Wiqar Ahmad, J. This order is directed to dispose of the petition filed by petitioner , under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
2. Petitioner has stated in his writ petition that he was implicated in a case registered vide FIR No. 988 dated 18.08.2018 under Section 3 of the Khyber Pakhtunkhwa Prohibition of Interest on Private Loans Act, 2016 (hereinafter referred to as the 'Act' ) at Police Station Pirbaba, District Buner . Petitioner has mainly contended that he was innocent and has falsely been implicated in the subject case. The FIR contains allegations that the SHO concerned had received information that accused/petitioner had been dealing in the business of interest which had been an of fence under Section 3 of the Act.
3. Learned counsel of petitioner contended that Section 6 of the Act provided a mechanism, wherein complaint was supposed to be submitted to a Justice of Peace and upon his order , an FIR could be registered against a person or group of persons. Learned counsel also placed reliance on the judgments reported as 2000 SCMR 122, 2003 YLR 2806 , 2008 YLR 2695 , 2014 MLD 599 and 2017 YLR 2354 .
4. The learned Asst:A.G appearing on behalf of State opposed the contention of learned counsel for petitioner and stated that the offence was cognizable according to Section 9 of the Act and FIR has therefore rightly been registered against the accused/petitioner .
5. We have heard arguments of learned counsel for petitioner , learned Asst:A.G for the State and perused the record.
6. The contention of learned counsel for petitioner that an FIR could only be registered on the order of a Justice of Peace, is not based on proper appreciation of the legal position. Section 9 of the Act provided that an offence under the Act shall be cognizable, non-compoun dable and non-bailable. Said section of law being relevant, is reproduced hereunder for ready reference; "9. Cognizance of offences. ----Notwithstanding anything to the contrary contained in the Code or any other law for the time being in force an offence under this Act shall be cognizable, non-compoundable and non-bail able."
7. Remedy of complaint has also been provided in Section 6 of the Act, but same would not mean a private complaint filed under Section 200 of the Criminal Procedure Code, 1898 (hereinafter referred to as 'Cr. PC') or a remedy akin to that. Said section is also relevant, and is reproduced hereunder for ready reference; "6. Complaint. --- A justice of peace shall, within three days on receipt of any application or complaint with regard to the commission of an offence under this Act, order the local police to register a case against such person or group of persons."
Section 6 of the Act provides a remedy to file a complaint before Justice of Peace , in addition to Section 9 of the Act, like the mechanism provided under Section 22-A of Cr. PC in cases of all cognizable offences under the general penal law of the land. The wordings `any application or complaint' used in Section 6 of the Act show that Section 6 has been couched in a language similar to the one used in sub-Section 6 of Section 22-A of Cr. PC. It aims at providing an additional and supplemental remedy to a complainant whose request is not entertained by the SHO under section 9 of the Act. Some confusion may be arising because of heading of the section "complaint" but this heading is not the only determin ing factor for identifying the remedy provided in the section. No doubt heading or sub-heading of a section may be read in aid of wordings of the section, but for the purpose mentioned above, text of the section should be read as a whole along with the other provisi ons of the Act. Heading or sub- heading of a section does not control wordings of the main section, particularly when no ambiguity exists therein.
"While the Court is entitled", as laid in Maxwell on the Interpretation of Statut es, Twelfth Edition , "to look at the headings in an Act of Parliament to resolv e any doubt, they may have as to ambiguous words, the law is quite clear that you cannot use such headings to give a different effect to clear words in the section, where there cannot be any doubt as to their ordinary meaning." Findings of Hon'ble Justice Avory expressed in the case of R. v. Hare ([1934] 1 K.B. 354, at p. 355), that headings like marginal notes are "not voted on or passed by Parliament, but are inserted after the Bill has become law", were of course, valid at the relevant time but are no more valid as headings and sub-headings of sections happens to be part of a statute and are no doubt voted by the respective legislatures at the time of its enactment. Yet it is equally important to mention that such headings or sub-headings in an act can only be read in aid of the wordings in the section, where there exist certain ambiguity . In the case of M/s. Frick India Ltd v. Union of Indian and others reported as AIR 1990 Supreme Court 689, the Indian Supreme Court has dealt with the issue in the followings words; "It is well-settled that the headings prefixed to sections or entries cannot control the plain words of the provision; they cannot also be referred to for the purpose of construing the provision when the words used in the provision are clear and unambiguous; nor can they be used for cutting down the plain meaning of the words in the provision. Only , in the case of ambiguity or doubt the heading or sub-heading may be referred to as an aid in construing the provision but even in such a case it could not be used for cutting down the wide application of the clear words used in the provision."
A somewhat similar opinion has also been expressed by Hon'ble Lahore High Court in its judgment given in the case of Government of Punjab (Health Department) through Secretary Health, Lahore and another vs Naila Begum reported as PLD 1987 Lahore 336. Relevant part of said judgment is also reproduced hereunder for ready reference; "No doubt the headings of sections are part of the enactment, but the heading is not to be taken into consideration when the language of the section is free from obscurity . Further a section or an article may embody more than one matter . In such a situation as is the case of Article 22, when diverse matters, are, prefixed by a singular heading, the heading cannot afford a key to interpret the Article."
Further guidance in this respect may be sought from the judgments reported as 1970 AIR 1582, 1971 SCR (1) 422 and 1994 CLC 2214 .
8. Section 9 of the Act unconditionally says that an offence under it, shall be cognizable, which leaves no scope for any doubt that police can enter an FIR and investigate the same without any further authorization from a Magistrate or Justice of Peace. The normal procedure of complaint, as provided in general law of procedure i.e. Cr. PC, invariably provide that a complaint in a criminal case can only be made before a Court of law. The word "complaint" has not been defined in the Act. The definition of "complaint" given in Section 2 (h) of Cr. PC cannot be employed here, for the reason that complaint therein referred to a specific spec ie of complaints lodged before a Magistrate under section 200 Cr. PC. The procedure that ensues therein has also been provided in Sections 200, 201, 202, 203, 203-A, 203-B, 203-C of Cr. PC read with other relevant provisions. Said procedure is entirely different from the one provided for dealing of cases under the Act. Such a complaint as defined in Cr. PC can only be entertained by a criminal Court, which can take cognizance of a trial, conduc t trial or may send it to another competent Court for trial. The office of Justice of Peace can never be called a Court of law. A Justice of Peace does not have the power to try a criminal offence. A Justice of Peace was held to be an administrative office in the judgment of the Hon'ble Apex Court in the case of Muhammad Ali vs Additional I.G., Faisalabad and others reported as PLD 2014 Supreme Court 753, which view has, though, departed from in subsequent judgment of Younas Abbas and others vs Additio nal Sessions Judge, Chakwal and others reported as PLD 2016 Supreme Court 581, wherein a larger Bench of the Hon'ble Apex Court held that nature of powers of the Justice of Peace are quasi judicial in nature, but a Justice of Peace has never been held or treated to be a Court of law. He has never been assigned such a role in Cr. PC or any other law. A Justice of Peace may not always be a Judicial Officer. Such powers may also be entrusted to persons who are executive officers or even private individuals.
History of the office of Justice of Peace, shows that it has been entrusted to persons other than Judicial Officers, as explained earlier by this Court in the ,case .of Syed Abdul Hameed vs Mian Izhar Ahmad (W.P No. 2508- P/2018). It used to be entrusted to persons other than Judicial Of ficers.
9. Section 22 of Cr. PC itself provided that the Provincial Government may, by notification in the official Gazette, appoint 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 Peace may be appointed for the same local area. A Justice of Peace can, by no dent of imagination, be called a Court. The remedy of a complaint for punishing an offence lies before a Court. The word "complaint" has therefore been used in it's etymological meaning and shall be defined according to it's normal english usage and not as a complaint as defined in Section '2' Clause 'h' of Cr. PC. "In dealing with matters relating to the general public", as explained in Maxwell on the Interpretation of Statutes, Twelfth Edition , "statues are presumed to use words in their popular , rather than their narrowly legal and technical sense: 'loquitur ut vulgus' this is, according to the common understanding and acceptation of the terms. If an Act is directed to dealing with matters effecting everybody generally , the words used have the meaning attached to them in the common parlance and ordinary use of language." In the case in hand also, complaint shall be taken to mean raising of any grievance by filing an application before a Justice of Peace, to be more particular a grievance regarding non-registration of F.I.R. by the SHO concerned.
10. It is also a phenomena visible in some of the special statutes, where a departm ent is entrusted with execution of some task, then initiation of criminal proceedings is reserved and provided to be only made on the complaint of the respective designated officer of the department. But this is also not the case with Justice of Peace. Except entertaining a complaint or application under section 6 of the Act, a Justice of Peace has not been given any role for administering or executing the provisio ns of the Act. He cannot therefore be deemed to be a designated officer in the said sense, where he may have been made custodian of the law and entrusted with its execution. No such role has been ascribed to Justice of Peace in the Act.
11. Had the legislature been having an intention to treat the offence non-cognizable by way of filing a complaint, it would have provided filing of a complaint before a Judicial Magistrate of the 1st Class, which has been specified as a competent Court of law for the trial of an offence under section 8 of the Act. But intention of the legislature was clear from section 9 of the Act that they dealt the offence as cognizable, non-comp oundable and non-bailable. The contention of learned counsel for petition er that FIR should have been registered on orders of the learned Justice of Peace is therefore lacking any substance because same is running counter to the very meaning of the word `cognizable' .
12. When the FIR is taken to have competently been registered, then this Court is not supposed to further enquire into the veracity of allegations contained in the FIR in view of the law laid down by the Hon'ble Apex Court in the case of Shahnaz Begum vs The Hon'ble Judges of the High Court of Sind and Baluchistan reported as PLD 1971 Supreme Court 677 , wherein the Hon'ble Court held as follows; "So far as the Constitution of 1962 is concerned the powers of the High Courts are such as have been described under the provisions of Article 98 of the Constitution. They are those which have been conferred on them by the Constitution itself or by any law and apart from them they have no other powers, because, Article 130 of the same Constitution provided that "no Court shall have any jurisdiction that is not conferred on it by this Constitution or by or under the law." Under this Constitution, a High Court has been given the power of judicial review of executive actions by Article 98 in certain specified circumstances but even in such a case the High Court cannot move suo motu for, it is specifically provided in each of the sub clauses (a), (b) and (c) of clause (2) of Article 98 that only "on the applicatio n of an aggrieved party or of any person," the High Court may make the orders or issue the directions therein specified. It is clear , therefore, that under Article 98, there is no scope for any suo motu action by the High Court. The High Court has also no power of supervision or control over investigating agencies for the power of superintendence which is given by Article 102 of the Constitution is only in respect of "all other Courts that are subordinate to it." This position, as already , pointed out, is not also disputed by the learned Advocate- General for the Province of Sind."
In the case of Brig. (Retd.) Imtiaz Ahmad vs Goverment of Pakis tan through Secretary , Interior Divisio n, Islamabad & 2 others reported as 1994 SCMR 2142 , the Hon'ble Apex Court after an extens ive survey of the existing case law and examination of relevant jurisprudential principles held as follows; "This Court held, therefore, "that the 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".
18. 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 proposes extraneous to statute". In other words what the petitioner wanted the High Court to do was to assume the role of Investig ator. 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 eminently justified is not assuming that role."
In the case of Ghulam Sarwar Zardari vs. Piyar Ali alias Piyaro and another reported as 2010 SCMR 624, the Hon'ble Apex Court held that if investigation was not in bad faith and out of personal motives either to hurt the accused or to benefit oneself or in colourable exercise of powers not authorized by law, under which an action is taken then it comes within the scope of malafide , and in such a case corrective measures may be taken by the High Courts. In the said case also the matter has not been left open ended but the limits of exercise of powers by the High Court in respect of investigation has been defined clearly in the following terms; "Investigation can be corrected and necessary orders can be passed, if aggrieved party alleges and proves one or other of the following conditions:--- 1) Investigation initiated beyond jurisdiction of investigating agencies; 2) Investigation initiated with mala fide intention; i. in bad faith out of personal motives either to hurt the person against whom action is taken or to benefit oneself; ii. in colourable exercise of powers; iii. not authorized by law under which action is taken; iv. action taken in fraud of law; and v. abuse of process of law .
Where application against investigation does not show any of the above mentioned facts alleged and proved, then High Court under constitutional jurisdiction has no jurisdiction to interfere with investigation or pass any order ."
The case in hand does not even fall in any of the categories mentioned therein. The accused have not attributed any malafide to the Investigating Agency , nor has any such malafide been visible in the case.
13. So far as judgment in the case of Miraj Khan vs Gul Ahmed and 3 others reported as 2000 SCMR 122 and relied by learned counsel for petitioner is concerned, same is distinguishable from the facts of the instant case.
Besides being a leave refusing order , same is not binding as a precedent in view of the law laid down by the Hon'ble Apex Court in the case of Muhammad Tariq Badr and another vs National Bank of Pakistan and others reported as 2013 SCMR 314. The other judgments reported as 2008 YLR 2695 and 2014 MLD 599 are also distinguishable from the facts and circumstance of the instant case. The judgment of this Court reported as 2017 YLR 2354 is a bail granting order of Single Bench of this Court and despite having immense respect for the view expressed therein, we are not inclined to follow it.
14. For what has been discussed above, the petition in hand was found to be divested of any force and same is accordingly dismissed.