Amir Khan vs The State, etc

ORDER

Through the instant writ petition, the petitioner has sought the following reliefs: "Keeping in view of the above submissions, it is respectfully prayed that instant Writ Petition may kindly be accepted and impugned order dated 28.06.2024 passed by learned respondent No.2 may very kindly be declared null & void, ab-initio, illegal, unlawful and without lawful justification and same very kindly be set aside, to meet the ends of justice.

It is further prayed that operation of the impugned order dated 28.06.2024 passed by learned respondent No.2 may very kindly be suspended till the final decision of main writ petition."

2. Learned counsel for the petitioner contends that the impugned order is contrary to settled law and facts, as two prior investigations had already declared the accused not guilty. The respondent, alleging mala fide, filed an application under Sections 22-A and 22-B Cr.P.C., whereupon the petitioner being the Investigating Officer in FIR No. 677/21, under Section 363 PPC, P.S. Saddar Faisalabad was assigned the investigation. After reviewing previous reports, the petitioner submitted his findings, asserting that no mala fide can be attributed to him. Despite bona fide efforts, the abductee, Rehman Ali, could not be traced, and the investigation remains ongoing. It is argued that the Ex-Officio Justice of Peace passed the impugned order ex parte, directing registration of FIR under Sections 155(c) & (d) of the Police Order, 2002, without hearing the petitioner, in violation of the principles of natural justice and Article 10-A of the Constitution. Hence, the order is legally unsustainable and liable to be set aside.

3. Arguments heard. Record perused.

4. Where the learned Ex-Officio Justice of Peace was seized of a complaint regarding delay in completion of investigation and submission of challan, he was bound to act within legal parameters. He ought to have called for a written explanation from the Investigating Officer regarding the delay. If found unsatisfactory, appropriate directions could have been issued to the competent supervisory authority to ensure timely completion of investigation and submission of the report in accordance with law. However, any such direction must remain within the scope of lawful jurisdiction and must not encroach upon the investigative discretion of the police, unless there is a demonstrable case of deliberate inaction, misconduct, or mala fide on the part of the officer concerned. The need for caution and restraint in such matters has been emphasized by this Court in Khizar Hayat's case^[1] wherein it was held that in the event of non-compliance with lawful orders passed by an Ex-Officio Justice of Peace, the concerned authority may be directed to consider initiating proceedings under Section 155(c) of the Police Order, 2002. However, such jurisdiction must be exercised sparingly, and only when warranted by the facts.

5. Conversely, if a complaint is supported by sufficient detail and the police officer fails to offer a credible rebuttal, the Ex-Officio Justice of Peace may, depending upon the circumstances, (i) issue a warning to the concerned officer, (ii) refer the matter to the competent police supervisory authority or the Public Safety and Police Complaints Commission for necessary departmental action under the Police Order, 2002, or (iii) in extreme cases of clear abuse of authority or highhandedness, direct the registration of a criminal case if a cognizable offence appears to have been committed during the course of such harassment.

6. The legal position, as now well emphasized, is that an order passed by the learned Ex-Officio Justice of Peace is binding and must be complied with by the police authorities, unless there exists a valid and lawful reason for non-compliance.

7. Perusal of the record shows that the learned Ex Officio Justice of Peace, vide order dated 24.05.2024, directed the SHO to arrest all nominated accused in FIR No. 677/2021 under Section 363 PPC. In response, the Investigating Officer stated that the accused had previously been found innocent during earlier investigations based on available evidence.

8. The explanation furnished by the Investigating Officer was well within the ambit of the law.

Moreover, under the settled principles of criminal jurisprudence, the order passed by the learned Ex-Officio Justice of Peace must also conform to the limits prescribed by law. It is now trite law that the Courts do not possess the jurisdiction to interfere with the process of investigation, which is an exclusive domain of the police under Chapter XIV of the Code of Criminal Procedure. In this regard, reference may be made to the celebrated judgment in Emperor v. Khawaja Nazir Ahmad (AIR 1945 PC 18), wherein the Privy Council laid down the foundational principle delineating the respective roles of the judiciary and the police. The relevant observations are as follows: "In their Lordships' view, the more serious aspect of the matter lies in the unwarranted interference by the Court with the statutory duties of the police. Just as it is essential for any person accused of a crime to have unhindered access to the Court to secure acquittal, if found not guilty, it is equally imperative that the judiciary refrains from encroaching upon matters that squarely fall within the domain of the police. In India, there exists a statutory right for the police to investigate alleged cognizable offences without requiring prior sanction or authority from judicial forums. It would be highly undesirable if such statutory powers could be undermined by invoking the Court's inherent jurisdiction. The functions of the judiciary and those of the police are complementary, not overlapping, and the harmonious balance between individual liberty and the enforcement of law and order can only be maintained if each institution remains confined to its respective sphere of authority. Of course, this is always subject to judicial oversight in exceptional cases--for instance, under Section 491 Cr.P.C. in habeas corpus matters. However, in criminal cases, the role of the Court only commences once a charge is formally brought before it."

9. In Shahnaz Begum's case^[2], the Hon'ble Supreme Court authoritatively held that mala fide or unlawful investigations can be challenged under Article 199 of the Constitution or Section 491 Cr.P.C.

(in case of illegal detention). However, Section 561-A Cr.P.C. does not empower the High Court to quash investigations or transfer them between agencies. This provision only preserves the Court's inherent powers to prevent abuse of process and to secure justice strictly through judicial means, and in this context, the Supreme Court clarified that "ends of justice" under Section 561-A Cr.P.C. pertain solely to judicial proceedings and cannot be extended to cover actions of investigating agencies, which lie outside the scope of judicial process^[3].

10. The Hon'ble Supreme Court reaffirmed that judicial review under Article 199 is a potent constitutional power, but must be exercised with restraint and within constitutional limits, without encroaching upon the domains of the legislature or executive^[4]. Reliance was placed upon the dictum of Lord Scarman in Nottinghamshire County Council v. Secretary of State [(1986) All ER 199, 204], wherein it was observed that, "The power of judicial review is a great weapon in the hands of judges, but the judges must observe the constitutional limits set by our parliamentary system on their exercise of this beneficial power, namely, the separation of powers between the Parliament, the Executive, and the Courts"

In a similar vein, in Mir Abdul Baqi Baloch's case, Mr. Hamoodur Rahman, J. (as his Lordship then was). clarified that judicial review of executive action is not appellate in nature; courts do not substitute their discretion for that of the executive but ensure legality, propriety, and fairness.

Applied to criminal investigations, this means investigative authorities must act within legal bounds, and courts may intervene where the process is mala fide, without jurisdiction, or contrary to law and fairness^[5].

11. This opinion was also followed in the judgment cited as Muhammad Bashir v. Station House Officer, Okara Cantt and others (PLD 2007 Suprem e Court 539) wherein it was held as under:-

23. Therefore, legally speaking, the position which emerges is that the Officer in charge of a Police Station or any other police officer did not require the crutches of an F.I.R. to get clothed with authority either to commence an investigation or even to arrest a person who appeared to be concerned with the commission of a cognizable offence. Not was there any provision in any law which commanded or even envisaged that whenever an F.I.R. got recorded, a police officer was obliged 10 20 through the entire length of investigation as he was permitted by section 157(1)(b) of the Cr.P.C. to refuse to investigate a case. As has been mentioned above with reference to the provisions of section 54 of the Cr.P.C. irrespective of the fact whether an F.I.R. did or did not stand recorded and also irrespective of the fact whether person did or did not stand nominated as an accused person, a police officer could arrest a person only after the conditions prescribed therefore by the said section 54 stood satisfied.

24. It must, therefore, be kept in mind that mere registration of an F.I.R. could bring no harm to a person against whom it had been recorded. No one, consequently, need fear a false F.I.R. And if a police officer arrested a person in the absence of the requisite material justifying the same and only on the pretext of such a person being mentioned in an F.I.R., then such would be an abuse of power by him and the remedy for such a misuse of power would not be to permit another abuse of law by allowing an unlawful exercise of collection of evidence to assess the veracity of allegations levelled through the information conveyed to a S.H.O. before recording of an F.I.R. The remedy lies elsewhere."

(Emphasis Supplied)

This view was also followed in Khizar Hayat's case (ibid), the Court reaffirmed that under Section 54 Cr.P.C. and Rule 26.1 of the Police Rules, 1934, a police officer may arrest without a warrant any person involved in a cognizable offence, or against whom there exists a reasonable complaint, credible information, or reasonable suspicion of such involvement. However, this power is discretionary, not mandatory, and must be exercised with due satisfaction as to the legality and necessity of the arrest.

The Hon'ble Supreme Court^[6] further reiterated that the satisfaction required under Section 54 Cr.P.C. is a mandatory precondition before effecting an arrest. In the absence of material justifying such satisfaction, arresting a person solely on the ground of being named in the F.I.R. constitutes an abuse of authority and misuse of police powers.

This issue was again decided by the Hon'ble Supreme Court of Pakistan in the case of "Younas Abbas and others v Additional Sessions Judge, Chakwal and others" (PLD 2016 Supreme Court 581) wherein it was held that functions performed by Ex-Officio Justice of Peace under section 22- A(6), Cr.P.C were complementary to those of the police and thus did not amount to interference in the investigative domain of the police and upheld the principle narrated in Bashir's case and Brigadier ( Retd) Imtiaz Ahmad's case. Thus, it is settled position of law that interjection should not be made in the investigative process by the Courts, so a Justice of Peace performing a quasi- judicial function cannot intervene in investigative process, unless police actions are manifestly tainted with mala fide.

12. Now, the question which begs answer is whether a direction to arrest is an invasion in the investigation or not? Arrest is a term of art^[7] as has not be defined in the Criminal Procedure Code of 1898. The Section 46 of the Code stipulates that in making an arrest, the police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there is submission to the custody by word or action. The next relevant provision is Section 54 which mandates that police officer may arrest the accused. The usage of word may is very meaningful in the scheme of law so the police officer is not under a bounden duty to arrest an accused. This proposition in a bail matter was settled by the Supreme Court in the case of Sadip Ali v. The State^[8], wherein it was held that the mere cancellation of bail by the learned Sessions Judge does not automatically warrant the accused's remand into police custody without an express demand from the police authorities. The appropriate course of action under such circumstances is to cancel the ad interim bail and leave the accused at liberty unless and until lawful grounds for arrest exist. The apprehension that the accused might abscond without such an order is not a sufficient basis for depriving the accused of liberty. Consequently, in so many word, it may be summed up that while cancelling bail direction to arrest cannot be made.

13. Compliance with the Justice of Peace's order directing arrest interferes unlawfully with the police investigation and is impermissible. It is settled that an Investigating Officer who, after due inquiry, finds no sufficient evidence cannot be compelled to arrest or proceed against the accused without lawful cause.

14. In view of the above principles and facts, the direction of the learned Ex-Officio Justice of Peace to arrest the accused despite their prior declaration of innocence amounts to unlawful interference in the investigative process. Accordingly, this petition is allowed, and the impugned order dated 28.06.2024 is set aside as without lawful authority and of no legal effect. The Investigating Officer shall conclude the investigation strictly in accordance with law and submit the report under Section 173 Cr.P.C. within a reasonable time. The newly appointed Investigating Officer is directed to conduct the investigation on merit and without undue delay.

^[1]Khizar Hayat's case v. Inspector General of Police (PLD 2005 Lahore 470).

^[2]Shahnaz Begum v. The Hon'ble Judges of the High Court of Sindh and Baluchistan and another (PLD 1971 SC 677).

^[3]M. S. Khawaja v. The State (PLD 1965 SC 287)

^[4]Brig. (Retd.) Imtiaz Ahmad v. Government of Pakistan through Secretary, Interior Division, Islamabad and 2 others (1994 SCMR 2142.