J. 131] this Court had observed as follows:
"No doubt, the Police Officer can arrest a person where a reasonable suspicion exists of
his having been concerned in any cognizable offence but power given to the Police
Officer under this section (section 54, Cr.P.C.) being an encroachment on the liberty of a
citizen is not unlimited. It is subject to the condition stated therein. An arrest purporting
to be under this section would be illegal unless the circumstances specified in the various
clauses of the section exist. This section does not give free licence to a Police Officer to
arrest anybody he may like. In order to act under this section, there must be a reasonable
suspicion of the person to be arrested having been concerned in a cognizably offence. An
arrest of a citizen in a reckless disregard of the conditions imposed in this section would
make the arrest and detention of the subject illegal and the Policy Officer arresting or
detaining the subject would be exposed to prosecution under the Pakistan Penal Code and
also for departmental action under the relevant rules."
The above mentioned precedent cases clearly show that an arrest of a person in
connection with a criminal case is not to be a matter of course and the power to arrest is
conditional upon fulfilment of the requisite legal requirements.
21. One of the cardinal principles of criminal law and jurisprudence is that an accused
person is presumed to be innocent until proved guilty before a Court of law. However, of
late we have noticed a growing tendency on the part of the complainant party to insist
upon arrest of an accused person nominated by it in the F.I.R. and an increasing
willingness, nay eagerness, on the part of the investigating officer of a criminal case to
effect arrest of the accused person even before initiating or launching a proper
investigation of the allegations 'levelled in the F. I. R. Such an approach has been found
by us to be absolutely against the spirit of the relevant law, to be wrought with inherent
dangers to cherished liberty of citizens who may ultimately be found to be innocent and
to amount to putting the cart before the horse! It had been observed by the Hon'ble
Supreme Court of Pakistan in the case of Brig. (Retd.), F.B. Ali and another v. The State
[PLD 1975 Supreme Court 506] that
"In my view the mere lodging of an information does not make a person an accused nor
does a person against whom an investigation is being conducted by the police can strictly
be called an accused. Such a person may or may not be sent up for trial. The information
may be found to be false: An accused is, therefore, a person charged in a trial. The
Oxford English Dictionary defines an "accused" as a person "charged with a crime" and
an "accusation" as an "indictment". Aiyer in his Manual of Law Terms also gives the
same meaning. I am of view, therefore, that a person becomes an accused only when
charged with an offence. The Criminal Procedure Code also uses the word "accused" in
the same sense, namely; a person over whom a Court is exercising jurisdiction."
Even the Hon'ble Federal Shariat Court had remarked in the case of Mst. Asho and 3
others v. The State [1987 PCr.LJ 538] that
"Mere levelling accusations against a person in F.I.R. does not make him. an accused
person unless and until some evidence implicating such person in the commission of the
offence is available."
We may add in this context that a general impression entertained by some quarters that an
arrest of a suspect or an accused person is necessary or sine qua non for investigation, of
a crime is misconceived and the same portrays scant knowledge of the relevant statutory
provisions. We may briefly allude to such statutory provisions here. Section 46, Cr.P.C.
provides as to how an arrest is to be made, section 54, Cr.P.C. deals with arrest by a
police officer without a warrant, section 55, Cr.P.C. pertains to arrest of vagabonds, etc.
by an officer in charge of a Police Station, section 59, Cr.P.C. caters for a situation where
a private person may effect an arrest and section 151, Cr.P.C. authorizes a police officer
to arrest a person in order to prevent commission of a cognizable offence. Section 169,
Cr.P.C. visualizes a situation where a suspect may be released if the investigating officer
finds no sufficient evidence or reasonable ground for suspicion against him. The
parameters of such arrests are essentially those already discussed in the above mentioned
precedent cases. According to Article 4(1)(j) of the Police Order, 2002 it is a duty of
every police officer to "apprehend all persons whom he is legally authorised to apprehend
and for whose apprehension sufficient grounds exist". Rules 24.1, 24.4 and 24.7 of the
Police Rules, 1934 (which are still in vogue due to the provisions of Article 185 of the
Police Order, 2002) clearly contemplate situations where an information received by the
police regarding commission of a cognizable offence may be doubted or even found
false. Rule 25.2(1) of the Police Rules authoriezes an investigating officer to associate
"any person with the investigation and Rule 215-2(2) categorically provides that "No
avoidable trouble shall be given to any whom enquiries are made and no person shall be,
unnecessarily detained". Rule 25.2(3) clinches the issue by clarifying that "It is the duty
of an investigating officer to find out the truth of the matter under investigation. His
object shall be to discover the actual facts of the case and to arrest the real offender or
offenders. He shall not commit himself prematurely to any view of the facts for tit against
any person" (emphasis has. been supplied by us). As if this were not enough, Rule 26.1
emphasizes that "Section 54, Code of Criminal Procedure, authorizes any police officer
to arrest without a warrant any person who has been concerned in 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 been so concerned. The authority
given under this section to the police to arrest without a warrant is, however, permissive
and not obligatory. Whenever escape from justice or inconvenient delay is likely to result
from the police failing to arrest, they are bound to do so; but in no other cases. The law
allows a police officer to apply to a Magistrate for a warrant or a summons instead of
making the arrest immediately, and this discretion shall be exercised whenever possible
and expedient. The law also allows a police officer in any bailable. case to take security
under section 170, Criminal Procedure Code from an accused person to appear before a
Magistrate without first arresting him" (emphasis has been supplied by us). Rules 26.2
and 26.9 provide further guidelines to the. police officers involved in investigation of
crimes requiring them not to unnecessarily interfere with the liberty of suspects "until the
investigation is sufficiently complete" and "the facts justify arrest". According to Rule
26.1 the facts justifying an immediate arrest may include a. possibility of the suspect
escaping from justice or inconvenient delay likely to result from the police failing to
arrest.
22. All the statutory provisions and the precedent cases mentioned above manifestly point
towards the intention of the law that a suspect is not to be arrested straightaway upon
registration of an F.I.R. or as a matter . of course and that, unless the situation on the
grounds so warrants, the arrest is to be deferred till such time that sufficient material or
evidence becomes available on the record of investigation prima facie satisfying the
investigating officer regarding correctness of the allegations levelled by the complainant
party against such suspect or regarding his involvement in the-crime in issue. If the law
itself requires an investigating officer to be generally slow in depriving a person of his
liberty on the basis of unsubstantiated allegations then insistence by the interested
complainant party regarding his immediate arrest should not persuade the investigating
officer to abdicate his discretion and jurisdiction in the matter before the whims or wishes
of the complainant party. It, therefore, follows that an ex-officio Justice of the Peace
should not ordinarily force an investigating officer in that regard where the investigating
officer has not so far felt the necessity of an arrest or has not yet formed a tentative
opinion about correctness of the allegation against the suspect. However, in an
appropriate case, after obtaining comments from the investigating officer, an ex-officio
Justice of the Peace seized of a complaint in this regard may issue a direction to the
Superintendent of Police (Investigation) of the relevant District to attend to this aspect of
the matter. It must always be remembered that delaying the arrest till after formation of
an opinion regarding prima facie correctness of the allegation against a suspect goes a
long way in deterring false, frivolous and motivated complaints and also that there may
not be any adequate recompense or reparation 'for an unjustified arrest. It would be
preposterous and a mockery of justice if a person may be deprived of his liberty first and
later on the allegations against him may be found by the arresting agency itself to be
bogus, trumped up or false. That surely would be, as observed above, putting the cart
before the horse.
23. The complaints about unfair, biased and improper investigation and, thus, seeking
transfer of investigation of the relevant criminal case are generally the most frequent
complaints that are filed before the exofficio Justices of the Peace under section 22-A(6),
Cr.P.C. and are often subject matter of writ petitions filed before this Court and,
therefore, this area has also engaged our serious, particular and detailed consideration.
We may straightaway observe in this context that filing of such complaints is generally
grounded in a basic misunderstanding that the parties to a criminal case must feel
satisfied with the investigation thereof. We have already observed above that
unfortunately the concepts 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 selfserving.
Left to the parties to a criminal case they would never be satisfied with the
investigation unless their version is accepted by the police as correct. The term
`investigation' has been defined by section 4(1)(1) of the Code of Criminal Procedure,
1898 as "--- all proceedings under this Code for the collection of evidence by a police
officer or by any person (other than a Magistrate) who is authorized by a Magistrate in
this behalf". The job of an investigating officer is, thus, only to collect all the relevant
evidence pertaining to the allegation levelled regarding the crime in issue so as to dig out
the truth enabling and facilitating the relevant Court to administer justice between the
parties. His job is not to satisfy the parties to the case or to arrogate to himself the role of
an adjudicator rendering an opinion regarding guilt or innocence of any person. In the
reports to be submitted by the police in connection with investigation of a criminal case it
can comment about sufficiency or otherwise of the evidence available against an accused
person but it cannot comment upon believability or otherwise of the evidence becoming
available on the record against such accused person. The question of believability or
otherwise of such evidence is to be attended to by the relevant Magistrate or the trial
Court. It is very rare that a complaint of the nature under discussion points out that any
particular evidence is available in the case and the same is not being collected by the
investigating officer but the bids of the parties seeking transfer of investigation are by far,
as already noticed by the Hon'ble supreme Court of Pakistan and this Court in the cases
referred to below, directed mainly to obtain a favourable opinion from the investigating
officer supporting a party's version. We may clarify here for the benefit of all concerned
that an investigating officer of a criminal case is not to render any opinion regarding guilt
or innocence of an accused person and under the relevant statutory provisions contained
in the Code of Criminal Procedure, 1898, the Police Order, 2002 and the Police Rules,
1934 he is only to collect all the relevant evidence and to submit his report and the
collected evidence and material before the relevant Magistrate so that the Magistrate or
the trial Court can then form their own independent opinions regarding sufficiency or
otherwise of the evidence and material in order to decide whether to take cognizance of
the offence and of the case or not, to summon any person to face a trial or not and to
frame a charge against a person or not. We may further clarify that column No. 2 of the
Challan submitted in a criminal case is generally misunderstood and the same is
erroneously being construed as meant for those accused persons who are found by the
police to be innocent. It is generally being ignored that the said column of the Challan is
to contain the names of the absconding accused persons against whom Challan is not
being submitted because they could not be associated with the investigation and is also to
contain the details of the accused persons being forwarded in custody or released on bond
with or without sureties. Such details have absolutely no relevance to the question of
innocence or otherwise of the accused persons. Section 172(1), Cr.P.C. requires that
"Every, police officer making an investigation under this Chapter shall day by day enter
his proceedings in the investigation in a diary, setting forth the time at which the
information reached him, the time at which he began and closed his investigation, the
place or places visited by him, and a statement of the circumstances ascertained through
his investigation". There is no mention in section 172(1), Cr.P.C. of any opinion of the
investigating Officer about guilt or innocence of an accused person. Likewise, in section
173, Cr.P.C., under which the police is required to submit its final or interim report about
the investigation before a Magistrate which report is also called a Challan, there is
absolutely no mention of any opinion of the police regarding guilt or innocence of an
accused person. As a matter of fact the learned counsel for the parties to this case as well
as the learned Additional Advocate-General, Punjab have conceded before us that there is
no law or legal instrument in existence in this country requiring an investigating officer
of a criminal case or any police officer to record his opinion about guilt or innocence of
the accused person. Be that as it may, the law is firmly settled on the point to the extent
of being trite that an opinion of the police regarding guilt or innocence of an accused
person is inadmissible in evidence being irrelevant and that an accused person whose
name has been placed in column No. 2 of the Challan or an accused person not even
mentioned in any column of the Challan can also be summoned by a trial Court to face
trial if, in the opinion of the Court, sufficient material is available on the record to
proceed against him. A misconceived competition and race between the parties to obtain
a favourable opinion from the investigating officer, despite such opinion being
inadmissible in evidence being irrelevant has been found by us to be the real reason for
most of the bids made by the parties to a criminal case to get the investigation of such
case transferred. Such trends and tendencies have to be curbed with all the firmness that
is required as they are playing havoc with investigations, breeding corruption amongst
the police, introducing extraneous influences in the working of the police, delaying
finalization of investigations and trials and choking the ex-officio Justices of the Peace as
well this Court with unwarranted complaints and writ petitions.
24. We may mention here that as back as almost half a century ago the Hon'ble Supreme
Court of Pakistan had categorically declared in the case of Federation of Pakistan v. Shah
Muhammad Khan and others [PLD 1960 Supreme Court (Pak.) 85] that
"No law or regulation gives a complainant a vested right, which can be' enforced by a
writ to have his complaint investigated by a particular branch of the Police---The
respondent No. 1, therefore, had no right to maintain a petition for writ and the High
Court was in error in issuing a direction on such a petition. The order of the High Court
is, therefore, set aside and this appeal is allowed."
We may also again refer to the above mentioned case of Shahnaz Begum v. The Hon'ble
Judges of the High Court of Sind and Baluchistan and another [PLD 1971 Supreme Court
6771 wherein the Hon'ble Supreme Court of Pakistan had clearly observed that
"We ace in respectful agreement with this view and have 'no difficulty at all in holding
that the word "direct" in clause 22 [of the Letters Patent of the High Courts of West
Pakistan] also bears the same sense and, therefore, the necessity for making a direction
can only arise in a case where no investigation has started. The power to issue a direction
cannot be invoked where investigation has already commenced in accordance with law
by authorities competent to investigate under the Criminal Procedure Code nor does the
power to "direct" include the power to "transfer" from one competent investigating
agency to another. This would be unwanted interference with the investigation ---."
In the case of Riaz Hussain and others v. The State [1986 SCMR 1934] the Hon'ble
Supreme Court of Pakistan had strongly deprecated and disapproved the trend of holding
multiple investigations of a criminal case by observing as follows:
"So far as the innocence of Ghulam Abbas, Riaz Hussain and Zahid Hussain appellants
during re-investigation is concerned, this was urged before the learned trial Court and
repelled by it after due consideration .and there exists no reason with us to come to a
different conclusion. The occurrence in this case had taken place in September 1974 and
the final report of the reinvestigation was submitted in April 1977, i.e., after a lapse of
about three years. How on earth any significance can be attached to a report compiled
anti submitted after such a long time, especially when there was every possibility of
fabrication of evidence. The system of re-investigation in criminal cases is a recent
innovation which is always taken up at the instance of influential people and favourable
reports' obtained. This in no way assists the Courts in coming to a correct conclusion, it
rather creates more complications to the Court administering justice. We, therefore,
disapprove this . system altogether. "
This aspect of the matter was again commented upon by the Hon'ble Supreme Court of
Pakistan in the case of Hakim Mumtaz Ahmed and another v. The State [PLD 2002
Supreme Court 590] and the following observations were made in this respect:
"Before taking up other points involved in this case we consider it appropriate to note that
delay in filing police report/challan is being caused for another reason namely that on the
behest of the accused/complainant/State investigations in the cases are transferred from
one police agency to another under section 158, Cr.P.C. on account of showing nonconfidence
by one or the other party in the Investigating Agencies particularly in the
Province of Punjab. Such device is followed invariably in every case and this reason
independently also causes delay in submission of challan or commencement of trial of
accused persons."
In the case of Muhammad Yousaf v. Inspector-.General of Police and 4 others [PLD 1997
Lahore 1351 this Court had reiterated the same position by observing that
"As regards re-opening of investigation, I may refer to a Supreme Court judgment titled
Riaz Hussain v. The State (1986 SCMR 1934), wherein the Court observed that the
system of re-investigation in criminal cases, is a recent innovation always taken up at the
instance of influential people to obtain favourable reports which in no way assists the
Courts in coming to a correct conclusion, it rather creates more complications to the
Courts administering justice."
In the case of Muhammad Arif v. Inspector-General of Police, Punjab, Lahore and 3
others [2000 YLR 1960] this Court had reaffirmed the said position and had elaborated
that
"The purpose of investigation of a criminal case, as is evident from section 4(1)(1) of
Cr.P.C. is mere collection of evidence and nothing more. The duty of the officer
investigating a criminal case is to collect all such evidence and then to submit the same
before a Court of competent jurisdiction which Court alone then has the powers to
determine the guilt or innocence of the person accused of the commission of such an
offence. It is true that section 169 of the Cr.P.C. authorizes an Investigating Officer or the
officer incharge of the police station to release an accused person on his executing a
bond, with or without a surety, if in the opinion of such a police officer sufficient
evidence or reasonable grounds of suspicion justifying the forwarding of an accused to a
Magistrate were not available. This however, cannot be equated with a power of final
determination of the guilt or innocence of the accused persons which power, as has been
mentioned above, stands reserved exclusively for the Magistrates and the trial Courts.
These very provisions of section 169 of the Cr.P.C. are a clear indicator to the said effect
because release of an accused person under this section is subject to the orders of a
Magistrate, who may refuse to take cognizance of the case in terms of the report of the
concerned police officer or may still take cognizance and try an accused person or send
him for trial. It may be added that the provisions of section 63 of the Cr.P.C. which
provide that an accused person could be discharged only under the special order of
Magistrate and the provisions of Rule 24.7 of the Police Rules, 1934 which provides that
an F.I.R. can be cancelled only by a Magistrate, even if the Investigating Officer or the
S.H.O. were of the opinion that such an F.I.R. deserved to be cancelled, are further
evidence of the fact that the final word in respect of the fate of an accused person is either
of a Magistrate or of the warned trial Court and the S.H.O. or the Investigating Officer
were mere instruments to assist such Magistrates or Courts of law in reaching a final
conclusion.
It will, therefore, be noticed that while the Investigating Officers have powers to
investigate cases and. while the officers incharge of police stations including the superior
police officers, who are also S.H.Os. by virtue of section 551 of the Cr.P.C. have powers
to withdraw investigations from. one police officer and to entrust the same to another
police officer and also to order further investigations in a matter, the sole purposes of
such-like transfer of investigations and directing of further investigations is to be the
collection of evidence and nothing more. These powers vesting in the S.H.Os. and the
superior police officers can, therefore, be exercised only and only where it. is found that
the required evidence had either not been collected or that further evidence was required
to be collected in a given case.
Of late, frequent situations have started coming to the notice of the Courts where repeated
investigations are ordered and where investigations are repeatedly transferred from one
police officer to another without disclosing any reason for such orders which leads to an
inference that such-like orders were passed not for the purposes for which the requisite
powers had been conferred on the police officers but for purposes other than legal and
bona fide. Needless to add that such-like repeated investigations and such-like transfers
of investigations do not only complicate issues making the task of the Courts of law more
arduous but also result in wastage of time and inordinate delays towards the final
conclusion of cases.
My Lords in the Supreme Court declared in Riaz Hussain and others v. The State (1986
SCMR 1934 at 1942) that system of reinvestigation in criminal cases was a recent
innovation which was always taken at the instance of influential people for favourable
reports obtained and this was in no way assisting the Courts in coming to correct
conclusions and rather created. mare complications for the Courts administering justice.
Their lordships of the Supreme Court went on to add that such a system was disapproved
altogether."
In an earlier case of Muhammad Younas and others v. I.G. Police and others [1999
PCr.LJ 163 at 165] it was observed by this Court that:
"--- The investigation was transferred from one agency to the
other and from one officer to the other in a mechanical manner, arbitrarily, capriciously
and above all without application of mind. It is interesting to note that it has not been
brought to the notice of this Court in spite of query that did the high-ups including
Respondent No. 1 take any action against any of the Investigating Officer for faulty
investigation or for mixing up with either party or for failure to conclude the investigation
efficiently. There was none. This fact alone proved it beyond any shadow of doubt that
there was no purpose to transfer the investigation except to please someone, may be the
then Chief Minister. "
It was consequently directed by this Court in that case that:
"This evil can be, successfully; combated by making it incumbent upon the authority
transferring the investigation or ordering reinvestigation should comment upon. the
quality of the investigation and pinpoint the shortcomings or lapses made by the
Investigating Officer. The authority if convinced after going through the record that
either the Investigating Officer is inefficient, incapable or mixed up with one of the
parties for any reason and only then investigation may be transferred and that too after
recording reasons in writing. It shall propose action against Investigating Officer for
misconduct, inefficiency and corruption as the case may be. That would be effective
measures to check the illegal tendency of transferring the investigation or ordering reinvestigation
without any study of the `Zimnis' and f appreciating the efforts made by the
Investigating Officer."
We respectfully reiterate the observations made in the above mentioned cases and
emphasize compliance of the same by all concerned.
25. We may add in this context that we cannot appreciate or approve the trend of getting
a fresh investigation of a criminal case conducted after submission of a Challan and
taking of cognizance by the trial Court. In the absence of any particular material piece of
evidence shown to have been missed out by the investigating officer and yet to be
collected by the police there can hardly be any occasion for holding a' fresh investigation
at such a stage. If such fresh investigation is meant only to obtain a fresh opinion of an
investigating officer regarding guilt or innocence of: an accused person then, apart from
the reasons mentioned above, such fresh investigation is likely to be legally
inconsequential because an F.I.R. cannot be cancelled or ,an accused person discharged at
such a stage for the reason that after taking of cognizance of the case by a trial Court the
question of guilt or innocence of an accused person or the matter of his release can be
determined only by the Court and none else. A reference in this respect may be made to
the cases of Muhammad Alam and another v. Additional Secretary to Government of NW
F.P. Home & Tribal Affairs Department and 4 others [PLD 1987 Supreme Court 103],
Nasira Surriya v. Muhammad Aslam and 7 others [1990 SCMR 12], Syed Waqar Hussain
Shah v. _The State [PLD 1988 Lahore 666] and Mst. Kausar Bibi v. The Deputy
Inspector-General of Police Cringes Branch, Punjab, Lahore and 2 others, [1996 PCr.LJ
124].
26. By virtue of the provisions of Article 18(5) of the Police Order, 2002 a District Police
Officer cannot interfere with the process of investigation. According to Article 18(6) of
the. Police Order, 2002 the, first change of investigation can, in areas other than the
Capital City District, be ordered only by the Additional Inspector-General of Police
(Investigation Branch) and that too only after deliberations and recommendations by a
Board headed by an officer not below the rank of Senior Superintendent of Police and
including two Superintendents of Police, one being in charge of the investigation in the
concerned District. According to the same Article second change of investigation may
only be allowed with the approval of the Provincial Police Officer (Inspector-General of
the Police in a Province) or the Capital City Police Officer, as the case may be. There is
no other law authorizing for empowering any other police officer or authority to change
the investigation of a criminal case. We can, therefore, safely hold that any .change or
transfer of investigation of a criminal case by any officer or authority other than those
mentioned in Article 18(6) of the Police Order, 2002 is to be void and a nullity. It has
come to our notice in some other cases that police officers other than those' mentioned in
Article 18(6) of the Police Order, 2002 have been changing investigation of criminal
cases in the name of `verification' of investigation. It may he clarified 'by us that the law
is quite settled on the point that where the law requires a thing to be done in a particular
manner then that thing must be done in that manner alone or not at all. In any case if an
investigation by an investigating officer 'is to be verified by some other officer then such
verification must be confined to verification of the record of investigation and such an
exercise cannot be allowed to be conducted in. a manner giving it a colour of fresh
investigation with fresh conclusions. The verifying officer has to confine himself to the
record of investigation already, conducted and cannot substitute his own conclusions for
those of the investigating officer and if he finds any serious fault with the investigation
already conducted then the verifying officer can bring such fault to the notice of the
Superintendent of Police (Investigation) of the' concerned District who can then initiate
impression is being entertained among some senior police officers that the provisions of
Article 18(6) of the Police Order, 2002 pertain to `vertical' change of investigation and
not to `horizontal' transfer of investigation, the former standing for change of
investigation by authorities outside and above the relevant District and 'the latter denoting
transfer of investigation by officers performing duties within the relevant District. We
have found such a distinction to be innovative but totally artificial and self-created and a
distinction motivated to defeat the very purposes of Article 18(6) of the Police Order,
2002 so as to perpetuate the maladies for the removal of which the said Article had been
introduced. We, therefore, categorically reject all notions regarding such a distinction.
27. We have already observed above that an ex-officio Justice of the Peace cannot step
into the shoes of a competent police authority so as to himself pass an order transferring
investigation of a criminal case and that his role in this .regard is confined only to get the
process under Article 18(6) of the Police Order, 2002 activated if the complaint before
him establishes that the complaining person's recourse under section 18(6) of the Police
Order, 2002 has remained unattended to so far. It, thus, follows that if the complaining
person has not yet even applied before the competent authorities under Article 18(6) of
the Police Order, 2002 seeking change of investigation then his complaint under section
22-A(6), Cr.P.C. is not to be entertained by an ex-officio Justice of the Peace as no
occasion has so far arisen for interference in the matter by an ex-officio Justice of the
Peace. The same principle has consistently been followed by this Court while dealing
with writ petitions seeking transfer of investigations. This is evident from the following
observations made by this Court in the case of Ali Muhammad v. Inspector-General of
Police, Punjab, Lahore and another [2001 PCr.LJ 1054]
"Since almost a century, the mechanism and methodology for carrying out an
investigation by the police has been clearly laid down with great detail. It is for this
reason that the superior Courts have been holding time and again that investigation
regarding the commission of offences is both the duty as well as the prerogative of the
police and is a matter which is not within the domain of the Courts. ---
An essential ingredient for the assumption of jurisdiction under 'Article 199 of the
Constitution of the Islamic Republic of Pakistan of 1973, is that this Court must be
satisfied that there is no other adequate remedy provided by law. This is the sine qua non.
In the absence of this essential ingredient, the High Court does not assume muchless
exercise its extraordinary discretionary Constitutional jurisdiction to issue writ in the
nature of direction, declaration and habeas corpus or quo warranto.
If a citizen is not satisfied with the method or manner in which an investigation is being
carried out by a Police Officer an immediate and adequate remedy is available by making
a representation to the next higher police officer. The police are a statutory organization
set up under the Police Act and Rules having its own hierarchy to look after its own
affairs including matters pertaining to law and order and investigation into the
commission of offences which must culminate in the final report of the Investigating
Officer to be submitted to a Competent Court for trial without inordinate delay.
Interference in this process by the Courts would be like throwing a hammer in the spokes
of the wheel and dragging the whole process to a grinding halt which is not the intention
of the Constitution and the law."
28. It also goes without saying that if the competent authorities under Article 18(6) of the
Police Order, 2002 have already attended to the request of the complaining person
regarding transfer of investigation and have not found the case to be a fit case for transfer
of investigation then too an ex-officio Justice of the Peace cannot interfere in the matter
as the competent authorities have already consciously attended to the matter and there is
nothing left for the ex-officio Justice of the Peace to get activated or initiated. An exofficio
Justice of the Peace is not to assume the role of an appellate, revisional or
supervisory authority in that respect. A similar approach was adopted by this Court in the
case of Mehr Allah Bakhsh v. D.I.G. Multan and five others [2001 PCr.LJ 801] while
dealing with a writ petition seeking transfer of investigation of a criminal case and it was
observed as follows:
"The petitioner is the complainant of case F.I.R. No. 361 of 2000 registered at Police
Station Sarai Sadhu, District Khanewal and through the present petition he has sought
transfer of investigation of the said criminal case.
The contents of this writ petition show that three investigations have already been held in
this case and in the last such investigation conducted by respondent No. 2 the accused
persons were found to be innocent and the case set up by the petitioner in the F.I.R. was
opined to be false. It is also mentioned in the memorandum of the present writ petition
that the present petitioner had approached the Superintendent of Police, Khanewal and
the Deputy Inspector-General of Police, Multan the process contemplated by the
provisions of Article 18(6) of the Police Order, 2002 for change of investigation. It has
also come to our notice in some other cases that an Range, Multan for transfer of
investigation of the said criminal case but they had refused to transfer investigation of the
case.
This Court is generally slow in interfering with investigation of a criminal case which
function lies exclusively within the domain of the police. Holding of multiple and
repeated investigations of a criminal case has been deprecated by the Honourable
Supreme Court of Pakistan and by this Court in the cases of Riaz Hussain and others v.
The State 1986 SCMR 1934 and Muhammad Arif v. Inspector-General of Police, Punjab,
Lahore and 3 others 2000 YLR 1960. The. Superintendent of Police, Khanewal and the
Deputy Inspector-General of Police, Multan Range, Multan have already attended to the
grievances of the petitioner and they have decided not to transfer investigation of this
case. This Court is not to supervise or control investigation of a criminal case and to
interfere in the matter where the highest functionaries of the police in the area have
already applied their conscious minds to the matters involved. A reference in this regard
may be made to the cases of Emperor v. Khawaja Nazir Ahmad AIR (32) 1945 PC 18,
Shahnaz Begum v. The Honourable Judges of the High Court of Sindh and Balochistan
and another PLD 1971 SC 677 and Malik Shaukat Ali Dogar and 12 others v. Ghulam
Qasim Khan Khakwani and others PLD 1994 SC 281. A writ of mandamus can be issued
by this Court when there is a legal duty case upon a public functionary to act in a
particular manner and it is shown to the satisfaction of this Court that such a public
functionary is not performing the said legal duty. For the purposes of the present petition
it may be observed that there was no legal duty cast upon the Superintendent of Police,
Khanewal and the Deputy Inspector-General of Police, Multan Range, Multan to
necessarily transfer investigation of the above mentioned criminal case upon a request
made by the petitioner in that regard. In these circumstances the prayer regarding
issuance of a writ of mandamus against them in this respect is clearly misconceived. For
all these reasons this petition is hereby dismissed in limine."
29. It follows from the discussion made above that an ex-officio Justice of the Peace; like
any judicial or other authority outside the police hierarchy, should be extremely slow in
directly interfering with the matter of transfer of investigation and in an appropriate case
he may interfere only where the authorities mentioned in Article 18(6) of the Police
Order, 2002 have already been approached by the complaining person but such
authorities have failed to attend to his grievance and the application of the complaining
person is lying unattended to. Even in such a case an ex-officio Justice of the Peace may
refuse to interfere in the matter unless it is established to his satisfaction that some
specific and particular material pieces of evidence had been missed out by the
investigating officer and the same remain to be collected by the police. We may
emphasize that an ex-officio Justice of the Peace may not interfere in such a matter unless
he feels satisfied that the required evidence had either not been collected or that further
evidence is required to be collected in a given case. In such a case an ex-officio Justice of
the Peace may issue a direction to the concerned police authority to get the process under
Article 18(6) of the Police Order, 2002 activated so that an appropriate and suitable
decision on the complaining person's grievance can be made by the competent authorities
under Article 18(6) of the Police Order, 2002 one way or the other. We may, however,
once again clarify that while attending to such a complaint an ex-officio Justice of the
Peace cannot issue a direction changing, the investigation of a criminal case on his own.
30. As regards the complaints about failure of the police to finalize investigation of a
criminal case and to submit a Challan within a reasonable time we find that sufficient
guidance is already available in this respect in the shape of an elaborate judgment handed
down by the Hon'ble Supreme Court of Pakistan in the case of Hakim Mumtaz Ahmed
and another v. The State [PLD 2002 Supreme Court 590] wherein it had been concluded
as follows:
"However, our emphasis is that notwithstanding the fact that before or after completion
of investigation period prescribed under section 167, Cr.P.C. if it is not possible to submit
final report, the Investigating Agency should strictly adhere to the provisions of section
1730), Cr.P.C. and must submit interim challan through Public Prosecutor for trial and
the accused arrested in the case should not be kept in custody for indefinite period
without any legal justification. "
In that ease the Hon'ble Supreme Court was pleased to direct the Inspector-General of
Police, Punjab to take action against the Senior Superintendent of Police, Mandi
Bahauddin for failing to supervise the investigation of that case effectively as a result
whereof submission of Challan was delayed. A similar action was also ordered to be
taken against the Station House Officer of the relevant Police Station as well as the
investigating officer of the said criminal case. The Law Secretary, Government of the
Punjab was also directed by the Hon'ble Supreme Court to take action against the District
Attorney, Mandi Bahauddin for not submitting a Challan in the Court having jurisdiction
within the stipulated period. The Registrar of this Court was also directed by the Hon'ble
Supreme Court to bring the matter to the. notice of the Hon'ble Chief Justice of this Court
for initiating action against the Magistrate who had failed to insist upon submission of a
Challan within the period stipulated by the law. Apart from that the Hon'ble Supreme
Court was pleased to direct as under:
"Copies of this judgment shall also be sent to the Home Secretaries and Inspectors-
General of Police of all the Provinces including Commissioner and Inspector-General of
Police, Islamabad Capital Territory and Registrars of all the High Courts, for ensuring
strict compliance of section 173(1) read with section 344, Cr.P.C. respectively so in
future challans of criminal cases are submitted within the stipulated period of 14 days as
provided under section 173(1), Cr.P.C. failing which action should be taken against the
concerned officers for noncompliance of these directions."
In view of the above mentioned observations made and directions issued by the Hon'ble
Supreme Court of Pakistan an ex-officio Justice of the Peace seized of a complaint
regarding failure of the police to finalize investigation of a criminal case and to submit a
Challan within the stipulated time should require the investigating officer of the relevant
case to explain the reason for the delay in that regard and also to explain as to why a
recommendation may not be made by him to the concerned quarters for appropriate
action in terms of the action taken by the Hon'ble Supreme Court of Pakistan in the above
mentioned case. If the explanation submitted by the investigating officer is found by the
ex-officio Justice of the Peace to be unsatisfactory then he may issue al direction to the
Superintendent of Police (Investigation) of the relevant District to ensure finalization of
investigation and submission of Challan at the earliest possible and may also, depending
upon the circumstances of the case, either warn the relevant investigating officer to be
careful in that regard in future or issue a direction to the relevant higher police authority
or the relevant Public Safety and Police Complaints Commission to consider the
complaint and to take appropriate action against the delinquent police officer under the
relevant provisions of the Police Order, 2002 or under any other law. applicable to such
misconduct.
31. Adverting now to question number (e) posed above regarding the remedies, against
non-compliance of directions issued by an ex-officio Justice of the Peace under section
22-A(6), Cr.P.C. we may restate the legal position discussed above that an ex-officio
Justice of the Peace in Pakistan does not perform or discharge any judicial function and,
therefore, the law relating to Contempt of Court is inapplicable to an alleged noncompliance
of any direction issued by him under section 22-A(6), Cr.P.C. However, a
direction issued by him under section 22-A(6), Cr.P.C. is grounded in lawful authority
conferred upon him by the said legal provision and by virtue of the provisions of Article
4(1)(m) of the Police Order, 2002 "every police officer" is under a "duty" to "obey and
promptly execute all lawful orders". There, are, therefore, threefold remedies available
against non-compliance of directions issued by an ex-officio Justice of the Peace under
section 22-A(6), Cr.P.C., i.e. firstly, upon a complaint received by him regarding noncompliance
of his earlier direction an ex-officio Justice of n the Peace can issue a
direction to the relevant police authority to register a criminal case against the delinquent
police officer under Article 155(c) of the Police Order; 2002 or, secondly, he can issue a
direction to the relevant higher police authority or the relevant Public Safety and Police
Complaints Commission to take appropriate action against the delinquent police officer
under the relevant provisions of the Police Order, 2002 or under any other law relevant to
such misconduct and, thirdly, the complaining person can approach this Court under
Article 199 of the Constitution seeking issuance of an appropriate writ directing the
defaulting police officer to do what the law requires him to do.
32. Finally, attending to question number (t) mentioned above regarding legal
sustainability or otherwise of the impugned orders passed by different ex-officio Justices
of the Peace we have found that as far as Writ Petition No. 11862 of 2004 is concerned
both the impugned orders dated 27-5-2004 and 5-7-2004 passed by the learned Sessions
Judge, Toba Tek Singh suffer from various jurisdictional infirmities and are, therefore,
liable to be struck down. Through the original petition filed by respondent No. 7 therein
under section 22-A(6), Cr.P.C. on 22-5-2004 he had prayed for issuance of a direction
regarding addition of section 354-A, P.P.C. to the cross-version of the accused party and
also for issuance of a direction to the investigating officer of the relevant criminal case to
arrest the accused party of the cross-version. The learned Sessions Judge had, however,
travelled beyond those prayers and was pleased to transfer the investigation of the said
criminal case merely upon a verbal request of the learned counsel for respondent No. 7!
This is evident from the following part of the impugned order dated 27-5-2004:
"It has been submitted by counsel for the petitioner that investigation of the relevant case
be made over to DPO, T. T. Singh with a direction to investigate the relevant case
independently and honestly. In these circumstances I withdraw the investigation of the
relevant case from Muhammad Hanif. DSP Crime Branch, Faisalabad. respondent No. 3
and make over the same to District Police Officer, Toba Tek -Singh and he is directed to
carry out the investigation of this case by himself independently, honestly and fairly. The
I.O/Muhammad Hanif, DSP Crime Branch, Faisalabad respondent No. 3 is directed to
hand over the police file to DPO, T. T. Singh."
That order surely suffered from multiple legal maladies. Firstly, the learned Sessions
Judge had no jurisdiction to pass an order transferring the investigation himself.
Secondly, the learned Sessions Judge could not have travelled beyond the prayers made
in writing before him by respondent No.7. Thirdly, the learned Sessions Judge ought not
to have abdicated his authority in the matter before the verbally expressed wishes of the
learned counsel for respondent No.7. And, fourthly, the very premise of the learned
Sessions Judge in transferring the investigation was misconceived and against the facts.
The learned Sessions Judge laid entertained an impression that the Deputy Inspector-
General of Police, Faisalabad Range, Faisalabad had transferred the investigation of the
relevant criminal case on his own despite having no jurisdiction in that regard under the
Police Order, 2002. It was observed by the learned Sessions Judge in the impugned order
dated 27-5-2004 that:
"Under the Police Order .2002, DIG could not transfer the investigation of the relevant
case from one police official to the other and, thus, Muhammad Hanif DSP Crime Branch
Faisalabad, respondent No. 3 has been entrusted with the investigation of the relevant
case illegally and without lawful authority. "
These observations of the learned Sessions Judge were clearly against the factual position
as the document appended with Writ Petition No. 11862 of 2004 as Annexure-B shows
that originally the investigation of that case was taken in hand by the Investigation Wing
of Toba Tek Singh police but respondent No. 7 had felt dissatisfied with the same and he
had moved an application before the Deputy Inspector-General of Police, Faisalabad
Range, Faisalabad seeking transfer of the investigation. The said application was referred
to the Standing Board as contemplated by the Police Order, 2002 and Circular No. 1/2002
issued by the Provincial Police Officer, Punjab. After due deliberations the Standing
Board had recommended transfer of the investigation of that case to Range Crime,
Faisalabad. The Deputy Inspector-General of Police, Faisalabad Range, Faisalabad hadagreed
with the recommendation of the Standing Board and thereafter the Additional
Inspector-General of Police, Investigation Branch, Punjab, Lahore had passed an order on
14-4-2004 transferring investigation of that case and entrusting the same to the Regional
Investigation Branch, Faisalabad. This clearly establishes that all the necessary
requirements contemplated by Article 18(6) of the Police Order, 2002 had in fact been
fulfilled and the order regarding transfer of investigation had been passed by the
competent authority mentioned in the said Article and the learned Sessions Judge had
passed the impugned order dated 27-5-2004 upon having been swayed by assumptions
which were against the record.
33. As far as the other impugned order passel by the learned Sessions Judge, Toba Tek
Singh on 5-7-2004 in Writ Petition No. 11862 of 2004 is concerned we find that the same
is also not sustainable as the same required the District Police Officer, Toba Tek Singh to
carry out and implement the earlier order passed by the learned Sessions Judge, Toba Tek
Singh on 27-5-2004 which order has already been found by us to be unsustainable. A
superstructure built upon quicksand or unsound foundation has to crumble and collapse.
34. As regards Writ Petition No. 14415 of 2004, Writ Petition No. 17169 of 2004 and
Writ Petition No. 16453 of 2004 it is evident that through the orders impugned therein the
relevant ex-officio Justices of the Peace had ventured to transfer the investigations of the
relevant criminal. cases on their own which, as held by us above, was beyond the pale of
their authority and jurisdiction under section 22-A(6), Cr.P.C. Thus, the said impugned
orders are also not legally sustainable.
35. For facility of cognition and for guidance of the ex-officio Justices of the Peace in the
Province of the Punjab the discussion made above is summed up with the following
resume and conclusions:
(i) The powers and duties of a Justice of the Peace or an ex-officio Justice of the Peace in
Pakistan stand specified in sections 22-A and 22-B, Cr.P.C. and they possess no other
additional power and perform no other additional duty except that which is specifically
conferred upon them by a statute.
(ii) The powers and duties of a Justice of the Peace or an ex-officio Justice of the Peace in
Pakistan do not involve any jurisdiction which can be termed as judicial and the functions
performed by him are merely administrative and ministerial in nature and character.
(iii) The superior, courts of Pakistan having constitutional, legal, supervisory and inherent
judicial jurisdiction have consistently and consciously refrained from directly interfering
with investigation of a criminal case by the police and, therefore, Justices of the Peace or
ex-officio Justices of the Peace possessing only administrative and ministerial powers
should be twice shy of such direct interference.
(iv) The directions to be issued by an ex-officio Justice of the Peace under section 22-
A(6), Cr.P.C. are to be directions to the concerned police authorities to attend to the
grievance of the complaining person in accordance with the relevant law and through the
jurisdiction under section 22-A(6), Cr.P.C. an ex-officio Justice of the Peace cannot
arrogate to himself the power of redressing the actual grievance itself. An exception to
this is a case of a clear legal obligation on the part of a police officer to act in a particular
manner in which situation a direction may be issued by an ex-officio Justice of the Peace
to the concerned police officer to do the needful. Under section 22-A(6), Cr.P.C, an exofficio
Justice of the Peace is to perform the role of a facilitator and that of a bride or a
conduit between the complaining persons and the police authorities concerned and the
jurisdiction under section 22-A(6), Cr.P.C. does not allow an ex-officio Justice of the
Peace to put on the mantle of a higher police authority himself and. to start exercising all
those executive powers himself which the relevant law has vested ins the concerned
police authorities.
(v) Barring exceptional and extraordinary cases, the remedy before f an ex-officio Justice
of the Peace under section 22-A(6), Cr.P.C. can ordinarily be termed and accepted as an
adequate alternate statutory remedy ousting a direct recourse by an aggrieved person to
the High Court by invoking its extraordinary jurisdiction under Article 199 of the
Constitution.
(vi) The Proceedings before, an ex-officio Justice of the Peace under section 22-A(6),
Cr.P.C. are essentially summary in character. He is not required to treat such proceedings
as regular lis and no elaborate orders having semblance of a judgment are required o be
passed.
(vii) In such proceedings notice, if required, may be issued only to the concerned police
officer and not to any private party as no direction adverse to any private party is to be
issued in such proceedings. A direction to the relevant police officer regarding activating,
any legal remedy of the complaining person cannot be termed as a direction adverse to
any party. Even a direction to a police officer to comply with a mandatory provision of
law cannot be called a direction adverse to any person. Under Articles 4 and 5 of the
Constitution it is an inalienable right of every citizen to be treated in accordance with the
law and obedience to the law is an inviolable obligation of every citizen.
(viii) Complaints about unjustified harassment by the police. A complaint before an exofficio
Justice of the Peace under section 22-A(6), Cr.P.C. which does not contain all the
necessary factual details regarding the date, time and place of the alleged harassment as
well as full particulars of the concerned police officer who is being complained against is
to be out-rightly dismissed. In an appropriate complaint of this nature the ex-officio
Justice of the Peace may require the concerned police officer to submit his comments to
the complaint. If through his comments the relevant police officer fails to satisfy the exofficio
Justice of the Peace regarding falsity of the allegations levelled against him then
the ex-officio Justice of the Peace may, depending upon the circumstances of the case,
either warn the relevant police officer not to transgress the limits of the law in future or
may issue a direction to the relevant higher police authority or the relevant Public Safety
and Police Complaints Commission to consider the complaint and to take appropriate
action against the delinquent police officer under the relevant provisions of the Police
Order, 2002. In an extreme case of highhandedness and totally unjustified harassment the
ex-officio Justice of the Peace may issue a direction to the relevant police authority to
register a criminal case against the delinquent police officer if he had seemingly
committed some cognizable offence during the harassment perpetrated by him.
(ix) Complaints regarding failure of the police to register a criminal case: The officer in
charge of the relevant Police Station may be under a statutory obligation to register an
F.I.R. whenever information disclosing commission of a cognizable offence is provided
to him but the provisions of section 22-A(6), Cr.P.C. do not make it obligatory for an exofficio
Justice of the Peace to necessarily or blind-foldedly issue a direction regarding
registration of a criminal case whenever a complaint is filed before him in that regard. An
ex-officio Justice of the Peace should exercise caution and restraint in this regard and he
may 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. If 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 justified in issuing a direction that a criminal
case be registered and investigated. 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. In an appropriate case, depending upon the circumstances thereof, an exofficio
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. The impression entertained by a large section of the legal community in our
country that in case of filing of a private complaint the accused person cannot be arrested
and recovery cannot be effected from him is nothing but erroneous and fallacious.
(x) Complaints about failure by an investigating officer to add appropriate penal
provisions to an F.I.R. or a cross-version of the accused party: Such complaints are not
worthy of being taken with any degree of seriousness by an ex-officio Justice of the
Peace. The stands taken by the complaining persons in this regard normally touch the
merits of the allegations and an ex-officio Justice of the Peace would be well advised to
refrain from entering into any such controversy at a premature stage. The over all
incharge of a criminal case is the Area Magistrate who, even during the progress of an
investigation, gets many opportunities to go through the record of investigation
conducted by the police and in an appropriate case and at an appropriate stage he can
require the investigating officer to consider addition or deletion of any penal provision.
After submission of a report under section 173, Cr.P.C./Challan the Magistrate taking
cognizance of the offence or Court taking cognizance of the case can take cognizance of
any offence disclosed by the material available the investigation even if the police have
not invoked the relevant penal provision. Even at the time of framing of the charge a trial
Court can frame a charge in respect of any offence disclosed by the record even if the
same finds no mention in the report submitted under section 173, Cr.P.C./Challan. With
so many opportunities being available with the Magistrate and the trial Court regarding
rectification of a mistake, deliberate or otherwise, committed by the police in this
connection it would be unwise for an ex-officio Justice of the Peace to interfere with such
a matter at an inappropriate and premature stage. In case of receipt of such .a complaint
an ex officio Justice of the Peace may advise the complaining, person to approach the
Area Magistrate or the trial Court, as the case may be, rather than entertaining such a
complaint himself.
(xi) Complaints about failure by the investigating officer to record a cross-version of the
accused party: While dealing with a complaint of this nature an ex-officio Justice of the
Peace should call for comments of the investigating officer explaining as to why he has
not recorded the version of the accused party and if such comments confirm the
complaint that despite having been approached in that regard by the accused party and if
officer has not recorded the version of the accused party and if there is no valid or
justifiable reason for such default on his part then a direction may be issued by the exofficio
Justice of the Peace to the investigating officer to do the needful or in the
alternative the Superintendent of Police (Investigation) of the relevant District may be
directed by the ex-officio Justice of the Peace to attend to this aspect of the matter and to
ensure that the needful is done by the investigating officer without further ado.
(xii) Complaints regarding failure by the police to arrest an accused person. A general
impression entertained by some quarters that an arrest of a suspect or an accused person
is necessary or sine qua non for investigation of a crime is misconceived. A suspect is not
to be arrested straightaway upon registration of an F.I.R. or as a matter of course and,
unless the situation on the grounds so warrants, the arrest is to be deferred till such time
that sufficient material or evidence becomes available on the record of investigation
prima facie satisfying the investigating officer regarding correctness of the allegation
levelled by the complainant party against' such suspect or regarding his involvement in
the crime in issue. The law requires an investigating officer to be generally slow in
depriving a person of his liberty on the basis of unsubstantiated allegations .and, thus.,
insistence by the interested complainant party regarding his immediate arrest should not
persuade the investigating officer to abdicate his discretion and jurisdiction in the matter
before the whims or wishes of the complainant party. An ex-officio Justice of the Peace
should not ordinarily force an investigating officer in that regard where the investigating
officer has not so far felt the necessity of an arrest or has not yet formed a tentative
opinion about correctness of the allegation against the suspect. However, in an
appropriate case, after obtaining comments from the investigating officer, an ex-officio
Justice of the Peace seized of a complaint in this regard may issue a direction to the
Superintendent of Police (Investigation) of the relevant District to attend to this aspect of
the matter. It must always be remembered that delaying .the arrest till after formation of
an opinion regarding prima facie correctness of the allegation against a suspect goes a
long way in deterring false, frivolous and motivated complaints and also that there may
not be any adequate recompense of reparation for an unjustified arrest. It would be
preposterous and a mockery of justice if a person may be deprived of his liberty first and
later on the allegation against him may be found by the arresting agency itself to be
bogus, trumped up or false. Such an approach would amount to putting the cart before the
horse.
(xiii) Complaints seeking transfer of investigation of criminal cases: The job of an
investigating officer is not to satisfy the parties to the case or to render any opinion about
guilt or innocence of an accused person but his duty is only to collect all the relevant
evidence. In the reports to be submitted by the police in connection with investigation of
a criminal case it can comment about sufficiency or otherwise of the evidence available
against an accused person but it cannot comment upon believability or otherwise of the
evidence becoming available on the record against such accused person. The question of
believability or otherwise of such evidence is to be attended to by the relevant Magistrate
or the trial court. The trend of getting a fresh investigation of a criminal case conducted
after submission of a Challan and after taking of cognizance by the trial Court is not to be
encouraged. By virtue of the provisions of Article 18(5) of the Police Order, 2002 a
District Police Officer cannot interfere with the process of investigation and, thus, an exofficio
Justice of the Peace cannot direct a District Police Officer to attend to the
complaining person's grievance regarding an investigation. Article 18(6) of the Police
Order, 2002 specifies the only manner in which investigation of a criminal case can be
changed. There is no other law authorizing or empowering any other police officer or
authority to change the investigation of a criminal case. Any change or transfer of
investigation of a criminal case by any officer or authority other than those mentioned in
Article 18(6) of the Police Order, 2002 is to be void and a nullity. `Verification' of
investigation, if necessary, must be confined to verification of the record of investigation
and such an exercise cannot be allowed to be conducted in a manner giving it a colour of
fresh investigation with fresh conclusions. The verifying officer has to confine himself to
the record of investigation already conducted and cannot substitute his own conclusions
for those of the investigating officer and if he finds any serious fault with the
investigation already conducted then the verifying officer can bring such fault to the
notice of the Superintendent of Police (Investigation) of. the concerned District who can
then initiate the process contemplated by the provisions of Article 18(6) of the Police
Order, 2002 for change of investigation. An ex-officio Justice of the Peace cannot step
into the shoes of a competent police authority so as to himself pass an order transferring
investigation of a criminal case and his role in this regard is confined only to getting the
process under Article 18(6) of the Police Order, 2002 activated if the complaint before
him establishes that the complaining person's recourse under section 18(6) of the Police
Order, 2002 has remained unattended to so far. If the complaining person has not yet
even applied before the competent authorities under Article 18(6) of the Police Order,
2002 seeking change of investigation then his complaint under section 22-A(6), Cr.P.C. is
not to be entertained by an ex-officio Justice of the Peace as no occasion has so far arisen
for interference in the matter by an ex-officio Justice of the Peace. If the competent
authorities under Article 18(6) of the Police Order, 2002 have already attended to the
request of the complaining person regarding transfer of investigation and have not found
the case to be a fit case for transfer of investigation then too an ex-officio Justice of the
Peace-cannot interfere in the matter as the competent authorities have already
consciously attended to the matter and there is nothing left for the ex-officio Justice of
the Peace to get activated or initiated. An ex-officio Justice of the Peace is not to assume
the role of an appellate, revisional or supervisory authority in that respect. An ex-officio
Justice of the Peace, like any judicial or other authority outside the police hierarchy,
should be extremely slow in directly interfering with the matter of transfer of
investigation and in an appropriate case he may interfere only where the authorities
mentioned in Article 18(6) of the Police Order, 2002 have already been approached by
the complaining person but such authorities have failed to attend to his grievance and the
application of the complaining person is lying unattended to. Even in such a case an exofficio
Justice of the Peace may refuse to interfere in the matter unless it is established to
his satisfaction that some specific and particular material pieces of evidence had been
missed out by the investigating officer and the same remain to be collected by the police.
An ex-officio Justice of the Peace may not interfere in such a matter unless he feels
satisfied that the required evidence had either not been collected or that further evidence
is required to be collected in a given case and the recourse of the complaining person to
the authorities mentioned in Article 18(6) of the Police Order, 2002 in that regard has so
far remained unattended to. In such a case an ex-officio Justice of the Peace may issue a
direction to. the concerned police authority to get the process under Article 18(6) of the
Police Order, 2002 activated so that an appropriate and suitable decision on the
complaining person's grievance can be made by the competent authorities under Article
18(6) of the Police Order, 2002 one way or the' other. While attending to such a
complaint an ex-officio Justice of the Peace cannot issue a direction changing the
investigation of a criminal case on his own. Any attempt by a party to get the
investigation changed only to obtain a favourable opinion from an investigating officer
regarding guilt or innocence of an accused person is to be nipped in the bud.
(xiv) Complaints about failure of the police to finalize investigation of a criminal case
and to submit a Challan in time. An ex-officio Justice of the Peace seized of a complaint
regarding failure of the police to finalize investigation of a criminal case and to submit a
Challan within the stipulated period should require the investigating officer of the
relevant case to explain the reason for the delay in that regard and he may also require
him to explain as to why a recommendation may not be made to the concerned quarters
for appropriate action in terms of the action taken by the Hon'ble Supreme Court of
Pakistan in the case of Hakim Mumtaz Ahmed and another v. The State [PLD 2002
Supreme Court 590]. If the explanation submitted by the investigating officer is found by
the ex-officio Justice of the Peace to be unsatisfactory then he may issue a direction to the
Superintendent of Police (Investigation) of the relevant District to ensure finalization of
investigation and submission of Challan at the earliest possible and may also, depending
upon the circumstances of the case, either warn the relevant investigating officer to be
careful in that regard in future or issue a direction to the relevant higher police authority
or the relevant Public Safety and Police Complaints Commission to consider the
complaint and to take appropriate action against the delinquent police officer under the
relevant provisions of the Police Order, 2002 or under any other law applicable to such
misconduct.
(xv) An ex-officio Justice of the Peace in Pakistan does not perform or discharge any
judicial function and, therefore, the law relating to Contempt of Court is inapplicable to
an alleged non-compliance of any direction issued by him .under section 22-A(6), Cr.P.C.
However, a direction issued by him under section 22-A(6), Cr.P.C. is grounded in lawful
authority conferred upon him by the said legal provision and by virtue of the provisions
of Article 4(1)(m) of the Police Order, 2002 every police officer is under a duty to obey
and -promptly execute all lawful orders. There are, therefore, threefold remedies
available against non-compliance of directions issued by an ex-officio Justice of the
Peace under section 22-A(6), Cr.P.C., i.e. firstly, upon a complaint received by him
regarding non-compliance of his earlier direction an ex-officio Justice of the Peace can
issue a direction to the relevant police authority to register a criminal case against the
delinquent police officer under Article 155(c) of the Police Order, 2002 or, secondly, he
can issue a direction to the relevant higher police authority or the relevant Public Safety
and Police Complaints Commission to take appropriate action against the delinquent
police officer under the relevant provisions of the Police Order, 2002 or under any other
law relevant to such misconduct and, thirdly, the complaining person can approach this
Court under Article 199 of the Constitution seeking issuance of an appropriate writ
directing the defaulting police officer to do what the law requires him to do.
(xvi) It needs to be clarified that a petition filed under section 22-A(6), Cr.P.C. before an
ex-officio Justice of the Peace is to be termed only a `petition' and such a petition cannot
be branded, dubbed or called a `Writ Petition'. It must be borne in mind that jurisdiction
to issue a `writ' is traditionally a high prerogative jurisdiction of a High Court which
dates back to antiquity and is now recognized by the Constitution. Thus, the writ
jurisdiction of a High Court must not be confused with a statutory jurisdiction of an exofficio
Justice of the Peace which is exercised by Sessions Judges and Additional
Sessions Judges.
36. For what has been discussed above Writ Petition No. 11862 of 2004, Writ Petition
No. 14415 of 2004, Writ Petition No. 17169 of 2004 and Writ Petition No. 16453 of 2004
are allowed and the impugned orders passed by the Sessions Judge, Toba Tek Singh on
27-5-2004 and 5-7-2004 as well as the impugned order passed by the learned Sessions
Judge, Toba Tek Singh on 9-8-2004, the impugner order passed by the 'learned
Additional Sessions Judge, Lahore on 13-9-2004 and the impugned order passed by the
learned Sessions Judge, Hafizabad on 15-9-2004 respectively are declared to be without
lawful authority and of no legal effect. There shall be no order as to costs.
(Sd.)
(Iftikhar Hussain Chaudhry)
Chief Justice
(Sd.)
(Asif Saeed Khan Khosa)
Judge
(Sd.)
(Sheikh Abdul Rashid)
Judge
M.B.A./K-105/L Order accordingly.

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