MUHAMMAD QASIM KHAN, J.--- This single order shall decide two matters i.e. W.P.No.1715/2007 "SAEED ANJUM vs. STATE Etc, and W.P.No.1717/2009 "RANA SAEED AHMED vs. STATE Etc, assailing the order dated 03.07.2002 passed by learned Justice of Peace, as both matters arise out of similar facts and circumstances.
2. Briefly the facts are that Riaz Ahmad (respondent in both these writ petitions), lodged a FIR No.200/2007 with police station Kot Samaba under sections 420, 468. 471 PPC against Shakeel Ahmad (whose W.P.No.1721/ 2007 has been decided by this Court vide a separate order of even date), for alleged preparation of forged and fabricated agreement to sell with regard to 108-kanal and 17-marla of land situated in Chak No:85/NP . The said FIR was yet under investigation when Riaz Ahmad complainant moved an application dated 16.6.2007 under sections 22-A and 22-13 of the Criminal Procedure Code. 1898 before the learned Justice of Peace, with the grievances that soon after registration of case the accused person in collusion with Rana Saeed Ahmad DSP (Investigation), who firstly got moved an application on behalf of the accused persons to DSP Saddar Circle Rahim Yar Khan and then got moved another application on behalf of the accused to the - District Police Officer Rahim Yar Khan and thereafter an application under section 22-A Cr.P.C. was moved by the accused persons for change of investigation, as such after repeated applications by the accused persons, the investigation was taken up by said Rana Saeed Ahmed DSP himself without the orders of competent District. Standing Board. It was further stated in the application of the complainant that he moved complaints in this behalf but having failed, ultimately application under sections 22-A and 22-13 Cr.P.C. was moved on the ground that investigation carried out by Rana .Saeed Ahmad DSP without any :order of the District Standing Board, was illegal and in violation of Police Order , 2002. It was therefore, prayed that action may be initiated against Rana Saeed Ahmad DSP under Police Order , 2002. The learned of ficio Justice of Peace vide a detailed order dated 03.01.2001, made the following remarks: "Both the said police officers are also guilty of violation of duty, hence the acts of both the DSPs named above cannot be left unattended."
(Last three lines of Para-7 of the order dated 03.07.2007)
Investigation, if any . conducted without proper entrustment is not to Sustain. Order accordingly .
(Last three lines of Para-8 of the order . dated 03.07.2007).
"Before parting with this order , I would like to observe that 'collusion of Rana Saeed Ahmad and Saeed Anjum both DSPs with the accused of the said case. is very much. visible and therefore both-t he said police officers are liable to he proceeded against under section 155 (C & D) Order , 2002. DPO kill get- the criminal case registered against the said police Officers under intimation to this court by sending copy of the FIR within one week and the police Officer not below the rank of DSP may be deputed to conduct the investigation and the result/ progress in the said criminal case be sent to the office Superintendent of Sessions Court, Rahim Yar Khan weekly who will also follow up the progress in the said criminal case.
(Opening lines of Para-1 1 of the order dated 03 07.2007).
As discussed above, through W.P.No.1715 and 1.717 of 2007 Saeed Anjum and Rana Saeed Ahmad both DSPs have assailed the above order dated 03.7.2007 passed by the learned Justice of Peace.
3. It is argued by learned counsel for the petitioners that learned Justice of Peace had limited powers and he could not treat the proceedings as regular lis nor was expected to render an elaborate judgment While acting as Ex- Officio Justice of Peace within the meaning of Section 22-A and 22-13 of the Code of Criminal Procedure, 1898. and he could also not interfere in the investigation process which was entirely within the domain of the concerned police agency . The learned counsel further argued that question of alleged mala fide on the part of the police officers also required factual inquiry and it could not be resolved by the learned Justice of Peace. It is argued that petitioners have been condemned unheard. as such, the remarks recorded by the learned Justice of Peace cannot sustain in the eyes of law. Learned counsel contends that case tinder section 155(c)(d) of Police Order- could not be registered against the petitioners without the report in writing by an officer authorized in this behalf under the rules made by the Government, as Article 155(2) of the Police Order , imposed a restriction on the prosecution of case.
4. The learned counsel representing respondent No.3/ complainant argued that there is no illegality . or -irregularity in the findings recorded by the learned Justice of Peace in the impugned order . Further argued that on the face of it the petitioners/ police Officers acted beyond their jurisdiction with regard to conduct the investigation without proper transfer of investigation Under section 18(6) of Police Order , 2002 therefore, their actions being tainted with mala fides, they were open to consequences under section 155 of the Police Order , 2002.. According to the learned counsel transfer of investigation could only be ordered by Additional Inspector General of Police after considering the recommendations of District Standing Board under section 18(6) of the above Act, therefore, petitioners had committed illegality , as such, the proceedi ngs conducted in an unauthorized manne r had been rightly quashed. The learned counsel while rebutting the argument of learned counsel for the petitioners with regard to direction for registration of case against them contend ed that under Police Order . 2002 no such embargo has been placed and in support of his contentions placed reliance on the case "SAKHA WAT HUSSAIN SHAH versus STATE and 3 others'' (PLJ. 2006 Lahore 1257) and "NASEEM AKHT AR KHAN versus DISTRICT AND SESSIONS JUDGE"
5. Heard. Record perused.
6. Admittedly the impugned order dated 3.7.2007 was passed by learned District & Sessions Judge. Rahim Yar Khan while acting as Ex-Of ficio Justice of Peace, as such, he had to act within his jurisdiction settled by Section 22-A and 22-13 of the Code of Criminal Procedure, 1898. It is by now a settled proposition of law that Justice of Peace only acts as an executive authority and has limited line of action bounded by Sections 22- A and 22-13, ibid. There is no dispute that application had been moved by respondent No.3 before the learned Justice of Peace, under section 22-A Cr.P.C. and while exercising his jurisdiction under this section he could order for registration of case, but in the case before this Court, the learned Justice of Peace granted three further relieves i.e.
(i) "The investigation, if any , conducted without, proper entrustment is not to sustain. Order accordingly ."
(ii) "the result/ progress in the said crimina l case be sent to the office Superintende nt of Sessions Court, Rahim Yar Khan weekly who will also follow up the progress in the said criminal case.
(iii) "Before parting with this order . I would like to observe that collusion of Rana Saeed Ahmad and Screed both DSPs with the accused of the said case is very much visible and therefore both the said police officers are liable to be proceeded against under section 155 (C & 1)) Police Order , 2002. DPO will gel the criminal case registered against the said police Officers under intimation to this court."
So far as the first quoted relief is concerned, as discussed earlier the learned Justice of Peace acting as an executive authority had no jurisdiction to nullify the investigation, even though it might have been conducted illegally or in unauthorized manlier . As such, the observations of learned Justice of Peace recorded in para-8 of the impugned order (reproduced above), being excessive as well as illegal abuse of jurisdiction beyond the scope of Sections 22-A and 22-B Cr .P.C. are declared illegal, and are accordingly set aside.
7. As regards the second relief granted by the learned Justice of Peace vide the impugned order (precisely reproduced above) suffice it to say that Police Order , 2002 provides a complete procedure for transfer of investigation as well as its supervision. It also provides that only two transfers of investigation could be allowed and procedure in this behalf has been given in Article 18(6) of the Police Order , 2002. Under Article 18(3), ibid, there should be head of the investigation, not below the rank of Superintendent of Police and responsible to his own hierarchy , whereas. Article 18(4) of Police Order provides that all registered cases shall be investigated by Investigation Staff in the District under the supervision of head of Investigation. The S.P (Investigation) being supervisory head of investigation himself could not take up the investigation process and he could only to issue directions to the concerned investigation staff to investigate the matter within the parameters of law. In his authority , the S.P (Investigation) can direct the I.O to collect any evidence (oral or inspect the site, obtain expert reports, etc. but in every eventuality he could not take over the charge or start conducting the investigation for himself. 'l'he S.P (Investigation) in suitable cases may even put up the matter before the competent District Standing Board for change of investigation. The learned Justice of Peace is not empowered to control the investigation by directing furnishing of weekly progress/result of the investigation to the office of his Superintendent. Any Sessions Judge or Additional Sessions Judge while acting as Ex-Of ficio Justice of Peace has -not-been delegated any such authority under Section 22-A and 22-13 of Code of Criminal Procedure. lie only acts as an. Executive Authority whereas. investigation is conducted by an indepen dent agency controlled by Police Order , 2002 and Police Rules. 1937, therefore, the learned Justice of Peace was not at all authorized to interfere in the sphere of Investigating Agency save as provided by law. In a celebrated judgment PI.D 1994 SC 281 the Hon'ble Supreme Court of Pakistan has settled that interference by Courts in the matter of police investigation before submission of challan, order passed by High Court calling for periodic progress of' investigation. was set-aside. So, the learned Justice of Peace could not issue such a direction as reproduced above. Therefore, said direction of learned Justice of Peace being illegal and void, is set-aside.
8. So far as the objection of learned counsel that learned Justice of Peace could not direct for registration of case, suffice it to say that in the case in hand, there is no formal order from any of the competent authority within the meaning of Police Order , 2002 for the transferring of investigation of the case, as such, the petitioners prima facie appeared to have violated the provisions of Police Order . 2002. Furthermore, registration of case and initiation of criminal proceedings are entirely two different stages. It is by now settled that prosecution and the registration of case are two distinct steps in a criminal case. A criminal case is registered under section 154 Cr.P.C. and the investigation commences. During investig ation material/ evidence is collected from both the sides. The purposes of the investigation is to collect the evidence and after the completion of in investigati onal report about the conclusion of investigation is prepared by the 51.10 under section 173 Cr.P.C. (Challan) and the same is put in court for judicial proceedings on it, whereas, prosecution includes every step and action, from its commencement to its final determination and it does not include the investigation. This question has already been resolved by this Court in, the case PEER BAKHSH VS. SHO, ETC" (W.P.N0.5466/2009- BWP), respectfully placing reliance on the judgment "MASOOD AHMAD JAVER versus THE STATE and 5 others" (2006 MLD 855). Therefore, prima facie the direction of learned Justice of Peace with regard to registration of case against the petitioners appears to be full justified and is proper use of jurisdiction duly vested in him. Therefore, I find no illegality in the impugned order to this limited ef fect.
9. As regards the contention of learned counsel that petitioners have been condemned unheard it is settled principle of law that accused is not require d to be heard before registration of a case, as such. the' said argument is not sustainable at all. Furthermore, at the time of registration of a case or in an application for registration of case. issuance of notice and hearing of the accused is not necessary nor it is essential to give him opportunity of hearing at that stage. In this respect guidance is sought from the cases reported in 1995 MLD 372, PLD 2005 Lahore -170 and 1987 P .Cr.L.J. 1214. 1994 MIA) 1736
10. For what has been discussed in preceding paragraphs, both these writ petitions are disposed of in the above terms.