DR. KHURSHID IQBAL, J. This case is a typical example of police high handedness of a citizen (though not necessarily an innocent person) at the grassroots level. Its story, as the petitioner Tamrez states, reads like this. On 16.04.2024, at 1345 hours, the petitioner, his brother Farooq (in the contents of the petition he used the word 'abducted along with the word 'arrested.' Better here we use the word 'arrested' only for the time being), Muhammad Shoaib and Shah Zeb, were present outside their house in Rashakai, their village in District Nowshera. Three police officials-Kashif, Station House Officer (SHO) of Police Station Risalpur, AS1 Aman Sher of the Police Post Bars Banda, and Constable Naveed of the same police station (respondents 2-4) came there in an official vehicle. They arrested petitioner's brother Farooq and Shah Zeb, The petitioner termed their arrest as unlawful and without due course of law/orders, The petitioner added that the police officials dropped Shah Zeb near a PSO petrol station, but took away Farooq in their custody.
2. In order to secure quick release of his brother, the petitioner and his cousin approached to the police station where he made a picture of his brother while in detention. The police officials, the petitioner alleged, demanded bribe of Rs.50,000/- for the release. On 17.04.2024, the very next day, the petitioner moved an application under section 491, the Criminal Procedure Code, 1898 (Cr.P.C.).
The court entertaining that application sent a bailiff to the police station. The bailiff couldn't find the petitioner's brother in the police station. The court dismissed the application. On 17.04.2024, Rahman Gul, another brother of the petitioner and the arrested person presented an application to Nowshera's District Police Officer, praying that his brother be released from the illegal detention of the respondents-police officials. But his efforts didn't prove fruitful. On 18.04.2024, the petitioner made an application to the District Police Officer, contending that the so called act of arrest amounts to a cognizable offence warranting registration of a criminal case against them. On the same date, the petitioner desperately knocked at the door of the court of an Additional Sessions Judge, sitting as an ex-officio Justice of the Peace under section 22-A, Cr.P.C. The Justice of the Peace sought comments of the SHO of the police station. The comments were submitted to him. By his (impugned) order dated 15.05.2024, the learned Justice of the Peace directed the District Police Officer to conduct an inquiry into the matter within a month as the petitioner's application dated 18.04.2024 was already moved to him on which perhaps no action was taken. The Justice of the Peace disposed of the application in that manner. All in all, he didn't order registration of a criminal case.
3. In response to our order, the Nowshera's District Police Officer/the respondent # I submitted para-wise comments in which he denied the whole contention of the petitioner. The stance set up in the comments is that the brother of the petitioner is a drug peddler, involved in drug smuggling and charged in a criminal case FIR # 347, dated 17.04.2024 under sections 9(1), 3 (c), the control of narcotic substances law. -In the comments, the arrest and detention of the brother of the petitioner was denied. It was also contended that an inquiry was conducted in which the allegations against the respondents # 2-5 were proved as baseless.
4. Through a Criminal Miscellaneous Application #1160/2024, the petitioner submitted copies of an application under section 22-A (6), Cr.P.C., moved by one Syed Nawaz, a resident of Risalpur, against the present respondents # 1-5 for what he termed as his illegal arrest and detention in a similar narcotics case in Islamabad's Sabzi Mandi police station. Another learned Additional Sessions Judge/ex officio Justice of the Peace in Nowshera disposed of that application vide his order dated 04.06.2024. It was held that the District Police Officer hold an impartial inquiry as he didn't entertain the complaint of the petitioner earlier. It was further held that if the police official (respondents # 2-5) were found involved, they be proceeded against under the law.
5. Mr. Jalal-ud-Din, learned counsel for the petitioner argued that the petitioner's brother was arrested by the respondents # 2-5 without having a warrant of arrest or informing him of his involvement in any criminal case justifying his arrest without warrant. He stated-that if at all the arrested person was required to be arrested in a narcotics case in Islamabad, they could legally arrest him. But they didn't exercise their power of arrest under the law. It was for this reason, he argued, arrest of brother of the petitioner at the hands of the police officials amounts to abduction, which is a cognizable offence. He also contended that the arrest in question also amounts to offences punishable under sections 118 and 199 of the Police Act, 2017. Commenting on the impugned order, he underlined that the learned Justice of the Peace has no power to order an inquiry in the matter. The Justice of the Peace, he maintained, has to order registration of a criminal case if the information placed before him amounts to commission of a cognizable offence. He added that the present case is no exception to the aforesaid general principle. While critiquing the comments, he argued that except the one and the only case registered against the brother of the petitioner in Islamabad, no other case was referred. Even as regards that case, no arrest warrant from a competent court in Islamabad was place on the record, the learned counsel further emphasized. On the strength of the additional documents, the learned counsel contended that the respondents# 2 and 3 arrested another person in the same locality allegedly involved in a narcotics case of the same police station in Islamabad, in which, too, another Justice of the Peace, though didn't order registration of a criminal case against them, directed inquiry while commenting on their similar conduct on another occasion. We shall discuss the case law the learned counsel relied upon, later in this opinion.
6. Mr. Farhan Qadeer, the learned AAG, on the other hand, stressed that the arrested person is a known drug peddler of the locality. He added that the arrested person has extended his nefarious business to other provinces of which he showed the relevant case as its clear proof.
He referred to the inquiry report in which the respondents # 2-5 were found innocent.
7. We have perused the record with the assistance of learned counsel for both the parties and anxiously considered their respective stances in light of the facts of the case and the relevant provisions of the applicable law.
8. In the attending facts and circumstances of the case, the main points for determination are: a. Whether the arrest of brother of the petitioner was against the applicable law, including most notably in violation of the constitutionally guaranteed fundamental rights? b. Whether the impugned order dated 15.05.2024 of the learned Justice of the Peace is against the law and facts, and liable to be quashed? c. If the answers are yes, what consequences shall follow?
9. The respondents #1 didn't come up with a clear stance in response to the allegation levelled against the respondents # 2-5. He didn't categorically deny that the brother of the petitioner was not arrested. Rather, he came up with a pretext that the brother of the petitioner is a drug peddler and involved in many such cases in other provinces. However, no case other than the one in which the respondents # 2-5 arrested him, was shown. The reference that the brother of the petitioner is involved in narcotics cases in other province tends to support the allegation that the respondents # 2-5 did, in fact, pick him on 16.04.2024. An arrest in such a situation could be made by the local police either pursuant to an arrest warrant a competent court would have issued or under section 54, Cr.P.C. In any situation, the local police must have a prior information about the requisite arrest of the brother of the petitioner. As the law laid down in section 86, Cr.P.C. provides a complete procedure by Magistrate before whom person arrested is brought. This provision is reproduced hereunder for ease of reference:
86. Procedure by Magistrate before whom person arrested is brought. (1) Such Magistrate or District Superintendent shall, if the person arrested appears to be the person intended by the Court which issued the warrant, direct his removal in custody to such Court: Provided that, if the offence is bailable, and such person is ready and willing to give bail to the - satisfaction of such Magistrate, District Superintendent, or a direction has been endorsed under section 76 on the warrant and such person is ready and willing to give the security required by such direction, the Magistrate, District Superintendent shall take such bail or security, as the case may be, and forward the bond to the Court which issued the warrant: Provided further that, if the offence is not bailable or no direction has been endorsed under section 76 on the warrant, the Sessions Judge of the Sessions division in which the person is arrested may, subject to the provisions of section 497 and for sufficient reasons, release the person on an interim bail on such bond or security as the Sessions Judge thinks fit and direct the person to appear by a specified date before the Court which issued the warrant and forward the bond to that Court.
(2) Nothing in this section shall be deemed to prevent a police-officer from taking security under section 76.
10. The above legal procedure was not shown as having been followed in letter and spirit. Thus, such arrest and detention are proved to be illegal, wrong, arbitrary and amounting to abuse of the power conferred under the law. For such an act, a police official, no matter of whatever rank she may be, should be held accountable administratively as well as under the criminal law. For both kinds of accountability, the petitioner's application received no response from the respondent # 1.
For criminal liability, the petitioner's appeal to the learned Justice of the Peace also didn't get what we would call a worthwhile relief. In the given circumstances, one is forced to observe that if the respondent # 1 had showed a sense of responsibility, he would have taken an action on the administrative side. Perhaps that action might have consoled the petitioner. Then, the direction of the learned Justice of the Peace to the respondent #1 to conduct an inquiry was just putting the petitioner once again at his mercy. Perusal of a copy of the inquiry report would show that: firstly, it is silent on whether it was conducted in compliance with the order of the learned Justice of the Peace. Secondly, the petitioner and his brother were not associated with the inquiry. Strangely enough, the inquiry officer recorded the statements of the respondents 2-5, and two other personnel of the same police station. Obviously, the police officials would never depose against their colleagues. The inquiry seems to be just an eye wash.
11. As regards the criminal liability, the question is whether a learned Justice of the Peace has the power to order an inquiry into an information of commission of a cognizable offence within the purview of section 22-A, Cr.P.C. While searching an answer to the question, the Supreme Court's latest ruling in Syed Qamber Ali Shah v. Province of Sindh and others, reported as 2024 SCMR 1123 offers sufficient and clear guidance. In that case, the petitioner solicited registration of a criminal case against the respondents for abduction of his brother. On being approached, the police officials refused to lodge the report. A plea was made before the Justice of the Peace who allowed it, directing the police officials to record statement of the petitioner, and if commission of a cognizable offence was found, then to proceed with registration of the case. The Justice of the Peace also directed that: firstly, the person against whom the ease is to be registered shall not be arrested unless tangible evidence is collected against him; and, secondly, if during the investigation, the criminal case is found to be false, the police may file a complaint under section 182, P.P.C, against the petitioner. Before the order of the Justice of the Peace was complied with, the respondents submitted an application to the High Court of Sindh, which accepted the application, quashed the order of the Justice of the peace, holding that the petitioner may file a private complaint. The order of the High Court was challenged before the august Supreme Court.
12. From a close reading of the above referred judgment, two points are gleaned: firstly, per section 22-A, Cr.P.C., all that the law enjoins a Justice of the Peace is to ascertain whether from the germane facts of an incident delineated in an application before him, the commission of a cognizable offence is made out or not. Needless to mention, under section 154, Cr.P.C., registration of a criminal case on the strength of an FIR is the legal duty of an officer in charge of a police station. It is in the event of refusal by the police to register the first information of a cognizable offence that an aggrieved person can approach to the Justice of the Peace. Thus, a Justice of the Peace needs to understand that his functions "being complementary to those of the police" (as the august Supreme Court has held in Younas Abbas v. Additional Sessions Judge, Chakwal and others (PLD 2016 SC 581), he has to rush to the aid of an aggrieved person. He has to go through the narration of the facts for a while, and without moving for an extra mile, he has simply to ascertain whether the commission of a cognizable offence is seemingly made out or not. As the august Supreme Court held in Syed Qamber Ali Shah, referred to above, that a Justice of the Peace is not required to delve deeper into the details of the case or touch its merits. The Court reiterated that it has already expressed this opinion in Muhammad Bashir v. Station House Officer, Mara Cantt, and others (PLD 2007 Supreme Court 539).
13. Secondly, the august Court also underlined that a police officer, too, has to ascertain whether an offence about which an information is made to him, is a cognizable one or not. Such police officer, the Court added, has an obligation to register an FIR, and has no obligation to probe the truth or falsity of such information. It is during investigation, after registration of the case, that section 157, Cr.P.C. read with Rule 24.4 of the Police Rules shall come into play. This aspect has been discussed by the learned Lahore High Court in Arsalan Raza v. Justice of Peace and others (2024 PCr.LJ351 [Lahore]) on the authorities of Zulfiqar Ali Alias Dittu and another v. The State (1991 PCr.LJ 1125) and Abdul Rahman Malik v. Synthia D. Ritche, American National and others (2020 SCMR 2037).
It is worth noting that, as held in Sughran Bibi v. State (PLD 2018 Supreme Court 595), investigation, has to be all encompassing with due regard to all the versions of the incident, and an investigating officer has the duty to find out the truth of the incident according to Rule 25.2(3) of the Police Rules,1934. On balance, however, a Justice of the Peace shall not lose sight of the observation in Younas Abbas, above, that the provision of subsection (6) of Section 22-A, Cr.P.C. "should not be unbridled or open ended". Thus, in order to prevent its misuse, the august Court directed:
(i) The ex-officio Justice of the Peace, before issuance of a direction on a complaint for the non- registration of a criminal case under subsection (6)(i) of section 22-A, Code of Criminal Procedure must satisfy himself that sufficient material is available on the record, such as application to the concerned SHO for registration of the criminal case and on his refusal or reluctance, complaint to the higher police officers i.e. DPO, RPO etc., to show that the aggrieved person, before invoking the powers of ex-officio Justice of the Peace, had recourse to the high ups in the police hierarchy.
(ii) [...]
14. As we have already discussed above, in the instant case, the petitioner approached to the District Police Officer for registration of the case and taking other action against the respondents# 2-5, which effort proved of no avail. It is worth to reiterate that the respondents# 2-5 didn't arrest and detain the brother of the petitioner in accordance with law contained in section 86, Cr.P.C. We are mindful of the fact that brother of the petitioner was involved in a criminal case in Islamabad, as such, he was liable to be arrested. However, we found from the record that respondents # 2 to 5 didn't treat the brother of the petitioner according to law as per the mandate of Article 4 and violated his safeguards as to arrest and detention under Article 10 of the Constitution. As we also found that a similar complaint was filed by another individual, namely Said Nawaz, (para 4, above), we feel constrained to deprecate such conduct of the police officials. The record also suggests that the District Police Officer neither acted swiftly on the application of the petitioner, nor did he ensure a 'fair and impartial inquiry, particularly with right of hearing to the petitioner. We, therefore, deem it appropriate that the learned Sessions Judge, Nowshera should place a copy of this order in the meeting of the Criminal Justice Coordination Committee with a note of caution that such like incidents shall never be repeated by subordinate police officials.
15. On the strength of the above discussion, we answer questions (a) and (b) in the affirmative, answer (c) in such a way that a criminal case be registered against the respondents # 2-5 for having illegally arrested and detained the brother of the petitioner, which not only constitute cognizable offences under the provisions of the Pakistan Penal Code, 1860, but also under the Police Act, 2017. Hence, we accept the instant writ petition and hereby accept the application under section 22-A (6), Cr.P.C.