TARIQ SALEEM SHEIKH, J. Amir Sohail son of Bashir Ahmad lodged FIR No.94/2021 dated 12.02.2021 at Police Station Race Course, Lahore, for offences under sections 337-A(i), 337-A(iii) and 427, P.P.C. against Respondent No.6 and others in respect of an incident in which the Petitioner (Amir Sohail's nephew) was also allegedly injured. Respondent No.6 got a cross-version registered under sections 337-A(i), 337-A(ii), 148 and 149, P.P.C. in that case against the Petitioner and others. On 10.9.2021 Respondent No.6 moved an application under section 22-A, Cr.P.C. before the Ex-officio Justice of Peace, Lahore, praying that a direction be issued to the Investigating Officer (Respondent No.3) to arrest those named in the cross-version. The Ex-officio Justice of Peace asked for a report from the SP (Investigation), Cantt. Division, Lahore, who submitted that the investigation of the case had been transferred to the DSP/SDPO, Qua Gujjar Singh Circle, Lahore, and he was on it. Thereafter, vide order dated 21.9.2021 (the "Impugned Order"), the Ex-officio Justice of Peace directed that officer to arrest the Petitioner and others named in the cross-version "as per law and the Police Rules."
Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the "Constitution"), the Petitioner has assailed that order before this Court.
2. The counsel for the Petitioner contends that the Ex-officio Justice of Peace has no authority to direct the police to arrest an accused person. As such, the Impugned Order is without jurisdiction.
He further contends that Respondent No.6 lodged a false cross-version with mala fide intent to counter FIR No.94/2021. According to the cross-version, Ishrat Bibi, wife of Respondent No.6, sustained two injuries in the incident. One of them was on the upper right side of forehead 3 cm above the right eyebrow while the other was on the outer side of her left eye However, on re- examination the District Standing Medical Board unanimously opined that the history given by Ishrat Bibi was not consistent The Additional Advocate General and the counsel for Respondent No.6 have controverted above- contentions and supported the Impugned Order.
The law and jurisprudence
4. Section 4(1)(i) of the Code of Criminal Procedure, 1898 (hereinafter referred to as the "Code" or "Cr.P.C."), defines the term "investigation" and says that it "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." It follows that the object of investigation is to collect evidence and determine whether the allegations against a person are true or otherwise. In Muhammad Aslam v. Deputy Commissioner, Sialkot and 2 others (2003 PCr.LJ 56) a Division Bench of this Court held that the duty of the Investigating Agency is to dig out the truth and save innocent persons from the agony of endless investigation and trial in The Bank of Punjab) and another v. Haris Steel Industries (Pvt.) Ltd and others (PLD 2010 SC 1109) the Hon'ble Supreme Court of Pakistan held that an honest investigation is imperative for a fair trial.
5. The police can undertake investigation of a case on their own if the offence is cognizable (sections 156, 157, and 174, Cr.P.C.) and with the permission of a magistrate if the offence is non- cognizable [section 155(2), Cr.P.C.]. It is, however, important to point out that the police have no authority to pronounce upon the guilt or innocence of an accused. That power is vested in the courts which they exercise in accordance with law and the jurisprudence developed over time.[1] If an Investigating Officer expresses any opinion as aforesaid, it is inadmissible in evidence.[2]
6. As far back as the year 1945, in Emperor v. Khawaja Nazir Ahmad (AIR 1945 PC 18), the Privy Council held that the police have the statutory right to investigate the circumstances of an alleged cognizable offence and the courts have no authority to interfere in their functions. Relevant excerpt is reproduced below: "In India as has been shown there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities, and it would; as their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court. The functions of the judiciary and the police are complementary not overlapping and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always, of course, subject to the right of the Court to intervene in an-appropriate case when moved under section. 491, Criminal P.C. to give directions in the nature of habeas corpus. In such a case as the present, however, the Court's functions begin when a charge is preferred before it and not until then. It has sometimes been thought that section 561-A has given increased powers to the Court which it did not possess before that section was enacted. But this is not so. The section gives no new powers, it only provides that those which the Court already inherently possess shall be preserved and is inserted, as their Lordships think, lest it should be considered that the only powers possessed by the Court are those expressly conferred by the Criminal Procedure Code, and that no inherent power had survived the passing of that Act."
7. The Hon'ble Supreme Court of Pakistan endorsed the above view in Shahnaz Begum v. The Hon'ble Judges of the High Court of Sindh and Balochistan and another (PLD 1971 SC 677) and ruled that the High Court had no jurisdiction under the Constitution[3] or any other law, including the Code, to supervise the investigation of a criminal case or to control the agency conducting it.
This appeal by special leave arose from certain orders passed by a learned Single Judge of the then Sindh and Balochistan High Courts in proceedings started suo more on press reports to examine (i) whether the investigation was fair and impartial; and (ii) whether the interest of justice required that further investigation of the case should be entrusted to another officer. The Supreme Court said: "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 the 1962 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 mom 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 application 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 investigation 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."
8. Again, in Muhammad Hanif v. The State (2019 SCMR 2029), while reaffirming the law laid down in Khawaja Nazir Ahmed's case, supra, the Hon'ble Supreme Court held that our Constitution is based on trichotomy of powers and undue interference by the judiciary in the police investigation militates against that concept.
9. In Malik Shaukat Ali Dollar and others v. Ghulam Qasim Khan Khakwani and others (PLD 1994 SC 281) the Hon'ble Supreme Court also disapproved "continued control" by the High Court over the investigation. In that case, while hearing a petition under Article 199 of the Constitution, a learned Single Judge in the High Court first directed the Investigating Officer to finalize the investigation by a certain date. Later, when that officer apprised him that only two accused persons had been arrested out of a list of 21 and the challan was being submitted qua them, he expressed dissatisfaction and made a second order directing that notice be issued to the Additional Director, Anti-Corruption Establishment, to show cause "as to why adverse observation about his efficiency and performance should not be passed by this Court and the same should be placed on his personal file." The apex Court held that such continued control over the investigation' by the High Court was "prejudicial to the accused and detrimental to the fairness of the procedure apart from being without jurisdiction." This view was endorsed in Brig. (Retd.) Imtiaz Ahmad v. Government of Pakistan through Secretary, Interior Division, Islamabad and others (1994 SCMR 2142).
10. There is an exception to the above prohibitions. In Shahnaz Begum's case, supra, the apex Court held that the constitutional jurisdiction of the High Court may be invoked if the investigation is mala fide or without jurisdiction. In such a situation the High Court may even exercise power under section 491, Cr.P.C. though not under section 561-A, Cr.P.C. -- to release a person if he is in detention.
This view was approved by a number of subsequent decisions. The following excerpt from Younas Abbas and others v. Additional Sessions Judge, Chakwal and others (PLD 2016 SC 581) is quite instructive: "The investigating authorities do not have an unfettered authority of running investigation according to their whim and caprice. They can be pushed back to their allotted turf if and when they overstep it. In the case of Anwar Ahmed Khan v. The State (1996 SCMR 24), this Court held that the High Court in exercise of its jurisdiction was competent to pass necessary orders where investigation was mala fide or without jurisdiction to endure justice and fair play. It was also held in the case of Muhammad Latif, ASI, Police Station Sadar, Sheikhupura v. Sharifan Bibi and another (1998 SCMR 666) that the High Court in exercise of its constitutional jurisdiction could pass appropriate orders where investigation is mala fide. In the case of Nasrullah Khan v. Manzoor Hussain and others (2004 SCMR 885) this Court declined to interfere with the order of the High Court directing entrustment of the investigation of the case to some responsible officer of repute. In the case of Col. Shah Sadiq v. Muhammad Ashiq and others (2006 SCMR 276) this Court after referring to a string of judgments of this Court, Privy Council and Indian Supreme Court reiterated the same principle. The same view was also reaffirmed in the cases of Saeed Hussain Shah v. The State (1996 SCMR 504), Raja Rustam Ali Khan. v. Muhammad Hanif and 6 others (1997 SCMR 2008), Muhammad Saeed Azhar v. Martial Law Administrator, Punjab and others (1979 SCMR 484), Mazhar Naeem Qureshi v. The State (1999 SCMR 828), Ajmeel Khan v. Abdul Rahim and others (PLD 2009 SC 102), Hayatullah Khan and another v. Muhammad Khan and others (2011 SCMR 1354), Muhammad Ali v. Additional I.G. (supra) and S. N Sharma v. Bipen Kumar Tiwari and others (AIR 1970 SC 786)."
11. A perusal of sections 155(2), 156(1), 156(3), 157(1), 174, and 202, Cr.P.C. shows that registration of FIR is not a condition precedent For initiating investigation by the police.[4] Even where the FIR is recorded he may refuse to investigate the case under section 157. Cr.P.C. Importantly, the mere fact that FIR has been registered does not obligate the Investigating Officer to arrest the accused. There must be sufficient incriminating material to justify it. In Joginder Kumar v. State of U.P. 1(1994) 4 SCC 2601 the Supreme Court of India held that the horizon of human rights is expanding but, at the same time, the crime rate in the society is also increasing. The law of arrest balances the rights, liberties and privileges of an individual with that of the collective interest of the society. Therefore, the Court added, the police cannot arrest a person, merely because it may be lawful for them in a given situation. The existence of the power to arrest is one thing and the justification for the exercise of that power is another. The police officer should have reasonable grounds to believe, on the basis of available evidence, that the accused is involved in the commission of offence and there is need to arrest him. In M. C. Abraham and another v. State of Maharashtra and others [(2003) 2 SCC 649] the Supreme Court held that the police cannot exercise the power to arrest mechanically. Inasmuch as arrest is an encroachment on the liberty of the suspect and affects his reputation, they must act with caution and circumspection. A police officer is not always bound to arrest an accused even if he is alleged to have committed a cognizable offence. Likewise, in Mst.
Sughran Bibi v. The State (PLD 2018 SC 595) a 7-member Bench of. the Hon'ble Supreme Court of Pakistan held that it is the duty of the police officer under Rule 25.2(3) of the Police Rules, 1934, to find out the truth of the matter he is investigating, to discover me actual facts and get to the real offenders. He should not commit himself prematurely to any view regarding guilt or innocence of an accused and defer his arrest till such time sufficient evidence comes on record which satisfies him that the allegations levelled against him are correct.[5] In Shahzada Qaiser Arfat alias Qaiser v. The State and another (PLD 2021 SC 708) the apex Court ruled that the Investigating Officer must act judiciously and consider what purpose would be achieved by detaining an accused. In Khizer Hayat and others v. Inspector-General of Police (Punjab), Lahore and others (PLD 2005 Lahore 470) a Full Bench of this Court held that the general impression that the arrest of a suspect or an accused person is necessary or sine qua non for investigation of a criminal case is fallacious. In Misbah-ud-Din Zaigham And 3 others v. Federal Investigation Agency and another (2021 CLD 906) this Court noted that Article 9 of the Constitution provides protection against deprivation and loss of life and liberty and Article 10 guarantees a number of procedural rights as a bulwark against arbitrary arrest and detention. Article 14 states that dignity of man shall be inviolable. Arrest and detention leave an indelible imprint on the reputation and dignity of a person. "Power to arrest and handcuff and human dignity are closely tied in with each other and these constitutional protections cannot be reduced to irrelevance." Hence, it was held that there should be no arrest without probable cause.
12. Having discussed the above legal principles I turn to section 22-A, Cr.P.C. 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.[6] 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)[7] added subsection
(6) in section 22-A, Cr.P.C. and conferred additional powers on the Ex-officio Justice 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 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.
13. In Younas Abbas and others v. Additional Sessions Judge, Chakwal and others (PLD 2016 SC 581) the Hon'ble Supreme Court considered sections 22-A(6) and 25, Cr.P.C. and observed that, traditionally it is the prerogative of the High Court to issue a writ. Our Constitution of 1973 also recognizes it but, the legislature has lately conferred some powers on the EX-officio Justice of Peace in order to provide remedy to the aggrieved people at their doorstep. The apex Court ruled that the parameters laid down for the High Court for exercise of that jurisdiction would apply to the Ex-officio Justice of Peace with the same force.
14. The question as to whether the Ex-officio Justice of Peace is competent under section 22-A(6), Cr.P.C. to direct the police to arrest a person nominated in the FIR (or implicated through a cross- version of the accused party) was considered at length by a Full Bench of this Court in Khizer Hayat and others v. Inspector-General of Police (Punjab), Lahore and others (PLD 2005 Lahore 470). It held: "Except in cases of a clear legal obligation on the part of a police officer to act in a particular manner in which situation a direction may be issued by an Ex-officio Justice of Peace to the concerned police officer to do the needful, it would be inappropriate to the verge of being illegal for an Ex-officio Justice of Peace to issue directions to the police arrogating to himself the role of a supervisor or Superintendent of the Police in the matter of actual investigation of a crime. While exercising his jurisdiction under section 22-A(6), Cr.P.C. an Ex-officio Justice of Peace is only to activate the available legal remedy or procedure so that the grievance of the complaining person can be attended to and redressed, if found genuine, by the competent authority of the police."
The Court further said: "If the law itself requires an investigating officer to be generally slow in depriving a person of his liberty on the basis of unsubstantiated allegations, then insistence by the interested complainant party regarding his immediate arrest should not persuade the investigating officer to abdicate his discretion and jurisdiction in the matter before the whims or wishes of the complainant party. It, therefore, follows that an Ex-officio Justice of the Peace should not ordinarily force an investigating officer in that regard where the investigating officer has not so far felt the necessity of an arrest or has not yet formed a tentative opinion about correctness of the allegation against the suspect.
However, in an appropriate case, after obtaining comments from the investigating officer, an Ex- officio Justice of the Peace seized of a complaint in this regard may issue a direction to the Superintendent of Police (Investigation) of the relevant district to attend to this aspect of the matter."
The case at hand
15. Respondent No.6 has got a ' cross-version registered under sections 337-A(i), 337-A(ii), 148 and 149, P.P.C. against the Petitioner and others in FIR No.94/2021. According to the report of the Superintendent of Police, initially Naeem Abbas/ASI dealt with the case and he was' of the opinion that the injuries caused by Respondent No.6 and his wife Ishrat Bibi were simple and non- cognizable. The investigation has been transferred to the DSP/SDPO, Qila Gujjar Singh Circle, Lahore, and he is on it. According to the principles discussed above, the Investigating Officer should defer the arrest of an accused if he is not satisfied about his involvement in an offence. There is nothing on the record to suggest that the inaction of the police in the. instant case is mala fide. Even if Respondent No.6 had been able to make out a case for intervention of the Ex-officio Justice of Peace, the only jurisdiction the latter had was to issue a direction to the SP (Investigation) to look into the matter.
16. The Ex-officio Justice of Peace has passed the Impugned Order in complete disregard of the law laid down in Khizer Hayat's case, supra. Hence, this petition is accepted. The said order is declared to be without lawful authority and set aside.
1. Muhammad Bashir v. Station House Officer Okara Cantt. and others (PLD 2007 SC 539)
2. ibid.
3. In this case the Hon'ble Supreme Court was referring to the Constitution of 1962.
4. Muhammad Bashir v. Station House Officer, OKara Cantt. and others (PLD 2007 SC 539)
5. Also see: Muhammad Bashir v. Station House, Okara Cantt. and others (PLD 2007 SC 539); Haider Ali and another v. DPO Chakwal and others (2015 SCMR 1724) and Khizer Hayat and others v. Inspector-General of Police (Punjab), Lahore and others (RLD 2005 Lahore 470).
6. Khizer Hayat and others v. Inspector-General of Police (Punjab), Lahore and others (PLD 2005 Lahore 470).
7. PLJ 2003 Fed. St. 281