1. ' Through this petition filed under Section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 order passed by the learned Sessions Judge Rawalakot in capacity of Justice of Peace on 08.08.2015 has been challenged for having been passed without lawful authority .
2. ' Precise facts of the case are that Muhammad Rashid S/O Muhammad Ghani made a written report at Police Station Hajira, stating therein, that he is resident of Village Ghamir . On 24.01.2015, at about 1:30 PM, his real brother namely Khalil Ahmed S/O Muhammad Ghani was working in his landed property . He was attacked by Bilal S/O Zubair , respondent, herein, with kicks and fists, resultantiy , he died on spot. On this application, a case under Section 302, APC was registered vide F.I.R. No, 8/2015 dated 24.01.2015 at Police Station Hajira. After investigation, the police submitted challan before the Additional District Court of Criminal Jurisdiction, Hajira, in the offence under Section 322, APC. The complainant moved an application under Section 22-A, Cr.P.C. Before the learned Sessions Judge/Justice of Peace, Poonch/Rawalakot on 01.07.2015 for direction to the police to present the challan under Section 302, PC. After hearing the parties, the learned Sessions Judge/Justice of Peace, Rawalakot vide judgment and order dated 08.08.2015 accepted the application and directed the police to present the challan under Section 302, PC instead of Section 322, APC. The aforesaid order is the subject matter of the captioned writ petition.
3. ' The petition has been contested by Respondent No, 2 by filing written statement, wherein, it is stated that petitioner has an alternate remedy under Section 561-A, Cr.P.C. Before the Sharia t Court or in case of submission of challan under Section 265-K, Cr.P.C. Before the trial Court, therefore, the petition is not maintainable. It is averred that petition is mala-fide and has been filed with unclean hands in order to frustrate the process of law. It is stated that the learned Justice of Peace was competent to direct the police to present the challan in the proper offence, therefore, petition is misconceived.
4. ' Raja Gul Majeed Khan, the learned Advocate appearing for the petitioner , vehemently argued that it is well settled proposition of law that investigation cannot be interfered with by any Court including the Justice of Peace while exercising powers under Section 22-A, Cr.P.C. The learned Advocate contended that investigating agency has the sole prerogative and powers to investigate the matter and present challan before the competent Court in light of the collected material during investigation. The learned Advocate argued that process of investigation cannot be interfered with even by the Superior Courts as per settled law. He submitted that the impugned order passed by the learned Justice of Peace is without lawful authority and coram-nonjudice, hence, the same may be quashed. In support of his submissions, the learned Advocate placed reliance on the following case law .
5. 1.Muhammad Javaid Khan v . Additional Sessions Judge, Multan and 02 others, [ 2007 PCRLJ 124 ]; 2.Ghulam Haider v . Additional Sessions Judge, and others, [ 2006 YLR 2772 ]; 3.Messrs Shamim Bibi v . Additional Sessions Judge, Lahore and another , [2003 YLR 2017]; ' In Muhammad Javaid's case supra, in para 2 of the report, it was observed as under: "The object of Section 22-A, Cr.P.C. Is only that if a grievance is voiced with regard to non-registration of F.I.R, in a cognizable offence, the Justice of Peace in terms of said Section can only direct/su ggest as to whether in terms of Section 154, Cr.P.C. Concerned S.H.0, has acted legally or illegally and in case he has refused to act, whether his inaction is justified, but under no provision of law, the justice of peace can direct or even observe with regard to the nature of the offence, commission of the offence or addition or deletion of relevant Sections as the same exclusively falls within the jurisdiction of either Investigation Officer or of the trial Court at the time of framing charge. Reliance is placed on a Full Bench judgment of this Court Khizar Hayat and others v. LG Punjab and others, PLD 2005 Lah. 4701 and Sheikh Muhammad Shahzad v. Naveed Anwar Sethi and 4 others, [PLD 2006 Lah.
6. 4601."
7. ' In Ghulam Haider's case, in para 4 of the judgment, it was opined as under: "I have heard learned counsel for the parties. I have gone through the judgment cited by learned counsel for the petitioner . In fact it is only prerogative of learned trial Court at the time of framing of charge, can add or delete any offence if it is made out or otherwise. From the perusal of F.I.R. Report under Section 173, Cr.P.C. And. Other material available on record, both the parties have right to address the arguments at the time of framing of charge. I am an agreement with the learned counsel for the petitioner and learned Additional AG hat learned Additional Sessions Judge having power of justice of peace has no authority to direct the police to add or delete any offence.
8. Learned counsel for the petitioner has rightly relied upon judgment of Full Bench of this Court, reported in 1PLD 2005 Lahore 4701 relevant head-note at pages 480-481. In this view of the matter, this petition is accepted and impugned order is set aside."
9. ' In the 3rd case, in para 7 of the report, it was observed as under: "From the above, it is evident that the learned Ex-of ficio Justice of Peace cannot make any observation with regard to the nature of offence or direct addition or deletion of a penal provision as the same exclusively falls within, the domain of the Investigating Officer before the challan is submitted and thereafter the trial Court which is fully competent to add any offence if made out from the F.I.R. Report tendered in terms of Section 173, Cr.P.C. And other material available on the record at the time of framing of the charge. Further , the parties also have the right to address arguments at the time of framing of charge in support of their contentions. Reliance is plead on cases of Muhammad Javed Khan u. Additional Sessions Judge Multan and 02 others, 2007 P.Cr.L.J 124 and Ghulam Haider v. Additional Sessions Judge and others, 1. 2006 YLR 2772 1."
10. ' Conversely , Sardar Karam Dad Khan, the learned Advocate appearing for Respondent No, 2, argued that Ex- officio Justice of Peace had the jurisdiction under Section 22-A(6), Cr.P.C. To look into complaint of any neglect, failure or excess-committed by the police authorities in relation to their functions and duties. He referred to the dictionary meaning of the word 'neglect' and 'failure as has been implied in Section 22-A(6), Cr.P.C. From Black's Law Dictionary . The learned Advocate contended that writ petition is not maintainable because alternate remedy was available to the petitioner in shape of application under Section 561-A, Cr. P.C. Before the Shariat Court. The learned Advocate argued that from the tentative assessment of the record it was case of murder and police was under obligation to present challan under Section 302 PC and failure of the police was mala-fide and provision of Section 22-A(6) was attracted in the case and jurisdiction exercised by the learned Sessions Judge/Justice of Peace is unexceptional and hardly requires any interference by this Court. In support of his submissions, the learned Advocate placed reliance on Sadaqat Ales case, [2013 P .Cr.L.J 630).
11. ' Ch. Shoukat Aziz, AAG, has not suppor ted the impugned order rather contended that it is the prerogative of trial Court at the time of framing of charge to add or delete any offence in light of the available record. He argued that it is powers of the trial to frame charge in relevant offence notwithstanding the offence entered in the challan and accused can be convicted if the case is proved against him in any other of fence as well.
12. ' I have heard the learned Advocates for the parties and gone through the record of the case.
13. ' In order to appreciate the controversy in its true perspective, the provisions contained in Section 22-A of the, Cr.P.C., are reproduced as under:- "22-A. Powers of Justice of 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 sub-section (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 of ficer shall thereupon re-arrest the person.
(3) A Justice of the Peace for any local area shall have powers, within such area, to call upon any member of the police force on duty to aid him.
(a) in taking or preventing the escape of any person who has participated in the commission of any cognizable offence or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists of his having so participated; and
(b) in the prevention of crime in general and, in particular , in the prevention of a breach of the peace or a disturbance of the public tranquility .
(4) Where a member of the police force on duty has been called upon to render aid under sub-section (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-of ficio 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 of ficer to another; and
(iii) neglect, failure or excess committed by a police authority in relation to its functions and duties."
14. ' Though the code of criminal procedure provides a complete scheme for investigation, registration of cases and trial, but the above reproduced provision s have been enacted to provide a remedy for redressal of grievances of aggrieved persons against the police which they faced due to non-registration of the genuine cases. The similar powers could exercise by high-ups of the Police on administrative side as well as this Court under supervisory jurisdiction but an independent forum has been provided by appointing Justice of Peace by the legislature. The functions assigned to the Justice of Peace under Section 22-A, Cr.P.C. Have been listed in sub-sections (1), (2), (3)
15. (a)(b)(c), 4 and 5(a)(b)(c). The Justice of Peace is also empowered to direct the concerned Police authorities in the matter enumerated under sub-section (6) of Section 22-A. However , no Court including this Court can interfere in the investigation until and unless a glaring case of neglect or misuse of authority is pointed out. Law is finally set at rest by the various judgments of the Superior Courts of Pakistan. Some of them can be referred for ready reference such as "Shahnaz Begum's case", [PLD 1971 SC 677], "Brig. (Rtd.) Imtiaz Ahmed v. Govt. Of Pakistan through Secretary Interior Division, Islamabad and 2 others", [1994 SCMR 2142 ], [PLD 1997 Lah. 151 and [1997 PSC (Criminal) 482].
16. As stated above, the jurisdiction of Justice of Peace is limited only to the matter enumerated in the abovementioned sections. A Justice of Peace can direct the police to register the case if a cognizable offence is made from the facts stated in the application, submitted before him. Similarly , he can also pass an order upon unnecessary transfer of investigation from one police officer to another . The Justice of Peace can also take appropriate order where neglect, failure or excess is committed by the police in relation to its functions and duties if noticed by him as is provided in sub-secti on 6(iii) of Section 22-A. The word 'negle ct', 'failure' or 'excess committed by police authority must be with reference to the investigation.
17. By now law is well settled that material collected by the police, investigation carried out can e betterly judged by the trial Court. The Police or any authority cannot judge the legality and propriety of the material collected by the police and these powers vest with the trial Court who has to decide the case ultimately . Similarly , the Justice of Peace cannot direct the police to present challan in a particular provision because the job of investigation would be shifted to the Court an provisions available to the police for fair and independent investigation would be defeated. This aspect of the matter has been considered in various cases but I would like to refer only Gul Waiz and others v.
18. Zuhra Bibi and others' case, [2010 P.Cr.L.J 45]. At page 54 of the report, the powers of Justice of Peace have been considered and it was observed as under: "12. The same principle would apply whenever Justice of peace is s'eized of a complaint/petition under Section 22- A of the code and he has to apply the same test by applying prudent mind in ascertaining as to whether the facts constitute a cognizable offence or not. If he comes to the conclusion that cognizable offence is clearly constituted from the facts mentioned in the petition before him, only in that case the Ex-of ficio Justice of Peace may issue directions to the police to register a case. However , keeping in view the language of all the three clauses of sub- section (6) of Section 22-A of the code, the Ex-of ficio Justice of Peace while issuing such directions shall refrain from giving directions to the police to register the case under one or the other, section of penal law. This process/exercise shall be left to the discretion of the police which shall be exercised by the police in a fair and honest manner ."
19. (Underlining is mine)
20. ' Again at page 56, in paras 17 and 18 of the report, it was opined as under: "17. Keeping in view the provisions of Section 155 read with Section 154 of the Code, whenever the police (O.I.P .S) refuses to register a case on the ground that the information given does not consti tute cognizable offence or in his opinion, the dispute is of a civil nature, then the report must be recorded by it in the daily diary register and copy thereof shall be supplied to the complainant/informer which shall be annexed with the petition to be filed under Section 22-A of the code and in such a case, it would be more appropriate to ask for the written comments of the police (O.I.P .S) to ascertain the reasons made basis for refusal to register a case. In some case, the Ex-of ficio Justice of peace while giving direc tions to the police for registration of cognizable cases, deep assessment/appreciation of evidence is made with definite opinion which is unwarranted in law. At such a stage, the Justice of peace shall make tentative assessment of the facts/material placed before him because in such capacity they act as administrative officers but after all, they hold judicial office and if after the registration of the case and at the conclusion of investigation, charge sheet is filed before the same Court presided over by the Justice of peace which has rendered such an opinion earlier , then it would be difficult for him to wriggle out from that. The cardinal principle of Justice also requires that each accused shall be deemed to be innocent unless proved guilty at the trial before a competent Court, therefore, in all circumstances, the Ex-of ficio Justice of Peace shall not express conclusive opinion on the facts before it while giving directions to the police to register a case.
21. 18.The Ex-of ficio Justice of Peace shall always keep in mind that the powers exercised by them under Section 22- A of the code are neither additional nor have superimposing effect on the powers of the executive and judicial authorities which have been expressly conferred upon those authorities regulating particular subject-matter . In the capacity of administration officer it can oversee and check the atrocities committed by the police and to direct them to abide by the law and not to disregard it but to a very limited extent."
22. ' On the basis of above discussion, it can safely be concluded that the learned Sessions Judge/Justice of Peace Rawalakot has exceeded his jurisdiction while passing the impugned order . By now law is well settled that Justice of Peace cannot direct the police to present challan in particular penal offence. The contention of Sardar Karam Dad Khan, the learned Advocate for Respondent No, 2 that petition is not maintainable on the ground that an alternate, efficacious remedy is available to the petitioner is devoid of any force, When the order of a Tribunal or authority is coram-non-judice, ab initio void and without jurisdiction then the presence of alternate remedy does not preclude this Court from setting aside such order.
23. ' The upshot of the above discussion is that petition is accepted and order passed by the learned District Judge/Justice of Peace on 08.08.2015 is hereby quashed. The trial Court is directed to proceed on the challan submitted before him in accordance with law .