Munir Ahmad Bhatti vs Director, FIA Cybercrime Wing, etc.

Tariq Saleem Sheikh, J. This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, is directed against order dated 6.10.2021 passed by the Ex-officio Justice of Peace, Lahore.

The factual background

2. The Petitioner is a lawyer by profession and Respondent No.4 is his real brother and they are daggers drawn. On 25.5.2021 Respondent No.4 came on a YouTube Programme of PJ Mir and made various defamatory statements against the Petitioner which offended him. On 10.6.2021 the latter made a complaint to Respondent No.1 through the FIA Cybercrime Wing, Lahore, on which Enquiry No.1864/2021 was initiated. Respondent No.2 was appointed as the Inquiry Officer who recorded the statements of the Petitioner and two other persons on 24.6.2021. After that the FIA authorities became completely silent which constrained the Petitioner to make an application under section 22-A Cr.P.C. before the Ex-officio Justice of Peace praying that a direction be issued to Respondent No.1 to register FIR against Respondent No.4. The said application was disposed of vide Order dated 6.10.2021 asking the parties to approach the Inquiry Officer who was directed to conclude the inquiry as early as possible and then proceed in accordance with law. Hence, this petition.

Submissions

3. The learned counsel for the Petitioner contends that Respondent No.4 has committed a cognizable offence so the Federal Investigation Agency (the "FIA") is obligated to register FIR against him forthwith. He maintains that the Ex-officio Justice of Peace has not taken into consideration section 154 of the Code of Criminal Procedure, 1898 (hereinafter referred to as "Cr.P.C." or the "Code"), which mandates that FIR should be registered in respect of cognizable offence right away without any inquiry or investigation. The learned counsel argues that the impugned order dated 6.10.2021 is perverse and not sustainable.

4. The learned Deputy Attorney General contends that the Petitioner's allegations can, at the most, constitute an offence under section 20 of the Prevention of Electronic Crimes Act, 2016 ("PECA"), which is non-cognizable and compoundable in terms of section 43 of the said Act. The FIA, therefore, has to proceed under Rule 7(5) of the Prevention of Electronic Crimes Investigation Rules, 2018 (the "Investigation Rules") read with section 155 Cr.P.C. In the circumstances, the impugned order is unexceptionable. The learned counsel for Respondent No.4 has adopted these arguments.

5. The learned amicus curiae submits that the PECA is lex specialis for cybercrimes and the Investigation Rules of 2018 prescribe a special procedure for their investigation, prosecution and trial. These provisions prevail over the Code if there is a conflict. Hence, the Petitioner's reference to section 154 Cr.P.C. is inapt and inapposite. In the present case, he adds, no FIR can be registered because his complaint does not disclose commission of a cognizable offence.

Discussion

6. In the Indo-Pak sub-continent the original role of the Justice of Peace under the Code was primarily to assist the police in maintaining public order and peace and, in the event of infarction of law, to help apprehend the culprit and investigate the crime.^[1] However, his role was subsequently enlarged and made more comprehensive through various amendments in the Code.

On 21.11.2022, the Criminal Procedure (Third Amendment) Ordinance, 2002 (Federal Ordinance No. CXXXI of 2002)^[2] added sub-section (6) in section 22-A Cr.P.C. and conferred additional powers on the Ex-officio Justices of Peace. The said provision reads as under:

(6) An Ex-officio Justice of 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 25 Cr.P.C. defines Ex-officio Justice of Peace as follows:

25. 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 whole of the District of the Province in which they are serving.

7. Section 22-A Cr.P.C. is characterized by the following traits:

(i) Direction(s) can be issued to the police authorities;

(ii) The direction should be appropriate;

(iii) The use of the word "may" by the legislature envisages application of mind by the Ex-officio Justice of Peace.

8. In Younas Abbas and others v. Additional Sessions Judge, Chakwal and others (PLD 2016 SC 581) a larger Bench of the Hon'ble Supreme Court of Pakistan considered sections 22-A(6) and 25 Cr.P.C. and ruled as under:

(i) Sections 22-A(6) and 25 Cr.P.C. are not ultra vires the Constitution.

(ii) The functions of the Justice of Peace under sub-sections (1) to (5) of section 22-A and section 22-B Cr.P.C. are executive, administrative, preventive and ministerial. However, those of the Ex- officio Justice of Peace under section 22-A(6) Cr.P.C. are quasi-judicial as he entertains applications, examines the record, hears the parties, passes orders and issues directions with due application of mind. Every lis before him demands discretion and judgment.

(iii) The parameters for exercise of powers in respect of the matters mentioned in sections 22-A and 22-B Cr.P.C. in general and section 22-A(6) Cr.P.C. in particular are well settled. The Justice of Peace and the Ex-officio Justice of Peace must follow them.

9. The Code does not define the term "police authorities." It does, however, at some places uses the expression "officer in-charge of a police station." The first question that arises for consideration is whether the officers of the FIA can be described as police authorities in terms of section 22-A(6)

Cr.P.C.

10. The Parliament has established FIA through the Federal Investigation Agency Act, 1974 (the "FIA Act"), for inquiry and investigation of certain offences committed in connection with matters concerning the Federal Government. Section 3 of the Act read with the Schedule thereto lists those offences and adds that it would include an attempt or conspiracy to commit any such offence and the abetment thereof. Section 4(2) stipulates that administration of the FIA shall vest in the Director General who shall have the same powers as the Inspector General of Police under the Police Act, 1861. Section 5 of the FIA Act (reproduced later in this judgment) is very significant. Section 5(1) invests the members of the Agency with all the powers that the provincial police have in relation to search, arrest of person and seizure of property and investigation of offences and states that, subject to any order of the Federal Government, they may exercise them throughout the country.

Section 5(2) empowers a member of the Agency, who is not below the rank of a Sub-Inspector to exercise any of the powers of an officer in-charge of a police station for the purposes of any inquiry or investigation under the Act. In this view of the matter, FIA is fully covered by the expression "the police authorities" occurring in section 22-A(6) Cr.P.C. and amenable to the jurisdiction of the Ex- officio Justice of Peace. Reliance is also placed on Ch. Abdur Rehman v. Deputy Director, FIA, Faisalabad and 19 others (2010 MLD 1346); Mushtaq Hussain Shah v. Additional Sessions Judge, Islamabad and 6 others (PLD 2013 Islamabad 26); and National Bank of Pakistan and another v.

The State and 4 others (PLD 2021 Lahore 670).

11. Before proceeding further, let's have a look at some provisions of section 5 of the FIA Act which have bearing on this case. They are:

5. Powers of the members of the Agency.- (1) Subject to any order which the Federal Government may make in this behalf, the members of the Agency shall, for the purpose of an inquiry or investigation under this Act, have throughout Pakistan such powers, including powers relating to search, arrest of persons and seizure of property, and such duties, privileges and liabilities as the officers of a Provincial Police have in relation to the investigation of offences under the Code or any other law for the time being in force.

(2) Subject to rules, if a member of the Agency not below the rank of a Sub-Inspector may, for the purposes of any inquiry or investigation under this Act, exercise any of the powers of an officer-in- charge of a police station in any area in which he is for the time being and, when so exercising such powers, shall be deemed to be an officer-in-charge of a police station discharging his functions as such within the limits of his station.

(3) Without prejudice to the generality of the provisions of the sub section (1) and sub-section (2), any member of the Agency not below the rank of a Sub-Inspector authorized by the Director- General in this behalf may arrest without warrant any person who has committed, or against whom a reasonable suspicion exists that he has committed, any of the offences referred to in sub- section (1) of section 3.

(4) For the purpose of the exercise by the members of the Agency of the powers of an officer-in- charge of a police station, "Police Station" includes any place declared, generally or specially, by the Federal Government to be a police station within the meaning of the Code.

(5) .......

(6) ......

12. The terms "inquiry" and "investigation" are ordinarily taken as synonymous but in law they are distinct. The Black's Law Dictionary defines "inquiry" as "(a) a question someone asks to elicit information; (b) the act or process of posing questions to elicit information."^[3] On the other hand, it describes "investigation" as "the activity of trying to find out the truth about something, such as a crime, accident, or historical issue; esp., either an authoritative inquiry into certain facts, as by a legislative committee, or a systematic examination of some intellectual problem or empirical question, as by mathematical treatment or use of the scientific method."^[4]

13. The Code defines the two terms in section 4(1) as follows:

(k) "Inquiry".- "Inquiry" includes every inquiry other than a trial conducted under this Code by a Magistrate or Court.

(l) "Investigation".- "Investigation" includes all the proceedings under this Code for the collection of evidence conducted by a police-officer or by any person (other than a Magistrate) who is authorized by a Magistrate in this behalf.

14. The diction of section 5(1) of the FIA Act and the context in which the terms "inquiry" and "investigation" appear in the said provision indicates that the legislature intended to give them different meanings. The Federal Investigation Agency (Inquiries and Investigation) Rules, 2002^[5] supports this view. I have also found discussion on these two terms in Adamjee Insurance Company Ltd. v. Assistant Director, Economic Enquiry Wing (1989 PCr.LJ 1921) in which a Division Bench of the Sindh High Court stated: "We are inclined to hold that the fact that the respondent did not record the FIR upon the receipt of written complaint containing allegation of commission of a cognizable offence, does not render the initiation of the inquiry as illegal. We are in respectful agreement with the view expressed in the above-cited Privy Council case^[6] namely, that an investigation may commence even without recording FIR. We may also point out that subsection (1) of section 5 refers to two terms, i.e. 'inquiry' or 'investigation'. The use of these two terms in the above sub-section indicates that they connote two different meanings. In our view inquiry can be termed as the first step towards investigation."

15. In Al-Arabia Sugar Mills Limited and 3 others v. Federal Investigation Agency, Government of Pakistan and 3 others (PLD 2021 Lahore 226) a Division Bench of this Court observed that the FIA Act confers two different streams of powers on the FIA, one relating to inquiry and the other investigation of offences. It added: "No distinction has been made in the 1974 Act between two concepts of inquiry and investigation.

Learned Attorney General for Pakistan submitted that FIA generally follows the procedure whereby firstly inquiry is held into the offences and thereafter upon registration of the case investigation takes place. It further seems that as a matter of practice, FIA considers these two as distinct aspects. In the present cases, inquiry is being conducted and for the purpose call up notices have been sent to the officers of the petitioners. The expression 'inquiry' has been defined in section 4(1)

(k) Cr.P.C. to include every inquiry other than trial conducted by Magistrate or court. At least in the Cr.P.C. the distinction between an inquiry and an investigation can very well be gathered from a construction of the various provisions relating to inquiries and investigations to which no reference has been made in the 1974 Act. It would, therefore, not be proper to draw any inference regarding the term on the basis of Cr.P.C.

16. PECA aims to check cybercrimes in Pakistan and provides mechanism for their investigation, prosecution, trial and international cooperation and for matters ancillary thereto. Section 29(1) of the Act stipulates that the Federal Government may establish or designate a law enforcement agency for investigation of the offences under it. Section 29(2) of the PECA enjoins that "unless otherwise provided for under this Act, the investigation agency and the authorized officer shall in all matters follow the procedure laid down in the Code [of Criminal Procedure, 1898] to the extent that it is not inconsistent with the provisions of this Act."

17. Legislature often refers to possibilities provided "by" or "under" the governing law. When a statute provides something in its main text, it can be said to be something prescribed "by" the law.

However, if secondary legislation envisaged by the parent law prescribes something (e.g. through statutory rules) it is "under" the parent enactment. The use of the word "under" in a parent law clearly suggests that the legislature left it open for something to be provided either through an amendment in the main statute or the rules framed thereunder. This gains support from the Hon'ble Supreme Court's holding in Commandant, Frontier Constabulary, KPK, Peshawar v. Gul Raqib Khan (2018 SCMR 903) that expression "by or under" in Article 240(a) of the Constitution authorized the terms and conditions of a civil servant to be provided by statute or statutory rules.

The Federal Government has framed the Investigation Rules of 2018 in exercise of the powers conferred on it under section 51 of the PECA. These Rules are clearly statutory being "under" the PECA within the meaning of section 29, supra, and would have effect accordingly.

18. Rule 3 of the Investigation Rules designates the FIA as the investigation agency in terms of section 29(1), ibid. It functions through the Cybercrime Wing under the supervision of the Director General. The Circle In-charge is the overall in-charge of each Cybercrime Reporting Centre of a Cybercrime Wing and acts as the authorized officer for the purposes of registration of a complaints and conducting their investigation. The aforesaid designation has nothing to do with the character or original remit of the FIA and does not affect its status of "police authority" and it remains the same when it is performing functions under the PECA. Resultantly, an individual can approach the Ex-officio Justice of Peace under section 22-A(6) Cr.P.C. for issuance of an appropriate direction.

"Appropriate" means "suitable, acceptable or correct for the particular circumstances"^[7] and involves a quasi-judicial function.^[8] It follows that the Ex-officio Justice of Peace is not obligated to issue direction for registration of FIR in every case brought before him.

19. The Investigation Rules contain elaborate provisions for registration of the cybercrime complaints and their investigation. Rule 6(3) stipulates that a complainant may file his complaint in-person, via e-mail, fax, telephone or other available digital means to a Cybercrime Reporting Centre. Rule 7 talks about its further handling and is reproduced below for ready reference:

7. Investigation and case procedure.- (1) The circle in-charge may allow registration of a case on a complaint and nominate an investigation officer.

(2) The investigation officer shall conduct the investigation on a clearly chalked out investigation work plan which shall be approved by the circle in-charge as specified in Schedule IV.

(3) The investigation officer shall submit an investigation report within sixty days from the date of registration of a case as specified in Schedule IV.

7 Oxford Advanced Learner's Dictionary, 8th Edition, p. 62.

8 Younas Abbas and others v. Additional Sessions Judge, Chakwal and others (PLD 2016 SC 581).

(4) In case a cognizable offence has been committed under the Act, the circle in-charge, after seeking legal opinion, shall order the registration of such case subject to the prior approval of Additional Director in the zone.

(5) In case of a non-cognizable offence under the Act, the circle in charge shall seek permission of the competent Court for investigation under section 155 of the Code.

(6) Notwithstanding the requirement to file an interim challan, the Additional Director in a zone shall authorize the submission of final challan under section 173 of the Code.

20. It is pertinent that the Investigation Rules somewhat follow the scheme of the FIA Act and the Rules of 2002 framed thereunder.^[9] This is necessitated by the fact that the cybercrimes constitute a special class and generally some preliminary inquiry is required to ascertain the nature of offence and determine whether sufficient evidence is available to justify prosecution of the accused.

21. Rule 7 retains the distinction between cognizable and non cognizable offences as we have in the Code. However, it is not happily worded and appears to be incoherent. Rule 7(1) lays down that the Circle In-charge may allow registration of a complaint received under Rule 6(3) and nominate an investigation officer while Rule 7(4) enjoins that if the offence alleged in the complaint is cognizable, the Circle In-charge shall order registration of a case after seeking legal opinion and approval of the Additional Director in the Zone. On the other hand, Rule 7(5) ordains that non- cognizable offences are to be dealt with according to section 155 Cr.P.C. and permission of the competent court is necessary for their investigation.

22. It is by now well settled that registration of FIR is not a condition precedent for commencement of investigation.^[10] Inasmuch as cybercrimes require some preliminary inquiry to justify prosecution of the accused as discussed above, Rule 7(4) of the Investigation Rules talks of legal opinion and prior approval of the Additional Director. It needs to be appreciated that these cannot be rendered unless the authority has some material before it. Keeping all these aspects in view, the tension between different provisions can be resolved by holding that when a complaint is received at the Cybercrime Reporting Centre the Circle In-charge may allow it to be registered for further processing and nominate an officer therefor. FIR is to be lodged only if it is found that a cognizable offence has been committed under the PECA and that too after completing the requirements of Rule 7(4) but in the case involving non-cognizable offence the Circle In-charge should seek permission of the competent court for investigation. This interpretation is in consonance with Standing Order No. 05/2020 issued by the Director General, FIA, to regulate the Agency's working.11 Every complaint is registered as an inquiry in the first instance and further steps are taken in the light of its result.

23. The PECA and the Investigation Rules constitute special law on the subject and would prevail over the general law set out in the Code.

24. Section 154 Cr.P.C. ordains that when an information relating to commission of a cognizable offence is given to an officer in-charge of a police station he shall enter it in the prescribed book/ register. Thus, section 154 Cr.P.C. leaves no discretion to the police in terms of registration of FIR as the legislature has used the word "shall" which carries a mandatory connotation. It does not permit them to hold a preliminary inquiry before it to ascertain whether the information communicated to him is authentic. In contrast, as adumbrated, Rule 7 requires some actions before the FIR is lodged.

25. In the general law, section 155 Cr.P.C. deals with non cognizable cases. It provides that the officer in-charge of the police station shall enter the information in the book (Rozenamcha) maintained for that purpose and, without any investigation, refer the matter to the magistrate for orders. If allowed, he may exercise the same powers in respect of the investigation as are available to him in respect of a cognizable case except that he shall not make any arrest without warrant. In Altaf Hussain v. Abdul Samad and 3 others (2000 SCMR 1945) the Hon'ble Supreme Court held that if a competent court has taken cognizance of the offence and commenced the trial, the proceedings are not vitiated unless there is miscarriage of justice or the accused has been prejudiced. Rule 7(5) of the Investigation Rules ordains that non-cognizable offences are to be dealt with according to section 155 Cr.P.C. and permission of the competent court is necessary for their investigation. However, when Rule 7(5) is read in conjunction with Rule 7(1) it appears that some preliminary inquiry is permissible even in this category of cases.

The case on hand

26. The allegation levelled by the Petitioner against Respondent No.4 prima facie attracts section 20 of the PECA which is a non-cognizable and compoundable offence in terms of section 43 of that Act. Admittedly, the FIA has initiated Enquiry No. 1864/2021 on his complaint which is still pending.

The Ex-officio Justice of Peace has, therefore, rightly directed the Inquiry Officer to conclude it expeditiously and asked the parties to wait for its outcome. Inasmuch as the alleged offence is non-cognizable, FIR cannot be ordered to be registered in any eventuality.

27. The learned counsel for the Petitioner has failed to point out any legal infirmity in the impugned order dated 6.10.2021 which may call for interference by this Court. This petition has no merit and is, therefore, dismissed.

^[1]Khizer Hayat and others v. Inspector-General of Police (Punjab), Lahore and others (PLD 2005 Lahore 470).