The petitioner filed a constitution petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 ("Constitution") before a Single Judge of the Islamabad High Court, which was dismissed on 08.09.2020. He preferred an appeal before a Division Bench of the same Court under section 3(2) of the Law Reforms Ordinance, 1972 ("Ordinance"), but the same was dismissed vide judgment dated 12.11.2020 on the ground of jurisdiction. The petitioner states that the Ordinance provides a remedy of appeal against the decision made upon a constitution petition filed under Article 199 of the Constitution before a Single Judge, therefore, the Division Bench of the same High Court has wrongly dismissed the appeal.
2. Heard the petitioner present in person and have gone through the Ordinance. The Ordinance was promulgated on 14th April 1972 providing a remedy of appeal from an order made by a Single Judge of that Court in exercise of power conferred upon it under Article 199 of the Constitution. The question which needs consideration is whether a remedy of appeal could be provided to an aggrieved person either through an Ordinance or parliamentary legislation in respect of matters decided under the jurisdiction conferred upon a Court under Article 199 of the Constitution.
Reference is made to the order dated 13.04.2023 passed in Constitution Petitions Nos. 6 to 8 of 2023, relevant portion whereof is reproduced herein below:
12. The Bill also (in clause 5, soon to become section 5) purports to confer a new appellate jurisdiction on the Court in exercise of legislative power under Article 191. However, it is highly doubtful whether Parliament can do this, since a right of appeal is not merely a matter of practice or procedure but is a substantive right. It would therefore seem, at first sight, that the appellate jurisdiction now sought to be conferred is beyond any competence conferred by Article 191, whether on the Court itself or any "law" purported to be made by Parliament. If the conferment of appellate jurisdiction is considered in terms of a legislative competence available otherwise to Parliament one must turn. to entry No. 55 of the Federal Legislative List ("List"). On a tentative examination of this constitutional grant it would seem that it, firstly, expressly excludes this Court from the power of Parliament to legislate as regards the "jurisdiction and powers" of courts in relation to the List, and secondly, allows for the enlargement of the jurisdiction of the Court only if it is "expressly authorized by or under the Constitution". There appears to be no authorization by or under the Constitution, let alone an express one, as allows Parliament to confer an appellate jurisdiction on the Court of the sort now sought to be created.
3. Since the Ordinance has come into force in the territory of Islamabad and the Province of Punjab, therefore, this being a constitutional issue regarding the provision of statutory right of appeal through the Ordinance against the order of a High Court passed under Article 199 of the Constitution and is also a matter of public importance, issue notice to the learned Attorney General for Pakistan, the learned Advocate General, Islamabad, the learned Prosecutor General, Islamabad and the learned Advocate General, Punjab as provided by Order XXVII-A of the C.P.C. Notice be also issued to the respondent No. 1. As the issue involved in this petition is identical to the issue involved in Constitution Petitions Nos. 6 to 8 of 2023, therefore, let the matter be placed before the Hon'ble Chief Justice to pass an appropriate order as to whether this case be heard along with aforesaid petitions or otherwise.
Sd/- Jamal Khan Mandokhail, J I respectfully disagree with this order as the instant petition is liable to be dismissed. As I have already opposed this order in the open court and will write my separate note.
Sd/- Syed Hasan Azhar Rizvi, J SYED HASAN AZHAR RIZVI, J. I have had the privilege of perusing the order proposed by my learned Brother (Justice Jamal Khan Mandokhail); however, with respect, I express my inability to agree with the same and I propose to write a separate order in the following terms.
2. The brief facts necessary to be noted for the consideration of this petition are that an FIR No.98/2014 dated 09.03.2014 under section 406, of Pakistan Penal Code, 1860 ("P.P.C.") was registered at the Police Station Shalimar, Islamabad by one Asim Farid, Recovery Officer of Messrs Avais Hyder Liaqat Nauman Charter Accountants ("AHLNCA"), a multinational company against the present petitioner (Sheikh Hamayun Nazir), a part-time employee for allegedly committing criminal breach of trust with respect to Rs.27,66,000/- of the company; the SHO, after a thorough investigation, submitted the report under section 173 of Criminal Procedure Code, 1898 ("Cr.P.C.") before the concerned learned Magistrate for trial; the complainant appeared before the learned trial Magistrate and partial cross-examination had been conducted on him by the petitioner; even then, the petitioner cunningly succeeded in obtaining the acquittal order 19.07.2018 under section 249-A, Cr.P.C. from the learned trial Magistrate surprisingly on account of the failure of the prosecution to bring its evidence on record. After earning the acquittal, the petitioner made an application to the SHO, Shalimar Police Station for registration of an FIR against the AHLNCA under section 476, Cr.P.C. and under sections 193/195/ 211/420/468/471/182, P.P.C., on his refusal, the petitioner filed a petition under sections 22-A/B, Cr.P.C. before the concerned justice of peace seeking direction for registration of FIR and the same was allowed vide order dated 25.04.2019 with the direction to the SHO concerned to register the criminal case and to proceed in accordance with the law. Resultantly, the concerned SHO, instead of registering an FIR under section 154, Cr.P.C, submitted a report qua alleged offence under sections 182/193/ 195, P.P.C. dated 16.05.2019 under section 155(1), Cr.P.C. seeking permission for investigation as all the offenses disclosed by the application of the petitioner were found to be non-cognizable; whereupon the learned Judicial Magistrate has observed that the plain reading of section 182, P.P.C. suggests that the proceedings under this section could be initiated if the court finds the allegation levelled by the complaint as "false" but it was not found so in this case and passed the order dated 22.05.2019 ("impugned order") while holding that: "[P]etitioner Sh. Hamayyun Nazir wants to lodge a criminal case against the Messrs AHLC who lodged FIR No.98/2014 against him wherein he was acquitted under section 249-A, Cr.P.C. It seems that he just wants to satisfy his grudge and instead of having recourse to remedy provided under Civil Law, has filed this application as per Nagal Rapat No.24 dated 29.04.2019 which is baseless and no permission/direction can be given to local police for lodging of the criminal case nor can any line be given to them to investigate the case along therewith".
3. Learned Judicial Magistrate in the impugned order directed the SHO concerned to file the said report submitted under section 155, Cr.P.C. Being dissatisfied, the petitioner challenged this order before the learned Islamabad High Court by filling a Constitution petition under Article 199 of the Constitution but remained failed and an Intra Court Appeal ("ICA") filed there against also met with the same fate; hence, this petition.
4. The arguments of the petitioner have been heard and the record perused.
5. The record shows that the petitioner by filling a constitution petition has sought the setting aside of the impugned order with a direction to the SHO concerned to register the FIR strictly in accordance with the order dated 25.04.2019 of the learned Justice of peace/A.S.J, Islamabad.
6. Chapter XIV of the P.P.C. deals with information to the police and their power to investigate.
Section 154 deals with information on cognizable cases and section 155 with information on non- cognizable cases and investigation of such cases. The scheme of law which becomes apparent from a bare perusal of these provisions is that whenever an Officer In-charge of a Police Station receives some information about the commission of an offence, he is expected first to find out whether the offence disclosed fell into the category of cognizable offences or was one which was non-cognizable. Section 154, Cr.P.C. requires to enter every information of commission of a cognizable offence, whether given orally or in writing to the officer-in-charge of the police station, which shall then be reduced into writing and signed by the person giving it and the substance thereof shall be entered in a book to be kept by such officer in the form prescribed by the Provincial Government in this behalf. This form, as per Chapter XXIV of the Police Rules of 1934 ("the rules"), is known as FIR. Under section 156, Cr.P.C, the police have the power to investigate the case without formal permission of the Magistrate and can arrest the accused without a warrant. As regard recording of information relating to the commission of a non-cognizable offence, another book known as "Roznamcha" or "Station Diary" is prescribed under section 155(1) of the Cr.P.C. and rule 24.3 of the Rules, and generally, the informant or complainant is sent away without any action by the police after being given a copy of the report so recorded. However, the police, in case of a non- cognizable offence, have to obtain the order of the concerned Magistrate under section 155(2) for investigation. Reference in this regard may be made to the judgments in cases Mst. Sughran Bibi v. The State (PLD 2018 Supreme Court 595) and Muhammad Bashir v. Station House Officer, Okara Cantt. and others (PLD 2007 Supreme Court 539)
7. In this case, the learned ex-officio Justice of Peace/Additional Sessions Judge-VII, Islamabad- West vide his order dated 25.04.2019 has endorsed the conclusion drawn by the SP (complaint) and the local police that the offences as disclosed by the complaint of the petitioner are, prima facie, not cognizable; however, he allowed the petition with the following observation: "4. I agree with the observations of the SP complaint and the police officer who submitted comments that prima facie offences are not the cognizable offences but it does not mean that the police is not duty bound to register a criminal case on receiving the information of a non- cognizable offence which offences are register-able under section 155, Cr.P.C. and it is in the competency of the authority of section 22-A (6)(i), Cr.P.C., for registration of criminal case, the direction may be passed. It is, therefore, the SHO, P.S. Shalimar is directed to register criminal case and proceed in accordance with law."
Emphasis supplied.
8. From above, it has been found that the learned Justice of Peace, in clear terms, has directed the local police to register the case of the petitioner under section 155, Cr.P.C. for non-disclosing cognizable offences. The local police, as such, have registered the said complaint under section 155(1), Cr.P.C. on 16.05.2019 and forwarded it to the concerned learned Magistrate, accordingly. In view of section 155(2), Cr.P.C. seeking an order for investigation of the case as also rightly observed the learned Single Judge of the Islamabad High Court in W.P. 2209/2019. Being so, the objection of the petitioner that the local police have not recorded the FIR in accordance with the order of the learned Justice of Peace has had no force and is, therefore, overruled being misconceived.
9. Section 155(2), Cr.P.C. does not expressly confer power on a Magistrate to order an investigation in a non-cognizable offence as is given by section 156(3) and section 159, Cr.P.C. The police may report for an order under section 155(2), Cr.P.C. and the Magistrate can order for the investigation.
The Magistrate, however, has to apply his mind to the facts and before passing the orders has to see whether there are reasonable grounds for believing that an offence has been committed.
10. No hard and fast criteria has been laid down so far to regulate the power of the magistrate to order the investigation under section 155(2), Cr.P.C. However, a somewhat similar matter regarding the order to investigate under section 155(2), Cr.P.C. in non-cognizable cases/matters came for consideration before the learned Judge of Lahore High Court in the case of Hussain Bakhsh v. The State (PLD 1963 (W.P.) Lahore 46) and the learned Judge held that "to prosecute" and "order to investigate" are allied subjects and should be governed by the same principles. And, the above observation of the learned Judge of the High Court, to my understanding has righty formed, on the basis of the following passage from the judgment in the case of Tufail Muhammad v. the Crown (PLD 1954 Lahore 37) authored by S. A. Rahman, J. as he then was: "The question that falls for determination is the meaning to be attached is the expression 'previous sanction'. Does it imply just an order of sanction to be passed by the prescribed authority taking on trust a report made to it by the investigating officer? I do not think that could have been the intention of the Legislature. If that were the position then it would be a mere act of supererogation to have the imprimature of the sanctioning authority added to the opinion of the investigating officer. What was obviously intended was that the sanctioning authority should apply its mind to the facts and circumstances of the case and although, prima facie, some offence may be revealed by the evidence collected, the authority in question would not be bound to accord sanction for the prosecution unless it came to the conclusion that it would be expedient in the interest of justice to do so. Such a conclusion could only be arrived at after all the material facts had been considered. It is clear that this has not been done in the present case and in my view, therefore, the purported sanction to prosecute was not in accordance with law."
Emphasis supplied.
11. Thus, the fact whether there are reasonable grounds for believing that an offence has been committed, is a very material circumstance to be taken into account in deciding whether an investigation, should be ordered. A Magistrate must apply his judicial mind to satisfy himself that reasonable grounds exist for believing that an offence has been committed before he orders in such types of investigation. If he does not do so, he would be acting arbitrarily in ordering an Investigation to be made. The order to investigate is an important matter and it must precede the investigation by the police. officer. The Magistrate has unfettered discretion to grant or refuse the order for any reason that he deems appropriate. In order to perform the function of granting or withholding permission to investigate, the Magistrate must have a thorough understanding of the facts of the case. Under the Criminal Procedure Code, 1898 a Magistrate is entrusted with diverse duties and he, in discharging the same, does not always function as a Court, conducts judicial proceedings, or is amenable to the revisional jurisdiction. Some of his powers and duties under Cr.P.C. are administrative, executive, or ministerial and he discharges these duties not as a Court but as a persona designata. The mere name or designation of a Magistrate is not decisive of the question. It is, however, necessary for practical purposes to have some kind of classification; therefore, the primary characteristics of "pure judicial functions", by whomsoever exercised are: 1)
The power to hear and determine a controversy; and 2) the power to make a binding decision (sometimes subject to appeal), which may affect the person or property or other rights of the parties involved in the dispute. Administrative functions, on the other hand, consist of those activities which are directed toward the regulation and supervision of public affairs and the initiation and maintenance of public services. Reference in this regard may be made to the judgment in the case of Bahadur and another v. The State (PLD 1985 Supreme Court 62).
Keeping in mind the above criteria and after careful consideration of the impugned order, this Court finds the impugned. order to be a well-reasoned and judiciously crafted decision. The learned Magistrate, in its meticulous analysis of the relevant legal principles, has arrived at a sound and reasoned conclusion that is both factually and legally sound and just. And, these peculiarities establish beyond any doubt that the Magistrate, in doing so, was performing the function as a criminal Court. For that reason, his order is amenable to revisional jurisdiction under sections 435 to 439, Cr.P.C.
12. Accordingly, the Division Bench of the learned High Court has rightly dismissed the Intra Court Appeal but on the wrong premises by holding that the word proceedings mentioned in the proviso of section 3(2) of Law Reforms Ordinance, 1972, includes the FIR while mainly relying on the judgment of this Court in the case of Nawazul Haq Chowhan v. The State and others (2003 SCMR 1597). In that case, the petitioner/accused, by filling a Constitution Petition under Article 199 of the Constitution, successfully sought quashment of an FIR registered against him; however, the order of quashment of FIR was set aside by a Division Bench of the same learned High Court in an I.C.A.
Being aggrieved, the petitioner/accused, by filling a CPLA, challenged the order of I.C.A before this Court. This Court granted leave, inter alia, on the ground as to whether or not I.C.A. lies against the order passed in the writ petition by the learned Single Judge and as to whether or not the word 'proceedings' mentioned in, the proviso of section 3(1) of Law Reforms Ordinance, 1972, includes the FIR. Without any determination of the said questions, it was observed in that case that: "The above controversy has been resolved by this Court in the case of Mst. Karim Bibi and others v. Hussain Baksh and another (PLD 1984 SC 344) and Settlement Commissioner (L) and others v. Mauj-Din and others (1989 SCMR 1351) while holding that in view of Section 3(2) of the Law Reforms Ordinance, 1972, I.C.A. is not maintainable."
13. I have also gone through the cases of Mst. Karim Bibi's case and Mauj-Din's case supra and have found that both the cases pertained to civil/revenue matters and they did not, in any manner, hold that the word 'proceedings' mentioned in the proviso of section 3(2) of Law Reforms Ordinance, 1972, includes the FIR. Similarly, I, with the utmost respect, do not feel any hesitation to state that this Court in Nawazul Haq Chowhan's case supra did not decide the question of law qua the non-maintainability of I.C.A pertaining to the issue of registration of FIR nor was it held that word 'proceedings' mentioned in the proviso of section 3(2) of Law Reforms Ordinance, 1972, includes the FIR. Even otherwise, in the present case, the issue is not about the registration or non- registration of the FIR but relates to the legality of the impugned order whereby the learned Magistrate refused to grant the permission under section 155(2), Cr.P.C. to the local police to investigate the complaint of the petitioner recorded against which a remedy of revision was available under the law; hence, the I.C.A was not maintainable, in view of the proviso to subsection
(2) of section 3 of the Law Reforms Ordinance, 1972.
14. As far as the question of whether a remedy of appeal could be provided to an aggrieved person either through an Ordinance or parliamentary legislation in respect of matters decided under the jurisdiction conferred upon a court under Article 199 of the Constitution is concerned, I am of the humble view that Article 175 of the Constitution, by its clause (1), ordains that there shall be a Supreme Court of Pakistan and a High Court of each province, and recognizes "such other Courts as may be established by law". Clause (2) of that Article provides that "no Court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law". For the above question, it is sufficient to say that the Supreme Court of Pakistan and the High Courts have been established by the Constitution, that they have such jurisdiction as has been conferred upon them by the Constitution, that they have also such other jurisdiction as is or may be conferred upon them by or under any law. The expression 'law' here has been used to distinguish it from 'Constitution' (which is higher in authority) and obviously means an ordinary or Sub-Constitutional law made in the exercise of the powers granted by the Constitution. Reference in this regard may be made to the judgment of this Court in the case of Brother Steel Mills Ltd. v. Mian Ryas Miraj (PLD 1996 Supreme Court 543) wherein the provision of section 15 of the Code of Civil Procedure (Amendment) Ordinance, 1980 which also provides a right of appeal to a Bench of two or more Judges of a High Court from an interlocutory order made by a Single Judge of that Court in the exercise of its original civil jurisdiction has been interpreted by a 5-member Bench of this Court.
Even otherwise, no provision of the Constitution places any such bar on the power of the legislature.
15. The Law Reforms Ordinance, 1872 ("the Ordinance") was promulgated on 14.04.1972. Later, it was validated through Article 269 of the Constitution 1973 which mandates that: "...all other laws made between the twentieth day of December, one thousand nine hundred and seventy one and the twentieth day of April, one thousand nine hundred and seventy-two (both days inclusive), are hereby declared notwithstanding any judgment of any court, to have been validly made by competent authority and shall not be called in question in any court on any ground whatsoever."
Despite laps of more than fifty years from the promulgation of the Ordinance, no such like question qua the legality of the Ordinance has been raised by any party, lawyer, any High Court or this Court.
16. Surprisingly, this question has also not been raised in this case but it has been taken up by my learned brother on his own. The process of judicial scrutiny of the legislative Acts on the touchstone of the Constitution is technically called "Judicial Review". The Courts, however, should adopt judicial self-restraint in discharging their functions of judicial review in order to maintain harmony between the Judiciary, the Legislature, and the Executive. The power of judicial review of legislative Acts vested in the High Courts and this Court must be exercised with wisdom and self-restraint and not in a spirit of cold war between Parliament or State Legislatures and Courts. Non-interference with the view of the majority in Parliament with regard to what is reasonable and interference with what is prohibited by the Constitution may perhaps, be a harmonious path for a peaceful transition for a glorious future. In Lahore Development Authority v. Ms. Imrana Tiwana (2015 SCMR 1739), this Court, while stating the rules which must be applied to declare laws unconstitutional, has held that: "[I]f a case can be decided on other or narrower grounds, the Court will abstain from deciding the constitutional question."
17. Indubitably, the above question is not related to the issue involved in this case, and thus, it cannot be brought under debate, nor can any conclusion be drawn thereon. Further, the case in hand is required to be decided first instead of referring such a delicate constitutional question to the Hon'ble Chief Justice of Pakistan which has not been raised before us and which could be decided in any other appropriate proceedings.
18. Foregoing in view, leave is refused and the petition is dismissed. No order as to costs.
19. The above are the reasons of my short order of even date which is reproduced as under:- "I respectfully disagree with this order as the instant petition is liable to be dismissed. As I have already opposed this order in the open Court and will write my separate note."
Sd/- Syed Hasan Azhar Rizvi, J ORDER OF THE COURT One of us, Jamal Khan Mandokhail, J. issued notice in the captioned petition, whereas, Syed Hasan Azar Rizvi, J. dismissed the same, Therefore, the matter is referred to the Hon'ble Chief Justice for appropriate orders.