P L D 2007 Supreme Court 539

Present: Khalil-ur-Rehman Ramday and Raja Fayyaz Ahmad, JJ

MUHAMMAD BASHIR---Petitioner

Versus

STATION HOUSE OFFICER, OKARA CANTT. and others---Respondents

Civil Petition No.512-L of 2006, decided on 20th April, 2006.

(On appeal from the order dated 22-3-2006 of the Lahore High Court, Lahore passed in
writ Petition No.2279 of 2006.)

(a) Criminal Procedure Code (V of 1898)---

----Ss. 154, 155, 157 & 162---Recording of F.I.R.---Enquiry as to correctness or

otherwise of information received by an Officer Incharge of Police Station for the
purpose of being reduced in writing as F.I.R. and powers of Officer Incharge of Police
Station to refuse to record F.I.R. only because, in his opinion, the allegations conveyed to
him were false--Scope---No authority vested with an Officer Incharge of a Police Station
or with anyone else to refuse to record an F.I.R. where the information conveyed,
disclosed the commission of a cognizable offence---No authority vested with an Officer
Incharge of a Police Station or with anyone else to hold any inquiry into the correctness
or otherwise of the information which was conveyed to the S.H.O. for the purposes of
recording of an F.I.R. Any F.I.R. registered after such an exercise i.e. determination of the
truth or falsity of the information conveyed to the S.H.O., would get hit by the provisions
of section 162, Cr.P.C.---Existence of an F.I.R. was no condition precedent for holding of
an investigation nor was the same a prerequisite for the arrest of a person concerned with
the commission of a cognizable offence; nor does the recording of an F.I.R. mean that the
S.H.O. or a police officer deputed by him was obliged to investigate the case or to go
through the whole length of investigation of the case mentioned therein or that any
accused person nominated therein must be arrested---Check against lodging of false
F.I.Rs. was not refusal to record such F.I.Rs, but punishment of such informants under
S.182, P.P.C. etc. which should be, if enforced, a fairly deterrent against misuse of the
provisions of S.154, Cr.P.C.---Principles.

(b) Criminal Procedure Code (V of 1898)---

----S. 22-A(6)---Powers conferred under S.22-A(6), Cr.P.C. on Ex-officio Justice of the

Peace---Scope and extent---Only jurisdiction which could be exercised by an Ex-officio
Justice of the Peace under S.22-A(6), Cr.P.C. was to examine whether the information
disclosed by the applicant did or did not constitute a cognizable offence and if it did then
to direct the concerned S.H.O. to record an F.I.R. without going into the veracity of the
information in question, and no more---Offering any other interpretation to S.22-A(6),
Cr.P.C. would be doing violence to the entire scheme of Criminal Procedure Code, 1898
which could not be permitted---Principles---Legislative history of Institution of Ex-
officio Justice of the Peace and powers conferred on them, traced.

(c) Criminal Procedure Code (V of 1898)---

----S.22-A(6)---Constitution of Pakistan (1973), Art.199---Powers of Ex-officio Justice of

the Peace under S.22-A(6), Cr.P.C.---Nature---Exercise of discretion under Art.199 of the
Constitution was not dependent only, on illegality committed by a competent authority
but was also controlled by some other important considerations such as the seeker of a
writ being an aggrieved person; availability of alternative remedies such as filing of a
complaint etc. in criminal matters and the applicant being qualified, in equity, for the
grant of the relief sought---Powers of an Ex-officio Justice of the Peace under S.22-A(6),
Cr.P.C. could, therefore, not be equated with the constitutional jurisdiction vesting in a
High Court.

(d) Criminal Procedure Code (V of 1898)----

-----S. 22-A(6)---Powers of Ex-officio Justice of the Peace---Scope---Refusal to record,
in the register of F.I.Rs. the information conveyed to him by complainant which
information did disclose the commission of a cognizable offence, was illegal and equally
invalid was the exercise undertaken by Ex-officio Justice of the Peace wherein the
application of complainant was rejected.

(e) Criminal Procedure Code (V of 1898)---

----S. 22-A(6)---Constitution of Pakistan (1973), Arts. 199 & 185(3)---High Court, under
its constitutional jurisdiction had quashed the F.I.R. only on the ground that while
securing compliance, from the concerned S.H.O. of one of his legal obligations,
complainant had not disclosed the dismissal by an Ex-officio Justice of the Peace, of his
application moved for the purpose---Validity---Discretion so exercised by the High Court,
could not be sustained for more than one reasons, firstly, because recording of an F.I.R.
was not a discretionary relief to be granted by an S.H.O. which could be refused if the
one seeking registration of a criminal case had suffered certain acts which disentitled him
to a relief in equity; Secondly, it appeared to have escaped the notice of the High Court
that a crime was an offence committed against the State; that the position of the one
bringing the commission of such a crime to the notice of the competent authorities was
never more than a witness and that an offender could never be permitted to escape
punishment only because of some error suffered by an informant while putting the
machinery of law into motion---Remedy may well lie in punishing the informer for his
fault but not in sparing a criminal---Judgment of High Court resulting in the quashment
of the F.I.R. was not, therefore, maintainable---Supreme Court, in circumstances,
converted petition for leave to appeal into an appeal which was 'allowed as a result
whereof the order of the Ex-officio Justice of the Peace refusing the application and
impugned judgment of the High Court to the extent of F.I.R. in question were set aside,
consequently said F.I.R. stood revived and the concerned S.H.O. shall be free to deal
with-the same in accordance with law---High Court shall however, be at liberty to
proceed with the notice issued to complainant under S.193, Cr.P.C.

(f) Criminal Procedure Code (V of 1898)---

----S. 22-A(6)(ii)---Police Order (22 of 2002), Art.18---Powers of transfer of

investigation from one Police Officer to another by Ex-officio Justice of the Peace---
Supreme Court, on examination of the provision of S.22-A(6)(ii), Cr.P.C. summarized
some of the questions which were likely to confront the competent Courts in due course
and which would demand resolution.

Following are the questions which were likely to confront the Courts which would
demand resolution:

(a) Has this laboured innovation of transfer of investigations introduced by the police,
yielded any advantageous benefits to the courts of law in the administration and
dispensation of justice in the field of crimes or was it just a source of nuisance for them
only complicating the already complicated issues and deserved to be discouraged?

(b) Could a power be conferred on an Ex-officio Justice of the Peace to do that which was
not recognized by the Cr.P.C. and was unknown to it?

(c) While deciding the fate of a complaint about transfer of an investigation, the Ex-
officio Justice of the Peace, who also happened to be a Sessions or at least an Additional
Sessions Judge, will have to pronounce upon the quality of investigation conducted in a
given case and t :is having been so done, what would be its effects on the appreciation of
the evidence collected through the said exercise when a trial Court was to undertake the
said exercise which trial court could well take even it be a Magistrate and thus a court
subordinate to such an Ex-officio Justice of the Peace?

(d) Section 18 and some other provisions of the Police Order of 2002 being the Chief
Executive's Order No.22 of 2002, carries certain provisions regarding investigation of
criminal cases which are, at least prima facie, not reconcilable with the special and the
parent provisions on the subject i.e. the provisions of the Code of Criminal Procedure and
if it be so then what would be the effect of such-like illegal investigations on the trials
that followed?

(g) Criminal Procedure Code (V of 1898)---

---Ss. 22-A & 25 [as amended by Code of Criminal Procedure (Third Amendment)
Ordinance (CXXXI of 2002)]---Ex-officio Justice of the Peace, powers of---Amendments
introduced in Ss.22-A & 25, Cr.P.C. had been so made to lessen the excessive burden of
the High Courts which was got created through tiling of writ petitions seeking
registration of criminal cases and transfer of investigation---Supreme Court observed that
if this be so, then Supreme Court would not be sure about the questionable wisdom
leading to these amendments which sought to relieve an elder brother of his burden by
adding the same on to the back of an already over-loaded younger brother---Copies of the
present judgment were directed to be sent to Registrars of all the four High Courts in the
country who shall, in turn, send the same to all the Sessions Judges in their respective
provinces for their guidance and compliance---Law Secretaries of the Federation and the
Provinces will also be sent the copy of the judgment for re-examining the matter of the
amendments in question in the light of observations made in the judgment.

Muhammad Tahir Chaudhry, Advocate Supreme Court with Mahmudul Islam, Advocate-
on-Record for Petitioner.

Ejaz Ahmed Khan, Advocate Supreme Court with Ch. M. Anwar Khan, Advocate-on-
Record and Respondents Nos. 2 and 3 (in person).

Ch. Aamir Rehman, Addl. A.-G. with M. Ashraf, Inspector/SHO with Ghulam Qadir
Khan, Incharge Investigation, Police Station Cantt. Okara.

ORDER

KHALIL-UR-REHMAN RAMDAY, J.---Invoking the authority of the Sessions Judge

of Okara as an Ex-officio Justice of the Peace under section 22-A(6) of the Code of
Criminal Procedure, 1898, Bashir petitioner complained that despite a written application
submitted by him to the Officer Incharge of the Cantt. Police Station of Okara seeking
registration of a criminal case against Faisal and Zahid respondents, the needful was not
being done. He consequently prayed that the said S.H.O. be directed to do what the
mandatory provisions of section 154 of the Cr.P.C. commanded him to do.

2. A learned Additional Sessions Judge who also stood nominated as an Ex-officio Justice
of the Peace in terms of section 25 of the said Code and who had got entrusted with the
said application, dismissed the same through an order dated 12-12-2005 which is
reproduced hereunder:

"Petitioner seeks direction in the name of S.H.O. for registration of case against
respondents Nos. 3 to 4 and 2 unknown persons.

2. It is argued that on 3-11-2005 at about 7.15 p.m. petitioner along with

Muhammad Saleem and Shoukat Ali were coming back to his Chak when reached
in the territorial limits of Chak No.51/3-R, 4 armed persons stopped his car and
started searching petitioner and others. It is further contended that assailants
looted away Rs.1,000 Pistol 30 bore along with licence, 3 I.D. Cards and police is
still reluctant in registered of case. Hence this petition.

3. Police has submitted detailed report denying alleged occurrence.

4. Arguments heard.

5. According to the police report, no occurrence took place as alleged in this

petition. Furthermore petitioner as betrayed to take oath on Holy Qur'an regarding
the innocence of respondents Nos. 3 and 4. Police recorded statement under
section 157(2), Cr.P.C.
 6. What has been discussed above this petition is without force, the same is
hereby dismissed. File be consigned to the record room after its duly completion."

3. It appears from the record that despite dismissal of his above mentioned application by
a learned Additional Sessions Judge, Bashir petitioner did not loose heart and continued
his endeavours to have as F.I.R. registered with respect to the crime allegedly committed
against him. The record further reveals that his efforts did yield some fruit and the S.H.O.
did finally obliged him by recording the requisite F.I.R. on 25-1-2006.

4. But these fruits of Bashir petitioner's success did not last long as Faisal accused
hastened to rush to the Lahore high Court with a petition under Article 199 of the
Constitution seeking quashment of the said F.I.R. No. 16 of 2006 of Police Station Cantt.,
Okara registered for the alleged commission of offences punishable under sections 382
and 395 of the Pakistan Penal Code on the ground that the said F.I.R. was totally false
and baseless; that the local police had declared that no occurrence, as alleged, had ever
taken place; that the F.I.R. in question had been recorded more than two months after the
alleged occurrence and finally that the F.I.R. in question was-rooted in malice.

5. Through a judgment dated 22-3-2006, the learned High Court quashed the said F.I.R.
but only on the ground that Bashir complainant had manoeuvred the recording of the
same:--

"-----after concealing the facts of the dismissal of earlier application by the

learned Additional Sessions Judge...."

6. Hence this petition.

7. Needless to say that we have heard the learned counsel for the parties at length and
have benefited, immensely, from the submissions made by them.

8. We have re-produced, in para. 2 above, the order dated 12-12-2005 passed by the
learned Additional Sessions Judge on the above mentioned application submitted by
Bashir petitioner praying for a direction to the concerned S.H.O. to record an F.I.R. with
respect to the alleged occurrence in question. What transpires from perusal of the said
order is that on receipt of the said application, the same was sent to the local police for its
report thereon. The said police then held an enquiry into the veracity and the correctness
of the allegations levelled therein and found that no such occurrence had ever taken place
and reported further that Bashir petitioner had refused to take oath on the Holy Qur'an
about the guilt of the accused persons and finally that the "police recorded statement
under section 157(2) Cr.P.C."

9. Such an exercise of powers by the learned A.S.J under section 22-A(6) of the Cr.P.C. in
such a manner raises some serious questions in our minds, that is:

(a) do the provisions of law regulating the recording of F.I.Rs permit or even
envisage an enquiry into the correctness or otherwise of the information which is
received by an Officer Incharge of a Police Station for the purpose of being
reduced into writing as a F.I.R.?

(b) does the law empower an Officer Incharge of a Police Station to refuse to
record an F.I.R. only because, in his opinion, the allegations conveyed to him
were false? And,

(c) what is the proper scope of the powers conferred through the newly-added
provisions of section 22-A(6) of the Cr.P.C. and whether the said provisions
conferred any new, extra or additional powers on an Ex-officio Justice of the
Peace in the matter of recording of F.I.Rs."

10. The expression "REGISTRATION OF A CRIMINAL CASE", used in section 22-

A(6), Cr.P.C. was alien to law i.e. 'to the Code of Criminal Procedure and the Police
Rules of 1934 till the addition of the said subsection (6) to the said section 22-A of the
Cr.P.C. through the Code of Criminal Procedure (Third Amendment) Ordinance,
No.CXXXI of 2002 which was promulgated on 21-11-2002. We shall, however, presume
that what was intended to be meant by the said expression was, in fact, the recording of
F.I.R. We may also add that even the expression "FIRST INFORMATION REPORT"
(F.I.R.) was not an expression of the Code of Criminal Procedure, 1898 but was in fact
the name given to the "INFORMATION" mentioned in section 154 of the Cr.P.C. by
Chapter XXIV of the Police Rules of 1934.

11. For some purposes, including recording of F.I.Rs., criminal offences have been
categorised by the Cr.P.C. into two classes i.e. the ones which were cognizable and the
others which were non-cognizable. Section 154 of the Cr.P.C. prescribes the manner in
which an information conveyed to a S.H.O. with respect to the commission of a
cognizable offence was to be dealt with while the provisions of section 155(1) of the said
Code tell us of the procedure envisaged vis-a-vis the information relating to a non-
cognizable offence. These provisions read as under:---

"154. Information in cognizable cases.---Every information relating to the

commission of a COGNIZABLE OFFENCE if given orally to an Officer Incharge
of a Police Station SHALL be reduced to writing by him or under his direction,
and be read over to the informant, and every such information, whether given in
writing or reduced to writing as aforesaid shall be signed by the person giving it,
and the substance thereof shall be entered in a book to be kept by such officer in
such froum as the Provincial Government may prescribe in this behalf."

155. Information in non-cognizable cases.---(1) When information is given to an

Officer Incharge of a Police Station of the commission within the limits of such
station of a NON-COGNIZABLE OFFENCE, he SHALL enter in a book to be
kept as aforesaid the substance of such information and refer the informant to the
Magistrate." (The Emphasis and underlining is ours)

12. The scheme of law which becomes apparent from a bare perusal of these provisions is
that whenever an Officer Incharge 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. And once he was through with this exercise then the word "SHALL'
appearing in the said provisions of section 154, Cr.P.C. would take over which obliged,
the S.H.O. thereafter to reduce the said information to writing in the First Information
Report Register as, what is called by Chapter XXIV of the Police Rules of 1934, a F.I.R.
if the offence disclosed was cognizable or else to merely record the same in the Station
Diary as mentioned by section 155(1) of the Cr.P.C. and rule 24.3 of the said Rules and
refer the informant to the competent Magistrate if the offence be non-cognizable. As has
been mentioned above sections 154 and 155 of the Cr.P.C. are the only two provisions in
the said Code which talk about the manner in which an information received by a S.H.O.
relating to the commission of an offence was to be treated.

13. It may be reiterated and even emphasized that there was no provision in any law,
including the said section 154 or 155 of the Cr.P.C. which authorized an Officer Incharge
of a Police Station to hold any enquiry to assess the correctness or the falsity of the
information received by him before complying with the command of the said provisions
which obliged him to reduce the same into writing irrespective of the fact whether such
an information was true or otherwise.

14. The wisdom was not far to find. If the S.H.O. was given the authority to determine
the truthfulness or the falsehood of the allegations levelled against some one and
thereafter to decide to record or not to record such allegations as F.I.R., then such a police
officer would have got blessed with the power to decide about the guilt or innocence of
an accused person. This was, however, far from the envisaged by the law-makers
regarding the identification and the consequent acquittal or conviction of accused persons
as the said task stood assigned only to the courts of law and had never been conceded to
police officers.

15. It may be added that the Police force was not a creation of the Code of Criminal
Procedure but was a force initially established by the Police Act of 1861. The Code of
Criminal Procedure only borrowed some, from amongst this force, and asked them to
perform some of its functions. They had, therefore, no powers to go around doing things
according to their whims or desires in the matter of administration of justice in the field
of crimes. The powers enjoyed by the members of the police force were limited to the
authority conferred on them by law. And it may be added that every step which the
Cr.P.C. permitted a police officer to take, was subject to scrutiny and control of some
court or Magistrate. It may be of benefit to give certain examples to highlight the kind of
role and duties assigned to some of the members of the Police force by the Code of
Criminal Procedure.

16. The provisions such as sections 54, 55, 57, 151 etc. of the Cr.P.C. oblige the S.H.O.
and, in certain cases, some other police officers, to arrest, without a warrant, persons
mentioned in the said sections. The provisions of sections 60 and 61 of the Cr.P.C. then
command such police officers to take the persons, so arrested, to a Magistrate without
any unnecessary delay and thereafter the role of the police comes to an end and an
arrested person was then to be handled only and only as per the direction of such a
Magistrate. Section 550, Cr.P.C. authorises police officers to seize any property which
may either be the subject-matter of some crime or which may have been used for
committing some crime. Leave alone with human beings, the police does not have power
even to decide the fate of the items of property so seized by them and has to produce the
same before a Magistrate as required by section 523, Cr.P.C. and its disposal, thereafter,
has to follow the orders of a Magistrate.

17. In the matter of ascertainment of the guilt or innocence of the persons accused of the
commission of offences or in the matter of determination of the truth or otherwise of the
allegations made in the said connection, the only power may the obligation cast on the
police officers is to carry out the investigation of cases, on their own if the offence be
cognizable (section 156, 157 and 174, Cr.P.C.) and with the permission of a Magistrate if
the same be non-cognizable (section 155(2), Cr.P.C.). And `investigation' as defined by
section 4(1)(1) of the said Code, means only, the collection of evidence and no more. The
impression that an Investigating Officer had any power or was even allowed to pronounce
upon the guilt or innocence of an accused person was a grave misconception. In fact such
an opinion expressed by an Investigating Officer was not even admissible in evidence at
the trial being the opinion of a person who had never been held by the Courts of law to be
an expert. Therefore, in any criminal proceedings, the job of a police officer only is to
collect evidence and to place the same along with other information, before the
competent Magistrate in the form of a report in terms of section 173, Cr.P.C. It would be
evident from the provisions of section 63, Cr.P.C. that the fate of a person, though
arrested by the police, was no longer in their hands but was at the mercy of a Magistrate
and likewise the fate of an F.I.R. though recorded by a police officer but once recorded,
went beyond his control and it was then only a Magistrate who could cancel it (Rule 24.7
of the Police Rules of 1934). The most which is permissible for an Investigating Officer,
vis-a-vis an accused person whose case was under investigation, was to release him, on
his bond, if according to the Investigating Officer there was not enough evidence
available against him or no reasonable ground of suspicion existed which could justify
his being forwarded to a Magistrate (section 169, Cr.P.C.). But then it will be noticed that
such a step by an Investigating Officer was not final as such an accused person had to
execute a bond before being so released, committing himself to appear before the
competent Magistrate if and when required by such a Magistrate to face the trial. The
provisions of section 173, Cr.P.C. further support this view as the S.H.O., while reporting
the result of his investigation under the said section i.e. the challan, had to give the details
of any accused person released under section 169, Cr.P.C. and the final fate of such a
person was thereafter, again in the hands of the competent Magistrate/Court.

18. What, therefore, transpires from the above noticed scheme, the spirit, the intention
and even the letter of the relevant law was that there was no room for any inquiry into the
veracity of the information received by an officer incharge of a Police Station with
respect to the commission of an offence and he was consequently clothed with no
authority to refuse to record an F.I.R. only because, in his opinion, the information
conveyed to him, lacked credibility.

19. In so saying, we find strength from another aspect of the matter also i.e. the
provisions of section 162, Cr.P.C. which provide that:
 "162(1). No statement made by any person to a police officer in the course of an
investigation under this Chapter shall, if reduced into writing, be signed by the
person making it, nor shall any such statement or any record thereof-------, Be
used for any purpose ------- at any inquiry or trial in respect of any offence under
investigation at the time when the statement was made ----------"

Any steps taken by a police officer to find out about the correctness or otherwise of the
information conveyed to him would obviously entail collection of material in the form of
questioning people and the parties etc. As was done by the police in the present case
which is evident from the order in question of the learned A.S.J./Ex-officio Justice of the
Peace dated 12-12-2005. If such an exercise was permitted to be undertaken before
recording an F.I.R. then the F.I.R. reduced into writing thereafter would get hit by the
prohibition contained in the said section 162, Cr.P.C. and any such F.I.R. would become a
futility being inadmissible in evidence at the trial.

20. The conclusion is again irresistible that sifting of the information conveyed by an
informant to an Officer Incharge of a Police Station and picking out what was correct and
discarding which was false, was not a task assigned to a S.H.O. but was an obligation
entrusted, initially to a Magistrate empowered to take cognizance under section 190,
Cr.P.C. and finally to the trial Court.

21. It could be said that if F.I.Rs. were permitted to be recorded without verifying the
worth of the information, then the same would open flood gates for false F.I.Rs. So what
and we add that this could be the concern shown only by layman and not by a law
knowing person because anyone acquainted with the relevant law was expected to know
that registration of an F.I.R. was only a mode of recording or preserving an information
and was one of the many means to set the machinery of criminal law into motion.
Otherwise we know that presence or existence of an F.I.R. did not confer any extra or
additional powers on a police officer nor did the non-existence of the same withhold or
take away any powers vesting in him.

22. The notion is unfounded that it was an F.I.R. which authorized a police officer to
commence an investigation or that if an F.I.R. was once recorded then the S.H.O., or
some other police officer deputed by him, got obliged to go through the full length of
investigation. A bare perusal of the provisions of sections 155(2), 156(1), 156(3), 157(1),
174 and even those of section 202, Cr.P.C. would reveal that existence of an F.I.R. was
never a condition precedent for commencement or for the holding of an investigation.
Likewise, the provisions of section 54(1) of the Cr.P.C. would demonstrate that a police
officer did not require a F.I.R. to clothe him with authority to arrest a person who
appeared to be concerned or was even suspected of being concerned with the commission
of a cognizable offence. While we are on the subject, we may also add the F.I.R. was not
a condition precedent even for the holding of a trial as would be evident from the
provisions of section 190(1) of the Code of Criminal Procedure.

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. Nor 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 to go 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.

25. As has been mentioned above, no provisions exists in the Code of Criminal Procedure
or in any other law which permitted a S.H.O. to refuse to record an F.I.R. provided the
information conveyed to him disclosed the commission of a cognizable offence.
However, we have come across some cases wherein it was said that the provisions of
section 157(1)(b) of the Cr.P.C. or the provisions of Rule 24.4 of the Police Rules of 1934
were the kind of provisions which did allow the S.H.O. to do so. The impression is
misconceived and fallacious. The said provisions of section 157(1), Cr.P.C. read as
under:--

"157. Procedure where cognizable offence suspected.--(1) If, from information

received or otherwise an Officer Incharge of a Police Station has reason to suspect
the commission of an offence which he is empowered under section 165 to
investigate, he shall forthwith send a report of the same to a Magistrate
empowered to take cognizance of such offence upon a police report, and shall
proceed in person, or shall depute one of his subordinate officers not being below
such rank as the Provincial Government may, by general or special order,
prescribe in this behalf to proceed, to the spot, to investigate the facts and
circumstances of the case, and, if necessary to take measures for the discovery
and arrest of the offender. Provided as follows:

(a) Where local investigation dispensed with.--When any information as to the

commission of any such offence is given against any person by name and the case
is not of a serious nature, the Officer Incharge of a Police Station need not
proceed in person or depute a subordinate officer to make an investigation on the
spot;

(b) Where Police Officer Incharge sees no sufficient ground for investigation.--If
it appears to the Officer Incharge of a Police Station that there is no sufficient
ground for entering on an investigation, he shall not investigate the case."

What transpires from a bare reading of these provisions contained in the main body of
subsection (1) of section 157, Cr.P.C. is that whenever an Officer Incharge of a Police
Station, from information received, i.e., F.I.R. or otherwise, even suspects the
commission of a cognizable offence, he is obliged, to commence, immediately, the
investigation of such a case and further that such an investigation had to be done at the
spot i.e. at the place of occurrence and not while sitting in his office or elsewhere. The
provisions of clauses (a) and (b) of the said subsection (1) are exceptions to the said
command of the said subsection (1). Clause (a) mentions the exceptional situation where
an Investigating Officer needs not carry out the investigation at the place of occurrence
and clause (b) envisages a situation where the S.H.O. was permitted to refuse to
investigate a case which discretion, is however, exercisable subject to the conditions
mentioned in subsection (2) of section 157, Cr.P.C. and is subject to the control of a
superior police officer 'under section 158, Cr.P.C. and a magisterial check under section
159 of the said Code.

26. It will thus be noticed that the provisions of section 157, Cr.P.C. equip a police officer
only with a discretion to refuse to investigate a case and no where do these provisions,
even remotely indicate, any power vesting in the S.H.O. to REFUSE TO RECORD AN
F.I.R. if the information conveyed to him disclosed the commission of a cognizable
offence. Needless to add that rules are always subordinate to the statutory provisions and
no rule can permit what was not allowed by a statutory provision.

27. The conclusions that we draw from the above, rather lengthy discussion, on the
subject of F.I.R., are asunder:--

(a) no authority vested with an Officer Incharge of a Police Station or with anyone
else to refuse to record an F.I.R. where the information conveyed, disclosed the
commission of a cognizable offence-
 (b) no authority vested with an Officer Incharge of a Police Station or with any
one else to hold any inquiry into the correctness or otherwise of the information
which is conveyed to the S.H.O. for the purposes of recording of an F.I.R.

(c) any F.I.R. registered after such an exercise i.e. determination of the truth or
falsity of the information conveyed to the S.H.O., would get hit by the provisions
of section 162, Cr.P.C.

(d) existence of an F.I.R. is no condition precedent for holding of an investigation

nor is the same a prerequisite for the arrest of a person concerned with the
commission of a cognizable offence;

(e) nor does the recording of an F.I.R. mean that the S.H.O. or a police officer
deputed by him was obliged to investigate the case or to go through the whole
length of investigation of the case mentioned therein or that any accused person
nominated therein must be arrested; and finally that,

(f) the check against lodging of false F.I.Rs. was not refusal to record such F.I.Rs,
but punishment of such informants under S.182, P.P.C. etc. which should be, if
enforced, a fairly deterrent against misuse of the provisions of S.154, Cr.P.C.

28. This brings us to the institution of Ex-OFFICIO JUSTICES OF THE PEACE and the
new powers conferred on them.

29. The provisions of section 22 of the Code of Criminal Procedure, as originally enacted
in the year 1898, introduced the institution of Justices of the Peace. The Governor-
General in Council so far as the whole or any part of the then British India outside the
Presidency Towns and every Local Government, vis-a-vis the area subject to its
administration,- could appoint persons as the Justices of the Peace. The provisions of
sections 23 and 24 of the said Code omitted by Act XII of 1923 talked of appointment of
Justices of Peace for Presidency Towns while section 25 thereof constituted the
Governor-General, the Governors, the Lieutenant Governors, the Chief Commissioner,
the Ordinary Members of the Council of Governor-General and the Judges of the High
Courts as Ex-officio Justices of the Peace with and for the whole of British India while
the Sessions Judges and the District Magistrates were Ex-officio Justices of the Peace
within and for the whole of the territories administered by the concerned Local
Government. The Presidency Magistrates were blessed with the said status vis-a-vis the
towns of which they were such Magistrates.

30. What is, however, noticeable is that these provisions did not confer any specific
powers on these Justices of the Peace, Ex-officio or otherwise and they exercised only
such powers as were conferred on them from time to time either under the Cr.P.C. or
under other laws.

31. The above noticed provisions of section 22, Cr.P.C. underwent some minor changes at
different times and occasions and it was finally, through the Law Reforms Ordinance
No.XII of 1972 that the said section was re-constituted in the form that it exists today
whereby the Provincial Governments were empowered to appoint Justices of the Peace
within the areas under their respective control. The same Ordinance also added two new
sections to the Cr.P.C. i.e. section 22-A and 22-B which conferred certain specific powers
on the Justices of the Peace and also outlined their duties.

32. The provisions relating to the Ex-officio Justices of the Peace i.e. section 25 of the
said Code also suffered amendments in the year 1900, 1937, 1949 and 1960 and the said
section as it stood before the promulgation of Ordinance No.CXXXI of 2002 reads as
under: --

"25. In virtue of their respective offices, the Judges of the High Courts are Justices
of the Peace within and for the whole of Pakistan, Sessions Judges and District
Magistrates are Justices of the Peace within and for the whole of the territories
administered by the Provincial Government under which they are serving."
33. The said Ordinance No. CXXXI of 2002 promulgated on 21-11-2002 stripped the
Judges of the High Courts of their status of the Ex-officio Justices of the Peace which
they had enjoyed for more than century as the said provisions of section 25 of the Code
of Criminal Procedure were re-constituted to read as under:

25. Ex-officio Justices 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 arc serving."

34. The same amending Ordinance No.CXXXI of 2002 added a new subsection i.e.
subsection (6) of section 22-A of the Cr.P.C. and this newly added subsection (6)
conferred certain powers on the Ex-officio Justices of the Peace in the following terms:,--

"22-A -----------

(6) An ex-officio Justice of the Peace may issue appropriate directions to the
police authorities concerned on a complaint regarding--

(i) non-registration of a 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."

35. The result is a major departure, from the scheme heretofore in vogue regarding the
administration of justice relating to crimes as it was for the first time that through the said
amending Ordinance, the Sessions Judges and the Additional Sessions Judges who were
the trial and the Appellate Courts on the criminal side, had been called upon to also
supervise what were, purely and essentially, the police functions i.e. the registration and
investigation of criminal cases.

36. For the purposes of this petition, we are concerned, primarily, with clause (i) of the
above quoted provisions of subsection (6) of the section 22-A of the Cr.P.C. These
provisions create a new forum to rectify a wrong done by an Officer Incharge of a Police
Station by refusing to register a criminal case i.e. not recording an F.I.R. We have held
above that the provisions of section 154, Cr.P.C. command a S.H.O. to lodge an F.I.R. if
the information conveyed to him disclosed the commission of a cognizable offence
irrespective of the information being correct or incorrect. Undoing this wrong of non-
registration of a criminal case would mean only an order to the S.H.O. to register the
case. The provisions of the said subsection (6) of section 22-A, Cr.P.C. confer no
additional powers on an Ex-officio Justice of the Peace to hold any enquiry to assess the
credibility of such an information communicated for the purpose in question nor do the
said provisions give any extra authority to the said Ex-officio Justice of the Peace to
refuse registration or order non-registration' of an F.I.R. in violation of or beyond the
mandatory requirements of section 154, Cr.P.C.

37. We know that the prescribed forum for the determination of the correctness or falsity
of the accusation levelled against some one was a court of law and not a police man or
even an Ex-officio Justice of the Peace irrespective of his rank and status. And we also
know from the provisions of section 190(1) of the Cr.P.C. that the lodging of an F.I.R. and
the report consequently submitted by a police officer under section 173, Cr.P.C. was only
one of the three modes of reaching the prescribed competent court for such a
determination. The other two channels being a private complaint and a suo motu action
taken by the authorized Magistrate leading to the taking of cognizance.

38. And if an Ex-officio Justice of the Peace who also happens to be the higher of the two
subordinate courts and a trial Court with respect to certain offences and an appellate and a
revisional court in other, was to declare, like it was done in the present case, that no
offence at all had been committed and that the accusations were false and that also on the
basis of a mere report by a police officer without any evidence having been examined by
a Court of Law then we would not only be shutting out the other two channels which had
been made available by law but would also be deciding the fate of criminal cases in a
manner never visuallised by the law makers even in the wildest of their dreams.

39. This could never be allowed.

40. Therefore, in our opinion, the only jurisdiction which could be exercised by an Ex-
officio Justice of the Peace under section 22-A(6), Cr.P.C. was to examine whether the
information disclosed by the applicant did or did not constitute a cognizable offence and
if it did then to direct the concerned S.H.O. to record an F.I.R. without going into the
veracity of the information in question, and no more. Offering any other interpretation to
the provisions in question would be doing violence to the entire scheme of the Cr.P.C.
which could not be permitted.

41. We are conscious of the fact that in pursuance of petitions filed under Article 199 of
the Constitution, the High Courts, at times, did refuse to issue writs directing recording of
F.I.Rs. Suffice it to say that the exercise of discretion under the said jurisdiction was not
dependent only on an illegality committed by a competent authority but was also
controlled by some other important considerations such as the seeker of a writ being an
aggrieved person; availability of alternative remedies such as filing of a complaint etc. in
criminal matters and the applicant being qualified, in equity, for the grant of the sought
relief. The powers of the Ex-officio Justice of the Peace under section 22-A(6) of the
Cr.P.C. could, therefore, not be equated with the constitutional jurisdiction vesting in a
High Court.

42. Having thus surveyed and examined all the relevant provisions of the law regulating
the subject, we find and hold that the initial act of the Officer Incharge of Police Station
Cantt. Of District Okara, refusing to record, in the register of F.I.Rs., the information
conveyed to him by Bashir petitioner which information did disclose the commission of a
cognizable offence, was illegal. And equally invalid was the exercise undertaken by the
Ex-officio Justice of the Peace which had finally culminated in his order dated 12-12-
2005. No exception could, however, be taken to the action of the concerned S.H.O. who
finally did what the law commanded him to do i.e. recording of F.I.R. No.16 dated 25-1-
2006 at his police station.

43. The learned Judge in Chambers of the Lahore High Court quashed the said F.I.R. only
on the ground that while securing compliance, from the concerned S.H.O. of one of his
legal obligations, Bashir complainant had not disclosed the dismissal, by an Ex-officio
Justice of the Peace, of his application moved for the purpose. The discretion so exercised
by His Lordship in the High Court, could not be sustained for more than one reasons.
Firstly, because recording of a F.I.R. was not a discretionary relief to be granted by a
S.H.O. which could be refused if the one seeking registration of a criminal case had
suffered certain acts which disentitled him to a relief in equity. Secondly, it appears to
have escaped the notice of the learned High Court that a crime was an offence committed
against the State; that the position of the one, bringing the commission of such a crime to
the notice of the competent authorities was never more than a witness and that an
offender could never be permitted to escape punishment only because of some error
suffered by an informant while putting the machinery of law into motion. The remedy
may well lie in punishing the informer for his faults but not in sparing a criminal.
Consequently, we find it difficult for us to maintain even the impugned judgment which
was passed by the Lahore High Court resulting in the quashment of the F.I.R. in question.

44. This petition is, therefore, converted into an appeal which is allowed as a result
whereof the above noted order dated 12-12-2005 of an Ex-officio Justice of the Peace at
Okara and the impugned judgment of the Lahore High Court dated 22-3-2006 passed in
Writ Petition No.2279 of 2006 to the extent that it quashed F.I.R. No.16 of 2006 of P.S.
Cantt. Okara, are set aside and as a further consequence whereof the said F.I.R. stands
revived and the concerned S.H.O. shall be free to deal with the same in accordance with
law. The learned High Court, shall, however, be at liberty to proceed with the notice
issued to Bashkir complainant "under section 193, Cr.P.C".

45. While we were examining the question of registration/non-registration of criminal

cases in the context of clause (i) of subsection (6) of section 22-A of the Code of
Criminal Procedure, we also came across clause (ii) of the said subsection which
empowered an Ex-officio Justice of the Peace to decide complaints relating to the transfer
of investigations. We thought we would say a few words, may be not as a declaration of
law as the said question was not a part of the lis before us but at least as some food for
thought for all concerned.

46. Identification and punishment of offenders is one of the matters for which a special
law i.e. the Code of Criminal Procedure was enacted in the year 1898. Trial of accused
persons was the exercise prescribed by the said Code for the said purpose. Needless to
say that determination of guilt or innocence of accused persons would be a futile desire if
no evidence was available with the courts for the said purpose. The Code of Criminal
Procedure, therefore, devised a mechanism for collection of evidence and gave it the
name of investigation. The said Code, as would be evident, inter alia from its provisions
contained in sections 156 and 157, thought that it could trust a police officer of the status
of an officer incharge of a police station for the purpose and consequently entrusted him
with the said task. But then realizing that in times to come, the rising number of criminal
cases registered in a given police station could make it impossible or at least difficult for
him to investigate all the cases himself, the framers of the Cr.P.C., through subsection (1)
of its section 157, allowed him even to depute his subordinates to carry out any or some
of the investigation required to be conducted by him. Gradually, the S.H.O. started to use
these provisions of section 157(1), Cr.P.C. more or less like a toy. He would assign a case
to one of his subordinates in his Police Station; then withdraw the investigation from him
and depute another subordinate for the purposes and this process then continued with no
end. This was not all as the police officers who were superior in rank to an Officer
Incharge of a Police Station and who, by virtue of the provisions of section 551, Cr.P.C.
could exercise the same powers throughout the local areas to which they were appointed,
which a S.H.O. could exercise within the limits of his police station, also entered the
arena. The result was that an investigation then became a rolling stock not only within the
police station to which it belonged but throughout the district at the instance of the S.P.,
the range at the instance of the then D.I.-G. and even throughout the Province at the
intervention of the then Inspector-General of Police. This tossing around of the
investigations acquired the name of transfer of investigations and in turn also acquired
notoriety as the same caused inordinate delays in the conclusion of investigations;
resulted in contradictory opinions of different Investigating Officers and in collection of
pieces of evidence which were irreconcilable and also because motives also started to be
attributed to orders leading to such transfers. Needless to add that such-like investigations
had devastating effects on the quality of trials that followed. And it was for these reasons
that the Superior Courts of the country never approved of the said so-called transfers of
investigations and always deprecated the same.

47. To wind up this discussion, may we say that we have not come across any Part,
Chapter, section, a subsection or even a clause in the Cr.P.C. as it existed prior to the
promulgation of the Amending Ordinance No.CXXXI of 2002 which talked of any
concept of transfer of investigations of criminal cases. And that it was through an un-
welcome and a laboured deviation of the provisions of section 157(1) of the Cr.P.C.
which provisions had actually been enacted to facilitate a S.H.O. in the discharge of his
legal obligations of holding investigations, that this theretofore alien institution of
transfer of investigations got introduced into the system. We may also reiterate that police
has no powers, inherent in them, regarding investigation of criminal cases. It is only the
S.H.O. and for his assistance his subordinates, which were picked up by the Cr.P.C. and
then borrowed from the Police Force, established under the then Police Act of 1861 (now
continuing under the Police Order of 2002), to perform a task which fell within the
exclusive field, created by and belonging to the Code of Criminal Procedure. They are, at
best some stars thriving on some light borrowed from the Cr.P.C. Otherwise we know of
statutes like the Customs Act, the Prevention of Corruption Act, the Drug Act, the Control
of Narcotic Substances Act and others which opted not to depend upon the members of
the Police Force and instead established their own investigating and executing agencies.

48. Some of the questions which are likely to confront the competent courts in due course
and which would demand resolution could be summarized as under:--

(a) Has this laboured innovation of transfer of investigations introduced by the

police, yielded any advantageous benefits to the courts of law in the
administration and dispensation of justice in the field of crimes or was it just a
 source of nuisance for them only complicating the already complicated issues and
deserved to be discouraged?

(b) Could a power be conferred on an Ex-officio Justice of the Peace to do that

which was not recognized by the Cr.P.C. and was unknown to it?

(c) While deciding the fate or a complaint about transfer of an investigation, the
Ex-officio Justice of the Peace, who also happened to be a Sessions or at least an
Additional Sessions Judge, will have to pronounce upon the quality of
investigation conducted in a given case and this having been so done, what would
be its effects on the appreciation of the evidence collected through the said
exercise when a trial Court was to undertake the said exercise which trial court
could well even be a Magistrate and thus a court subordinate to such an Ex-officio
Justice of the Peace?

(d) Section 18 and some other provisions of the Police Order of 2002 being the
Chief Executive's Order No.22 of 2002, carries certain provisions regarding
investigation of criminal cases which are, at least prima facie, not reconcilable
with the special and the parent provisions on the subject i.e. the provisions of the
Code of Criminal Procedure and if it be so then what would be the effect of such-
like illegal investigations on the trials that followed?

49. It is being said that the amendments in question which were introduced in section 22-
A and section 25 of the Code of Criminal Procedure, 1898, had been so made to lessen
the excessive burden of the High Courts which had got created through filing of writ
petitions seeking registration of criminal cases and transfer of investigations. If this be so,
then we would not be sure about the questionable wisdom leading to these amendments
which seek to relieve an elder brother of its burden by adding the same on to the back of
an already overloaded younger brother.

50. Let copies of this judgment be sent to the Registrars of all the four High Courts in the
country who shall, in turn, send the same to all the learned Sessions Judges in their
respective provisions for their guidance and compliance. Copies of this judgment shall
also be sent to the Law Secretaries of the Federation and the four Provinces for re-
examining the matter of the amendments in question in the light of the observations made
hereinabove.

M.B.A./M-72/S Order accordingly.

2007 P Cr. L J 864

[Lahore]

Before M. Bilal Khan, J

MUHAMMAD BASHIR alias BAKOLA and 8 others----Petitioners

Versus

SUPERINTENDENT OF POLICE, CITY DIVISION, LAHORE and 9 others

----Respondents

Writ Petition No.11676 of 2006, decided on 14th February, 2007.

(a) Constitution of Pakistan (1973)---

----Art. 199---Penal Code (XLV of 1860), Ss.420/468/471---Constitutional petition---

Quashing of F..I.R., refusal of---Investigation of the case was still pending---High Court
in a bail application filed by an accused had directed the Investigating Officer to send
certain documents for the opinion of Handwriting Expert---No interference at such stage
of investigation in its process was called for---Practice of quashing of the F.I.Rs. when
the case involved controversial questions of law and fact was not approved---Contentions
raised by the petitioners needed factual inquiry which could not be resorted to by High
Court while seized of a Constitutional petition---Section 195(1)(c) did not place any
embargo against registration of case---Taking of cognizance and recording of F.I:R. being
two separate concepts were not to be intermingled---Constitutional petition was
dismissed in circumstances.

Haji Sardar Khalid Saleem v. Muhammad Ashraf and others 2006 SCMR 1192;
Muhammad Saleem Bhatti v. Syed Safdar Ali Rizvi and 2 others 2006 SCMR 1957 and
Industrial Development Bank of Pakistan and others v. Mian Asim Fareed and others
2006 SCMR 483 ref.

(b) Constitution of Pakistan (1973)---

----Art. 199---Criminal Procedure Code (V of 1898), S.561-A---Quashing of F.I.R.---

Practice of quashing of F.I.R. when the case involves controversial questions of law and
fact was not approved.

Haji Sardar Khalid Saleem v. Muhammad Ashraf and others 2006 SCMR 1192 and
Muhammad Saleem Bhatti v. Syed Safdar Ali Rizvi and 2 others 2006 SCMR 1957 ref.

(c) Criminal Procedure Code (V of 1898)---

---Ss. 195(1)(c) & 154---Intent and import---Section 195(1)(c), Cr.P.C. does not place any
embargo against registration of case---Taking of cognizance and recording of F.I.R. are
two separate concepts which are not to be intermingled.

Industrial Development Bank of Pakistan and others v. Mian Asim Fareed and others
2006 SCMR 483 ref.

Dr. A. Basit for Petitioners.

Tahir Mehmood Gondal, Asstt. A.-G. for the State.

Mian Gauhar Rafique for Respondent No.4.

Akhtar Hussain, S.-I. Police Station Lower Mall, Lahore with police file.

ORDER
M. BILAL KHAN, J.--- The petitioners, nine in number, seek quashing of F.I.R.
No.1231 of 2006 dated 14-10-2006, registered with Police Station Lower Mall, Lahore
for offences under sections 420, 468 and 471, P.P.C.

2. The allegation in the F.I.R. registered at the instance of Iftikhar-ud-Din son of Shah
Din, the complainant, was that on 16-5-1973 he had purchased a parcel of land measuring
4 Kanals, 5 Marlas and 92-1/2 sq. ft. from one Chiragh Din son of Ameer Din caste Arain
for a total consideration of Rs.25,500 and had taken over possession from The vendor;
the land was mutated in his favour vide Mutation No.5473 on 25-6-1973 and the
marginal witness of the sale-deed was Khushi Muhammad Lumberdar, a real brother of
Muhammad Bashir alias Bakola (petitioner No.l); that he (complainant) had been
involved in litigation regarding the plot in question with Evacuee Trust Property Board,
in various Courts of law for about twenty-six years; after the Supreme Court had
remanded the case, Mr. Justice Maulvi Anwar-ul-Haq, of the Lahore High Court decided
the case on 31-10-2001; that the accused persons mentioned at serial Nos.1 to 16 of the
F.I.R. had neither produced the registered sale-deed in any Court nor had they become
parties in the litigation; that Muhammad Bashir alias Bakola, Muhammad Adnan,
Muhammad Rizwan, Muhammad Imran, Muhammad Nazeer alias Jeera, Muhammad
Shaaban alias Jaggu sons of Muhammad Bashir, Rana Abdullah Advocate, in consultation
with one another got a forged deed prepared through one Rizwan Butt alias Pappi son of
Ijaz Butt wherein signatures of Chiragh Din had been forged; the said forged deed was
document No.16226, Book No.1, Volume No.563 registered on 23-12-1972; the said deed
was got registered in connivance with Chiragh son of Nathu Khan, Muhammad Ibrahim
son of Karam Din and Ghulam Hussain son of Jamal Din for a consideration of Rs.1,000;
on the basis of this forged registered sale-deed one Muhammad Irfan manoeuvred a fake
power of attorney in his favour purported to have been executed by Shafqat Hameed
Sheikh; thereafter Muhammad Irfan filed a suit on behalf of Shafqat Hameed, her
brothers Sheikh Shahid, Shahzad Hameed, sons of Sheikh Abdul Hameed and Mst.
Shazia Aafaq in a civil Court at Lahore; in the said suit the signatures of Shafqat Hameed,
etc. (plaintiffs) had not been obtained but fraudulently Muhammad Irfan signed on their
behalf; address of the plaintiffs had also not been correctly mentioned in the suit; that the
accused persons in connivance with one another and by committing fraud got the said
civil suit decreed in their favour ex parte on 17-7-2006; the complainant applied for a'
certified copy of the decree but the same has not been provided to him; that the "Qabza
Group" wants to deprive the complainant of his property worth crores of rupees and has
forcibly occupied the said property. Resultantly the instant F.I.R. had been recorded.

3. In support of this petition for quashing the F.I.R., it has been argued that the sale-deed,
in relation to which the offence is stated to have taken place has already been produced
before a Civil Court which has proceeded to issue a declaratory decree with
consequential relief; that as the document in question has been produced before a Civil
Court, no criminal Court has the jurisdiction to entertain the matter for the purpose of
trial unless a written complaint is made to the Civil Court before whom the document in
question was produced; that the registration of F.I.R. is in violation of mandatory
provisions of section 195(1)(c), Cr.P.C.; that any investigation on the basis of F.I.R. in
violation of section 195(1)(c), Cr.P.C. would be infructuous and without any legal value;
that Capital City Police Officer, Lahore had no jurisdiction to order registration of case in
that, if the S.H.O. had refused to register a case the proper course for the complainant was
to seek relief under sections 22-A, 22-B, Cr.P.C.; that it can easily be gathered from the
contents of the F.I.R. that a civil suit has been transformed into a criminal liability so as
to obtain advantage in the pending civil litigation.

4. On the other hand the learned counsel for the complainant argued that criminal action
can proceed simultaneously with a civil suit; that the investigation is still in progress and
quashing the case at initial stage would amount to stilling the prosecution case.

5. The learned Assistant Advocate-General also opposed the prayer made in this petition.

6. I have heard the learned counsel for the parties at limine stage and have perused the
available record.

7. The investigation is still pending and I am told that while hearing bail application
(Criminal Miscellaneous No.9582/B of 2006) filed by Muhammad Bashir (petitioner
No.1) my brother M.A. Shahid Siddiqui, J. had asked the Investigating Officer to send
certain documents for the opinion of the Handwriting Expert. Any interference by this
Court with the process of investigation at this stage is not called for. The Honourable
Supreme Court in its latest pronouncements in the case of Haji Sardar Khalid Saleem v.
Muhammad Ashraf and others 2006 SCMR 1192 and Muhammad Saleem Bhatti v. Sycd
Safdar Ali Rizvi and 2 others 2006 SCMR 1957 has deprecated the practice of quashing
of the F.I.Rs when the case involves controversial questions of law and fact. In order to
appreciate the contentions raised by the learned counsel for the petitioners a factual
inquiry needs to be undertaken which cannot be resorted to by this Court while seized of
a constitutional petition. Section 195(1)(c), Cr.P.C. does not place any embargo against
registration of case. In this connection reference may profitably be made to the case of
Industrial Development Bank of Pakistan and others v. Mian Asim Fareed and others
2006 SCMR 483 where the Honourable Supreme Court once again reiterated that taking
of cognizance and recording of F.I.R. are two separate concepts which are not to be
intermingled. There is no merit in this petition, which is accordingly dismissed in limine.

N.H.Q./M-118/L Petition dismissed.

2007 P Cr. L J 124

[Lahore]

Before Muhammad Jehangir Arshad, J

MUHAMMAD JAVAID KHAN----Petitioner

Versus

ADDITIONAL SESSIONS JUDGE, MULTAN and 2 others----Respondents

Writ Petition No.4003 of 2006, decided on 22nd September, 2006.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A & 154---Justice of Peace---Jurisdiction of---Scope---Object of S.22-A,

Cr.P.C., was only that if a grievance was voiced with regard to non-registration of F.I.R.
in a cognizable offence; Justice of Peace in terms of said section could only
direct/suggest as to whether in the terms of S.154, Cr.P.C., S.H.O. had acted legally or
illegally; and in case S.H.O. had refused to act, whether his inaction was justified---
Justice of Peace, under no provision of law could direct or even observe with regard to
the nature of offence, commission of the offence or addition or deletion of relevant
sections; as the same exclusively fell within the jurisdiction of either Investigating
Officer or of the Trial Court at the time of framing charge.

Khizar Hayat and others v. I.-G. Punjab and others PLD 2005 Lah. 470 and Sheikh
Muhammad Shahzad v. Naveed Anwar Sethi and 4 others PLD 2006 Lah. 460 ref.

Faiz Bakhsh Khan for Petitioner.

M.R. Khalid Malik, Addl. A.-G. for Respondents.

Imran Shehzad Bhatti for Respondent No.3.

ORDER

MUHAMMAD JEHANGIR ARSHAD, J.--- The petitioner is aggrieved of the order

dated 22-6-2006 handed down by Mr. Manzoor Hussain, Additional Sessions Judge,
Multan, as Justice of Peace, on an application moved by Muhammad Jamshaid
respondent No.3. The grievance voiced through this petition is that while disposing of the
said petition the learned Justice of Peace, recorded the following observations:--

"However, I have gone through the contents of the F.I.R. Where fire is made straight,
section 324, P.P.C. would be attracted and the offender shall in addition to imprisonment
and tine under section 324, P.P.C., , would also be liable to punishment provided for the
hurt caused which fact may be brought to the notice of the 'S.P. (Investigation). The
petitioner is directed to appear before him with a copy of this order and place his
grievance before him. With this direction the application is disposed of."

Which observation, according to the learned counsel for the petitioner is against law.

2. The object of section 22-A, Cr.P.C. is only that if a grievance is voiced with regard to
non-registration of F.I.R. in a cognizable offence, the Justice of Peace in terms of said
section can only direct/suggest as to whether in terms of section 154, Cr.P.C. concerned
S.H.O. has acted legally or illegally and in case he has refused to act, whether his inaction
is justified, but under no provision of law, the Justice of Peace can direct A or even
observe with regard to the nature of the offence, commission of the offence or addition or
deletion of relevant sections as the same exclusively falls within the jurisdiction of either
Investigation Officer or of the trial Court at the time of framing charge. Reliance is
placed on a Full Bench judgment of this Court Khizar Hayat and others v. I.-G. Punjab
and others PLD 2005 Lah. 470 and Sheikh Muhammad Shahzad v. Naveed Anwar Sethi
and 4 others PLD 2006 Lah. 460.
3. Learned counsel for respondent No.3 on the other hand contends that the order
impugned in this writ petition does not indicate that same is a mandatory direction but it
only contains observations of the learned Additional Sessions Judge/Justice of Peace.
Further contends that irrespective of the observations of the learned Justice of Peace, the
matter is now before the District Investigation Board who is fully competent to decide the
fate of the investigation in view of the Police Order, 2002 as such the respondent would
not press for addition of section 324, P.P.C. on the basis of observations of the learned
Justice of Peace. However, he reserves his right to place his case before the District
Investigation Board and said Board shall be free to decide as to under which of the
section of P.P.C. the petitioner is incited and prosecuted.

4. In view of the above legal position as well as the stand taken by learned counsel for
respondent No.3, this petition is disposed of.

H.B.T./M-586/L Order accordingly.

2007 Y L R 794

[Karachi]

Before Amir Hani Muslim, J

Syed KAMIL SHAH---Applicant

Versus

VTH ADDITIONAL SESSIONS JUDGE, HYDERABAD and 2 others---

Respondents

Criminal Miscellaneous Application No.207 of 2006, decided on 23rd November, 2006.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A, 154, 156, 157 & 169---Recording of F.I.R. in compliance with section 22-A,
Cr.P.C.---Scope---Courts under S.22-A, Cr.P. C. would pass orders as Justice of Peace and
said orders were of administrative nature; and police was not bound to record F.I.R. in
compliance with such orders, if complaint made before the police did not disclose
cognizable offence---Even if the F.I.R. was registered and a person was nominated
therein, then too he was not bound to be arrested by the police; unless tangible material
was available against him to connect him with alleged offence---Normally, in all cases in
which the persons were nominated in the F.I.R., the police arrested them, which was
contrary to the language of S.157, Cr. P. C. ---Before a person was arrested, there must be
tangible material against such person with the police officer to connect him with the
alleged offence and if no material was collected against such person, Investigating
Officer could dispose of case under S. 169, Cr. P. C. ---Additional Sessions Judge having
not passed any order which could give cause to applicant in the case, application was
disposed of accordingly.

Amjad Ali Sahito for Applicant.

ORDER

AMIR HANI MUSLIM, J.---1. Granted.

2. Granted subject to all just exceptions.

3. The criminal revision application has been moved by the applicant on the ground that
the applicant approached the District Police Officer, Matiari with complaint against
respondent No.3 that his cows have damaged the standing crops of applicant and have
caused loss of Rs.3,00,000 (Rupees three lacs). The D.P.O., Matiari had assigned the
enquiry to the S.H.O., Police Station Khebrani. The S.H.O. recorded the statement of the
applicant and in the intervening period, the respondent No.3 approached the D.P.O.
Matiari with an application alleging therein that the applicant with his brother Qasim has
stolen two cows of the respondent No.3. The D.P.O., Matiari again marked this complaint
of the respondent No.3 to the T.P.O. Khebrani who in turn had marked it to the same
S.H.O. Both the inquiries were being conducted by the S.H.O., Police Station Khebrani
who issued notices to the parties. The respondent No.3 did not appear and remained
absent on two dates before the Enquiry Officer, (S.H.O., Police Station Khebrahi). The
statements of the applicant and his brother were recorded. In the complaint of the
respondent No.3 it was stated that the applicant and his brother Qasim Shah have stolen
cows.

During pendency of this inquiry the respondent No.3 approached the Sessions Judge,
Hyderabad for registration of case on the same cause against the applicant, his brother
Qasim Shah and two other persons namely Malook Shah who is the son of the applicant
and Mir Hassan Shah who is closely related to the applicant. Notices were ordered. The
Sessions Judge, Hyderabad had transferred the matter to the Vth Additional Sessions
Judge, Hyderabad who has observed that the applicant has no locus standi to contest the
proceedings under section 22-A, Cr.P.C. as the law requires that if 'complaint disclosing
cognizable offence is made out, the F.I.R. has to be registered and it was for the
Investigating Agency to probe into the case.

However, the learned counsel for the applicant states that till date the application of the
respondent No.3 under section 22-A, Cr.P.C. has not been finally decided by the Vth
Additional Sessions Judge, Hyderabad by which the respondent No.3 has prayed for
registration of F.I.R. against the applicant, his son, his brother and another relation have
been alleged to have stolen two cows of the respondent No.3.

Since the Vth Additional Sessions Judge, Hyderabad is cognizant of the matter. I do not
want to express myself upon the conduct of either party nor I want to pre-empt the order
but I will only express that the Courts under section 22-A, Cr.P.C. pass orders as Justice
of Peace. These orders are of administrative nature.

The police is not bound to record F.I.R. in compliance with such an order if the complaint
made before the police does not disclose cognizable offence. I may further observe that
even if the F.I.R. is registered and a person is nominated therein then too he is not to be
arrested by the police unless, there is tangible material against him to connect him with
the alleged offence as I have noticed that nowadays orders are sought under section 22-A,
Cr.P.C. to settle personal vengeance by fabricating false grounds.

I have noticed that normally in all the cases in which persons are nominated in the F.I.R.,
the police arrest them which to my understanding is contrary to the language of section
157, Cr.P.C. The words used in section 157, Cr.P.C. are that the Incharge of Police Station
must have reasons to suspect the commission of offence for which he is empowered
under section 156, Cr.P.C. to investigate. In other words, before a person is arrested, there
must be tangible material against such person with the police officer to connect him with
the alleged offence.

I am, therefore, of the view that even if the Vth Additional Sessions Judge orders
registration of F.I.R., the S.H.O. or Investigating Officer is not bound to arrest-the person
named in- the F.I.R. unless there is tangible material collected either by the S.H.O. or by
the Investigating Agency against such person to connect him with the alleged offence
and. the Investigating Officer may if no material is collected against such person can
dispose of the case under section 169, Cr.P.C.

This Criminal Miscellaneous Application stands disposed of with the above observations
as it is premature as the learned Vth Additional Sessions Judge, Hyderabad has not passed
any order which could give cause to the applicant.

H.B.T./K-45/K Order accordingly.

2 0 0 7 P C r. L J 1 5 1 5

[Karachi]

Before Rahmat Hussain Jafferi and Munib Ahmed Khan, JJ

WAKEELUDDIN and others----Petitioners

Ve r s u s

THE STATE and others----Respondents

Constitutional Petitions Nos.D-2234, 2246, 2340, 2344, 2361 and 2381 of 2006
decided on 17th January, 2007.

(a) Criminal Procedure Code (V of 1898)---

----Ss. 154, 169, 170, 173 & 190---Under criminal administration of justice, a
criminal case is initiated on filing of F.I.R., after registration of F.I.R, the Police
Officer starts investigation for collecting the evidence; after collecting the
evidence and completing the investigation, Investigating Officer, if finds that no
sufficient evidence has been collected against accused, then he has to release
accused as provided under S.169, Cr.P.C.---If Investigating Officer finds that
sufficient evidence is available against accused, then he is required to submit the
report within the meaning of S.170, Cr.P.C., in both the cases the police
officer is required to submit a police report or challan as provided under
S.173(1)(a), Cr.P.C. in the form provided by the Provincial Government
containing various columns---If Investigating Officer would come to the
conclusion that sufficient evidence was available to send up accused for trial,
he was required under S.170, Cr.P.C. to forward him under custody to a
Magistrate empowered to take cognizance upon a report under S.173, Cr.P.C. and
to try accused himself or to send him for trial to the Court of Session and in case
of bailable offence, he would take surety &dm accused to appear before such
Magistrate whenever so required by him--Crux of provisions of Ss.169, 170,
173, Cr.P.C. was that whatever course the Investigating Officer adopted whether
he acted under S.169 or-under S.170, Cr.P.C., it was incumbent upon him to
submit a final report under S.173, Cr.P.C. with regard to the result of his
investigation to a competent Magistrate and the Magistrate, would thereupon, take
such action as he would consider proper under subsection (3) of S.173, Cr.P.C. or
under S.190, Cr.P.C.

Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607; Ahmed Siyal
v. National Accountability Bureau 2004 SCMR 265; Habib v. State 1983 SCMR
370; Falak Sher and another v. The State PLD 1967 SC 425 and Muhammad Arif
v. The State 1970 SCMR 178 ref.

(b) Words and phrases---

----Phrase "mutatis mutandis"---Connotation.

(c) National Accountability Ordinance (XVIII of 1999)---

----S. 18(g)---Criminal Procedure Code (V of 1898); Ss.169 & 170--

Constitution of Pakistan (1973), Art.199---Constitutional petition--- Reference to
Accountability Court---If the Chairman NAB or any Officer of the NAB duly authorized,
after investigation of the case, found that no evidence had been collected against the
accused, then he was required to release accused within the meaning of S.169, Cr.PC.---If
he formed such opinion then he was required to submit the Reference before
Accountability Court for passing appropriate order---If Chairman NAB formed
opinion that sufficient evidence was available against accused, then he was also
required to file Reference forwarding accused in custody within the meaning
of S.18(g) of National Accountability Ordinance, 1999 read with S.170,
Cr.P.C.---Under provisions of Ss.169 & 170, Cr.P.C. it was the mandate of law
that Chairman NAB or any other Officer of NAB, duly authorized, was
required to forward accused in custody in a case of non-bailable offence--
Chairman NAB or a n y o t h e r O ff i c e r o f N A B d u l y a u t h o r i s e d w a s
r e q u i r e d t o comply with provisions of Ss.169, 170 & 173, Cr.P.C.

(d) Interpretation of statutes---

----Intention of statute was required to be implemented in letter and spirit by the

court and authorities.

(e) National Accountability Ordinance (XVIII of 1999)---

----Preamble & S. 3---Constitution of Pakistan (1973), Art.199---

Constitutional jurisdiction of High Court---Scope---Bail---National Accountability
Ordinance, 1999, was a sub-constitutional statute which could not override the
Constitution, but it was subservient to it---Said Ordinance could not curtail
constitutional powers of the High Court or any authority---High Court being
constitutional court in exercise of its constitutional powers under Art.199 of the
Constitution, would entertain the bail pleas of aggrieved persons.

(f) National Accountability Ordinance (XVIII of 1999)---

----Ss. 18 & 24---Criminal Procedure Code (V of 1898), S.54---Arrest of person involved

in offence under National Accountability Ordinance, 1999---Chairman NAB or any
other specified person had been given powers to arrest a person or persons involved
in the offence under the Ordinance---If, after receipt of information through any
source as provided under S.18(b) of National Accountability Ordinance, 1999,
Chairman NAB found sufficient material in such information, he could arrest
accused without orders of Accountability Court or warrant of arrest, however,
if he would find no sufficient material, but merely suspected that the person was
involved, then he could defer the arrest of such person---Nevertheless, after collecting
sufficient material, he would make arrest within the scope of S.54, Cr.P.C.---
Under S.24(a) of National Accountability Ordinance, 1999, if the Chairman
NAB found that during the inquiry or investigation, accused had not been arrested,
then he had been given power to issue direction that accused would be arrested,
however, to issue direction of arrest, power of Chairman, NAB, appeared to be
discretionary, such discretionary power could be exercised by him---For exercise of
such power only condition precedent was that accused was not already arrested,
if such condition was fulfilled,' the Chairman NAB was required to issue such
direction---No form of such direction having been mentioned in the Ordinance,
such direction could be issued in any form, but it should be in writing to the
Authority or person to comply with the direction---Chairman NAB having been given the
powers of arrest deprive the liberty of citizen, w hich was to be s afeguarded
jealous ly and citizen s hould not be arrested without fulfilling the conditions
mentioned in any clause of S.54, Cr.P.C.---Chairman NAB could conduct
himself justly, fairly, equitably for the advancement of the purpose of National
Accountability Ordinance, 1999 in accordance with law and in conformity with S.24-A
of General Clauses Act, 1897---When permissive words were employed by the
legislature to confer a power on a court or authority to be exercised, it would
become the duty of the court or authority to exercise that power on proof of
those circumstances---If Chairman NAB or any officer of NAB duly
authorized, would form opinion on proof of circumstances mentioned in S.54,
Cr.P.C., it would become his duty to arrest the accused.

Madasslal Fakir Chund v. S. Changdeo Sugar Mills AIR 1962 S C 1543;

C hinnamar K athiam v. Ayyavoo A IR 1982 S C 137; Commissioner of Police
Godhandas Bhuji AIR 1952 SC 16; Abu Bakar Siddique v. Collector of Customs 2006
SCMR 705; Official Liquidator v. Dharti Dhan AIR 1977 SC 740; Hirday Narain v. I.T.
Officer Bareilly AIR (sic) SC 33 and Julius v. Lord Bishop of Oxford 1874=80 All
ER Rep. 43(HL) p.47 ref.
Muhammad Nawaz Shaikh, Muhammad Zafar, Minhaj Farooqui, Saeed Akhtar
Abbasi, Ghazi Qurban Hisbani, Iqbal Khurram and Shafaat Nabi K. Sherwani, D.P.G.A.,
NAB for Petitioners.

I.A. Hashmi, M. Anwar Tariq and Ms. Ismat Mehdi as Amicus Curiae.

ORDER

RAHMAT HUSSAIN JAFFERI, J.--- This order will dispose of following preliminary
point raised in the above matters:-

"Whether the Chairman NAB is required under the law to forward

accused in custody or show him released or absconder in the Reference
when it is filed before the Accountability Court."

2. After examining the References filed by the Chairman NAB in the above
matters before the Accountability Court it was found that the References were filed
without forwarding the accused persons' in custody or showing them released or
absconders, therefore, necessity arose to formulate the above point.

3. On the above point we have heard Mr. Shafat Nabi K. Sherwani, D.P.G.A., NAB,
Messrs Muhammad Nawaz Shaikh, Muhammad Zafar, Minhaj Farooqui, Saeed
Akhtar, Ghazi Qurban and Iqbal Khurram, Advocates for the petitioners and
Mr. M. Anwar Tariq, Mr. I.A. Hashmi and Ms. Ismat Mehdi, Advocates who have
assisted the Court as amicus curiae.

4. The learned D.P.G:A., NAB has taken us to the provisions of sections 17, 18 and
24 of the National Accountability Ordinance, 1999 (hereinafter referred to as the
"Ordinance") and authority of the Honourable Supreme Court of Pakistan
reported in the case of Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC
607 by referring to its paras.257, 275 and 276. His main contentions are .that
the Chairman NAB has discretionary powers to arrest an accused person during
the pendency of inquiry or investigation; that he becomes functus officio, with regard
to arrest of the accused after completing the investigation; that it is not
mandatory for the Chairman NAB to forward the accused person in custody to non-
bailable cases at the time of filing of Reference, therefore, the Chairman NAB has
discretionary powers to forward the accused in custody or otherwise. The amicus
curiae Messrs M. Anwar Tariq and I.A. Hashmi are of the view that by virtue
of Supreme Court's decision in the case of Khan Asfandyar Wali (supra)
mentioned in paras.275 and 276, no doubt the provisions of section 18(g) of the'
Ordinance are made subject to section 170, Cr.P.C. but no suitable
amendments have been made in section 18(g) as directed by Honourable
Supreme Court of Pakistan and there is conflict between sections 170, Cr.P.C.
and 18(g) of the Ordinance, therefore, the provisions of NAB Ordinance
would prevail, hence it is not necessary for the Chairman NAB to forward the
accused in custody at the time of filing Reference. Mr. I.A. Hashmi has further
added that the provisions of the NAB Ordinance have overriding effect on any
other laws for the time being in force. He has referred to the case Ahmed Siyal v.
National Accountability Bureau 2004 SCMR 265. Ms. Ismat Mehdi, after
referring to paras.275 and 276 of Khan Asfandyar Wali's case submitted that the
point has been finally decided by the Honourable Supreme Court of Pakistan; that the
provisions of section 18(g) of the NAB Ordinance are subject to provisions of section
170, Cr.P.C.; that there is no conflict between both the provisions, therefore, the effect of
the said observation has to be given and implemented in letter and spirit. She has
further stated that under section 170, Cr.P.C. the accused is required to be
produced in custody in non-bailable offence and in bailable offence surety is to
be taken to appear before the Court whenever so required by the police. Mr.
Muhammad Nawaz Shaikh and other Advocates' have adopted the arguments of
Mr. I. A. Hashmi.

5. We have given due consideration to the arguments gone through the relevant
provisions of law, the authority of the Honourable Supreme Court of Pakistan and
found that under the criminal administration of justice; and Code of Criminal
Procedure (hereinafter referred to as "Code") a criminal case is initiated on
filing F.I.R. After registration of the F.I.R. the Police Officer starts
investigation for collecting the evidence. After collecting the evidence and
completing the investigation the Investigating Officer, if he finds that there is no
sufficient evidence collected against the accused then he has to release the
accused as provided under section 169 of the Code. If he finds that there is
sufficient evidence against the accused then he is required to submit the report
within the meaning of section 170 of the Code. In both cases the Police Officer is
required to submit a police report or challan as provided under section 173(1)(a)
of the Code in the form provided by the Provincial Government containing various
columns. The similar point was discussed by the Honourable Supreme Court of
Pakistan in the case of Habib v. State 1983 SCMR 370. Similar view as that of us
was taken and at page 372 it was observed as under:--

"The steps to be taken by the Investigating Officer on the completion

of the investigation are given in sections 169, 170 and 173, which have to
be read together in order to understand their true meaning. The steps
prescribed are briefly, as follows:-

"If, on the completion of the investigation, the Investigating Officer

forms the opinion that sufficient evidence to justify forw arding the
accus ed to Magistrate (for trial) is not forthcoming then, as provided
under section 169, Cr.P.C. if the accused is in custody he shall, release him
on his executing a bond with or without sureties, and direct him to
appear, whenever required, before a Magistrate empowered to take
cognizance of the offence on a police report."

8. If, on the other hand, the Investigating Officer comes to the

conclusion that there is sufficient evidence to send up the accused for
trial, he is required under section 170, Cr.P.C. to forward him, under
custody, to a Magistrate empowered to take cognizance upon a report under
section 173, Cr.P:C. and to try the accused himself or to send him for
trial to the Court of Session. Where, however, an offence made out is a
bailable one, he shall take surety from the accused to appear before such
Magistrate whenever so required by him. He is also required by subsection
(2) of section 170 to send to the Magistrate any weapon or other article
relevant to the case and to require the complainant and the witnesses to
execute bonds to appear before the Magistrate for giving evidence at the trial on
the completion of the investigation. Whether he proceeds under section 169
or under section 170, the Investigating Officer is required by section
173, Cr.P.C. to submit a report (now as the final report) to the Magistrate
having the required power "in the form prescribed by the Provincial
Government", giving his conclusions in either case i.e. whether he has
formed the view mentioned in section 169, i.e. that there is no sufficient
evidence against the accused or has come to the conclusion mentioned in
section 170 as to the guilt of the accused persons. In the later case, he is
also required to mention therein, inter alia, the names of the parties,
nature of information and the names of the witnesses. Subsection (3)
of section 173, Cr.P.C. provides that:-

"Whenever it appears from a report submitted under this section that the
accused has been released on his bond, a Magistrate shall immediately pass
an order discharging of such bond or otherwise as he thinks fit."

The subsection prescribes the course that a Magistrate may adopt when a
report under section 173, Cr.P.C. is received by him. When the report
shows that the case is covered by section 169, Cr.P.C. i.e. the Investigating
Officer has not found sufficient evidence against the accused person and
if in custody he has been released on his own bond, the Magistrate may
either; (i) accept the report relating to the lack of evidence and discharge
the bond executed by the accused or (ii) act "otherwise as he thinks fit",
that is, he may disagree with the police as to lack of evidence against the
accused and, notwithstanding the view of the Investigating Officer summon
 the accused to be put on trial: In this behalf reference may be made to Falak
Sher and another v. The State PLD 1967 SC 425 and Muhammad Aril v.
The State 1970 SCMR 178. It may be mentioned here that it is in the exercise of
the power under this subsection, permitting him to act "otherwise as he
thinks fit", that a Magistrate is also empowered on an application by the
Investigating Officer to pass an order "cancelling" a case in which sufficient
evidence is not forthcoming against an accused person. If, however, a
report under section 173, Cr.P.C. shows that the Police Officer has taken
action under section 170, Cr.P.C. and has forwarded the accused under
custody for trial, the Magistrate shall proceed to take cognizance under
section 190(3), Cr.P.C.

(9) The crux of the above-noted provisions, i.e. sections 169, 170 and
173, is that whatever course the Investigating Officer adopts i.e. whether he
acts under section 169 or under section 170, Cr.P.C. it is incumbent
upon him to submit a 'final report' under section 173, Cr.P.C. with
regard to the result of his investigation to a competent Magistrate and the
said Magistrate shall, thereupon, take such action as he may consider proper under
subsection (3) of section 173, Cr.P.C. or under section 190, Cr.P.C. as the
case may be."

6. In the NAB case the Chairman NAB starts proceedings on receipt of a

Reference from appropriate Government or a complaint or on its own accord
about the offence under the Ordinance. Then he sends the matter for inquiry or
investigation. After completing the investigation the material is to be placed before
the Chairman NAB or any officer of the NAB duly authorized who again has to
form opinion as to whether the Reference is to be filed or otherwise. If he
forms opinion that Reference is to be filed then he is required to file Reference within
the meaning of section 18(g) before the Accountability Court. The Reference is the final
opinion of the Chairman NAB or any officer of the NAB duly authorized. Under the
Code, a Police Officer is required to express his final opinion in the shape of
report, in the form prescribed by the Provincial Government, which is
commonly known as "challan". As such, the Reference filed by the Chairman
NAB and challan filed by police are one and same except the form in which,
they are to be submitted or filed before the competent Court.

7. In view of the decision of the Honourable Supreme Court of Pakistan given

in the case of Habib (supra) final opinion of competent authority (Reference or
challan) can be formed after going through the evidence collected during
investigation and after deciding as to whether there is sufficient evidence against
the accused justifying him to forward him for trial or there is no such evidence
against the accused, justifying him to release him. Such decisions have to be
expressed in the manner as provided under sections 169 and 170 of 'the Code and
final opinion is to be expressed in the manner provided under section 173 of the
Code by filing Reference or challan, as the case may be, because all three
provisions are to be read together.

8. A perusal of the Ordinance reveals that no corresponding provisions as that

of sections 169, 170 and 173 of the Code are available in the Ordinance. Now it is
to be seen whether the said provisions can be made applicable in the proceedings
under the Ordinance.

9. Section 17 of the Ordinance provides that provisions of the Code are applicable in the
proceedings under the Ordinance if they are not inconsistent with the provisions of the
Ordinance, 1999, the said section' reads as under:---

"17. Provision of the Code to apply.--- (a) Notwithstanding anything contained

in any other law for the time being in force unless there is anything
inconsistent with the provisions of this Ordinance, the provisions of the
Code of Criminal Procedure, 1898 (Act V of 1898), shall mutatis
mutandis apply to the proceedings under this Ordinance.
 (b) Subject to subsection (a), the provisions of Chapter XXII-A of the Code
shall apply to trials under this Ordinance.

(c) Notwithstanding anything contained in subsection (a) or

subsection (b) or in any law for the time being in force, the
Accountability Court may, for reasons to be recorded, dispense with any provision
of the Code and follow such procedure as it may deem fit in the circumstances of
the case.

(d) Notwithstanding anything in section 234 of the Code, a person

accused of more offences than one of the same kind committed during the
space of any number of years, from the first to the last of such offences
may be charged with and tried at one trial for any number of such offences."

10. The investigation of a case is conducted under the Ordinance, therefore, the,
provisions of Chapter XIV Part V of the Code are applicable if they are not
inconsistent with the provisions of the Ordinance. If any of the provisions of
the Code is in conflict with any of the provisions of the NAB Ordinance then the
provisions of the NAB Ordinance would prevail otherwise the provisions of the
Code would apply with necessary adaptation and changes as in section 17
phrase "mutatis mutandis" is used. Black's Law Dictionary (sixth Edition)
defines the phrase "mutatis mutandis" as under:--

"Mutatis mutandis . With the necessary changes in point of detail,

meaning that matters or things are generally the same, but to be altered
when necessary, as to names, offices, and the like. Housman v. Waterhouse 191
App. Div. 850, 182, N.Y.S. 249, 251."

11. It will be advantageous to reproduce sections 169 and 170, Cr.P.C. to

examine whether any of such provisions is in conflict with any provisions of the
Ordinance. Section 170 of the Code is reproduced in the case of Asfandyar Wali,
which will be referred at later stage, therefore, need not to be mentioned here as
it will be only repetition of same provisions. Section 169 of the Code reads as under:--

"169. Release of accused when evidence deficient.---If upon an investigation

under this Chapter, it appears to the officer in charge of the police station or
to the police officer making the investigation that there is not sufficient
evidence or reasonable ground or suspicion to justify the forwarding of the
accused to a Magistrate, such officer shall if such person is in custody,
release him on his executing a bond, with or without sureties, as such officer
may direct, to appear, if and when so required before a Magistrate
empowered to take cognizance of the offence on a police report and to try
the accused or send him for trial."

12. From the perusal of sections 169 and 170 of the Code and provisions of
the Ordinance, we find that said provisions are not in conflict with any of the
provisions of the Ordinance therefore, they are applicable in the proceedings
under the Ordinance but with necessary adaptation and changes.

13. The provisions of section 18(g) of the NAB Ordinance with reference to
section 170 of the Code were subject to interpretation by the Honourable Supreme
Court of Pakistan, in the case of Khan Asfandyar Wali (supra) at page 935 in
paras.275 and 276 it has been observed as under:--

275. The powers vesting in the Chairman NAB to release an accused from
custody having regard to the gravity of the charge against him, favour the
accused. However, while doing so, he is to record valid reasons in
writing. As regards the vesting of powers with the Chairman NAB under
section 18(g) to refer or not a case to the Accountability Court after
perusal of the material and evidence collected during inquiry and investigation,
suffice it to say that this power corresponds to the normal powers
vested in all Police Officers or Officers of investigating agencies. Reference
may be made to section 170 Cr.P.C. which reads as under :
 "170. Case to be sent to Magistrate when evidence is sufficient.---

(1) If, upon an investigation under this Chapter it appears to the Officer
Incharge of the Police-station that there is sufficient evidence or
reasonable ground as aforesaid, such officer shall forward the accused
under custody to a Magistrate empowered to take cognizance of the offence
upon a police-report and to try the accused or scud him for trial or, if the
offence is bailable and the accused is able to give security, shall take security
from him for his appearance before such Magistrate on a day fixed and for
his attendance from day to day before such Magistrate until otherwise
directed.

(2) When the Officer Incharge of a Police-Station forwards an accused person to

a Magistrate or takes security for his appearance before such Magistrate under
this section, he shall send to such Magistrate any weapon or other article which it
may be necessary to produce before him, and shall require the complainant (if
any) and so many of the persons who appear to such officer to be acquainted with
the circumstances of the case as he may think necessary to execute a bond to
appear before the Magistrate as thereby directed and prosecute or give
evidence (as the case may be) in the matter of the charge against the accused.

(3) Omitted.

(4) Rep. By Code of Criminal Procedure (Amndt.) Act (II of 1926), S.2.

(5) The officer in whose presence the bond is executed shall deliver a copy
thereof to one of the persons who executed it, and shall then send to the
Magistrate the original with his report."

276. Clearly, the existence of sufficient evidence is a condition

precedent for the police acting under section 170, Cr.P.C. and for making a
request to the Magistrate to take cognizance of the o ff e n c e . I t i s f o r t h e
O ff i c e r I n c h a rg e o f a P o l i c e S t a t i o n t o decide whether there is
sufficient evidence to justify the forwarding of the accused to the
competent Magistrate. As stated above, a corresponding provision is
contained in section 18(g) to which no exception can be taken subject
to compliance with the procedure laid down in section 170, Cr.P.C. so
far as it is applicable. To this extent section 18(g) be suitably amended."

14. From the above authority it is clear that the provisions of section 18(g)
have been made subject to compliance with the procedure laid down in section 170
of the Code. The Honourable Supreme Court directed that to that extent section 18(g)
be suitably amended. It appears that section 18(g) has not been suitably amended
so as to make it in consonance under section 170 of the Code.

15. After, giving effect to the observations of the Honourable Supreme Court in
the cases of Habib and Khan Asfandyar Wali it follows that after investigation of the
case if the Chairman NAB or any officer of the NAB duly authorized finds that no
evidence has been collected against the accused then he is required to release the
accused within the meaning of section 169 of the Code. If he forms such opinion
then he is required to submit the Reference before the Accountability Court for
passing appropriate order in view of rule laid down by the Honourable Supreme
Court of Pakistan in the case of Habib (supra). If the Chairman NAB forms opinion that
there is sufficient evidence against the accused then he is also required to file
Reference forwarding the, accused in custody within the meaning of section 18(g)
read with section 170 of the Code.

16. The sections 169 and 170 of the Code with necessary adaptation and changes
will read as under:-

"169. Release of accused when evidence deficient .---If upon an

investigation under the NAB Ordinance, it appears to the Chairman
 NAB or any officer of the NAB duly authorized and members of any
agency or authority, officer 'or servant of the NAB making the
investigation that there is no sufficient evidence or reasonable ground
or suspicion to justify the forwarding of the accused to Accountability
Court. Chairman NAB or any officer of the NAB duly authorized shall, if
such person is in custody, release him on his executing a bond, with or
without sureties, as such officer may direct to appeal. If and when so
required, before the Accountability Court empowered to take cognizance of
the offence on a Reference and to try the accused or send him for trial.

"170. Case sent to Accountability Court when evidence is sufficient .--- (1) If
upon an investigation under the NAB Ordinance it appears to the Chairman,
NAB or any officer of the NAB duly authorized that there is sufficient evidence
or reasonable ground as aforesaid,. such officer s hall forward the accused
under cus tody to the Accountability Court empowered to take cognizance of
the offence upon the Reference and to try the accused or send him for trial or, if
the offence is bailable and the accused is able to give security, shall take
security from him for his appearance before such Court on a day fixed and for
his attendance from day to day before the Court until otherwise directed.

(2) When the Chairman NAB or any officer of the NAB duly
authorized forwards an accused person to Accountability Court or takes
security for his appearance before such Court under this section, he shall
send to such Court any weapon or other article which it may be necessary
to produce before him, and shall require the complainant (if any) and so
many of the persons w ho a pp ea r to s uc h offi c er to b e a cq ua in te d
w it h th e circumstances of the case as he may think necessary to execute a bond
to appear before the Court as thereby directed and prosecute or give
evidence (as the case may. be) in the matter of the charge against the accused.

(3) Omitted

(4) Repealed by the Code of Criminal Procedure (Amendment) Act (II

of.1926), S.2.

(5) The officer in whose presence the bond is executed shall deliver a copy
thereof to one of the persons who executed it, and shall then send to the
Magistrate the original 'with his report."

17. From the above provisions with necessary changes it is the mandate of the
law that the Chairman NAB or any officer of the NAB duly authorized is required to
forward the accused in custody in a case of non-bailable offence. Thus, the said provision
is mandatory provision. Furthermore, the word "shall" has been used before the
word "forward the accused in custody to the Accountability Court with the
Reference", The' word "shall" clearly demonstrates that the public functionaries
are required to perform their duties in accordance with law hence no
discretion has been given to the Chairman NAB or any officer of the NAB duly
authorized in performance of duties of forwarding the accused in custody to the
Accountability Court along with Reference. If the Chairman NAB or any officer
of the NAB duly authorized releases any accused person within the meaning of
section 1-69 of the Code then such fact is required to be mentioned in the
Reference and if the accused is absconder and the Chairman NAB or any
officer of the NAB duly authorized forms such opinion 'after going through the
material placed before him then such fact is also required to be mentioned in
the Reference. Furthermore, the Chairman NAB or any officer of the NAB duly
authorized may request the Court for trial of absconder within the meaning of
section 31(A) of the Ordinance as the concealing of accused or evading the service,
etc. of non-bailable warrants issued by Chairman NAB is an office.

18. Now it is to be seen whether any of the provisions of section 173 of the Code is
in conflict with any of the provisions of the Ordinance because the provisions of
sections 169, 170 and 173 of the Code are to be read together. Section 173 of the
Code is as, follows:--
 "173 Report of Police Officer .---(1) Every investigation under this Chapter
shall be completed without unnecessary delay, and as soon as it is
completed, the officer in charge of the police station shall, through the Public
Prosecutor.

(a) forward to a Magistrate empowered to take cognizance of the offence

on a police report, a report, in the form prescribed by the Provincial
Government, setting forth the names of the parties, the nature of the
information and the names of the persons who appear to be acquainted with
the circumstances of the case, and stating whether the accused (if arrested) has
been forwarded in custody or has been released on his bond, and if so,
whether with or without sureties; and

(b) communicate, in such manner as may be prescribed by the

Provincial Government, the action taken by him to the person, if any, by whom
the information relating to the commission of the offence was first given;

"Provided that, where investigation is not completed within a period of

fourteen days from the date of recording of the first information report under
section 154, the officer-in-charge of the police station shall, within three
days of the expiration of such period, forward to the Magistrate through
the Public Prosecutor, an interim report in the form prescribed by the
Provincial Government stating therein the result of the investigation
made until then and the Court shall commence the trial on the basis of such
interim report, unless, for reasons to be recorded, the Court decides that
the trial should not so commence."

(2) Where a superior officer of Police has been appointed under section
158, the retort shall in any case in which the Provincial Government by general or
special order so directs, be submitted through that officer, and he may,
pending the orders of the Magistrate, direct the officer-in-charge of the
police station to make further investigation.

(3) Whenever it appears from a report forwarded under this section that the
accused has been released on his bond, the Magistrate shall make such
order for the discharge of such bond or otherwise as he thinks fit.

(4) A copy of any report forwarded under this section shall, on

a p p l i c a t i o n , b e ' f u r n i s h e d t o t h e a c c u s e d b e f o r e t h e commencement
of the inquiry or trial:'

Provided that the same shall be paid for unless the Magistrate for some
special reason thinks fit to, furnish it free of costs.

(5) Where the officer-in-charge of a police station forwards a report under

subsection (1), he shall along with the report produce the witnesses in the
case except the public servants, and the Magistrate shall bind such
witnesses for appearance before him or some other Court on the date fixed for
trial."

19. It will be noted that the heading of section 173, is in conflict with the
provisions of the Ordinance, therefore, the words of heading "Report of Police
Officer" are required to be changed with the words "reference of Chairman
NA B or any officer of the NAB duly authorized". In subsection (1) for the
words "under this Chapter" are required to be substituted with the words "under NAB
Ordinance, 1999" and for the words "without unnecessary delay" are required
to be changed with the words "expeditiously as may be practical and feasible" as
mentioned in section 18(f) of the Ordinance. In subsection (1)(a) for designation
"Magistrate" the words "Accountability Court", for the words "Police report"
"Reference", for the word "Report" "Reference" are required to be substituted.
After the words "the nature of thee information" appearing in subsection (1)(a)
after putting comma (,) the words "the substance of offence or offences as the
case may be" [s ection 24(b) of the O rdinance] are required to be added.
In subsection (1)(b) the words ", in such manner as may be prescribed by the
Provincial Government," are required to be omitted and after the words "action
taken by him" the words "the officer of appropriate Government from where
Reference was received" [section 18(b)(i)] are required to be added.

20. In the proviso to subsection (1) time of 14 days is provided to complete

the investigation but no time is fixed for completing the inquiry or investigation as
clear from section 18(1) of the Ordinance. Previously a time period of 75 days
was liked for such purpose but the provision was amended and the inquiry or
investigation is to be completed expeditiously as may be practical and
feasible. The word "expeditiously" referred to in section 18(f) clearly
demonstrates the intention of the Legislature that inquiry or investigation is
required to be completed in speed within shortest possible time depending
upon the facts and circumstances of each case. The Legislature does not intend
that inquiry or investigation should be kept pending for unlimited period but it is
to be completed within a reasonable period depending upon the facts and
circumstances of each case. The Legislature has specifically expressed its
intention that it should be completed with speed. However, the Legislature
has fixed a period of 90 days for detaining an accused in NAB custody
during the pendency of inquiry or investigation. It appears 90 days' period is a
reasonable period where inquiry or investigation should normally be
completed. Thus, normally inquiry or investigation should be completed
within a period of 90 days. In case the inquiry or investigation is not completed
within 90 days from the date of initiation of proceedings as provided under
section 18(e), then the entire material be placed before the Administrative Judge
or Accountability Court, as the case may be, with interim Reference, who after
examining the same can extend the time for completing the inquiry or
investigation from time to time but such time should not exceed 15 days at a time
and for every, subsequent time the Judge or Court shall record reasons in
writing. Therefore, necessary changes are required to be made in the proviso and
by deleting the words which are not applicable.

21. Subsection (2) of section 173 of the Code is not applicable, therefore, the
same is required to be omitted. In subsection (3) for the words 'report' the word
'Reference' and for the word 'Magistrate' the word 'Accountability Court' are
required to be substituted. In subsection (4) for the word 'report' the word
'Reference' is required to be substituted and the comma (,) and words "on
application," are required to be deleted in view of section 24(b) of the
Ordinance. The proviso to section 4 is not applicable, therefore, it is required
to be deleted. In subsection (5) for the words "officer in charge of a police
station" the words "the Chairman NAB or any officer of the NAB duly authorized";
for the word 'report' whenever appearing, the word "Reference"; for the
word "Magistrate" the words "Administrative Judge or Accountability Court" are
required to be substituted.

22. After necessary adaptation and changes the section 173, Cr.P.C. will read as
under:--

"173 Reference of Chairman NAB or any officer of the NAB duly

authorized .--- (1) Every investigation under NAB Ordinance, 1999 shall be
completed expeditiously as may be practical and feasible, and, as soon as it
is completed, the Chairman NAB or any officer of the NAB duly authorized,
through the Prosecutor' General or DPGA.

(a) forw ard to a A ccountability Court empow ered to take

cognizance of the offence on a Reference, a Reference setting forth the
names of the parties, the nature of the information the substance of offence
or offences as the case may be and the names of the persons who appear
to be acquainted with-the circumstances of the case and stating whether
the accused (if arrested) has been forwarded in custody or has been released on
his bond, and if so, whether with or without sureties, and
 (b) communicate the action taken by him to the officer, of
appropriate Government from where Reference was received or to the
person, if any, by whom the information relating to the commission of the
offence was first given:

P r o v i d e d t h a t , w h e r e i n v e s t i g a t i o n i s n o t c o m p l e t e d expeditiously
or as may be practicable and feasible from the date of forming opinion of
initiation of proceedings as provided under section 18(c), the Chairman
NAB or any officer of the NAB duly authorized forward to the Accountability
Court through the PGA NAB or DPGA NAB an interim Reference
stating therein the result of the investigation made until then and the Court
shall commence the trial on the basis of such interim Reference, unless, for
reasons to be recorded, the Court decides that the trial should not so
commence."

(2) Omitted (not applicable).

(3) Whenever it appears from a Reference forwarded under this section

that the accused has been released on his bond, the Accountability Court
shall make such order for the discharge of such bond or otherwise as it thinks
fit.

(4) A copy of any Reference forwarded under this section shall be

furnished to the accused before the commencement of the inquiry or
trial.

[Proviso omitted].

(5) Where the Chairman NAB or any officer of the NAB duly
authorized forwards a Reference under subsection (1), he shall along with
the Reference produce the witnesses in the case except the public
servants, and the Accountability Court shall bind such witnesses for
appearance before him or some other Court on the date fixed for trial."

23. Thus the Chairman NAB or any officer of the NAB duly authorized is
required to comply with the provisions of sections 169, 170 and 173 of the Code with
necessary changes as mentioned above.

24. It is pointed out that it is the direction of law that the accused should be
forwarded to custody at the time of filing Reference if the Chairman NAB or any
officer of the NAB duly authorized violates such direction then he is exposing
himself to the provisions of section 166, P.P.C. which provides that
disobedience of direction of law is an offence.

25. Furthermore, the scheme of the NAB Ordinance is that the cases should be disposed
of expeditiously within a period of 30 days. By not complying with the above
provisions of law the spirit of law is being frustrated, therefore, in order to
implement the spirit of NAB Ordinance the Chairman NAB or any officer of the
NAB duly authorised should strictly comply with the provisions of sections 169,
170 and 173 of the Code with above mentioned necessary changes read with
sections/other provisions of the Ordinance.

26. Now, we will consider the powers of arrest of Chairman NAB or any officer
of the NAB duly authorized by him during pendency of inquiry or investigation.

27. Before we discuss such powers it is pointed out that the Legislature has
made all the offences under the Ordinance as non- bailable and no Court has
been given powers to release the accused on, bail by invoking any provisions of the
Code or any other law for the time being in force as provided under section 9(b) of the
Ordinance that reads as under:--

"9(b) All offences under this Ordinance shall be non-bailable and

notwithstanding anything contained in sections 426, 491, 497, 498 and
 561'-A or any other provision of the Code, or any other law for the time
being in force no Court shall have jurisdiction to grant bail to any person
accused of any offence under this Ordinance."

28. When any offence is made non-bailable, then the accused is required to be
arrested on fulfilment of certain conditions of law. However, he can be
released from custody under the order of the competent Court. From the above
provisions the Legislature, in clear, unambiguous terms and words, has expressed
its intention that the person or persons involved in the offences of the Ordinance
should be arrested of course on fulfilment of conditions of arrest, and should
remain in custody till final disposal of the case. Further even the Appellate Court's
powers to suspend the sentence under section 426 of the Code have been curtailed rather
snatched so that the convict should remain in jail till final disposal of appeal. The
basic principle of interpretation of statute is that the intention of the. Legislature is
required to be implemented in letter and spirit by the Courts and all authorities.
Nevertheless, the Ordinance i s a s u b - c o n s t i t u t i o n a l s t a t u t e w h i c h c a n n o t
o v e r r i d e t h e Constitution but it is subservient to it, therefore, it cannot curtail
the constitutional powers of Court or any authority. Thus, this Court being j the
constitutional Court in exercise of its constitutional powers under Article 199 of
the Constitution entertains the bail pleas of aggrieved persons

29. Keeping in view the above basic principle and intention of the Legislature we
have examined the relevant provisions of law and found that the Chairman NAB or
any other specified person have been given powers to arrest a person or persons
involved in the offence of the Ordinance. Such powers are available in the
provisions of sections 18, 24 of the Ordinance and 54 of the Code. The relevant
provisions of above sections are as under;--

"Section 18(b), (c), (d) and (e) of the Ordinance

18. Cognizance of offences:

(b) A reference under this Ordinance shall be initiated by the National

Accountability Bureau on---

(i) a reference received from the appropriate Government; or

(ii) receipt of a complaint; or

(iii) its own accord.

(c) Where the Chairman, NAB, or an officer of the NAB duly

authorized by him is of the opinion that it is, or may be, necessary and
appropriate to initiate proceedings against a n y p e r s o n , h e s h a l l
r e f e r t h e m a t t e r f o r i n q u i r y o r investigation.

(d) The responsibility for inquiry into and investigation of an offence

alleged to have been committed under this Ordinance shall rest on the
NAB to the exclusion of any other agency or authority, unless any such
agency or authority is required to do so by the Chairman NAB or by an
Officer of the NAB duly authorized by him.

(e) The Chairman, NAB and such members, officers or servants of the NAB
shall have exercise, for the purposes of an inquiry or investigation the power to
arrest any person, and all the powers of an officer-in-charge of a Police
Station under the Code, and for that purpose may cause the attendance of
any person, and when and if the assistance of any agency, official or agency,
as the case may be, is sought by the NAB such official or agency shall
render such assistance provided that no person shall be arrested without
the permission of the Chairman NAB or any officer of NAB duly authorized
by the Chairman, NAB.

Section 24(a), (b) and (c) of the Ordinance.

 24. Arrest. --- (a) The Chairman NAB shall have the power, at any stage of
the inquiry or investigation under this Ordinance, to direct that the
accused, if not already arrested, shall be arrested.

(b) If the Chairman, NAB or an officer of the NAB duly authorized by him,
decides to refer the case to Court, such reference shall contain the substance
of the offence or offences as the case may be alleged to have been committed by
the accused and a copy of such reference shall be forwarded to the Registrar
of the Court to which the case has been sent to try the accused, and another
copy shall be delivered to the accused.

(c) The provisions of the subsection (a) shall also apply to cases, which have
already been referred to the Court.

Section 54 of the Code.

"54. When police may arrest without warrant .- (1) Any Police Officer
may, without an order from a Magistrate and without a warrant, arrest--

first, any person who has been concerned in any cognizable offence or
against whom a reasonable complaint has been made or credible information
has been received, or a reasonable suspicion exists of his having been so
concerned;

secondly, any person having in his possession without lawful excuse the
burden of proving which excuse shall lie on such person, any implement of
housebreaking;

thirdly, any person,' who has been proclaimed as an offender e i t h e r

u n d e r t h i s C o d e o r b y o r d e r o f t h e P r o v i n c i a l Government;

fourthly, any person in whose possession anything is found which may

reasonably be suspected to be stolen property and who may reasonably
be suspected of having committed an offence with reference to such thing;

fifthly, any person who obstructs a Police Officer while in the execution of
his duty, or who has escaped or attempts escape, from lawful custody;

sixthly, any person reasonably suspected of being a deserter from the

armed forces of Pakistan;

seventhly, any person who has been concerned in, or against whom a
reasonable complaint has been made or credible information has been
received or a reasonable suspicion exists of his having been concerned in,
any act committed at anyplace out of Pakistan, which, if committed in
Pakistan, would 'have been punishable as an offence, and for which he is
under any law relating to extradition or otherwise, liable to be apprehended
or detained in custody in Pakistan;

eighthly, any released convict committing a breach of any rule made under
section 565, subsection (3);

ninthly, any person for whose arrest a requisition has been received
from another Police Officer, provided that the requisition specifies the
person to be arrested and the offence or other cause for which the arrest is to
be made and it appears therefrom that the person might lawfully be
arrested without a warrant by the other officer who issued the requisition.

30. A bare reading of section 18(b), (c), (d) and, (e) of the Ordinance reveals
the scheme of the Ordinance. It provides that after the receipt of information of the
commission of the offence through any source as mentioned in clause (b), the
Chairman NAB or any Officer of the NAB duly authorized by him forms opinion to
initiate proceedings against any person, then he is required and duty bound to refer the
matter for inquiry or investigation. The sole responsibility to conduct such
inquiry or investigation rests upon the NAB authority. However, the Chairman
NAB or any officer of the NAB duly authorized can refer it to any other agency or
authority for doing the needful. In conducting such inquiry or investigation the
Chairman NAB, member of any other agency or authority or officer or servant of
NAB are required and authorized to exercise all the powers of arrest, which are
exercised by an officer-in-charge of a police station under the Code. Under
the provisions of section 54 of the Code any Police Officer can make arrest
without order from Magistrate and without a warrant of arrest. Thus, such officer
of NAB or Authorized Officer can make arrest without the order of
Accountability Court and without warrant of arrest. Nevertheless, except the
Chairman NAB such powers of officers of other agency or authority, or officers or
servants of NAB have been curtailed as they cannot make such arrest without the
permission of the Chairman NAB or any officer of the NAB duly authorized by the
Chairman NAB. It follows that of any officer except Chairman NAB, during the course
of inquiry or investigation, after collecting material forms opinion that the accused
is to be arrested, then such officer shall produce the material before the Chairman
NAB to seek permission to arrest the accused. The Chairman NAB after perusing
the material collected by the inquiry or Investigating Officer forms the opinion
the scope of first clause of section 54 of the Code, he shall grant such
permission so as to implement the intention of the Legislature. If he cannot
form such opinion then he shall defer to grant such permission till sufficient
material is collected. No form of such permission is provided under the Ordinance,
therefore, the Chairman NAB, may grant such permission in any form but it should
be in writing. After receipt of such permission the concerned officer can make arrest.

31. As regards the powers of the Chairman NAB, after receipt of information through
any source as provided under section 18(b), the Chairman NAB, finds sufficient
material in such information, he can arrest the accused person without the orders
of the Accountability Court or warrant of arrest. However, if he finds no
sufficient material, but merely suspects that the person is involved then he can
defer the arrest of such person. Nevertheless, after collecting sufficient material he
shall make arrest within the scope of section 54 of the Code.

32. The Legislature might have visualized that if for any reason, the Investigating
Officer did not approach the Chairman NAB to grant him permission to arrest the
accused, would it mean that the accused should move freely in spite of the fact
that sufficient material was collecting against him justifying his arrest, the
Legislature has taken care of it by giving new and additional power to the
Chairman NAB in the shape of section 24 to get the accused arrested. Under section
24(a) of the Ordinance, if the Chairman NAB finds that during the inquiry or
investigation an accused has not been arrested then he has been given power to
issue direction that the accused shall be arrested. The words `shall be arrested'
clearly demonstrates the intention of Legislature that the accused must be arrested,
of course on fulfilment of the conditions of arrest and if the accused is not already
arrested under the general powers of arrest as provided under section 18(e) of the
Ordinance. However, to issue direction of arrest, the power of the Chairman NAB
appears to be discretionary. How a discretionary power can be exercised. It will be
discussed in the forthcoming part of the order. For exercise of such power, only
condition precedent to it is that the accused is not already arrested. If such
condition is fulfilled then the Chairman NAB is required to issue such direction.
No form of such direction is mentioned in the Ordinance, therefore, such
direction can be issued in any form but it should be in writing to the authority
or person to comply with the direction. This additional power has to be
exercised by the Chairman NAB only.

33. Under clause (b), if the Chairman NAB decides to send the case to the Court for
trial then a copy of the Reference containing substance of the offence or offences
is required to be forwarded to the Court through its Registrar and another copy of
the Reference is required to be handed over to the accused. The word 'deliver'
appearing in the clause has been defined in the American Heritage Dictionary as
"to put into another's possession or power; surrender; and over; to take to the
intended recipient". Thus, for receiving the copy of the Reference from the
Chairman NAB or an officer of the NAB duly authorized by him, the presence of
accused is necessary, if he is present. Reference is to be filed and there is
sufficient material against the accused justifying his arrest, then at this stage also
he shall be arrested. This provision further supports that the accused is required
to be in custody at the time of filing reference, hence he is required to be
forwarded in custody to the Court.

34. Under clause (c), the Chairman NAB can exercise the power of issuing direction
that the accused shall be arrested, if he is not already arrested even after filing the
Reference in appropriate cases.

35. The Honourable Supreme Court of Pakistan in the case of Asfandyar Wali
(supra) has observed in para.257 at page 929 that the power of arrest conferred
under the provisions are part of normal powers conferred upon a Police
Officer under the Code under section 54 thereof.

36. It will be noticed that in section 24(a) the phrase "shall have the power" has been used
which appears to have given power to the

chairman NAB of discretionary nature. The said phrase has been interpreted in the book
"Principles of Statutory Interpretation" by Justice G.P. Singh. The author after relying
upon the decisions by the Supreme Court of India in the cases of Madasslal Fakir Chand
v. S. Changdeo Sugar Mills AIR 1962 SC 1543, Chinnamar Kathiam v. Ayyavoo AIR
1982 SC 137 and Commissioner of Police Godhandas Bhuji AIR 1952 SC 16 interpreted
the words "may"; "it shall be lawful"; "shall have power" and observed as under:--

"Ordinarily, the words "may" and "it shall be lawful" are not words of
compulsion. They are enabling words and they only confer capacity, power or
authority and imply a discretion. They are both used in a statute to indicate that
something may be done which prior to it could not be done. The use of words
"shall have power" also connotes the same idea."

37. It is pointed out- that under the powers of arrest the Chairman NAB can deprive the
liberty of citizens, therefore, it is to be safeguarded jealously and citizen should not be
arrested without fulfilling the conditions mentioned in any clause of section 54 of the
Code. Further, the conditions prescribed for exercise of such powers, including
procedural requirements must be strictly followed. At the same time the discretion does
not mean that the Chairman, NAB should conduct himself in a discriminatory manner but
he should exercise such powers in a uniform manner keeping in view the facts,
circumstances, evidence collected or material placed before him. Thus, he should conduct
himself justly, fairly, equitably, for the advancement of the purposes of the Ordinance in
accordance with law and in conformity of the provisions of section 24-A of General
Clauses Act, 1897. It will be further noticed that the power of arrest, no doubt, apparently,
is a discretionary power with the Chairman NAB but at the same time a duty is cast upon-
him to act in the manner it is intended to achieve the objective of the Ordinance, intention
of the Legislature and to advance the cause of justice.

38. From the plain reading of section 24(a) of the Ordinance and 54 of the Code an
impression would be gathered that the Police Officer or the Chairman NAB is under an
obligation and duty bound to arrest a person if he is involved in a non-bailable offence
subject to the condition that the requirements of section 54 are fulfilled. Nevertheless, if
the Chairman NAB merely suspect of involvement of an accused he can keep it as secret
and if there is no risk of absconding the accused, the Chairman NAB may differ making
the arrest until the investigation is sufficiently completed but if an interference with the
liberty of the accused person is necessary to prevent, him from absconding and the facts
justify arrest, the Chairman NAB shall arrest him. The Police Officer has also such
powers to differ the arrest of a person merely on suspicion but can arrest him if there
is apprehension of his abscondence. Such powers are available to a Police Officer
under Rule 262 Chapter XVI Volume III of Police Rules, 1934. It will be noticed that
arrest can be deferred in the case where the competent authority merely suspect
without any tangible evidence against the accused. But once evidence is collected and
suspicion turns into reasonable ground then the concerned officer is required and duty
bound to arrest the accused as the law put obligation upon him to do so by making the
offence non-bailable.

39. The Honourable Supreme Court of Pakistan in the case of Abu Bakar Siddique v.
Collector of Customs 2006 SCMR 705 while dealing with the discretionary powers of
public functionaries and interpreting the word "may", at page 715, observed as
under:--

"It is fundamental principle that an authority enjoying the discretionary

powers, exercises the same without any guideline but at the same time such
authority must not exercise the discretion in an arbitrary and capricious
manner. It may not be obligatory for the concerned authority to exercise the
discretion in a particular .manner but exercise of such power in an
.unreasonable manner is not proper and in such a case the order passed in
discretionary jurisdiction is not immune from judicial review of the superior
Courts. It is well-settled that word `may' is discretionary and an enabling word
and unless the subject-matter shows that the exercise of power given by the
provision using the word `may' was intended to be imperative for the person to
whom the power is given, it might not put him under an obligation to
necessarily exercise such power but if it is capable of being construed as
referring to statutory duty, it will not be entirely for such person to exercise or
not to exercise the power given to him under the law. The use of word `may' in
the statute in the plain meanings is to give discretion to the public authorities
to act in their option in the manner in which such authorities deem proper but
if the public authorities are authorized to discharge their functions in their
option in a positive sense; the word `may' used in the provision would be
.suggestive of conveying the intention of legislature of imposing an obligation.
The word `may' usually and generally does not mean `must' or `shall' but it is
always capable of meaning `must' if the discretionary power is conferred upon
a public authority with an obligation under the law. The word `may' is not
always used in the statute with the intention and purpose to give uncontrolled
powers to any authority rather oftenly it is used to maintain the status of the
authority on whom the discretionary power is conferred as an obligation and
thus, the legislative expression in the permissive form, sometimes is construed
mandatory. It is, however, only in exceptional circumstances in which a power
is conferred on a person by saying that he may do a certain thing in his
discretion but from the indication of the relevant provisions and the nature of
the duty to be done, it appears that exercise of power is obligatory. This is an
accepted principle of law that in a case in which the statute authorizes a person
for exercise of discretion to advance the cause of justice, the power is not
merely optional but it is the duty of such person to act in the manner it is
intended.

40. In the case of Official Liquidator v. Dharti Dhan AIR 1977 SC 740 at page 745 it
has been observed:---

"If the condition in which the power is to be exercised in particular cases are
also specified by the Statute then, on the fulfilment of these conditions, the
power conferred becomes annexed with a duty to exercise it in that manner. "

41. In the case of Hirday Narain v. I.T. Officer Bareilly. AIR (sic) SC 33 at page 36, it
has been observed:--

"Where a power is deposited with a public officer for the purpose of being
used for the benefit of persons specially pointed out with regard to whom a
definition is supplied by the Legislature of the conditions upon which they are
entitled to call for its exercise, that power ought to be exercised and the Court
will require it to be exercised."

42. In the case of Julius v. Lord Bishop of Oxford 1874-80 All ER Rep. 43 (HL) P.47
Lord Cairns observed as under:--
 "There may be something in the nature of the thing empowered to be done,
something is the object for which it is to be done, .something in the conditions
under which it is to be done, same thing in the title of the person or persons for
whose benefit the power is to be exercised, which may couple the power with
a duty, and make it the duty of the person in whom the power is reposed to
exercise that power when called upon to do so."

43. It follows that when permissive words are employed by the Legislature to confer a
power on a Court or authority to be exercised in the circumstances pointed out by the
statute, it becomes the duty of the Court or authority to exercise that power on proof
of those circumstances. Thus, if the Chairman NAB or any officer of NAB duly
authorized forms opinion on proof of circumstances mentioned in any clause of
section 54 after Code it becomes his duty to arrest the accused.

44. After considering the material available on the record we are of the considered
view that the Chairman NAB is required to forward the accused in custody to the
Accountability Court at the time of filing Reference or if the accused is released under
section 169 of the Code or absconded then such facts should also be mentioned in the
Reference so that the Accountability Court may exercise powers provided under
section 173(3) of the Code as directed by the Honourable Supreme Court of Pakistan
in the case of Habib (supra).

45. The References that have already been filed in which the accused persons have
not been forwarded in custody or shown released or absconded at the time of filing
Reference, the trial Court shall take appropriate steps to procure their attendance as
per law.

46. Copy of the order be sent to Chairman NAB, Administrative Judge Accountability
Court, Karachi and all the Accountability Courts in Sindh for compliance.

H.B.T./W-2/K Order accordingl

2006 P Cr. L J 622

[Lahore]

B efore Syed Shabbar Raza Rizvi, J

TARIQ SADDIQUE KHOKHAR and 5 others----Petitioners

Versus

ADDITIONAL SESSIONS JUDGE, LAHORE and 3 others----Respondents

Writ Petition No.1215 of 2006, decided on 13th February, 2006.

(a) Criminal Procedure Code (V of 1898)---

----Ss. 154, 156 & 157---Police Rules 1934, R.25.2(3)---Constitution of Pakistan

(1973), Art.199---Constitutional petition---Registration of F.I.R.---Accused petitioners
were aggrieved of the order of the Sessions Court whereby the respondent-
complainant was directed to approach the concerned S.H.O. with a written application
regarding his grievance and the S.H.O. was directed to register a case if the contents
of the application disclosed a cognizable offence-Contention was that the said order
was not consistent with law, as the S.H.O. was first required to enter substance of the
complaint in a Register and then to register the F.I.R.---S.H.O. by means of the
impugned order had been directed to register the case if the contents of the application
disclosed a cognizable offence, and the same therefore, was consistent with S.154,
Cr.P.C.---Question whether the information/complaint was correct or incorrect
depended on the investigation subsequent to the registration of the F.I.R.---Section
154, Cr.P.C. being obligatory in nature, S.H.O. has no option but to record the
statement of the complainant in the relevant register, if the same disclosed
commission of a cognizable offence, otherwise he would record a report under 5.155,
Cr.P.C.---S.H.O. was, consequently directed to register an F.I.R., if the information
reported to him by the respondent-complainant disclosed commission of a cognizable
offence and to investigate the same as required under S.156, Cr.P.C. read with
R.25.2(3) of the Police Rules, 1934, or to proceed under S.157, Cr.P.C., as the case
may be---Constitutional petition was disposed of accordingly.

PLD 1999 Lah. 417; PLD 1990 Lah. 428; Sycd Saeed Muhammad Shah v. State 1993
SCMR 550; State v. Zulfigar Ali Bhutto PLD 1978 Lah. 523 and M. Anwar's ease
PLD 1972 Lah. 493 ref.

(b) Criminal Procedure Code (V of 1898)---

----Ss. 154 & 157---Information in cognizable cases and procedure where cognizable
offence is suspected---Registration of a case under S.154, Cr.P.C. and non-
investigation under S.157, Cr.P.C. are two distinct actions---Firstly if a complaint
discloses commission of a cognizable offence, the Police Officer has no discretion,
but in the second situation he has discretion to refuse investigation.

Syed Saeed Muhammad Shah v. State 1993 SCMR 550 ref.

Kh. A. Tariq Rahim for Petitioners.

Malik Muhammad Jamil Awan for Respondents.

ORDER

SYED SHABBAR RAZA RIZVI, J.---The petitioners have filed this petition to call
in question order of the learned Additional Sessions Judge, Lahore, dated 4-2-2006.
The learned Additional Sessions Judge directed S.1-I.O. to register a case if legal
requirements are fulfilled. The main objection is on para.2 of the impugned order,
which is as under:--
"Be that as it may, the petitioner is directed to approach concerned S.H.O. with
written application regarding his grievance and S.H.O. concerned while acting in
accordance with law shall register a case if the contents of the application disclose a
cognizable offence."

2. According to the learned counsel for the petitioners, the above order is neither a
speaking order nor consistent with the law. According to him, S.H.O. is fist required
to enter substance of the complaint in a register and then register F.I.R.; this legal
requirement is missing in the impugned order.

3. The relevant law on the subject is section 154, Cr.P.C. According to the said
section, every information relating to the commission of a cognizable offence whether
given in writing or reduced to writing shall be signed by the person giving it and the
substance thereof shall be entered into a book to be kept by such officer in such form
as the Provincial Government may prescribe in this behalf. Simple reading of section
154, Cr.P.C. requires registration of F.I.R. and substance of the complaint to be
entered into a book known as Daily Diary PLD 1999 Lah. 417. The condition is that
such information must disclose commission of a cognizable offence. Whether the
complaint is false or true, it is not relevant to know that action is taken either under
section 156 or 157, Cr.P.C. The learned Additional Sessions Judge directed S.H.O. in
impugned order that he would register a case if the contents of the application
disclosed a cognizable offence. Therefore, I do not think that the impugned order is
inconsistent with section 154, Cr.P.C.

4. The learned counsel has referred, particularly, PLD 1990 Lah. 428. If this judgment
is read in conjunction with section 154, Cr.P.C. and rule 24. I of the Police Rules,
1934, it becomes clear that every information regarding commission of a cognizable
offence has to be reduced into writing. That means registration of an F.I.R. The
substance of the F.I.R. shall be entered into police station daily diary. Both these two
acts have to be done together. If the information provided or disclosed no commission
of a cognizable offence, the concerned Police Officer would proceed as contemplated
under section 157, Cr.P.C., otherwise he would proceed as envisaged under section
156, Cr.P.C. to be read with rule 25.2(3) of the Police Rules, 1934.

5. According to the Honourable Supreme Court, under section 154, Cr.P.C. it is

mandatorily bounden duty of the Police Officer to register an F.I.R. of a cognizable
offence. Under section 157, Cr.P.C., he has to send his report to the Magistrate if he
does not want to investigate a ease for reason of insufficient grounds. This decision of
the Honourable Supreme Court clearly requires registration of a case if commission of
a cognizable offence is reported. The S.H.O./Investigating Officer has discretion to
decline investigation under section 157, Cr.P.C. if he considers that there is no
evidence or ground to initiate the investigation. Therefore, registration of a case under
section 154, Cr.P.C. and non-investigation under section 157, Cr.P.C. are two distinct
actions. In the first, if a complaint discloses commission of a cognizable offence, the c
Police Officer has no discretion but in the second situation, he has discretion to refuse
investigation (Syed Saeed Muhammad Shah v. State 1993 SCMR 550). A Full Bench
of this Court also held that section 154, Cr.P.C. leaves no doubt that it is incumbent
upon the officer incharge of the police station to record the first information report
State v. Zulfigar Ali Bhutto PLD 1978 Lah. 523. His Lordship Mr. Justice Mian Allah
Nawaz, after reviewing the previous case-law on the subject produced a
comprehensive judgment on the subject. Referring to M. Anwar's case PLD 1972 Lah.
493, his Lordship held that correct or true implementation is not necessary to record
the F.I.R. This question, whether the information/complaint is correct or incorrect,
depends on the investigation subsequent to registration of the F.I.R. His Lordship
further observed that section 154, Cr.P.C. is obligatory in nature and S.H.O. has no
option but to record the statement of the complainant in the relevant register, if it
discloses commission of cognizable offence. If he finds that the occurrence reported,
does not disclose any cognizable offence, he will record a report under section 155,
Cr.P.C. The omission to do so is liable to penal as well as disciplinary action under the
relevant law and rules.

6. It may be pointed out that a register in which F.I.R. is recorded is known as the
First Information Report Register. A register in which substance of the first
information report is to be entered is known as the Station Diary (Roznamcha). For
further details, rule 22.45 of the Police Rules, 1934 is referred to. How to enter a
complaint in the first Information Register, Rules 24.1 and 24.5 of the Police Rules,
1934 are referred to.

7. In view of the above discussion, the S.H.O. is directed to register an F.I.R., if the
information reported to him by the respondent No.2, disclosed commission of a
cognizable offence. The S.H.O./ Investigating Officer is further directed to investigate
the same as I required under section 156, Cr.P.C. to be read with rule 25.2(3) of the
Police Rules, 1934, or proceed under section 157, Cr.P.C. as the case may be. With the
above observations, this writ petition is, disposed of.

N.H.Q./T-5/L Order accordingly.

2006 M L D 1349

[Lahore]

B ef ore Fazal-e-Miran Chaulian, J

NIZAM-UD-DIN---Petitioner

Versus

DISTRICT COORDINATION OFFICER, MUZAFFARGARH and 4 others---

Respondents

Writ Petition No.663 of 2006, decided on 21st April, 2006.

Criminal Procedure Code (V of 1898)---

----Ss. 190, 154, 155, 156 & 157---Constitution of Pakistan (1973), Art.199---
Constitutional petition---Registration of criminal case---Petitioner had sought direction
for District Police Officer concerned to proceed against the S.H.O. and to get registered a
case against the accused---Criminal Procedure Code, 1898 had divided offences into two
classes; cognizable and non-cognizable and in the category of cognizable cases, all those
offences for which a police officer could arrest without warrant; while in category of non-
cognizable cases, Police Officer was not competent to arrest without warrant---Nature of
class of offences was to be determined in accordance with the provision made in Second
Schedule appended to Criminal Procedure Code, 1898---In order to be a cognizable case,
it was enough if one or more of offences were cognizable---In order to set criminal law in
motion, two modes had been provided in Criminal Procedure Code, 1898; one by way of
lodging or report under S.154, Cr.P.C. with Police in respect of commission of a
cognizable offence and the other by filing of private complaint before Magistrate as
provided by S.190, Cr.P.C.---Section 154, Cr.P.C. provided that substances of every
information relating to the commission of a cognizable offence, if given to an officer
Incharge of Police Station, would be entered in a book, to be kept for such purpose; so far
as non-cognizable offence was concerned S.155, Cr.P.C. provided that substance of such
information, would be recorded in the book and informant be referred to Illaqa
Magistrate---Chapter XIV, Part V, Cr.P.C., provided that Police Officer under S.154,
Cr.P.C. was under a statutory obligation to enter/record information relating to cognizable
offence in the prescribed register---It was not his sweet will to record or not to record it---
Police Officer failing to register such case, would render himself, liable to be dealt with
by his superiors for negligence of duty---Provisions of 5.154, Cr.P.C., were mandatory as
it had left no scope for exercise of any discretion by the police officer concerned in
recording F.I.R. or in refusing to record same---Allowing constitutional petition S.H.O.
concerned was directed by the High Court to record information under S.154, Cr.P.C. and
thereafter to proceed in accordance with law.

Sreedhara Marar Raman Pillay and others v. State of Kerala AIR 1965 Kerala 196;
Nandamuri Anandayya's case SC 25 Ind. Cas. 630 (SC); Jagdami Pershad Singh v.
Mahadeo Kandoo and others SC 5 Ind. Cas. 693; Lord Chancellor (Viscount Simon),
Lords Porter, Simonds and Gaddard and Sir Madhavban Nair Emperor v. Khawaja Nazir
Ahmad AIR 1945 PC 18; State of Uttar Pradesh v. Vhagwant Kishore Joshi AIR 1964 SC
221; Faiz Muhammad v. The State PLD 1979 Kar. 513; M. Bashir Saigol and another v.
The State and another PLD 1964 Lah. 148; Ghulam Muhammad alias Gaman v. The State
PLD 1981 FSC 121; Islamuddin v. P.O. Sindh and others 1995 MLD 372 Karachi DB;
Mst. Shehnaz v. S.H.O., Sariab, Police Station, Quetta and 2 others 2003 YLR 1941
(Quetta) and Muhammad Hafez v. Special Judge, Anti-Terrorism Court, Mirpurkhas and
2 others (2001 PCr.LJ 199 (Karachi) ref.

Rana Muhammad Arshad Khan for Petitioner.

Muhammad Qasim Khan, Assistant Advocate-General for Respondents Nos. l to 4.

Ch. Muhammad Anwar-ul-Haq for Respondent No.5.

ORDER

FAZAL-E-MIRAN CHAUHAN, J.---By filing writ petition the petitioner has sought a
direction in the name of District Police Officer, Muzaffargarh (respondent No.2) to
proceed against the concerned S.H.O. and to get registered a case against the accused
persons.

2. It is argued by learned counsel for the petitioner that the petitioner, who is a Town
Planner and had carried out a number of schemes in different areas and works in the
name and style of Pak Scheme Enterprise Private Limited, Multan. In order to establish a
Town, the petitioner approached Haji Abdul Karim (respondent No.5), who was owner of
land measuring 240 Kanals, situated in Chowk Sarwar Shaheed, Muzaffargarh and the
petitioner struck a bargain of the aforesaid land for a consideration of Rs.82,00,000. The
payment was made in presence of Muhammad Jaffar and Roshan Din. When the payment
of an amount of Rs.62,00,000 was made over to him in different mode iii a short span,
possession of the aforesaid land was handed over to the petitioner by respondent No.5.
After taking the possession, a project in the name of Karim Town was launched. .The
petitioner got prepared map of a Town. The land was developed spending an amount of
Rs.20,00,000, thereafter the petitioner started selling the residential plots to the different
people. Haji Abdul Karim, owner of the land, having cone to know about the progress in
the business of the petitioner, prepared a plan in connivance with employees of the
petitioner and in the absence of the petitioner, when he was leaving with ailing health and
had become bed-ridden, respondent No.5 and the employees of the petitioner started
selling the plots. The employees of the petitioner in connivance with respondent No.5
took away all the articles of the office and forcibly took possession of the residential
plots. Respondent No.5 started exploiting of the petitioner and started demanding huge
amount over the above price, agreed with the petitioner or demanded that half and a half
share of the project, which the petitioner would earn in the business. On refusal of the
petitioner, he denied the agreement and also refused to return the stolen articles and
restored the possession of the land illegally taken over by him.

3. On refusal of respondent No.5, the petitioner was left with no other option but to
approach the District Coordination Officer, Muzafargarh (respondent No.1) through an
application for registration of case, who marked the same to the District Police Officer,
Muzaffargarh (respondent No.2) to register an F.I.R. against respondent No.5.
Respondent No.2 marked the application to the Deputy Superintendent of Police, Circle
Kot Addu, District Muzaffargarh (respondent No.3) for necessary action, who neither
looked into the matter nor taken any action on the same.

4. It is argued that under section 154, Cr.P.C., when commission of a cognizable offence
is reported to the S.M.O. concerned, he is bound to register the F.I.R. and thereafter
inquire into the matter. The concerned police officer cannot proceed with the case without
recording an F.I.R. As per section 154, Cr.P.C., when an information of a cognizable
offence is conveyed to the Officer concerned, he shall reduce the same into writing and
read over to the complainant, got it signed by him and the substance of the same shall be
entered into a book to be kept by him. This section lays down the procedure for
registration of case on information of a cognizable offence, and for its registration, the
mandatory direction shall be kept in mind. He is not supposed to delay the matter.
Thereafter, under section 157, Cr.P.C. he is required to send the copy of the same to the
Magistrate empowered to take cognizance and if he feels that he is empowered to
investigate the case under section 156, Cr.P.C., he shall proceed with the investigation.
Further argues that under section 155, Cr.P.C., he is required to look as to whether the
offence, so reported to him, is cognizable or non-cognizable. If offence is non-
cognizable, he shall enter in a book to be kept into Police Station and report the matter to
a Magistrate seeking permission to investigate the cases. Argues that under section 156,
Cr.P.C., Investigating Officer Incharge of Police Station may without the order of a
Magistrate, investigate any cognizable case, which the Court having jurisdiction. Section
157, Cr.P.C. lays down the Procedure, where cognizable offence suspected. Also argues
that after rule 24 of Police Rules, 1934, Police Officer on receiving the information
whether cognizable or non-cognizable, shall record the same. Section 154, Cr.P.C. has
been reproduced in sub-rule(3) of Rule 24, meaning thereby while framing Police Rules
1934, the spirit of section 154, Cr.P.C. was kept in mind and rules framer were conscious
of the duty of Police Officer fixed by the Act of L898 (Criminal Procedure Code). Further
argues that column (2) of sub-rule 4 of Rule 24 casts a duty upon the Police Officer that
he shall record his reasons for suspection that such offence has not been committed. It is a
clear discretion of the S.H.O. to inquire into the case and give reasons. Further argues that
on receipt of station diary, if the superior Officer agrees with the report, files the same, if
he differs with the opinion and may on receipt of station diary, shall pass an order for
investigation of the case. Section 157, Cr.P.C. cannot be substituted and is mandatory as
the word "shall" is used. Finally argues that the S.H.O., being the Incharge of the Police
Station, is duty bound to record the statement of the informer. The word "information" is
defined in section 154, Cr.P.C. (relied upon Sreedhara Marar Raman Pillay and other v.
State of Kerala (AIR 1965 Kerala 196)). The phrase "information received" used in
section 157, Cr.P.C. refers to information furnished in section 154, Cr.P.C. Reliance has
been placed on Nandaniuri Anandayya's case (SC 25 Ind. Cas. 630 (SC) and Jagdami
Pershad Singh v. Mahadeo Kandoo and others (SC 5 Ind. Cas. 693). Rule 24.4 ibid, deals
with powers of investigation and not with recording of F.I.R., given by a complainant.
Rules 24.1 and 24.4. do not vest Police Officer with powers to refuse to record the F.I.R.
under section 154, Cr.P.C. In section 154, Cr.P.C. and Rule 24.1, the use of the word
"shall" makes it incumbent upon the Police Officer to record the F.I.R. on the information
of a cognizable offence.

5. Conversely, Ch. Muhammad Anwar ul Haq, Advocate for the respondent No.5 argues
that there is no cavil to the proposition that on information of the commission of
cognizable offence, Police Officer concerned is duty bound to reduce the same into
writing and then proceed as provided under section 154, Cr.P.C. Section 157, Cr.P.C. is
independent power of the Police Officer and in such a case, registration of F.I.R. is not
necessary. He shall record a report under section 157, Cr.P.C. and copy of the same would
be sent to the Illaga Magistrate, having the jurisdiction. Receipt of information is not a
condition precedent in section 157, Cr.P.C., which refers to Lord Chancellor (Viscount
Simon), Lords Porter, Simonds and Gaddard and Sir Madhavban Nair Emperor v.
Khawaja Nazir Ahniad (AIR 1945 PC 18) and State of Uttar Pradesh v. Vhagwant
Kishore Joshi (AIR 1964 SC 221). Further argues that the step taken by him under
section 157, Cr.P.C., recording of F.I.R. is not condition precedent and for investigation
under section 157 Cr.P.C., recording of F.I.R. is not necessary. Reliance is placed on Faiz
Muhammad v. The State (PLD 1979 Karachi 513), M. Bashir Saigol and another v. The
State and another (PLD 1964 Lahore 148) and Ghulam Muhammad alias Gaman v. The
State (PLD 1981 FSC 121). Except when section 157, Cr.P.C. is invoked, investigation is
to he followed and not to proceed the registration of F.I.R. pursuant to section 154,
Cr.P.C. Relied upon Islamuddin v. P.O. Sindh and others (1995 MLD 372 Karachi (DB)).
Also argues that the information in section 155, Cr.P.C. is totally different than the
information in section 157, Cr.P.C. It is only when information of a cognizable offence is
given, F.I.R., shall be recorded in section 154, Cr.P.C. and the investigation under
sections 156 and 157 Cr.P.C. shall be conducted, when the offence is non-cognizable,
information is to be recorded in a diary kept at the Police Station and conducting of
investigation is not must without permission of the Magistrate. The writ petitioner and the
respondents are bound by the compromise effected between them before the Civil Court.
It is purely a civil dispute. No criminal act or offence has been cornrnitted. Further argues
that the petitioner can proceed under section 51 of Specific Relief Act and ask for
restoration of its possession. The writ petition is not maintainable and the petitioner has
an adequate alternate remedy of filing a private complaint under the law.

6. The learned A.A.-G. argues that it was necessary to the S.H.O. respondent No.4 to first
record information and then proceed under section 157, Cr.P.C. Reliance has been placed
on Mst. Shelmaz v. S.H.O., Sariab, Police Station, Quetta and 2 others (2003 YLR 1941
(Quetta) and Muhammad Hafeez v. Special Judge, Anti-Terrorism Court, Mirpurkhas and
2 others (2001 PCr.LJ 199 (Karachi)). When there are cognizable and non-cognizable
offence, then the whole matter would be tried as non-cognizable offence and the F.I.R.
must be recorded on the information received.

7. I have heard the learned counsel for the parties, perused the relevant documents placed
on record and the report and parawise comments submitted by the S.H.O.-respondent
No.4. The Code has divided the offences into two classes, cognizable and non-
cognizable. In the first category all those offences for which a police officer, may arrest
without warrant and in the latter case, he was not competent to arrest without warrant.
The nature of class of offences is to be determined in accordance with the provision made
in the second schedule appended with the Code. In order to be a cognizable case, it is
enough that if one or more of the offences are cognizable.

8. In order to set the criminal law in motion, two modes have been provided in Criminal
Procedure Code; one by way of lodging of report under section 154, Cr.P.C. with the
Police in respect of commission of a cognizable offence and the other by filing of a
private complaint before a Magistrate as provided by section 190 of the said Code.

9. Section 154, Cr.P.C. provides that substance of every information relating to the
commission of a cognizable offence, if given to an Officer Incharge of the Police Station,
shall be entered in a book, to be kept for such purposes in such terms as the Provincial
Government may prescribe the information.

So far as non-cognizable offence is concerned, section 155, Cr.P.C. provided that

substance of such information, shall be recorded in the book and informant be referred to
the Illaqa. Magistrate.

10. After recording information under section 154, Cr.P.C. by the Police Officer Incharge
Investigation, the matter under sections 156 and 157, Cr.P.C. lay down the procedure,
where cognizable offence is suspected. If he under proviso (b) to subsection (1) of section
157, Cr.P.C. and subsection (2) to section 157, Cr.P.C., is of the view that there is no
sufficient ground to investigate, he after recording reasons to that effect in the report, can
decline to investigate the case, but it is mandatory for him to notify the information to the
fact that he will not investigate the case or the same will not be investigated. Form the
perusal of the scheme provided in Chapter XIV, Part V, under section 154, Cr.P.C., a
Police Officer is under a statutory obligation to C enter/record the information, relating to
cognizable offence in the prescribe register. It is not his sweet will to record or not to
record it. The question whether information is correct, depends on the investigation,
which the Police Officer is required to conduct under section 157, Cr.P.C. The guarantee
of the correctness of the information/F.I.R., is ensured by section 182 Cr.P.C. if the report
given under section 154 Cr.P.C. was incorrect, the informant shall be liable to
punishment. The Police Officer cannot refuse to register a case where a cognizable
offence is made out. The Police Officer failing to register such 'ease, renders himself,
liable to be dealt with by his superior for negligence of duty. The only requirement of law
is that the F.I.R. shall contain information so as to commission of cognizable offence.
Section 154, Cr.P.C. deals with the recording of the information of cognizable cases and
that every information relating to the commission of a cognizable offence, is given to the
Incharge Police Station, who shall reduce the same into writing and its substance shall be
entered in the book kept in the Police Station.

11. Provisions of section 154, Cr.P.C. is mandatory as it leaves no scope for exercise of
any discretion by the Police Officer concerned in recording the first information report or
in refusing to record the same.

12. The procedure to be adopted by the Police Officer where he suspects commission of
any cognizable offence is provided in section 157, Cr.P.C. These provisions have to be
read along with provisions of section 156, Cr.P.C. which authorizes the Officer Incharge
of a Police Station to investigate without order of a Magistrate any cognizable offence,
where a Court having jurisdiction over the local area within the provisions of Chapter XV
Cr.P.C. relating to the place of inquiry or trial. Section 157, Cr.P.C. provides that if, from
information received or otherwise, an Officer Incharge of a Police Station has reasons to
suspect the commission of an offence which he is empowered under section 156, Cr.P.C.
to investigate, he shall forthwith send a report of the same to a Magistrate empowered to
take cognizable of such offence upon a police report, and shall proceed in person or shall
depute one of his subordinate officers not being below such rank as the Provincial
Government, may, by general or special order, prescribe in this behalf to proceed, to the
spot, to investigate the facts and circumstances of the case, and, if necessary, to take
measures for the discovery and arrest of the offender. This provision is subject to two
provisos. The first proviso authorizes the Officer Incharge not to proceed in person or
depute a subordinate officer to make an investigation on the spot when the information as
to the commission of any offence is given against any person by name and the same is not
of serious nature. The second proviso authorizes him not to investigate the case if there is
no sufficient ground for entering on an investigation.

13. Provisions of sections 154, Cr.P.C. and 147, Cr.P.C. are different in scope. The section
which is applicable to a case where the First Information Report is given by some other
person and the action is not taken suo mote by the Officer Incharge of a police station,
would be section 154, Cr.P.C. which makes it incumbent upon such officer to reduce in
writing the information given or get it so reduce and then to enter it in the book kept for
this purpose.

14. Again rule 24.4 deals with the powers of investigation and not with the recording of
the First Information Report given by a complainant. In this view of the matter, it cannot
be said that these rules vest the police station officer concerned with any power to refuse
to record the F.I.R. of a cognizable offence as required by section 154, Cr.P.C. The
section as well as, rule 24.1 uses the word "shall" to make it incumbent upon the police
officer to record the F.I.R. Learned counsel for the petitioner tried to make distinction that
under section 157, Cr.P.C., the police officer can refuse to record the F.I.R. and enter the
same in the report, if according to him no offence is made out.

15. Sections 154 and 157, Cr.P.C. deal with different contingencies. The former section
provides for the recording of the F.I.R. at the instance of a complainant while section 157
deals with the procedure for investigation of any cognizable offence. The latter provisions
leaves it to the judgment of the relevant police officer to refuse to investigate in certain
cases, where for example, there is no sufficient ground for entering on an investigation.
But this power should not be confused with his responsibility to record the First
Information Report. He has no choice in the recording of the First Information Report
though he has a discretion in the making of investigation or refusing to make it on the
grounds given in section 157, Cr.P.C.

16. For what has been discussed above, this writ petition is allowed and the S.H.O.,
Police Station Sarwar Shaheed, Muzaffargarh (respondent No. 4) is directed to record the
information under U section 154, Cr.P.C. and thereafter to proceed in accordance with
law.

H.B.T./N-52/L Petition allowed.

2006 P Cr. L J 1377

[Karachi]

B efore Muhammad Afzal Soomro, J

NIAZ HUSSAIN----Petitioner

Versus

STATION HOUSE OFFICER, POLICE STATION MIR WAH and 4 others----

Respondents

Civil Petition No.815 of 2002, decided on 21st October, 2002.

Criminal Procedure Code (V of 1898)---

----S. 154---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10,

11, 15 & 16---Constitution of Pakistan (1973), Art.199---Constitutional petition---
Registration of F.I.R.---Scope---Petitioner moved application for registration of F.I.R.
against proposed accused, but S.H.O. concerned did not take any action in the matter---
Petitioner remained running from pillar to post for the purpose of registration. Of case,
but same was not entered into book under S.154, Cr.P.C.---Being embarrassed with the
situation and having no alternate and adequate remedy available to petitioner, he had to
file constitutional petition before High Court in that respect---Validity---Once an
information regarding commission of a cognizable offence was given to police officer of
a Police Station, he was bound to reduce the same in writing and substance thereof had to
be entered into a book to be kept by such officer in such a form as Provincial Government
would prescribe in that behalf---Reducing the information in writing at the instance of
informant regarding a cognizable offence was imperative in law about which there was
no cavil---Registration of a case involving cognizable offence was not the end of the
matter, but Police Officer was to investigate information given to him---If such Police
Officer would find grounds concerning accused against whom information was given,
liable to be proceeded against, it was only then that he would be called upon to explain
the situation and upon failure to do so, would take him in custody and proceed further---
No right of accused would stand tampered with at the time of registration of the case and
mere such registration, would not cause stigma; it was only after conviction that
stigmatization would commence---If information was found false, those who had been
put to baseless inquiry i.e., proposed accused, could invoke provisions of S.182, P.P.C. or
bring an action in law for damages---Petitioner having been able to make out a case for
registration of F.I.R. against proposed accused, he was directed to appear at Police Station
concerned and S.H.O. concerned was further directed to register F.I.R. of petitioner under
Ss.10, 11, 15 & 16 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and
relevant sections of P.P.C.

M. Anwar, Barrister-at-Law v. The Station House Officer, Civil Lines Police

Station, Lahore and others PLD 1972 Lah. 493; Syed Muhammad Ali Shah Bukhari v.
Chief Administrator of Auqaf, Punjab, Lahore and others PLD 1972 Lah. 416; Khushi
Muhammad v. Commissioner, Multan Division PLD 1965 Lah. 250 and Abul Ala
Maudoodi v. Government of West Pakistan PLD 1964 SC 637 ref.

Wali Dino Narejo for Petitioner.

Sher Muhammad Shar, A.A.-G. for the State.

Imdad Ali Awan for the proposed accused.

ORDER

MUHAMMAD AFZAL SOOMRO, J.--- By this petition, petitioner Niaz Hussain

Khaskheli approached this Court for registration of F.I.R. against the proposed accused
mentioned in para. No.6 of the petition.
 2. The crux of the petition is that the petitioner is a law abiding and respectable
citizen of Pakistan. He used to live in village Setharja, Taluka Mir Wah, District Khairpur.
It has been alleged that on 24-12-2001 the petitioner's Nikah was performed with his
cousin Mst. Ghulam Zohra daughter of Muhammad Saleh Khaskheli resident of Setharja,
with the consent of her parents according to Muhammadan Law and the same was
registered with Union Council, Setharja on the same day, a copy whereof has been
produced before this Court as Annexure "A". It is further alleged that petitioner's wife
Mst. Ghulam Zuhra is primary school teacher in Government Girls School, Setharja and
she used to perform her duty there. On 30-4-2002 she left for duty and did not return
from duty for about four days. Thereafter the petitioner searched for her and narrated the
facts to his Nekmard namely Allah Wadhayo Khaskheli and others about the missing of
his wife. When she returned back to his house on inquiry she told that she has gone to
meet her relatives. Again on 18-9-2002 she went to her duty and did not turn back and the
petitioner searched her continuously. On 26-9-2002 when the petitioner's father and
maternal-uncle were called at Police Station, Mir Wah where they handed over copy of
the Petition No.793 of 2002 filed by Mst. Ghulam Zuhra against Police Officers
regarding harassment. After going through the said petition, he come to know that his
wife after developing illicit terms with Mureed Hussain son of Ghulam Hyder Leghari
has performed her Nikah with him over the Nikah. He further alleged that proposed
accused Mst. Ghulam Zuhra has committed Zina with the proposed accused namely
Mureed Hussain with the conspiracy/collusion of other co-accused Abdul Ghafoor son of
Budhal, Loung son of Usman, Muhammad Chuttal son of Muhammad Murad, Mazhar
Hussain Chano son of Kouro Khan and Moulana Shabir Ahmed son of Nazir Khan being
witnesses, Vakeel and Nikah Khawan as they knowingly performed the Nikah of
proposed accused Mst. Ghulam Zuhra with Mureed Hussain, therefore, they are liable to
be prosecuted under sections 11/16 of Offence of Zina (Enforcement of Hudood)
Ordinance, 1979. The petitioner has further stated that he moved an application to T.P.O.
Mir Wah for registration of F.I.R. and taking action against the proposed accused, who
forwarded the same to S.H.O. concerned on 27-9-2002, but the S.H.O. did not take any
action in the matter. Photostat copy of ,the same had been produced along with this
petition. Thereafter he approached the District Police Officer, Khairpur and narrated him
about the incident and requested him to take action in the matter according to law, but no
useful purpose could be served.

3. Being embarrassed with the situation and having no other alternate and
adequate remedy available to the petitioner and being constrained with the situation he
had prayed for his relief as under:

(a) To direct the respondent No.1 to lodge the F.I.R. against the proposed accused
mentioned in para.6 of the petition as they have committed offence under sections
10/11/16/15 of Offence of Zina Hudood Ordinance and Pakistan Penal Code
sections.

(b) To grant any other relief which this Honourable Court deems fit and proper.

(c) To award cost of the case.

4. On 7-10-2002 notice was directed to the respondents which returned served and
in response thereto S.H.O. Police Station, Thari Mir Wah appeared before this Court.
Learned A.A.-G. had filed statements of D.P.O. Khairpur and S.H.O. The same were
taken on record. Firstly the statement of S.H.O. reads as under:---

"I, Imdad Hussain Malah, S.I.P./S.H.O. Police Station, Thari Mir Wah beg to
submit that the order of this Honourable Court No.5916, dated 9-10-2002
petitioner named above filed petition in this Honourable Court, petitioner never
approached before undersigned respondent and not any application brought at
police station for registration of F.I.R. the allegation in this petition at para. No.7
is false if the petitioner came at police station his F.I.R. will be registered
according to law and if cognizable offence is made out, the same will be
registered.

Further petitioner in the para.7 of the petition made that on 27-9-2002 forwarded
the application from T.P.O. and appeared before S.H.O., respondent No.1 in this I
 taken over the charge on 28-9-2002, on the same date petitioner not appeared. All
the allegations are false and fabricated.

It is submitted that in this connection, the report was called from S.H.O. Police
Station Mir Wah. Now he has submitted his report that the petitioner has never
appeared at Police Station Mir Wah for lodging his F.I.R., as and when he will
appear his statement will be recorded and if cognizable offence is made out, his
F.I.R. will be registered as per law.

The petitioner has not appeared before the undersigned. The report of S.H.O.
Police Station Mir Wah is comprehensive, hence I agree with it."

5. In support of the petition, learned counsel for the petitioner has . filed affidavits
of father, brother, uncle and maternal-uncle of Mst. Ghulam Zuhra in which they have
admitted that according to Muhammadan Law the Nikah was solemnized with the
petitioner Niaz Hussain on 21-12-2001 with her consent and the same was registered on
24-12-2001. Thereafter on 30-4-2002 she left 'for duty and returned back after four days
and again on 18-9-2002 she left for duty and did not return back, subsequently they came
to know that she developed illicit terms with her paramour Mureed Hussain Leghari and
they are now committing Zina with each other after managing false Nikahnama.

6. Mr. Imdad Ali Awan, learned counsel for the proposed accused has filed written
reply to the petition and denied the contents of main petition and its supporting affidavits,
as the same are wrong, false, fabricated, misconceived, concocted, beyond the real facts
and based on mala fide on the part of the petitioner. He has contended that the petition for
registration of F.I.R. is not maintainable in law, as the petitioner has the alternate remedy
available under the law. He has further contended that previously she was married with
late Ghulam Mureed about 14 years back and from the said wedlock she has got three
sons and one daughter and her husband expired about 15 months ago and after his death
some relatives namely Manzoor Hussain, Wazir and Niaz Hussain had snatched her kids,
which made her life miserable and she being a widow, was feeling unsecured and finding
no other way except to remarry with Mureed Hussain, as Mureed Hussain had close
cordial connection with her family, therefore, with the consent of her father and brother
after swearing free-will affidavit before the learned Judicial Magistrate No.3, Hyderabad
on 2-5-2002 she solemnized Nikah with Mureed Hussain son of Ghulam Hyder Leghari.
He has further contended that she filed a constitution petition in respect of harassment
before this Court as the petitioner as well as his relatives named above were not happy
with her marriage and they were threatening her for dire consequences with the help of
local police, the same petition was disposed of after filing the statement of concerned
S.H.O. a copy whereof have been produced before this Court as Annexures "F" and "F-
1". Learned counsel has further urged that after disposal of that petition, she had filed
family suit for jactitation of marriage before the learned Family Judge, Mir Wah.
Photostat copy of the same has been produced before this Court as Annexure "F-2". It has
been contended by the learned counsel that the petitioner has to face the family suit till
the decision and no action is warranted against her under the law and the statements filed
by respondents Nos.l and 2 are self-contradictory with the previous statements. Lastly he
has contended that this petition merits no consideration and is liable to be dismissed with
special costs.

6-A. I have considered the arguments of the respective parties and perused the
record. The learned A.A.-G. has supported the arguments of learned counsel for the
petitioner. I, however, regret and cannot see eye to eye to the plea raised by the
respondent No.1 also the plea taken by learned counsel for the proposed accused.

7. Registration of case is dealt with in section 154 of Criminal Procedure Code

which for the facility of reference is reproduced as under: --

"Every information relating to the commission of a cognizable offence if given

orally to an officer incharge of police station, shall be reduced to writing by him
or under his direction and be read over to the informant; and every such
information, whether given in writing or reduced to writing as aforesaid, shall be
signed by the person giving it, and the substance thereof shall be entered in a book
 to be kept by such officer in such form as the Provincial Government may
prescribe in this behalf."

8. Bare reading of the aforesaid provision of law makes it abundantly clear that
once an information regarding commission of a cognizable offence is given to a Police
Officer of police station, he is bound to reduce the same in writing and substance thereof
has to be entered into a book to be kept by such officer in such form as the Provincial
Government may prescribe in this behalf. Reducing the information in writing at the
instance of informant regarding a cognizable offence is an imperative of law about which
there is no cavil. Reliance is placed on M. Anwar, Barrister-at-Law v. The Station House
Officer, Civil Lines Police Station, Lahore and others PLD 1972 Lah. 493. This judgment
streamlined the law relating to the First Information Report under section 154 of the Code
of Criminal Procedure and I can with advantage reproduce the relevant portion of the
judgment as under:--

"If there is an information relating to the commission of a cognizable offence, it

falls under section 154 of the Code of Criminal Procedure, and a Police Officer is
under a statutory obligation to enter it in the prescribed register. The condition
precedent is simply two-fold; firstly, it must be an information and secondly, it
must relate to a cognizable offence on the face of it and not merely in the light of
subsequent events. A Police Officer is bound to receive the complaint when it is
preferred to him or where Ole commission of an offence is reported to him orally,
he is bound to take down the complaint. If he does not incorporate in the register a
complaint so made he fails to perform a statutory duty as a public servant and,
therefore, renders himself to be dealt by his superior Officer for neglect of duty.
Thus, it does not depend on the sweet will of a Police Officer who may or may
not record it."

9. Refusal of the S.H.O. or any other Police Officer acting under his direction can
either be brought to the higher echelons or can be agitated through the instrument of writ.
In the instant case there is an averment in the petition that the petitioner was running from
pillar to post i.e. the petitioner has approached the concerned S.H.U. Mir Wah Police
Station on 27-9-2002 for the purpose of registration of F.I.R. which was not entered into a
book under section 154, Cr.P.C. and thereafter he approached to the District Police
Officer, Khairpur for legal action, but none of them paid any heed to the request of the
petitioner for the registration of F.I.R. Resultantly the lapse in law was brought to the
notice of this Court. The question for consideration is that whether hearing of the
proposed accused was essential under the law or according to the principle of equity and
natural justice. Writ petition filed for seeking order from this Court for registration of
case is to remind the Station House Officer of his obligation under the law, which he has
failed to perform. Would it be essential at the interim stage to call the proposed accused
and also give them hearing before issuing a direction to the Station House Officer for
registration of the case? I am of the considered view that the answer to the question is in
negative. Taking the question from another view, is so essential that when the Station
House Officer is prepared to do his duty under section 154, Cr.P.C. is he bound by any
opinion of law to first provide an opportunity to the accused and thereafter, if he is
satisfied that they have no cause to offer, only then he has to register a case? It is a well-
settled law by now that the moment, the Station House Officer receives an information of
a cognizable offence he shall reduce it in writing and shall proceed in accordance with
law. If providing of an opportunity to the accused to be heard is not necessary under the
law at the time of registration of case, would the position change if a recalcitrant Police
Officer is complained against to the High Court for not doing his duty under the law, the
answer once again is that there is no such mandate because the position remains the same,
in one case by doing his duty the Police Officer is bound to get the case registered in case
information of a cognizable offence is laid before him and in the second case when he
refuses, he is directed by the High Court in the exercise of constitutional jurisdiction to
perform his duty.

Registration of a case involving cognizable offence is not to be all and end-all of

the matter. The Police Officer investigates the information given to him and if he finds
grounds connecting the accused against whom information is given, to be proceeded
against, it is only then that he is called to explain the situation and upon failure to do so
takes him in custody and proceeds further. The order directing the Police Officer to get
the case registered which he has earlier refused to do so is of interim nature in which
participation of the accused is not mandate of law for the reasons that once a case is
registered, it culminates into a full-fledged inquiry in which undoubtedly the accused has
full chance to present his version. No rights of the accused stand trampled at the time of
registration of the case and mere registration does not cause stigma. It is only after
conviction that stigmatization commences. If the information is found false, those who
have been put to baseless inquiry i.e. the accused can invoke provisions of section 182,
P.P.C. or bring an action in law for damages.

A similar question arose in the case of Syed Muhammad Ali Shah Bukhari v.
Chief Administrator of Auqaf, Punjab, Lahore and others PLD 1972 Lah. 416, where
application of the rule of audi alterm partem was considered and it was held that the
action of taking over a Waqf by the Chief Administrator of Auqaf being interim in nature
it was not necessary to afford opportunity of hearing to all those persons who were
affected by such action because a full-fledged judicial remedy was available to such
persons to challenge the action of the Chief Administrator of Auqaf in a petition before
the District Judge under section 7 of the West Pakistan Waqf Properties Ordinance, 1961.
The relevant portion of the illuminating judgment is reproduced as under:

" The scope of the right or interest that can be claimed by the petitioner as a
person affected is next to be determined. The property being Waqf could have
been assumed control of by the Chief Administrators under section 6 of the
Ordinance. That action of the Chief Administrator has been considered by the
Ordinance not to be final as the very next section namely, section 7, provides for a
forum to scrutinize the correctness or otherwise of the notification. Under that
section, a person affected may claim that the property assumed control of, is not
Waqf or that the property is Waqf property within the limits stated in the petition.
Can the petitioner lay claim that the property may not be assumed control of even
if it is Waqf property? Admittedly he cannot enforce any such claim, therefore,
viewing the question of application of the rule of audi alteram partem from that
angle, the interim or provisional decision of assumption of control passed under
section 6 will fall within the exception of the rule, especially when a hearing is
provided for against such interim order. Some argument has been raised that an ex
post facto hearing is negation of the rule of audi alteram partem."

This question also cropped up in the case of Khushi Muhammadv. Commissioner, Multan
Division PLD 1965 Lah. 250, relevant .)ortion is quoted as under:

"A comparison of provisions of sections 4, 5, 5-A and 9 with the provisions of

section 40 of the Land Acquisition Act, 1894 will show that wherever it was
intended by the Legislature that the person affected will have a right to show
cause, a distinct provision to that effect is made.

The commission in section 40 of a provision as regards notice to person interested

in the land to be acquired for the benefit of a Company is, thus, deliberate; the
underlying consideration being that the satisfaction of the Commissioner is not in
the nature whether land belonging to a person shall be acquired for the benefit of
a Company or not but is entitled to provide material for determining whether the
Government shall act on behalf of a Company in that behalf of or not. The non-
issuance of the notice to the petitioner in the inquiry under section 40 has, thus, no
effect on the validity of the consent given by the Commissioner to the acquisition
in question.

The rule of natural justice is not of universal application."

I may also rely on the judgment of Abul A'la Maudoodi v. Government of West
Pakistan PLD 1964 SC 637. It was held by the apex Court as under:--

"I am prepared to concede that whenever an emergency requires passing of an

order without hearing the party concerned an order may be passed and to this
extent there was to be a proviso to the maxim audi alteram partem but action can
be taken ex parte only to the extent to which it is absolutely necessary. The ex
parte order in such cases to be regarded only as an interim order or a provisional
 order which will remain in force till a final order is passed after hearing the party
concerned..."

I may conveniently refer to the book on Judicial Review of Administrative Action by the
celebrated author S.A. de Smith wherein it was noted that there are some cases which
may exclude, by implication, the application of the rule of audi alteram partem and one
such factor is where appropriate substitute for prior notice and opportunity to be heard is
available.

There is no requirement as noted above, at the time of registration of the F.I.R. to

give a hearing to the accused named in the complaint. However, soon thereafter, once the
case is registered the Investigating Officer, while gathering evidence confronts the
accused with the name and records their version which ultimately goes for adjudication
before a Court of law where, undoubtedly, those complained against are given full and
absolute hearing.

Viewed from another angle prior hearing if considered essential before the
registration of the case would amount to placing the cart before the horse. This Court
while considering the matter whether direction should be issued to the police for
registration of F.I.R. against the person complained, if embarks on any inquiry whether
the offence was, or was not committed by the accused in my view would be transgressing
its jurisdiction and would be travelling in the realm meant for others to probe.

The upshot of the above discussion is that the petitioner has been able to make out
a case for registration of F.I.R. against the proposed accused and in the circumstances he
is directed to appear at the Mir Wah Police Station and S.H.O,. concerned is further
directed to register the F.I.R. of the petitioner under sections 10/11/16/15 of the Zina
Hudood Ordinance and Pakistan Penal Code sections.

H.B.T./N-14/K Petition allowed.

P L D 2005 Peshawar 33
Before Malik Hamid Saeed and Muhammad Qaim Jan Khan, JJ
Mian SHAFIQUE AHMED ---Petitioner
Versus
SENIOR SUPERINTENDENT OF POLICE, PESHAWAR and 4
others---Respondents
Writ Petition No.692 of 2000, decided on 28th September, 2004.
Criminal Procedure Code (V of 1898)---
---S.154---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979),
S. 17(3)---Penal Code (XLV of 1860), Ss.337-F(ii)/182/186---Constitution of Pakistan
(1973), Art. 199--Constitutional petition---Registration of criminal case---
petitioner/complainant had alleged that accused/respondents with the help of Bailiff of
the Court including Local Police tried to get possession of his petrol pump and forced
petitioner to sign over warrant of possession---Petitioner had alleged that on refusal of
petitioner to sign warrant of possession, one of accused hit him on his head forcefully in
presence of S.H.O. and petitioner who received grievous hurt became senseless and
accused snatched his bag containing huge money--Petitioner had alleged that police
concerned had not registered case against respondents/accused despite his utmost
efforts---Petitioner in his Constitutional petition had prayed that concerned police be
directed to register case against accused/respondents---Validity---Section 154, Cr.P.C. had
made it obligatory for an officer incharge of Police Station that every information relating
to commission of a cognizable offence if given orally to an officer incharge of a Police
Station, would be reduced to writing by him or under his direction---Superior Courts,
time and again, had interpreted said provisions of law in very clear terms and there
remained no ambiguity for Station House Officer to make any excuse in that regard when
information of committing a cognizable offence was given to him by an
informant---Allegations levelled by petitioner against respondents in the present case had
constituted commission of a cognizable offence which should be probed by some
investigating agency---Refusal/reluctance of police to register case upon complaint of
petitioner was violative of S.154, Cr.P.C.---High Court accepting Constitutional petition,
directed to register case against respondents---Regarding apprehension of false allegation
of petitioner against respondents, it could be stated that Legislature had placed check and
balance on same upon complainant through S.182, P.P.C.
2000 PCr.LJ 320; PLD 2000 Lah. 208; PLD 1999 Lah. 521 and 1999 PCr.LJ 1645 ref.
Nusrat Yasmin for Petitioner.
Muhammad Ayaz Khan, D.A.-G. for Respondents Nos. 1, 4 and 5.
Khalid Khan for Respondent No.2.
M. Shaukat Hussain for Respondent No.3.
Date of hearing: 28th September, 2004.
JUDGMENT
MALIK HAMID SAEED, J.--- In this writ petition, filed by Mian Shafique Ahmad of
Alfalah Street outside Hashtnagri Gate, Peshawar for registration of a case against
Muhammad Riaz Khan, S.H.O. Police Station Daud Zai and Haroon Rashid son of Abdul
Sattar Khan, respondents Nos.2 and 3, under section 17 (3) Harrabbah, Offences Against
Property (Enforcement of Hudood) Ordinance, 1979, the assertions of both the parties are
as under:-
2. According to Mian Shafique Ahmad, petitioner, he being a peaceful and respectable
citizen of Pakistan involved in running his petroleum business in various areas of
N.-W.F.P., when on 24-5-2000, was coming out from his house to deposit Rs.11,50,000 as
draft in the name of Pakistan State Oil at Khyber Bank Peshawar received a telephonic
message of his Manager Nadir Khan from Yaqoob Shafi Petrol Pump situated at
Charsadda Road, Peshawar that Abdur Rashid alias Haroon-ur-Rashid son of Abdul
Sattar Khan with the help of the bailiff of the Court along with the local police of Police
Station Daud Zai are getting possession of the said petrol pump. The petitioner instead to
deposit the said amount in Bank rushed to the said Petrol Pump along with his personal
bag containing Rs.11,50,000 and when entered in the office of the said Petrol Pump he
found Abdur Rashid alias Haroon Rashid and Muhammad Riaz Khan, S.H.Q., Police
Station Daud Zai there. The S.H.O. and Abdur Rashid asked the petitioner to sign over
the warrant of possession. On his refusal the S.H.O. theretened the petitioner while Abdul
Rashid who was in possession of a pistol attacked over the petitioner, hit him on his head
forcefully in presence of the said S.H.O. as a result of which he received grievous hurt
and became senseless while the personal bag containing Rs.11,50,000 was snatched by
the S.H.O. and Abdur Rashid accused. All the employees of the petrol pump were already
arrested by the local police and no other person except the above named accused were
present in the office at that time, as the remaining police officials numbering 35/40 were
present outside the office of the said petrol pump. As a result of the said head injury the
petitioner was sent to LRH/ICU by the local police in unconscious condition and on
gaining senses when he asked about his personal bag, which was already snatched from
him by the two accused, the same was stated to be missing along the money therein. The
petitioner on the same date sent a written complaint to the Police Station but his this
version was not incorporated in the F.I.R already lodged vide No.383 dated 24-5-2000
under section 337-F(ii)/186 P.P.C against Abdur Rashid accused by Muhammad Riaz,
S.H.O. for causing injuries to the petitioner with mala fide intention. The possession of
the said petrol pump was restored to the petitioner on the following day by orders of the
competent Court and when he examined the petrol pump, he found missing various
articles and also cash amount of Rs.2,55,700. The petitioner again approached the local
police for registration of the case against the two accused but the same was refused. The
petitioner then approached respondent No. 1/SSP Peshawar with a written complaint for
registration of a criminal case against the accused, who marked the matter to S.P. Rural,
respondent No.4 but no action was taken on the same. That a judicial inquiry was
conducted in the matter through Syed Abdul Jabbar Shah, Magistrate by the District
Magistrate, Peshawar, wherein the version of the petitioner was admitted to be correct but
with regard to the amount in question it was opined that these allegations should be
probed into by some Investigating Agency.
3. The stand of Respondent No.2/S.H.O. as evident from the contents of F.I.R No.383
dated 24-5-2000 is that he along with police contingent was present on the spot for help
of Muhammad Bashir and Muhammad Tufail, bailiffs to handed over possession of the
petrol pump to Abdur Rashid, when in the meanwhile Mian Muhammad Shafique
Ahmad, owner of the petrol pump came inside the room of the petrol pump. This act of
Muhammad Shafique annoyed Abdur Rashid, who both in presence of the police and
bailiffs grappled with each others. During this course, Abdur Rashid injured Mohammad
Shafique with a sharp-edged weapon on his head and hands and escaped from the spot.
The injured was therefore shifted to the Hospital for treatment along with injury sheet
prepared by him.
4. So far as the documentary proof available on record is concerned, it is evident that the
occurrence in question has taken place on 24-5-2000 in the Petrol Pump in question.
Muhammad Riaz, S.H.O. in his comments has admitted his presence on the spot along
with Abdul Rashid and bailiff of the Court. The contention of the petitioner is also
admitted that the employee of the petitioner namely Faqir son of Ali Haider was arrested
prior to the arrival of the petitioner in the pump for having unlicensed D.B Shotgun.
5. The Inquiry Officer in his report though has stated that Mian Shafique has levelled
allegation against S. H. O. Daudzai Muhammad Riaz and Abdul Rashid that they have
taken Rs.11,50,000 from him at the time of scuffle but later on has given no positive
findings, probably for lack of collecting proper evidence in this regard, hence has
observed that these allegations should be probed from some investigating agency. More
so, the inquiry was conducted on wrong premises of enlightening the highhandedness of
the police in the episode, which in fact should have been conducted with regard to the
alleged stance of the petitioner that he had been deprived of a huge amount inside the
room of the petrol pump where only the S.H.O., Police Station Daud Zai and Abdul
Rashid were present, otherwise it was no secret that the police was present on the spot for
delivering possession of the petrol pump to Abdul Rashid under Court orders. The S.H.O.
in response to the plea of the petitioner that he is a peaceful citizen has stated in his
comments that he is a peaceful citizen as he has obstructed the answering respondents
and bailiffs of the Court in the discharge of public function and hence he is facing
proceeding under section 186 P.P.C. We would like to observe that the S. H.O. has also
performed his duties in a proper way that despite the presence of so many police officials,
Abdul Rashid succeeded to inflict serous nature of injuries on the person of Mian
Shafique, Petitioner, and then also succeeded to escape from the spot. If an S.H.O. cannot
peacefully handle the situation between two persons with regard to delivery of possession
having the help of so many police officials on the spot, how can he be entrusted with
guarding the whole area of the Police Station?
6. Section 154 of the Criminal Procedure Code makes it obligatory for an Officer
Incharge of a Police Station that, "Every information relating to the commission of a
cognizable offence if given orally to an officer incharge of a police station, shall be
reduced to writing by him or under his direction, and be read over to the informant, and
every such information, whether given in writing or reduced to writing as aforesaid shall
be signed by the person giving it, and the substance thereof shall be entered in a book to
be kept by such officer in such form as the Provincial Government may prescribe in this
behalf". The superior Courts time and again have interpreted these provisions of law in
very clear terms and there remains no ambiguity for a Station House Officer to make any
excuse in this regard when information of committing a cognizable offence is given to
him by an informant. In this case, the allegation levelled by the petitioner against
respondents Nos.2 and 3 on the face of it was constituting the commission of a
cognizable offence, yet not only the local police of Police Station Daudzai but also the
high ups of the Police Department gave no positive response to it coupled with the fact
that the offence alleged to have been committed by the accused mentioned in the
complaint of the petitioner is quite distinct and separate from the one recorded in F.I.R
No.383. In an authority reported in 2000 PCr.L.J 320, it has been held that:--
"S. 154. Registration of second F.I.R.---Two versions of an occurrence----
Effect----Where a distinct and separate cognizable offence was disclosed and no
effective inquiry or trial could be held without properly appreciating and
considering the two versions, another F.I.R, was to be registered."
The inquiry conducted as early as on 20-6-2000 clearly suggests that the allegations of
the petitioner in this regard should be probed from some investigating agency, but still no
F.I.R was chalked out against the accused, rather as per contents of the comments
submitted by the respondents, the matter is under investigation before the D.S.P. Circle
and he would yet to pass some orders after about 4 years of an occurrence, the
information of which has been conveyed to the police very promptly.
7. In an authority report in 'PLD 2000 Lahore 208, it is held that:-
"If there is an information relating to the commission of a cognizable offence, it
falls under section 154 of the Code of Criminal Procedure, and a police officer is
under a statutory obligation to enter it in the prescribed register. The condition
precedent is simply two-fold; first, it must be an information and second, it must
relate to a cognizable offence on the face of it and not merely in the light of
subsequent events. A police officer is bound to receive a complaint when it is
preferred to him or where the commission of an offence is reported to him orally,
he is bound take down the complaint. If he does not incorporate in the register a
complaint so made, he fails to perform a statutory duty as a public servant and,
therefore, renders himself to be dealt with by his superior officers for neglect of
duty. Thus, it does not depend on the sweet will of a police office who may or
may not record it."
In another, authority reported in PLD 1999 Lahore 521, their lordships of the Hon'ble
Lahore High Court have observed that:-
"Once an F.I.R is recorded in the F.I.R Register, ordinarily High Court is reluctant
to issue a writ of mandamus directing the police authority to register second FIR.
This rule is, however, not a rule of thumb and can be forsaken in the context of
special circumstances of the case. If the statement of the complainant shows that
occurrence reported therein is totally different from one which is incorporated in
previous F.I.R.; that it is not mere a defence or a counterblast and raises serious
factual allegations which are radically different from the first F.I.R., then this
Court is well within its powers to order for registration of a second/third F. I. R."
8. So far as the apprehension of a false allegation of the petitioner against the
accused/respondents Nos.2 and 3 is concerned, it may be stated that the legislation has
placed check and balances through S.182 P.P.C upon complainant as has been held in the
authority reported in 1999 PCr.L.J 1645, but so far as the registration of a case under
section 154, Cr.P.C., is concerned, the police is under obligation to register it in a
cognizable offence:-
"through the introduction of section 182, Pakistan Penal Code the Legislature has
placed the check and introduced the balance by making liable the complainant
under section 182 Pakistan Penal Code, if the information given by him ultimately
found to be false during the investigation."
9. For the aforesaid reasons the refusal/reluctance of the police to register a case upon the
complaint of petitioner is violative of section 154 of the Criminal Procedure Code and the
instant writ petition is a fit case for issuing directions to the respondents to register a case
against the accused/respondents. Accordingly, this writ petition is accepted and
respondents Nos.1, 4 and 5 are directed to register a case against Respondents Nos.2 and
3 under the relevant provisions of law, and the copy of the F.I.R, so registered in the case,
shall be sent to this Court within two days from the receipt of this judgment. No order as
to costs.
H.B.T./243/P Petition accepted.
2005 Y L R 1879

[Lahore]

Before Sh. Abdul Rashid, J

MUHAMMAD ASHIQ and 2 others---Petitioners

Versus

STATION HOUSE OFFICER, POLICE STATION, NORTHERN CANTT,

LAHORE and 3 others---Respondents

Writ Petition No. 2278-Q of 2005, decided on 11th April, 2005.

Criminal Procedure Code (V of 1898)---

----Ss. 154, 155 & 156---Penal Code (XLV of 1860), Ss. 420, 468 & 471---Constitution
of Pakistan (1973), Art. 199--Constitutional petition---Scope and applicability of Ss. 154,
155 & 156, Cr.P.C.---Quashing of F.I.R.---Under provisions of S.154, Cr.P.C. a
statutory duty had been cast upon officer incharge of a Police Station to enter the
information regarding commission of any cognizable offence in a prescribed register
known as F.I.R. parlance---For recording of information of commission of a non
cognizable offence another book was prescribed known as "Roznamcha" or "Station
Diary" in which information relating to, commission of non-cognizable offence was
recorded and generally police would not initiate any action and the complainant or
informant after being given a copy of the report so entered was sent away---If S.H.O.
would deem it fit to initiate investigation then under subsection (2) of S.155, Cr. P. C.,
Police Officer had to obtain order from the Magistrate and if any arrest was to be effected
then it could only be made after obtaining warrant of arrest from the Magistrate under
S.155(3), Cr.P.C.---Section 156(1), Cr.P.C. empowered an officer incharge of a Police
Station to investigate any cognizable offence without any order of Magistrate---
Information given to police in the present case being only prima facie had revealed
commission of non-cognizable offences, F. I. R. under S.154, Cr.P.C. could not have been
registered straightaway and the legal course available was to make a report regarding
commission of non-cognizable offences of Ss.468 & 471, P.P.C. under S.155(1), Cr.P.C.
and then to seek permission of Illaqa Magistrate for conduct of investigation under
S.155(2), Cr.P.C. and if the arrest of accused was to be effected then warrant of his arrest
was to be obtained from Magistrate as stipulated under S.155(3), Cr.P.C.---Said procedure
having not been followed in the case, manner in which F.I.R. in question had been
recorded and proceeded, was not legally tenable---Application of S.420, P.P.C. was not at
all attracted to the facts of case---Even commission of offences under Ss. 468 & 471,
P.P.C., had not been made out against the accused---No legal premises for registration of
case against accused, existed---Impugned order, was quashed, in circumstances.

Aftab Ahmad Bajwa for Petitioners.

Najeeb Faisal Chaudhry Addl. Advocate-General for the State with Muhammad Rizwan,
S.-I.

Naveed Shaharyar Sheikh for Complainant.

ORDER

The petitioners through this petition seek quashment of F.I.R. No. 1117 dated 22-10-2004
under sections 420/468/471, P. P. C. registered at Police Station, North Cantt., Lahore on
the report of Col. (Retd.) Shah Sadiq, respondent No. 3.

2. According to the prosecution allegations set up in the F.I.R. the petitioners had
submitted documents for registration of Sale-deed No. 6218 pertaining to 16 Kanals, 12
Marlas, Sale-deed No.6218 pertaining to 40 Kanals and Sale-deed No.6219 also
pertaining to 40 Kanals, all dated 23-7-2004 in respect of pieces of land situated in
village Chak Deer Tehsil Cantt., District Lahore on the basis of Fard Malkeet Jama Bandi
relating to the said land which had not been issued or signed by the Patwari Halqa Deer
and as such the same had been forged and that the land intended to be sold out through
the said sale-deeds is under litigation in a civil
Court.
3. It is pleaded on behalf of the petitioners that they are owners of land measuring 476
Kanals 8 Marlas bearing Khewat No. 41, Khatoni No. 148 comprising of Khasras
Nos.118/990, 119, 131 to 140, 142 to 152 and 158 to 200 within the revenue limits of
Chak Deer Teshil Cantt., District, Lahore which had been purchased from Muhammad
Ajaib Khan and Muhammad Arif Khan through Mutation No.206 dated 8-6-1972
sanctioned by the Collector, Lahore and that since then the petitioners are in cultivating
possession of the said land and that petitioners Nos. 1 and 2 had sold 96 Kanals, 12
Marlas of land to Defence Housing Authority through petitioner No.3 (investor) and the
said Authority had agreed to give them files equivalent to 24 Kanals in Phase-III and that
the land in dispute was originally owned by one Shah Mansoor Hussain uncle of the
present complainant who had executed a general power of attorney in favour of his
brother Nasir Hussain Shah, father of the present complainant, who had originally sold
the land to one Abdul Ghafoor son of Abdul Ghani in the year 1965 through registered
sale-deed dated 26-1-1965 and that Abdul Ghafoor subsequently sold the land to
Muhammad Arif Khan and Muhammad Ajaib Khan trough registered sale-deed on 31-5-
1969 and that petitioners Nos.1 and 2 had purchased the said land from Muhammad Ajaib
Khan, and Muhammad Arif through Mutation No.206 which was sanctioned in heir
favour on 8-6-1972 and that since then they are continuing in possession of the lid as
owners and that Shah Mansoor Hussain, uncle of the complainant, who was original
owner of the land filed a. civil suit in 2003 after about 40 years of the sale in favour of
Abdul Ghafoor claiming that the general power of attorney allegedly executed by him in
favour of his brother had been forged and fabricated by his said brother and therefore, the
sale by his said brother in favour of Abdul Ghafoor and all subsequent transactions were
of no consequence and that the said civil suit was dismissed as withdrawn on 21-1-2004
and that during the pendency of the said suit Shah Mansoor Hussain filed another suit of
identical nature in another Court without disclosing the pendency of the earlier suit and
also obtained status quo order from the said Court which was, however, vacated by the
learned Additional District, Judge vide order dated 12-11-2004 and that the application
under Order VII, rule 11 of the C.P.C. seeking rejection of the plaint is pending before the
Civil Court and that the petitioners are bona fide legal owners of the said land and are
entitled to sell the same and that Shah Mansoor the original owner has now set up his
nephew i.e. the present complainant of this F.I.R. to harass the petitioners and to force
them to submit to their illegal demands and that initially an application was given to the
Sub-Registrar for registration of the case and an ex parte fictitious report was obtained in
connivance with the Revenue Staff on the basis of which the Sub-Registrar directed
registration of the case and subsequently the petitioners appeared before the, Sub-
Registrar and apprised him of the true facts that the application of the complainant itself
was based on forged documents in collusion with the Revenue Staff upon which the
earlier ex parte order for registration of the F.I.R. against the petitioners was suspended
and fresh inquiry was ordered and that the complainant because of his position has
manipulated the registration of this case in an illegal manner. It has also been argued that
the petitioners had no nexus with the original sale made in the year 1965 through special
attorney of Shah Mansoor who happened to be father of the present
complainant/respondent No.3 and that there is no allegation that the petitioners had in any
manner offered dishonest inducement to the complainant or Shah Mansoor and in
consequence of the same had obtained any valuable property or right and the ingredients
of section 420, P.P.C. have not even been alleged in the F.I.R. and that the entire
prosecution allegation is that the petitioners had submitted forged Farad Malkeet which is
not true as the petitioners are continuing to be owners in possession of the laud since
1972 and even if for the sake of arguments the prosecution allegation is accepted then at
the most offence under section 468, P.P.C. is made out which is non-cognizable and thus
F.I.R. could not be registered and cognizable could also be legally added in the F. I. R. 5.
I have heard both the parties at length and gone through the record. It is admitted position
on the file that property i.e. land measuring 476 Kanals, 8 Marlas situated in Mauza Chak
Deer was owned by Shah Mansoor Hussain. His brother Shah Nasir Hussain, as general,
attorney of Shah Mansoor appointed through registered deed had sold the same in favour
of Abdul Ghafoor son of Abdul Ghani through registered sale-deed dated 26-1-1965,
copies of the sale-deed and corresponding mutations are annexures-E and E/1. The said
Abdul Ghafoor continued in possession of the disputed land for almost four years and
thereafter he sold this land to Muhammad Arif and Ajaib Khan through registered sale-
deed on 31-5-1969 and corresponding mutation was also sanctioned cognizable could
also be legally added in the F. I. R.

5. I have heard both the parties at length and gone through the record. It is admitted
position on the file that property i.e. land measuring 476 Kanals, 8 Marlas situated in
Mauza Chak Deer was owned by Shah Mansoor Hussain. His brother Shah Nasir
Hussain, as general, attorney of Shah Mansoor appointed through registered deed had
sold the same in favour of Abdul Ghafoor son of Abdul Ghani through registered sale-
deed dated 26-1-1965, copies of the sale-deed and corresponding mutations are
annexures-E and E/1. The said Abdul Ghafoor continued in possession of the disputed
land for almost four years and thereafter he sold this land to Muhammad Arif and Ajaib
Khan through registered sale-deed on 31-5-1969 and corresponding mutation was also
sanctioned in the Revenue Record and they were put into possession of the disputed land.
Copies of the sale-deed and mutation in favour of the said Muhammad Arif and
Muhammad Ajaib Khan are annexures-F and F/1. They continued to be in ownership and
possession of the land for almost three years and thereafter vide Mutation No.206 dated
8-6-1972 (copy annexure-F/2) petitioners Nos.1 and 2 purchased the disputed land from
them and obtained its possession and for almost 32 years they continued to be owners in
possession of the disputed land and ultimately vide registered Sale-deeds Nos.6217, 6218
and 6219 dated 23-7-2004 they sold 96 Kanals, 12 Marlas of land to Defence Housing
Authority through petitioner No.3 and the said Authority had agreed to give them 24
kanals equivalent to the said land. The sale-deed was registered with the Sub-Registrar.
Shah Mansoor Hussain whose land had been sold by his brother Shah Nasir Hussain on
the basis of a registered power of attorney as far back as in the year 1965, filed a civil suit
in 2003 after about 40 years of the first sale in favour of Abdul Ghafoor claiming that his
real brother Shah Nasir Hussain, father of respondent No.3, had forged and fabricated
general power of attorney and as such the sale of the land made in favour of Abdul
Ghafoor was of no legal consequence and consequently all the subsequent transactions
were also without legal authority. The said civil suit was dismissed as withdrawn on 21-1-
2004, copy of the civil suit and the order of dismissal are Annexures G and G/1. Shah
Mansoor Hussain during pendency of the first suit also filed another suit of identical
nature in another Court and obtained status quo order in respect of the same land from the
Civil Court and the same was vacated by the learned Additional District, Judge, Lahore.
However, an application under Order VII, rule 11; C.P.C. seeking rejection of the suit is
pending before the learned Civil Court. Copy of the second civil suit, application under
Order VII, rule 11, C.P.C. and order for vacation of stay are Annexures-H, I and J.

6. Upon registration of the sale-deeds in favour of Defence Housing Authority the present
complainant moved an application before the Sub-Registrar, Lahore Cantt. seeking
registration of a criminal case in respect of the above sale-deed made by petitioners Nos.
1 and 2 through petitioner No.3 in favour of Defence Housing Authority on the ground
that they had produced fake revenue documents before the Sub-Registrar and on the said
application an ex parte inquiry was made and the Sub-Registrar ordered `for registration
of a case against the petitioners. Copy of the ex parte inquiry report is annexure-K.
Thereafter the petitioners appeared before the Sub-Registrar and submitted an application
(copy Annexure-L) bringing the facts to his knowledge and pleaded that the complainant
had obtained the ex parte order for registration of case through misrepresentation and that
in the Revenue Record they had for 32 years been shown/treated as lawful owners in
possession and there was no need for them to forge Farad Malkeet and that the alleged
forged Farad Malkeet had been placed on the record by the complainant himself in
collusion with the Revenue Staff in order to have the case registered against the
petitioners to force them to submit to their illegal demands and consequently vide order
copy (Annex-M) the earlier order dated 11-10-2004 directing registration of case against
the petitioners was suspended and the fresh inquiry had been ordered. Thus the only
allegation against the petitioners is that they had submitted copy of a Farad Malkeet
which had not been signed and issued by the Patwari Halqa for securing registration of
sale-deeds in favour of the Defence Housing Authority. The factum as to who had placed
the said Farad Malkeet on the file is still under inquiry by virtue of order dated 2-2-2005
(Annexure-M). The petitioners were recorded as owners in possession of the disputed
land by virtue of Mutation No.206 dated 8-6-1972 and since then they are continuing to
be owners in possession of the same and as owners in possession recorded in the Revenue
Record it is not probable that they would forge a Farad Malkeet of the land which they
themselves own.

7. It is borne out from the contents of the F.I.R. itself that the petitioners had no nexus
with the original sale made in the year 1965 through Nasir Hussain Shah general attorney
of Shah Mansoor Hussain who happened to be father of the complainant. The petitioners
did not in any manner offer any kind of dishonest inducement either to the complainant or
to Shah Mansoor Hussain to deliver any property to any person or to make, alter or
destroy .the whole or any part of the valuable security or any document capable of being
converted into any valuable security. Therefore, application of section 420, P. P. C. is not
at all attracted to the facts of this case. The other offences alleged in the F.I.R. fall under
sections 468 and 471, P.P.C. which are non-cognizable.

8. The information regarding commission of a cognizable offence is regulated by section

154, Cr.P.C. whereas the information regarding commission of non-cognizable offence is
regulated by section 155, Cr. P. C. Both these sections are reproduced below for ready
reference:--

"154. Information in cognizably cases:---Every information relating to the

commission of a cognizable offence if given orally to an officer in-charge of a
police station, shall be reduced to writing by him or under his direction and be
read over to the informant, and every such information whether given in writing
or reduced to writing as aforesaid, shall be signed by the person giving it, and the
substance thereof shall be entered in a book to be kept by such officer in such
from as the Provincial Government may prescribe in this behalf.

155. Information in non-cognizably cases;---

(1) When information is given to an officer in-charge of a police station of the

commission within the limits of such station of a non-cognizable offence, he shall
enter in the book to be kept as aforesaid the substance of such information and
refer the informant to the Magistrate.

(2) Investigation in non-cognizable cases.---No police officer shall investigate a

non-cognizable case without the order of Magistrate of the first or second class
having power to try such case or send the same for trial to the Court of Session.

(3) Any police officer receiving such order may exercise the same powers in
respect of the investigation (except the power to arrest without warrant) as an
officer in-charge of a police station may exercise in a cognizable case. "

Comparative reading of sections 154 and 155, Cr.P.C. shows that under section 154,
Cr.P.C. a statutory duty has been cast upon the officer in-charge of a police station to
enter the information regarding commission of any cognizable offence in a register the
form of which is prescribed by the Provincial Government which is known as F.I.R.
parlance. As regards recording of information of commission of a non-cognizable offence
another book is prescribed which is known as "Roznamcha" or Station Diary in which
information relating to commission of non-cognizable offence is recorded and generally
the police does not initiate any action and the complainant or informant after being given
a copy of the report so entered is sent away. However, if the S.H.O. deems fit to initiate
the investigation then under subsection (2) of section 155 the police" officer has to obtain
order from the Magistrate and if any arrest is to be effected then it can only be made after
obtaining warrant of arrest from the Magistrate under section 155(3), Cr.P.C.

Section 156(1), Cr.P.C. empowers an officer in-charge of a police station to investigate

any cognizable offence without any order of a Magistrate.

9. As the information given to the police in the present case only prima facie revealed
commission of non-cognizable offences, therefore, the F.I.R. in this case under section
154, Cr.P.C. could not have been registered straightaway and the legal course available
was to make a report regarding commission of a non-cognizable offences of sections 468
and 471, P.P.C. under section 155(1), Cr.P.C. and then to seek the permission of the
learned Illaqa Magistrate for conduct of the investigation under section 155(2), Cr.P.C.
and if the arrest of the accused is to be effected then warrant of his arrest are to be
obtained by the Magistrate as stipulated under section' 155(3), Cr.P.C. As the said
procedure has not been followed, in this case, therefore, the manner in which the F.I.R.
in-question has been recorded and proceeded is not legally tenable.

10. The complainant party remained out of the possession of the disputed land since the
first sale made in the year 1965 in favour of Abdul Ghafoor and the disputed property had
been sold from one hand to another and ultimately the petitioners were the third
purchasers. The complainant party all along slept over their claims to the disputed
property and challenged the first sale made in 1965 after about 40 years. This lapse on the
part of the complainant party prima facie has no explanation and it appears that as the
disputed land falls within the residential scheme of D.H.A. and it has become immensely
valuable with the passage of time, the complainant party is employing every means to
exert pressure on the petitioners to share with them the increased value of the land which
originally belonged to them and the registration of this case by the complainant party
against the petitioners is manifestation of their said desire.

11. In view of the discussions made above, it is held that application of section 420,
P.P.C. is not at all attracted to the facts of this case. The factum as to how the alleged
forged Farad Malkeet was placed on the file of the Sub-Registrar Lahore Cantt. is still
under probe and prima facie the petitioners having been shown as owners" in possession
in the Revenue Record for the last 32 years arid continuing as such. It will not be
probable that they would produce before Sub-Registrar Lahore Cantt. alleged forged
Farad Malkeet in respect of the land which is owned and possessed by them for securing
registration of the sale-deeds. Therefore, even commission of offences under sections 468
and 471, P.P.C. have not been made out against the petitioners. Thus there is no legal
premises for registration of the present case against the petitioners and as such the
impugned F.I.R. is quashed.

H.B.T./M-1034/L Petition allowed.

2005 Y L R 1545
[Lahore]
Before Ijaz Ahmad Chaudhry, J
NOOR AHMAD---Petitioner
versus
D.I.G., POLICE, D.G. KHAN DIVISION and 7 others---Respondents
Writ Petition No.483 of 2005, decided on 7th February, 2005.

(a) Criminal Procedure Code (V of 1898)---

----Ss.154 & 4---Recording of F.I.R.---S.H.O./Officer Incharge of Police Station,
under section 154, Cr.P.C., on receipt of any information, either made orally or in
writing, relating to commission of some cognizable offence, was bound to enter same
in relevant book and thereafter to start investigation, the purpose of which, under S.4,
Cr.P.C., was to collect evidence---Accused person would be equally afforded
opportunity to lead evidence in support of his innocence, if he had been falsely
involved.

(b) Criminal Procedure Code (V of 1898)---

----S.154---Constitution of Pakistan (1973), Art.199---Constitutional petition---
Registra-tion of case---Petitioner had sought issuance of direction to S.H.O. Police
Station concerned to register a criminal case against police officials for committing
murder of his brother and causing injuries to the injured---Serious allegations of Qatl-
e-Amd of deceased and causing fire-arm injuries to injured persons had been levelled
against police officials which, prime, facie, made out commission of a cognizable
offence---S.H.O. was bound to act in accordance with law---Version narrated in
earlier case (F.I.R.) by police declaring incident as a result of police encounter, could
not be treated as a gospel truth and same was not sufficient to refuse registration of
case on the statement of petitioner---Matter required evidence and thorough
investigation---Petitioner could not be refused opportunity to produce evidence to
prove his allegations levelled against police officials merely for the reason that F.I.R.
containing version of alleged accused (police officials) had already been registered---
Purpose of judicial inquiry was to find out the facts and mere pendency of same was
no bar to register a criminal case if otherwise cognizable offence was, prima facie
made out from information passed on to S.H.O.---High Court accepted petition and
S.H.O. police station concerned was directed to record statement of petitioner under
S.154, Cr.P.C. and to act strictly in accordance with law.

Sardar Altaf Hussain Khan for Petitioner.

M. R. Khalid Malik, Addl. A.-G. along with Abdur Rehman Inspector/ S.H.O.
and Riaz Ahmad S.-I., Police Station, Jampur with Record.

ORDER
Through this petition under Article 199 of the Constitution of the Islamic
Republic of Pakistan, 1973, the petitioner seeks issuance of direction to the S.H.O.
Police Station, Jampur to register a criminal case against the police officials for
committing the murder of his brother namely Muhammad Ismail and causing injuries
to Abdul Ghafoor, who is still admitted in the hospital.
2. S.H.O., Police Station, Jampur is present and states that F.I.R. No.6 has
already been registered on 3-1-2005 at the same police station on the complaint of
Riaz Hussain Gurmani, S.-I. that both the deceased and injured were members of
Bosan gang and they received injuries in a police encounter.
3. The learned counsel for the petitioner contends that the police officials had
caused injuries to the deceased and the injured without any fault on their part and are
guilty of a cognizable offence. According to the learned counsel false story regarding
police encounter has been created to cover up the crime of the police officials and
F.I.R. has been registered to save their skin.
4. Learned Addl. Advocate-General on instructions opposes this petition on the
ground that both the deceased and the injured received injuries during a police
encounter in the exercise of right of self-defence regarding which criminal case has
already been registered and second F.I.R. cannot be registered. It is also contended
that judicial inquiry is also undergoing.
. I have heard the learned counsel for the parties. Under section 154, Cr.P.C. on
receipt of any information either made orally or in writing relating to commission of
some cognizable offence the S.H.O./Officer Incharge of a police station is bound to
enter the same in the relevant book and thereafter investigation is started, the purpose
of which under section 4, Cr.P.C. is to collect the evidence. The accused persons are
equally afforded opportunity to lead evidence in support of their innocence, if have
been falsely involved. In the present case serious allegations of Qatl-e-Amd of
Muhammad Ismail and causing injuries with fire-arm to Abdul Ghafoor have been
levelled against the police officials which prima facie make out commission of a
cognizable offence and the S.H.O. is bound to act in accordance with law. The version
narrated in the earlier case (F.I.R.) by the police declaring the incident as a result of
police encounter cannot be treated as gospel truth and same is not sufficient to refuse
registration of the case on the statement/application of the petitioner. The matter
requires evidence and thorough investigation. The petitioner cannot be refused
opportunity to produce evidence to prove his allegations levelled against the police
officials merely for the reason that the F.I.R. containing the version of the alleged
accused (police officials) has already been registered. Moreover, the purpose of the
judicial inquiry is to find out the facts and mere pendency of the same is not a bar to
register a criminal case, if otherwise cognizable offence is prima facie found to have
been made out from the information passed on to the S.H.O. as has been repeatedly
held by this Court and the Honourable Supreme Court of Pakistan.
6. For the foregoing reasons this writ petition is accepted and the S.H.O., Police
Station, Jampur present in Court is directed to record the statement of the petitioner
under section 154, Cr.P.C. today and act strictly in accordance with law.

H.B.T./N-19/L Petition
accepted.
2005 Y L R 702

[Lahore]

Before Sh. Hakim Ali, J

IMTIAZ ALI ---Petitioner

Versus

DISTRICT POLICE OFFICER and 10 others---Respondents

Writ Petition No. 3890 of 2003/BWP, decided on 6th January, 2004.

(a) Criminal Procedure Code (V of 1898)---

----Ss.154 & 157---Constitution of Pakistan (1973), Art.199---Constitutional petition---

Recording of second F.I.R. and quashing of first F.I.R.---Petitioner had alleged that
occurrence as contained in first F.I.R. was not reported by him to police, but S.H.O.
concerned had himself entered that story in the F.I.R. only to grant benefit to accused
with whom said S.H.O. was allegedly in collusion---Petitioner had prayed that first F.I.R.
be quashed and Second F.I.R. be directed to be entered in prescribed
register---Validity---Truth and veracity of version recorded in F.I.R., would be thrashed
out not only during investigation, but also in the Court of law---After registration of an
F.I.R., ordinarily no second F.I.R. could be registered, but there were instances where
Court had directed registration of second F. I. R. ---Aim, object and purpose of enacting
S.154, Cr. P. C. and other sections thereafter was that by providing information law was
set in motion and police would come into action--Truth or falsehood would come out
after investigation of the case---Whether the information was false, mala fide, with
ulterior motive or was untrue had to be explored by police and if found tainted with
falsehood, action under S.182, P. P. C. and under other penal section of P. P. C. could be
taken by police against informant---In the present case, if Court would come to the
conclusion after grant of opportunity of hearing that first information in fact was reported
by petitioner or second information was incorrect, the Court would be at liberty to initiate
strict action against complainant as provided by law---For fixing responsibility and to
investigate both reports, it was proper, and necessary to direct police to record second F.
I. R. and to investigate both versions as reported in earlier F.I.R. and in Second F.I.R.---
Versions contained in both F. I.Rs. would be open to investigation by police and police
would be at liberty to report its conclusions under S.173, Cr. P. C. to competent Court of
law---Constitutional petition was disposed of accordingly.

Wajid Ali Khan Durrani and others v. Government of Sind and others 2001 SCMR 1556;
Muhammad Anwar Sub-Inspector, Railway Police, Lahore v. Station House Officer,
Railway Police, Kasur and 2 others PLD 1999 Lah.50; Mulazim Hussain,
Inspector/S.H.O., Police Station Waris Khan, Rawalpindi and another v. Maulana Abdul
Jalil PLD 1999 Lah.39; M. Anwar, Barrister-at-Law v. The Station House Officer, Civil
Lines Police Station, Lahore and another PLD 1972 Lah.493; Muhammad Ishaque v. S.P.,
Jaffarabad and another PLJ. 1998 Quetta 1; Abbas Ali v. The State and another 2000 YLR
1591; Muhammad Ilyas v. S.H.O., P.S. Baddomalhi, District Narowal and 3 others 1997
MLD 1527; Malik Muhammad Anwar Khan v. The State and 4 others 1988 PCr.LJ 986;
Dilbar Hussain and others v. Riasat Javed Bajwa, S.H.O., Ferozewala and others 1994
MLD 1736 and Kaura v. The State and others 1983 SCMR 436 ref.

(b) Criminal Procedure Code (V of 1898)----

----S.154---Registration of Second F.I.R.--No statutory bar existed in any section of Code

of Criminal Procedure that a Second F. I. R. could not be registered by police---In fact
propriety demanded that there should be only one F.I.R. to move police and it had been
developed from interpretation of wording of S.154, Cr. P. C. by Superior Courts and
different course could only be adopted in exceptional circumstances by the order of the
Court---In multi facets versions, especially when first version having been reported was
denied, second version could be taken into consideration through its registration to fix
responsibility upon informant---In cases of recovery of weapons of offence, articles of
theft/ robbery/dacoity or any such necessity when police action was found necessary in a
case, complaint would not be an efficacious or effective remedy.

Muhammad Yaqub Khan for Petitioner.

Ahmad Masnoor Chishti, A.A.-G. assisted by Mian Muhammad Moshin Rasheed for
Respondents Nos.1 and 2 and Ghulam Dastgir, S.-I.

A.R. Tayyib for Respondents Nos.4 to 6, 9 and 10.

Date of hearing: 23rd December, 2003.

JUDGMENT

Through this writ petition Imtiaz Ali, petitioner seeks intervention of this Court to get
recorded an F.I.R. regarding the occurrence as set down by him in his application
attached with this writ petition as Annexure-A and the quashment of F.I.R. No. 203 of
2003, recorded by Ghulam Dastgir, S.-I./S.H.O. of Police Station Marot, District
Bahawalnagar on 10-12-2003 under section 302/34, P.P.C., allegedly upon his statement.

2. To decide the instant writ petition, it is not necessary to divulge upon the detailed facts,
merits and demerits, of the truth or falsehood of the case because the details of the
occurrence can be found from the above-mentioned F.I.R. or from the averments noted
into the complaint appended as Annexure-A to this writ petition. The contentious issues
between the petitioner and the respondents are that:--

(i) Whether a report entered in shape of an F.I.R. can be quashed when the
imparting of the information is denied by the informant?

(ii) Whether a second F.I.R, can be directed to be registered?

(iii) Whether extraordinary jurisdiction of this Court can be invoked?

3. The learned counsel appearing on behalf of the petitioner has vehemently argued that
the occurrence as contained in the F.I.R. No. 203 of 2003 was not reported to the police
by the petitioner, and the S.-I./S.H.O. had himself entered that story only to grant benefit
to the accused persons with whom he had already got alleged collusion. To give force to
his arguments, he has referred to a note at the tail end of the aforesaid F.I.R., in which it
has been remarked by Ghulam Dastgir, S.-I./S.H.O. of Police Station Marot that Imtiaz
Ali had denied to sign on the first information report. So, according to the learned
counsel, this F.I.R. may be quashed and the second F.I.R. be directed to be entered in the
prescribed register, in accordance with the application of the writ petitioner attached as
Annexure-A, to this writ petition. Supporting his contention through the citations as to
whether a second F.I.R. can be registered, learned counsel has referred to 2001 SCMR
1556 (Wajid Ali Khan Durrani and others v. Government of Sindh and others). He has
also referred to PLD 1999 Lahore 50 (Muhammad Anwar, Sub-Inspector, Railway Police,
Lahore v. Station House Officer, Railway Police, Kasur and 2 others) and PLD 1999
Lahore 39 (Mulazim Hussain, Inspector/S.H.O., Police Station Waris Khan, Rawalpindi
and another v. Maulana Abdul Jalil). Learned counsel has further augmented his
arguments by referring to PLD 1972 Lahore 493 (M. Anwar, Barrister-at-Law v. The
Station House Officer, Civil Lines Police Station, Lahore and another), a Full Bench
authority from the jurisdiction of this Court. To support his contention, he has submitted
that information lodged was correct or not depends upon the investigation of Police
Officer, who had to conduct it under section 157, Cr.P.C.; and that there was no bar for
the registration of second F.I.R. He has also cited PLJ 1998 Quetta 1 (Muhammad
Ishaque v. S.P., Jaffarabad and another) in which it has been expounded that the word
`shall' used in section 154, Cr.P.C. gives no option to Incharge Police Officer of a Police
Station to refuse to record the information, if reported with regard to a case of
commission of a cognizable offence. As per learned counsel, the police was under
bounded duty to register counter-version of the petitioner through a separate F.I. R. In
another ruling reported in 2000 YLR 1591 (Abbas Ali v. The State and another), the
registration of second F.I.R. was ordered. 1997 MLD 1527 (Muhammad Ilyas v. S.H.O.
P.S. Baddomalhi; District Narowal and 3 others) was referred to by the learned counsel
for the petitioner, to boost up his reasoning, in which S.H.O. was directed to register a
case on the written complaint of the petitioner according to his version.

4. Refuting the arguments, learned counsel for the respondents (Mr. A.R. Tayyib,
Advocate) has argued that the statement of Imtiaz Ali, petitioner was recorded by Ghulam
Dastgir, S.-I./S.H.O. on a plain paper which was signed by aforesaid Imtiaz Ali after he
had narrated the story of occurrence to S.-I./S.H.O. But at the time of recording of the
statement through the formal F.I.R. No. 203 of 2003 which was reproduced in the register
maintained for that purpose, Imtiaz Ali had refused to put his signatures on formal F.I.R.,
and that the signature upon the formal F.I.R. was not necessary and the refusal of Imtiaz
Ali could not affect adversely the first information report, made by Imtiaz Ali. He has
further submitted that the petitioner has got another alternate remedy of filing of private
complaint in the Court of competent jurisdiction and the written application now being
submitted for getting it registered as an F.I.R. is an afterthought version by the petitioner
and the petitioner is not entitled to get the F.I.R. quashed, or second F.I.R. registered
according to his written application. He has referred to 1988 PCr.LJ 986 (Malik
Muhammad Anwar Khan v. The State and 4 others), in which registration of another
report was refused when the police had started investigation in a case. He has also placed
reliance upon ruling reported as 1994 MLD 1736 (Dilbar Hussain and others v. Riasat
Javed Bajwa, S.H.O., Ferozewala and others). Learned counsel has also put reliance on
1983 SCMR 436 (Kaura v. The State and others). Learned counsel has submitted that
according to the authority, registration of second F.I.R. was held to be uncalled for
notwithstanding divergent versions contained therein were being reported. Learned
A.A.-G. appearing on behalf of the State has also supported the case of the respondents.

5. After being learned counsel for both the parties as well as the learned A.A.-G. on the
subject, the case has become very difficult as both the parties are insisting upon their
prayers and sticking to their version. I had suggested both the parties that the writing, is
appended to this writ petition as Annex-A if be recorded by the police as supplementary
statement under section 161, Cr.P.C. but the petitioner and the respondents are not ready
to accept this suggestion.

6. As both the parties are cleaving to their version, it has become a case of two versions
i.e. (sic) police versus an informant' Therefore, it is essential that both these versions
should remain on the record and it would be open to the Court to decide as to which of
the version was reported correctly by the informant. At this stage, any verdict from this
Court would prejudice the case of either party. So the matter is left open for adjudication
by a competent Court. I have knowingly avoided to decide this controversy as it falls
within the realm of facial inquiry of the case. Accordingly, I consider it appropriate that
the quashment of the F.I.R. already recorded by the police would deprive the
Investigating Agency as well as the persons involved in it or in the second F.I.R. from its
beneficial use. The learned Court and the parties shall be at liberty to prove the truth or
falsehood 'of the earlier and the 'instant F.I.R. and the fact that the earlier F.I.R. was also
got registered by the petitioner or not. It will be an immature and premature judgment if
the F.I.R. already recorded be considered to be correct version from the mouth of
informant, which has been recorded by the Police. The truth and veracity of the version
recorded in the F.I.R. would be thrashed out not only during the investigation yet in the
Court of law also. There is no cavil to the proposition that after registration of an F.I.R.,
ordinarily no second F.I.R. can be registered thereafter but from the rulings cited above,
the preponderance has been found otherwise. There are instances where the Court had
resolved this issue by directing registration of the second F.I.R.

7. While enacting law of section 154, Cr.P.C. and the other sections thereafter, the aim,
object and purpose of these can be summarized in the following words:--

"By laying an information law is set in motion, and the police comes into action,
sites are inspected, persons are interrogated, statements are recorded, evidence is
collected, accused are arrested, innocents are discharged while guilty are sent up
to the Court concerned to face the trial. This is the history of law on this subject."

8. The truth or falsehood comes out after the investigation of an occurrence is reported by
an informant. In fact, after the recording of the first information report, the investigating
agency gets on account of the commission of the offence. A line of action is given to the
police. Whether the information is ingenuine, mala fide, with ulterior motive or untrue
has to be explored by the police and if found tainted with falsehood, the action under
section 182, P.P.C. and under other penal sections of the P.P.C. has to be taken by the
police against the informant. In other words, the distortion of real facts or
misrepresentation of it has to fetch the penalty for the informant. In the instant case, if the
learned Court seized of the case, comes to the conclusion, of course, after grant of
opportunity of hearing, that the first information was in fact reported by the petitioner, or
the second information was incorrect, in such an event, it would be at liberty to initiate
the strict action against the complainant as provided by law. So, for fixing the
responsibility and to investigate both the reports, I consider it proper and necessary to
direct the police to record the second F.I.R. as reported by the petitioner in his writing and
to investigate both these versions as earlier reported and in the second F.I.R. as is now
being got registered by the petitioner through this writ petition. It may be clarified that
the version contained in both these F.I.Rs. would be open to investigation by the police
and the police would be at liberty to report its conclusions under section 173, Cr.P.C. to
the learned competent Court of law.

9. So my conclusions are that:--

(i) There is no statutory bar in any section provided by the Code of Criminal
Procedure that a second F.I.R. cannot be registered by the Police. In fact, the
property demands that there should be only one first information report to move
the police, and it has been developed from the interpretation of the wording of
section 154, Cr.P.C. by the superior Courts and the different course can only be
adopted in exceptional circumstances by the order of the superior Courts, as noted
in the above referred ruling, presented by the learned counsel for the petitioner.

(ii) In the multi facets versions, especially when the first version having been
reported is denied, the latter version can be taken into consideration through its
registration to fix the responsibility upon the informant.

(iii) In cases of recovery of weapons of offence, articles of theft/robbery/dacoity

or any such necessity when the police action is found necessary in a case, the
complaint would not be an efficacious or effective remedy.

So the above questions are answered in the above terms.

10. As the local police has been castigated with favouritism to a party, therefore, the
District Police Officer, Bahawalnagar is directed to get the matter investigated by an
officer of renowned integrity and honesty, so that fair investigation, conclusion and
opinions come into existence. Both the parties would have discretion to present the
veracity of their cases at the investigation stage and in trial of the case. I have knowingly
avoided to discuss the merits and demerits, pros and cons of the versions of both the
parties, lest it may prejudice the case of either party at the stage of investigation or the
trial.

With these observations and directions the writ petition is, disposed of.

H.B.T./I-64/L Order accordingly.

2005 Y L R 702

[Lahore]

Before Sh. Hakim Ali, J

IMTIAZ ALI ---Petitioner

Versus

DISTRICT POLICE OFFICER and 10 others---Respondents

Writ Petition No. 3890 of 2003/BWP, decided on 6th January, 2004.

(a) Criminal Procedure Code (V of 1898)---

----Ss.154 & 157---Constitution of Pakistan (1973), Art.199---Constitutional petition---

Recording of second F.I.R. and quashing of first F.I.R.---Petitioner had alleged that
occurrence as contained in first F.I.R. was not reported by him to police, but S.H.O.
concerned had himself entered that story in the F.I.R. only to grant benefit to accused
with whom said S.H.O. was allegedly in collusion---Petitioner had prayed that first F.I.R.
be quashed and Second F.I.R. be directed to be entered in prescribed
register---Validity---Truth and veracity of version recorded in F.I.R., would be thrashed
out not only during investigation, but also in the Court of law---After registration of an
F.I.R., ordinarily no second F.I.R. could be registered, but there were instances where
Court had directed registration of second F. I. R. ---Aim, object and purpose of enacting
S.154, Cr. P. C. and other sections thereafter was that by providing information law was
set in motion and police would come into action--Truth or falsehood would come out
after investigation of the case---Whether the information was false, mala fide, with
ulterior motive or was untrue had to be explored by police and if found tainted with
falsehood, action under S.182, P. P. C. and under other penal section of P. P. C. could be
taken by police against informant---In the present case, if Court would come to the
conclusion after grant of opportunity of hearing that first information in fact was reported
by petitioner or second information was incorrect, the Court would be at liberty to initiate
strict action against complainant as provided by law---For fixing responsibility and to
investigate both reports, it was proper, and necessary to direct police to record second F.
I. R. and to investigate both versions as reported in earlier F.I.R. and in Second F.I.R.---
Versions contained in both F. I.Rs. would be open to investigation by police and police
would be at liberty to report its conclusions under S.173, Cr. P. C. to competent Court of
law---Constitutional petition was disposed of accordingly.

Wajid Ali Khan Durrani and others v. Government of Sind and others 2001 SCMR 1556;
Muhammad Anwar Sub-Inspector, Railway Police, Lahore v. Station House Officer,
Railway Police, Kasur and 2 others PLD 1999 Lah.50; Mulazim Hussain,
Inspector/S.H.O., Police Station Waris Khan, Rawalpindi and another v. Maulana Abdul
Jalil PLD 1999 Lah.39; M. Anwar, Barrister-at-Law v. The Station House Officer, Civil
Lines Police Station, Lahore and another PLD 1972 Lah.493; Muhammad Ishaque v. S.P.,
Jaffarabad and another PLJ. 1998 Quetta 1; Abbas Ali v. The State and another 2000 YLR
1591; Muhammad Ilyas v. S.H.O., P.S. Baddomalhi, District Narowal and 3 others 1997
MLD 1527; Malik Muhammad Anwar Khan v. The State and 4 others 1988 PCr.LJ 986;
Dilbar Hussain and others v. Riasat Javed Bajwa, S.H.O., Ferozewala and others 1994
MLD 1736 and Kaura v. The State and others 1983 SCMR 436 ref.

(b) Criminal Procedure Code (V of 1898)----

----S.154---Registration of Second F.I.R.--No statutory bar existed in any section of Code

of Criminal Procedure that a Second F. I. R. could not be registered by police---In fact
propriety demanded that there should be only one F.I.R. to move police and it had been
developed from interpretation of wording of S.154, Cr. P. C. by Superior Courts and
different course could only be adopted in exceptional circumstances by the order of the
Court---In multi facets versions, especially when first version having been reported was
denied, second version could be taken into consideration through its registration to fix
responsibility upon informant---In cases of recovery of weapons of offence, articles of
theft/ robbery/dacoity or any such necessity when police action was found necessary in a
case, complaint would not be an efficacious or effective remedy.

Muhammad Yaqub Khan for Petitioner.

Ahmad Masnoor Chishti, A.A.-G. assisted by Mian Muhammad Moshin Rasheed for
Respondents Nos.1 and 2 and Ghulam Dastgir, S.-I.

A.R. Tayyib for Respondents Nos.4 to 6, 9 and 10.

Date of hearing: 23rd December, 2003.

JUDGMENT

Through this writ petition Imtiaz Ali, petitioner seeks intervention of this Court to get
recorded an F.I.R. regarding the occurrence as set down by him in his application
attached with this writ petition as Annexure-A and the quashment of F.I.R. No. 203 of
2003, recorded by Ghulam Dastgir, S.-I./S.H.O. of Police Station Marot, District
Bahawalnagar on 10-12-2003 under section 302/34, P.P.C., allegedly upon his statement.

2. To decide the instant writ petition, it is not necessary to divulge upon the detailed facts,
merits and demerits, of the truth or falsehood of the case because the details of the
occurrence can be found from the above-mentioned F.I.R. or from the averments noted
into the complaint appended as Annexure-A to this writ petition. The contentious issues
between the petitioner and the respondents are that:--

(i) Whether a report entered in shape of an F.I.R. can be quashed when the
imparting of the information is denied by the informant?

(ii) Whether a second F.I.R, can be directed to be registered?

(iii) Whether extraordinary jurisdiction of this Court can be invoked?

3. The learned counsel appearing on behalf of the petitioner has vehemently argued that
the occurrence as contained in the F.I.R. No. 203 of 2003 was not reported to the police
by the petitioner, and the S.-I./S.H.O. had himself entered that story only to grant benefit
to the accused persons with whom he had already got alleged collusion. To give force to
his arguments, he has referred to a note at the tail end of the aforesaid F.I.R., in which it
has been remarked by Ghulam Dastgir, S.-I./S.H.O. of Police Station Marot that Imtiaz
Ali had denied to sign on the first information report. So, according to the learned
counsel, this F.I.R. may be quashed and the second F.I.R. be directed to be entered in the
prescribed register, in accordance with the application of the writ petitioner attached as
Annexure-A, to this writ petition. Supporting his contention through the citations as to
whether a second F.I.R. can be registered, learned counsel has referred to 2001 SCMR
1556 (Wajid Ali Khan Durrani and others v. Government of Sindh and others). He has
also referred to PLD 1999 Lahore 50 (Muhammad Anwar, Sub-Inspector, Railway Police,
Lahore v. Station House Officer, Railway Police, Kasur and 2 others) and PLD 1999
Lahore 39 (Mulazim Hussain, Inspector/S.H.O., Police Station Waris Khan, Rawalpindi
and another v. Maulana Abdul Jalil). Learned counsel has further augmented his
arguments by referring to PLD 1972 Lahore 493 (M. Anwar, Barrister-at-Law v. The
Station House Officer, Civil Lines Police Station, Lahore and another), a Full Bench
authority from the jurisdiction of this Court. To support his contention, he has submitted
that information lodged was correct or not depends upon the investigation of Police
Officer, who had to conduct it under section 157, Cr.P.C.; and that there was no bar for
the registration of second F.I.R. He has also cited PLJ 1998 Quetta 1 (Muhammad
Ishaque v. S.P., Jaffarabad and another) in which it has been expounded that the word
`shall' used in section 154, Cr.P.C. gives no option to Incharge Police Officer of a Police
Station to refuse to record the information, if reported with regard to a case of
commission of a cognizable offence. As per learned counsel, the police was under
bounded duty to register counter-version of the petitioner through a separate F.I. R. In
another ruling reported in 2000 YLR 1591 (Abbas Ali v. The State and another), the
registration of second F.I.R. was ordered. 1997 MLD 1527 (Muhammad Ilyas v. S.H.O.
P.S. Baddomalhi; District Narowal and 3 others) was referred to by the learned counsel
for the petitioner, to boost up his reasoning, in which S.H.O. was directed to register a
case on the written complaint of the petitioner according to his version.

4. Refuting the arguments, learned counsel for the respondents (Mr. A.R. Tayyib,
Advocate) has argued that the statement of Imtiaz Ali, petitioner was recorded by Ghulam
Dastgir, S.-I./S.H.O. on a plain paper which was signed by aforesaid Imtiaz Ali after he
had narrated the story of occurrence to S.-I./S.H.O. But at the time of recording of the
statement through the formal F.I.R. No. 203 of 2003 which was reproduced in the register
maintained for that purpose, Imtiaz Ali had refused to put his signatures on formal F.I.R.,
and that the signature upon the formal F.I.R. was not necessary and the refusal of Imtiaz
Ali could not affect adversely the first information report, made by Imtiaz Ali. He has
further submitted that the petitioner has got another alternate remedy of filing of private
complaint in the Court of competent jurisdiction and the written application now being
submitted for getting it registered as an F.I.R. is an afterthought version by the petitioner
and the petitioner is not entitled to get the F.I.R. quashed, or second F.I.R. registered
according to his written application. He has referred to 1988 PCr.LJ 986 (Malik
Muhammad Anwar Khan v. The State and 4 others), in which registration of another
report was refused when the police had started investigation in a case. He has also placed
reliance upon ruling reported as 1994 MLD 1736 (Dilbar Hussain and others v. Riasat
Javed Bajwa, S.H.O., Ferozewala and others). Learned counsel has also put reliance on
1983 SCMR 436 (Kaura v. The State and others). Learned counsel has submitted that
according to the authority, registration of second F.I.R. was held to be uncalled for
notwithstanding divergent versions contained therein were being reported. Learned
A.A.-G. appearing on behalf of the State has also supported the case of the respondents.

5. After being learned counsel for both the parties as well as the learned A.A.-G. on the
subject, the case has become very difficult as both the parties are insisting upon their
prayers and sticking to their version. I had suggested both the parties that the writing, is
appended to this writ petition as Annex-A if be recorded by the police as supplementary
statement under section 161, Cr.P.C. but the petitioner and the respondents are not ready
to accept this suggestion.

6. As both the parties are cleaving to their version, it has become a case of two versions
i.e. (sic) police versus an informant' Therefore, it is essential that both these versions
should remain on the record and it would be open to the Court to decide as to which of
the version was reported correctly by the informant. At this stage, any verdict from this
Court would prejudice the case of either party. So the matter is left open for adjudication
by a competent Court. I have knowingly avoided to decide this controversy as it falls
within the realm of facial inquiry of the case. Accordingly, I consider it appropriate that
the quashment of the F.I.R. already recorded by the police would deprive the
Investigating Agency as well as the persons involved in it or in the second F.I.R. from its
beneficial use. The learned Court and the parties shall be at liberty to prove the truth or
falsehood 'of the earlier and the 'instant F.I.R. and the fact that the earlier F.I.R. was also
got registered by the petitioner or not. It will be an immature and premature judgment if
the F.I.R. already recorded be considered to be correct version from the mouth of
informant, which has been recorded by the Police. The truth and veracity of the version
recorded in the F.I.R. would be thrashed out not only during the investigation yet in the
Court of law also. There is no cavil to the proposition that after registration of an F.I.R.,
ordinarily no second F.I.R. can be registered thereafter but from the rulings cited above,
the preponderance has been found otherwise. There are instances where the Court had
resolved this issue by directing registration of the second F.I.R.

7. While enacting law of section 154, Cr.P.C. and the other sections thereafter, the aim,
object and purpose of these can be summarized in the following words:--

"By laying an information law is set in motion, and the police comes into action,
sites are inspected, persons are interrogated, statements are recorded, evidence is
collected, accused are arrested, innocents are discharged while guilty are sent up
to the Court concerned to face the trial. This is the history of law on this subject."

8. The truth or falsehood comes out after the investigation of an occurrence is reported by
an informant. In fact, after the recording of the first information report, the investigating
agency gets on account of the commission of the offence. A line of action is given to the
police. Whether the information is ingenuine, mala fide, with ulterior motive or untrue
has to be explored by the police and if found tainted with falsehood, the action under
section 182, P.P.C. and under other penal sections of the P.P.C. has to be taken by the
police against the informant. In other words, the distortion of real facts or
misrepresentation of it has to fetch the penalty for the informant. In the instant case, if the
learned Court seized of the case, comes to the conclusion, of course, after grant of
opportunity of hearing, that the first information was in fact reported by the petitioner, or
the second information was incorrect, in such an event, it would be at liberty to initiate
the strict action against the complainant as provided by law. So, for fixing the
responsibility and to investigate both the reports, I consider it proper and necessary to
direct the police to record the second F.I.R. as reported by the petitioner in his writing and
to investigate both these versions as earlier reported and in the second F.I.R. as is now
being got registered by the petitioner through this writ petition. It may be clarified that
the version contained in both these F.I.Rs. would be open to investigation by the police
and the police would be at liberty to report its conclusions under section 173, Cr.P.C. to
the learned competent Court of law.

9. So my conclusions are that:--

(i) There is no statutory bar in any section provided by the Code of Criminal
Procedure that a second F.I.R. cannot be registered by the Police. In fact, the
property demands that there should be only one first information report to move
the police, and it has been developed from the interpretation of the wording of
section 154, Cr.P.C. by the superior Courts and the different course can only be
adopted in exceptional circumstances by the order of the superior Courts, as noted
in the above referred ruling, presented by the learned counsel for the petitioner.

(ii) In the multi facets versions, especially when the first version having been
reported is denied, the latter version can be taken into consideration through its
registration to fix the responsibility upon the informant.

(iii) In cases of recovery of weapons of offence, articles of theft/robbery/dacoity

or any such necessity when the police action is found necessary in a case, the
complaint would not be an efficacious or effective remedy.

So the above questions are answered in the above terms.

10. As the local police has been castigated with favouritism to a party, therefore, the
District Police Officer, Bahawalnagar is directed to get the matter investigated by an
officer of renowned integrity and honesty, so that fair investigation, conclusion and
opinions come into existence. Both the parties would have discretion to present the
veracity of their cases at the investigation stage and in trial of the case. I have knowingly
avoided to discuss the merits and demerits, pros and cons of the versions of both the
parties, lest it may prejudice the case of either party at the stage of investigation or the
trial.

With these observations and directions the writ petition is, disposed of.

H.B.T./I-64/L Order accordingly.

2005 P Cr. L J 906
[Lahore]
Before Sh. Abdur Rashid, J
MUHAMMAD AZAM---Petitioner
versus
THE STATE and 2 others---Respondents

Writ Petition No.651 of 2005, decided on 3rd March, 2005.

(a) Penal Code (XLV of 1860) ---

----Ss. 419, 420, 467, 468, 471, 506 & 109---Constitution of Pakistan (1973),
Art.199---Quashing of F.I.R.---Case of complainant was that besides forging the
agreement to sell, petitioner had also extended threats to kill him which had
constituted offence under S.506, P.P.C. which was a cognizable offence---Plea of
petitioner was that even if entire prosecution allegations were accepted to be true, act
of petitioner only fell within Ist Clause of S. 464, P.P.C. which offence was
punishable under S. 468, P.P.C. and was non-cognizable offence---Petitioner further
contended that F.I.R. could not be registered in non-cognizable offences and
investigation could not take place in such like cases without prior permission of
Magistrate and even arrest could not be made before obtaining warrants of arrest from
him---Validity---No allegation existed on the record against petitioner that he, in any
manner, by cheating, had dishonestly induced either complainant or owner/vendor of
property in dispute to deliver any property to any person---Prima facie application of
S.420, P.P.C. to the facts of the case was not attracted---No allegation was levelled
against the petitioner that he in any manner forged any document which purported to
be valuable security or a will---Prima facie application of S.467, P.P.C. was also not
attracted in the case---Allegation against petitioner was that he allegedly signed,
prepared and executed an agreement to sell by forging signatures of owner of property
in dispute---Petitioner's act, in circumstances clearly fell within the purview of Ist
clause of S.464, P.P.C. which offence was punishable under S.468, P.P.C. and was
non-cognizable one---Allegation that petitioner had extended threats to kill
complainant, was consequence of act of forging an agreement to sell by petitioner
which was main offence---Threat was only verbal one and F.I.R. had revealed that
while giving alleged threats to complainant, petitioner was not armed with any
weapon---Mere verbal threat would not take case of petitioner within the purview of
S.506 Part II, P.P.C., but would fall within ambit of S.506 Part I, P.P.C.,
which was also non-cognizable offence---Proper procedure having not been
followed in the case, the manner in which F.I.R. in question had been
recorded and proceeded, was not legally tenable---F.I.R. was quashed in
circumstances.

1994 PLR 1017 Lahore ref.

(b) Criminal Procedure Code (V of 1898)---

----Ss. 154, 155 & 156---Recording of information in cognizable cases and in non-
cognizable cases---Under provisions of S.154, Cr.P.C., a statutory duty had been cast
upon officer incharge of Police Station to enter information regarding commission of
any cognizable offence in a register the form of which was prescribed by Provincial
Government which was known as "F.I.R. Parlance"---For recording of information of
commission of a non-cognizable offence another book was prescribed which was
known as 'Roznamcha' or Station Diary in which information relating to commission
of non-cognizable offence was recorded---Police on such information generally did
not initiate any action and complainant or informant after being given a copy of report
so entered, was sent away---However, if S.H.O. would deem fit to initiate
investigation, then under subsection (2) of S.155, Cr.P.C. he had to obtain order from
Magistrate and if any arrest was to be effected then it could only be made after
obtaining warrant of arrest from Magistrate under S.155(3), Cr.P.C.---Section 156(1),
Cr.P.C. empowered an officer-in-charge of a Police Station to investigate any
cognizable offence without any order of Magistrate.

M.M. Alam for Petitioner.

Najeeb Faisal Chaudhry, Addl. A.-G. with Rana Javaid Anwar, Muhammad
Arif, S.-I. and Muhammad Iqbal S.-I.
 Mian Muhammad Saeed for Respondents.

ORDER
Through this petition the petitioner seeks quashment of F.I.R. No.244 of 2004
dated 25-11-2004 under sections 419/420/467/468/471/ 506/109, P.P.C. registered at
Masti Gate, Lahore against the petitioner and others on the instance of Irfan Ahmad
complainant.
2. The prosecution case set up in the F.I.R. is that one Amir-ud-Din along with
his other brothers and sisters was owner of Property No.F-1982 situated in Kashmiri
Bazar, Lahore, which he had allegedly sold to Irfan Ahmad complainant vide
registered sale-deed dated 9-8-2004. The petitioner is tenant in the said property
which comprised of a shop for the last 35 years and when the complainant demanded
from the petitioner to pay the rent to him or to vacate the shop he threatened him to
kill and further told him that he was himself owner of the shop vide agreement to sell
dated 25-8-2004 purporting to show that Amir-ud-Din had agreed to sell the said shop
to him for Rs.15,00,000 and had received Rs.10,00,000 as earnest money. Confronted
with the said situation the complainant who is now the owner of the said property
lodged report with the police that the petitioner had forged an agreement to sell to
deprive him from the property and had also cheated the said Amir-ud-Din besides
extending him threats to kill. During investigation the alleged sale agreement was sent
to the Handwriting Expert whose report confirmed that the alleged signatures of
Amir-ud-Din on the agreement to sell were not genuine.
3. It has been argued on behalf of the petitioner that even if the entire prosecution
allegations are accepted to be true, the act of the petitioner only falls within the 1st
clause of section 464, P.P.C. that the petitioner had signed or executed an agreement
to sell with the intention of causing it to be believed that the said agreement to sell
had been signed or executed by Amir-ud-Din knowingly that he had not signed and
executed the same and that this offence is punishable under section 468, P.P.C. which
is a non-cognizable offence and in view of the principle laid down in 1994 PLR 1017
Lahore the F.I.R. cannot be registered in non-cognizable offences and investigation
cannot take place without prior permission of the Magistrate and even arrest cannot be
made before obtaining warrants of arrest from the Magistrate. It has been further
argued that there is no prosecution allegation that the petitioner had in any manner
forged a document which purported to be a valuable security or a will or aimed at
giving authority to any person to make or transfer any valuable security or to receive
the principal, interest or dividend thereon or to receive or deliver any money,
moveable property or any receipt acknowledging the payment of money and as such
the application of section 467, P.P.C. to the facts of this case is not legally made out.
Learned counsel for the petitioner has also argued that it has not been alleged in the
F.I.R. that the petitioner had in any manner cheated either Amir-ud-Din or the
complainant and thereby dishonestly induced them to deliver any property to any
person or to make, alter or destroy the whole or any part of the valuable security or
any document capable of being converted into any valuable security. Therefore,
application of section 420, P.P.C. is also not legally warranted. It has also argued
that the main allegation against the petitioner is that of forging an agreement to sell
and the allegation that the petitioner extended threats to the complainant to kill him is
only a consequential act and constitutes a supportive offence under section 506, P.P.C.
and if the main allegation constitutes a non-cognizable offence then the consequential
act even if constitutes a cognizable offence will not change the nature and character of
the main allegation of the prosecution from non-cognizable to a cognizable one. It has
also been argued that the complainant has merely levelled allegation of verbal threats
and it has no where been alleged that while giving the threats the petitioner was
armed with any kind of weapon so as to give impression to the complainant that the
threat was of real substance and merely verbal threat would fall within the purview of
section 506 Part-I, P.P.C. which is also non-cognizable.
4. The learned Additional Advocate-General assisted by the learned counsel for
the complainant has argued that besides forging the agreement to sell the petitioner
had also extended threats to kill the complainant which constitutes offence under
section 506, P.P.C. which is cognizable and as such even if the other offences are non-
cognizable the F.I.R. in this case can be legally lodged under section 154, Cr.P.C. and
prima facie there is no material to quash the F.I.R.
 5. The perusal of the F.I.R. and the material collected during the investigation
reveals that there is no allegation against the petitioner that he in any manner by
cheating had dishonestly induced either the complainant or Amir-ud-Din to deliver
any property to any person or to make, alter or destroy the whole or any part of a
valuable security or anything which is signed or sealed and is capable of being
converted into a valuable security, therefore, prima facie the application of section
420, P.P.C. to the facts of this case is not attracted. Similarly there is no allegation that
the petitioner in any manner forged any document which purported to be a valuable
security or a will or which purported to give authority to any person to make or
transfer any valuable security or to receive the principal, interest or dividend or to
receive or deliver any money, moveable property or valuable security or any other
document purporting to be a acquittance or receipt acknowledging the payment of
money, therefore, prima facie the application of section 467, P.P.C. to the facts of this
case is also not attracted. The allegation against the petitioner is that he had allegedly
signed, prepared or executed an agreement to sell with the signatures of Amir-ud-Din
which in fact are not his signatures. Therefore, the petitioner's act clearly falls within
the purview of 1st clause of section 464, P.P.C. i.e. making of a false document and
this offence is punishable under section 468, P.P.C. which is non-cognizable one. The
allegation, that the petitioner extended threats to kill the complainant, is consequence
of the act of forging an agreement to sell by the petitioner because the complainant
allegedly demanded from the petitioner to either pay him the rent or to vacate the
shop then on the strength of said forged agreement to sell the petitioner extended the
alleged threats, therefore, the act of forging the document in this case is the main
offence and the act of extending threats to kill the complainant is a supportive or a
consequential offence and the registration of case in this case would be regulated by
the main offence which in the present case is 468, P.P.C. and is non-cognizable. The
contents of the F.I.R. reveal that while giving the alleged threat to the complainant the
petitioner was not armed with any weapon and he had only given verbal threats and
thus, the complainant could not apprehend that the petitioner was capable of giving
effect to his threats which could really subject the complainant to the alarm or
apprehension that his death could be caused. Mere verbal threats would not take the
case of the petitioner within the purview of section 506-II, P.P.C. and falls with the
ambit of section 506 Part-I, P.P.C. which is also a non-cognizable offence.
6. The information regarding commission of a cognizable offence is regulated
by section 154, Cr.P.C. whereas the information regarding commission of non-
cognizable offence is regulated by section 155, Cr.P.C. Both these sections are
reproduced below for ready reference:--
"154 Information in cognizable cases .--- Every information relating to the
commission of a cognizable offence if given orally to an officer incharge of
police station, shall be reduced to writing by him or under his direction and be
read over to the informant, and every such information, whether given in
writing or reduced to writing as aforesaid, shall be signed by the person giving
it, and the substance thereof shall be entered in a book to be kept by such
officer in such form as the (Provincial Government) may prescribe in this
behalf.
155 Information in non-cognizable cases .--- (1) When information is given to an
officer-in-charge of a police station of the commission within the limits of
such station of a non-cognizable offence, he shall enter in the book to be kept
as aforesaid the substance of such information and refer the informant to the
Magistrate.
(2) Investigation in non-cognizable cases .--- No police officer shall investigate a
non-cognizable case without the order of Magistrate of the first or second class
having power to try such case or send the same for trial to the Court of
Session.
(3) Any Police Officer receiving such order may exercise the same powers in
respect of the investigation (except the power to arrest without warrant) as an
officer-in-charge of a police station may exercise in a cognizable case."
Comparative reading of sections 154 and 155, Cr.P.C. shows that under section 154,
Cr.P.C. a statutory duty has been cast upon the officer-in-charge of a police station to
enter the information regarding commission of any cognizable offence in a register
the form of which is prescribed by the Provincial Government which is known as
F.I.R. parlance. As regards recording of information of commission of a non-
cognizable offence another book is prescribed which is known as "Roznamcha" or
Station Diary in which information relating to commission of non-cognizable offence
is recorded and generally the police does not initiate any action and the complainant
or informant after being given a copy of the report so entered is sent away. However,
if the S.H.O. deems fit to initiate the investigation then under subsection (2) of
section 155 the Police Officer has to obtain order from the Magistrate and if any
arrest is to be effected then it can only be made after obtaining warrant of arrest from
the Magistrate under section 155(3), Cr.P.C. Section 156(1), Cr.P.C. empowers an
officer-in-charge of a police station to investigate any cognizable offence without any
order of a Magistrate.
7. As the information given to the police in the present case only revealed
commission of non-cognizable offences, therefore, the F.I.R. in this case under section
154, Cr.P.C. could not have been registered straight away and the legal course
available was to make a report regarding commission of a non-cognizable offences of
sections 468 and 506 (Part-I), P.P.C. under section 155(1), Cr.P.C. and then to seek the
permission of the learned Illaqa Magistrate for conduct of the investigation under
section 155(2), Cr.P.C. and if the arrest of the accused is to be effected then warrant of
his arrest are to be obtained from the Magistrate as stipulated under section 155(3),
Cr.P.C. As the said procedure has not been followed in this case, therefore, the manner
in which the F.I.R. in question has been recorded and proceeded is not legally tenable.
Therefore, the impugned F.I.R. is quashed. The complainant is at liberty to re-initiate
the proceedings if he so desires. This petition is disposed of.
H.B.T./M-938/L F.I.R. quashed.
2003 Y L R 1941
[Quetta]
Before Raja Fayyaz Ahmed, C.J. and Akhtar Zaman Malghani, J
Mst. SHEHNAZ---Petitioner
Versus
S.H.O., SARIAB POLICE STATION, QUETTA and 2 others---Respondents
Constitutional Petition No.583 of 2002, decided on 26th February, 2003.
Criminal Procedure Code (V of 1898)---
----Ss.154, 156 & 157---Constitution of Pakistan (1973), Art.199---Constitutional
petition---Registration of F.I.R.---Petitioner had prayed to direct Police Officers
concerned to register F.I.R. against the accused persons with regard to abduction of her
son and for his recovery---Since report with regard to alleged abduction was made to
S.H.O. Police Station concerned by brother of alleged abductee, same being with regard
to commission of cognizable offence, it was obligatory on part of S.H.O. to have
registered F.I.R. within meaning of S.154, Cr. P. C. as it was not within statutory
discretion of S.H.O. to refuse registration of criminal case particularly when report in
respect of commission of cognizable offence was made to him---After registration of
case, if S. H. O. had reason to suspect commission of offence which he was empowered
under S.156, Cr. P. C. to investigate, would send forthwith report of the same to the
Magistrate empowered to take cognizance of such offence upon the report and himself
would proceed in person or would depute one of his subordinate officers as provided
under S.157, Cr. P. C. to the spot to investigate the facts and circumstances of the case---
If it would appear to Officer-in-Charge of Police Station that no sufficient ground existed
for entering on investigation, he would not investigate the case as contemplated by Cl. (b)
of proviso to subsection (1) of S.157, Cr. P. C. and would state in his report his reasons
for not fully complying with requirements of any of S.157, Cr. P. C. ---Officer-in-Charge
of Police Station concerned, in the present case, had exercised powers vesting in him not
in accordance with law by resorting to provisions of S.157, Cr.P.C. directly without any
formal registration of case as contemplated by S.154, Cr. P. C. in respect of commission
of a cognizable offence---Officer-in-Charge of Police Station concerned was directed by
High Court to register case and to proceed further strictly in accordance with law in light
of facts and circumstances.
Mir Aurangzaib for Petitioner.
Salahuddin Mengal, A.-G. for the State.
JUDGMENT
RAJA FAYYAZ AHMED, C.J.---It has been prayed in this Constitutional petition that
the respondent may be directed to register F.I.R. on behalf of the petitioner against the
accused persons namely Sher Ahmed, Farooq Ahmed sons of Haji Muhammad Akram,
Nihal Khan alias Babul son of Haji Kamal Khan and Naseer Ahmad son of Saeed Ahmed
residents of Killi Baro Rind Abad, Sariab Road, Quetta and to recover the abducted son
of the petitioner.
2. The case of the petitioner Mst. Shehnaz is that 4/5 years back F.I.R. was registered in
respect of the murder of one Muhammad Akram with Police Station Shailkot and due to
the alleged incident relations between the parties were strained. Subsequently; the
member of the deceased party started threatening for dire consequences and on 16-5-2002
relatives of the deceased party including Sher Ahmed, Farooq Ahmed and Nihal Khan
came to the house of the petitioner, threatened the petitioner and his son by declaring that
they would abduct her son and thereafter, the petitioner's son namely Abdul Jabbar was
found missing. Further the case of the petitioner is that on inquiries made by her she
came to know that her son has been abducted and confined illegally by the above said
accused persons. It has been alleged that after the incident of kidnapping of her son she
approached to the S.H.O./Police Station Sariab Quetta to lodge F.I.R., but in vain, and;
thereafter submitted applications to the Senior Superintendent of Police, Quetta, D.I.G.
Police and other higher authorities, but with no result. Copies of the applications have
been annexed with the memo. of Constitutional petition.
3. Notice of the Constitutional petition was directed to be issued to the S.H.O./Police
Station Sariab and Shalkot as well as to the learned Advocate General. On the date fixed
in the matter S.H.O./Police Station Sariab (Rauf Bare-ch) appeared in person and
submitted that the matter relates to the territorial jurisdiction of Police Station Shalkot,
whereas; S.H.O./Police Station Shalkot (Alain Pirkani) submitted that some time back
complaint in respect of, the grievance of the petitioner was made to him and he forwarded
the relevant papers to the Superintendent of Police, which till date were not returned to
him, however; he stated that entries were made in the Roznamcha of the Police Station.
In the light of submissions made by the S.H.O./Police Station Shalkot, he was directed to
file a comprehensive report. Pursuant to the above, direction, the S.H.O./Police Station
Shalkot filed his report in Court after conducting inquiry under section 157(2), Cr.P.C.
with regard to the alleged incident of abduction. In such report it has been pointed out
that on 18-5-2002 brother of the alleged abductee namely Abdul Sattar reported that one
of his brothers namely Muhammad Ibrahim was arrested by the Crimes Branch Police
about six days back in respect of murder case of the deceased Haji Muhammad Akram,
who further alleged that on 16-5-2002 as per routine he alongwith his younger brother
namely Abdul Jabbar, aged about 18 years, left for their grocery shop, whereas; he
himself (Abdul Sattar) left for the Crimes Branch to provide food to his brother
Muhammad Ibrahim and returned to the shop at 1-30 p.m. and found that his brother
Abdul Jabbar was not present in the shop. He further alleged that his younger brother
namely Hafizullah, aged about 10/11 years, who was present in the shop, disclosed to him
that Abdul Jabbar asked him to remain present in the shop and himself left for
somewhere, who had been extensively searched, but till date he could not find his
whereabouts. As per report filed in Court by the S.H.O. it was stated that Abdul Sattar
had in his report further disclosed that Sher Ahmed son of deceased Muhammad Akram
had threatened to him that his brother Muhammad Ibrahim already apprehended by the
Crimes Branch Police to admit the guilt of the murder of his father and also Gul Jan and
Ahmed Din to give evidence against Muhammad Ibrahim, else; he would abduct
someone. Also, Abdul Sattar suspected that Sher Ahmed, Farooq Ahmed, Naseer Ahmed
and Nihal Khan are responsible for the abduction of Abdul Jabbar.
It has been specifically pointed out in the report submitted by the S.H.O. that narration of
the alleged facts in respect of the incident of abduction by Abdul Sattar, prima facie
found to be doubtful were recorded as such; in the Roznamcha of the police station on
18-5-2002. Inquiry as contemplated under section 157(2), Cr.P.C. was conducted, during
the course whereof it was found that sufficient incriminating material warranting for trial
of the offence of the murder of deceased Muhammad Akram against Muhammad Ibrahim
was procured, accordingly; challan for trial of the offence was submitted in the competent
Court of law and the brother of the accused in order to pressurize the members of the
victim's family without any truthful basis have alleged about the incident of abduction, in
which the prosecution witnesses in the murder case of deceased Muhammad Akram have
been nominated as involved in the abduction of Abdul Jabbar, in order to prevent them
from giving evidence in the murder case and with the motive, to get acquittal of the
accused facing trial in the murder case. Further it has been pointed out in the report that
as both the parties are inter-related and in order to avoid tribal enmity, no independent
person has come forward to disclose any fact in respect of the alleged incident of
abduction and both tie parties have avoided to disclose true facts. As a result of inquiry
conducted by the S.H.O. it has been concluded that the whereabouts of the alleged
abductee Abdul Jabbar have been deliberately concealed in order to achieve the above
motive and the facts and circumstances of the case indicate that no cognizable offence as
alleged has been committed, therefore, F. I. R. in respect of this incident has not been
registered as yet.
4. The learned counsel for the petitioner and the learned A.G. as well as S.H.O./Police
Station Shalkot have been heard. Mir Aurangzeb, the learned counsel for the petitioner
strenuously argued that since report in respect of the incident of abduction was made to
the Police Officer by the brother of the abductee, therefore, it was obligatory for the
S.H.O. to have registered the report and conducted investigation in respect of the
commission of the cognizable offence by the nominated accused persons. According to
the learned counsel, the S.H.O. in view of the given report had no option but to register
the F.I.R. and to further proceed in accordance with law, but he deliberately avoided to
discharge his legal duty, hence; necessary 'direction in such behalf be issued to the S. H.
O.
5. The learned A.G. contended that after reducing into writing the report made by Abdul
Sattar (brother of the alleged abductee) in the Roznamcha of the Police Station and
having come to the conclusion and having found reasons to believe that the reported
incident did riot call for investigation to be conducted in the matter as disclosed in the
report submitted in the Court was perfectly justified not to proceed in the matter in the
given circumstances of the case, hence; the relief claimed in the Constitutional petition
may be found to be unwarranted and unjustified. The learned A.G. further submitted that
intentionally on false allegation of abduction the P.Ws. in the murder case have been
nominated in order to pressurize them and to prevent the P. Ws. from giving evidence in
the murder case against accused Muhammad Ibrahim, who happens to be the brother of
the complainant/Abdul Sattar and with this object in mind, the brother of the accused
Muhammad Ibrahim facing trial on the murder charge with the help and connivance of
their mother (petitioner) have concealed Abdul Jabbar somewhere to achieve their
ultimate motive for securing acquittal of accused Muhammad Ibrahim, therefore, for
good grounds and reasons based upon inquiry conducted by the S.H.O./Police Station
Shalkot investigation in respect of the alleged incident of abduction within the purview of
section 157(2), Cr.P.C. was not conducted.
6. The S.H.O./Police Station Shalkot submitted that as the report made by Abdul Sattar
on the given facts and in circumstances of the case was doubtful, yet; for his further
satisfaction inquiry was conducted by him and he was satisfied for the reasons mentioned
in the report that in order to deter P.Ws. to depose against accused Muhammad Ibrahim
facing trial on the murder charge they have been nominated to be responsible for the
abduction of Abdul Jabbar and to pressurize the victim's family to inter into compromise
in the murder case, a baseless and misconceived report in respect of alleged incident of
abduction has been made by Abdul Sattar to save the skin of his brother Muhammad
Ibrahim on the murder charge, therefore, investigation in the matter was not conducted by
him and for such reasons he did not register the case except incorporating the contents of
the report in the Roznamcha of the Police Station.
7. The contentions put forth on behalf of the parties and the submissions made by the
S.H.O. have been considered in the light of the report filed in Court by the S.H.O. as well
as the relevant provisions of section 154, 156 and 157, Cr.P.C. It is an admitted feature of
the case that prior to the alleged incident of abduction; Muhammad Ibrahim, brother of
informant Abdul Sattar was arrested by the Crimes Branch Police, Quetta on the charge
of murder of Haji Muhammad Akram and challan for trial of the offence was submitted in
the competent Court of law against Muhammad Ibrahim in which the accused persons
alleged to be involved/responsible for the abduction of Abdul Jabbar are the cited
prosecution witnesses in the murder case, who were likely to give evidence against
accused Muhammad Ibrahim at the trial. Subsequently; on 18-5-2002 brother of accused
Muhammad Ibrahim namely Abdul Sattar and son of the petitioner reported to
S.H.O./Police Station Shalkot that on 16-5-2002 he was informed by his minor brother
Hafizullah aged about 10/11 years that Abdul Jabbar (alleged abductee) by leaving him in
the shop has left the shop. Abdul Sattar further alleged that he made extensive efforts to
search out his brother Abdul Jabbar, but could not find him, who also alleged that Sher
Ahmed son of deceased Muhammad Akram had threatened to him that his brother
Muhammad Ibrahim must confess his guilt and also Gul Jan and Ahmed Din to give
evidence against accused Muhammad Ibrahim otherwise he will abduct someone. Thus
he suspected that his brother Abdul Jabbar has been abducted by Sher Ahmed, Farooq
and Naseer Ahmed out of whom the former two nominated, persons are the sons of
deceased Muhammad Akram. The S.H.O. did not register the F.I.R. and recorded the
contents of the report in the Roznamcha of the Police Station of even date being doubtful
and conducted inquiry as per his report within the meaning of section 157(2), Cr.P.C., as a
result whereof, he concluded in his report submitted in Court that with a view to
pressurize the P.Ws. in the murder case and to procure acquittal of accused Muhammad
Ibrahim false and misconceived report with regard to the alleged incident of abduction
has been made by the brother of the accused Muhammad Ibrahim facing trial on the
charge of murder of deceased Muhammad Akram. As regards the factual aspects of the
case pertaining to the incident of alleged murder are concerned, we; refrain to make any
comment, as the same might result into prejudicing the case of either party, however; so
far as the legal position stands, we; may observe that since the report with regard to the
alleged abduction was made to the S.H.O./Police Station Shalkot by the brother of the
abductee, therefore, the same being with regard to the commission of cognizable offence
it was obligatory on the part of the S.H.O. to have registered the F.I.R. within the
meaning of section 154, Cr.P.C. as it was not within his statutory discretion to refuse
registration of the criminal case particularly when report in respect of commission of a
cognizable offence was trade to him, however; if after registration of the case, the S.H.O.
has the reason to suspect commission of an offence which he is empowered under section
156 to investigate, he shall forthwith send a report of the same to the Magistrate
empowered to take cognizance of such offence upon a police-report, and himself shall
proceed in person, or shall depute one of his subordinate officers as provided under
section 157, Cr.P.C. to the spot, to investigate the facts and circumstances of the case,
and; if necessary; to take necessary steps for the discovery and arrest of the offender,
provided; he may not do so, if the commission of any such offence is given against any
person by name and the case is not of a serious nature, and; if it appears to the Officer
Incharge of the Police Station that there is no sufficient ground for entering on an
investigation, he shall not investigate the case as contemplated by clause (b) of Proviso to
subsection (1) of section 157, Cr.P.C. for which as provided in subsection (2) of the
aforesaid section, the Officer Incharge of the Police Station shall state in his said report
his reasons for not fully complying with the requirements of any of the subsection and in
the case covered by clause (b) the Officer Incharge of the Police Station shall also
forthwith notify to the informant the fact that he will not investigate the case or cause it to
be investigated. Bare perusal of provisions of section 157, Cr.P.C. indicate that the
powers exercisable by the Officer Incharge of a Police Station in the given facts and
circumstances of a case cannot be resorted to unless report made to him in respect of
commission of a cognizable offence is reduced into writing and be read over to the
informant duly entered in a book to be kept by such Officer as prescribed within the
meaning of section 154, Cr.P.C. Mere incorporating contents or substance of the report in
the Roznamcha of the Police Station made to the Officer Incharge of the Police Station by
an informant in respect of commission of a cognizable offence would not be a
compliance of the mandate of the law as envisaged by section 154, Cr.P.C., therefore,
before resorting to any of the provisions of section 157, Cr.P.C., the Officer-in-Charge of
the Police Station is duty bound to register the report as provided by section 154, Cr.P.C.
and thereafter, to proceed under section 156, Cr.P.C. or under any of the provisions of the
section 157, Cr.P.C. as the facts and circumstances of the case may admit or warrant,
consequently, we; may observe that the Officer Incharge of the Police Station exercised
the powers vesting in him not in accordance with law by resorting to provisions of
section 157, Cr.P.C. directly without the formal registration of the case as contemplated
by section 154, Cr.P.C. in respect of the commission of a cognizable offence, therefore,
we directed the Officer Incharge/S.H.O. Police Station Shalkot to register the case and to
proceed further strictly in accordance with law in the light of the facts and circumstances
of the case.
The result is that this Constitutional petition is disposed off in the above terms, leaving
the parties to bear their own costs.
H.B.T./169/Q Order accordingly.
P L D 2002 Lahore 619
Before Iftikhar Hussain Chaudhry, CJ
MIAN KHAN and others---Petitioners
Versus
INSPECTOR-GENERAL OF POLICE, PUNJAB and others--Respondents
Writ Petitions No.17513, 17591, 17590, 17583, 17535 of 2002, decided on 26th
September, 2002:
Criminal Procedure Code (V of 1898)---
----Ss. 551, 154, 22-A & 22-B---Police Order- (22 of 2002), Art.35---Police Rules,
1934---Constitution of Pakistan (1973), Art.199---Petitioners, dissatisfied with the
investigation being conducted bit the local police seeking, through Constitutional
petitions, transfer of investigation alleging harassment being caused by police to them
and praying for issuance of directions to local police for registration of criminal case
against a number of persons---Adjudication of such petitions---Procedure---Registration
of criminal case, transfer of investigation from one investigating officer to another or
issuance of a restraint order against the police officer not to cause harassment to a citizen,
essentially are administrative functions which are to be carried out by the police
functionaries concerned or higher police officers in exercise of powers under S.551,
Cr.P.C. and supervisory powers vesting in them under Police Rules, 1934 or Police Order,
2002---District Nazim has also the power to issue necessary direction to police to carry
out its functions in accordance with provisions of the Police Order, 2002---Directions
which have been sought for by the petitioners, in the present case, through constitutional
petitions essentially relate to administrative duties to be performed by the public
functionaries and adjudication of rights in the conventional sense of the term by a
superior Court is not required or involved in the process---High Court being the apex
Court under the Criminal Procedure Code, 1898 has plenary powers on administrative
and adjudicatory side to oversee the functioning of all public functionaries who are
required to exercise any power or to perform any function under provisions of Cr.P.C. to
ensure strict enforcement of and compliance with various provisions of law relating to
registration of cases, investigation thereof and ancillary matters---High Court is fully
empowered to issue an appropriate direction to effectuate the mandate and writ of
law---Subordinate functionaries can also be called upon to perform such functions as the
High Court might require---Sessions Judges, Additional Sessions Judges and Magistrates
and police/public functionaries can be deputed by High Court to ensure proper
administration of justice---Sessions Judges, Additional Sessions Judges and the
Magistrates, even otherwise, are empowered under S.22-A, Cr.P.C. and obliged under
S.22-B, Cr.P.C. to carry out their functions with regard to correct working of police in
accordance with law--Registration and proper investigation of criminal case can be
directed by the Sessions Judges, Additional Sessions Judges and the
Magistrates---Sessions Judges, Additional Sessions Judges and Magistrates can
competently call upon the police functionaries to desist from causing harassment to
people and to remain within the limits of law---Sessions Judges, Additional Sessions
Judges and Magistrates have ample power in this regard and they have to exercise the
same in aid of justice and to alleviate the miseries of the common man---Lower judiciary,
which is vested with enough statutory powers in this regard, has to play a more dynamic
role in the criminal justice system, and for removal of any difficulties, any order passed
by the Sessions Judges, Additional Sessions Judges in exercise of powers under S.22-A &
22-B, Cr.P.C. pursuant to directions given by the High Court, would have full sanction of
the plenary powers of the High Court and police would be under an obligation to obey the
orders passed by the Sessions Judges, Additional Sessions Judges or the Magistrates---
Directions, issuance of which have been sought for through the constitutional petitions, in
the present case, are essentially administrative in nature, and do not require adjudication
by High Court and only such intervention which is forensic in nature, is required which
can be resorted to in chamber by the Judges of the High Court---Office of the High Court
has been directed to place similar petitions before the Judges in chamber only and there is
no requirement to place the matter before the Judges in Court---Judge of the High Court,
in an appropriate case, keeping in view facts and circumstances, may hear the case in
open court and hearing of the counsel at great length in chamber would not be necessary
which is dispensed with from now on--High Court, while disposing of the constitutional
petitions directed the petitioners in the present case, to produce a copy of the petition as
well as the order of the High Court (in the present case) before the Sessions Judge of the
District who shall look into the grievance of the petitioner, summon the local Station
House Officer and issue necessary directions to him with regard to registration of case or
for holding an inquiry under section 157, Cr.P.C. or for carrying out proper investigation
of the case---Sessions Judge can entrust the matter to any Additional Sessions Judge or
Judicial Ilaqa Magistrate of the police station concerned to do the needful, as
well---Formal inquiry and preparation of record is not required---If needed, an order in
writing can be given to the police--Similarly if the Sessions Judge is satisfied about
grievance of the petitioner with regard to defective, evasive or less than honest
investigation, he shall have the power to transfer investigation of the case to any other
police officer within the District---Directions in this regard can be given to the District
Police Officer to transfer the investigation--Sessions Judge, the Additional Sessions
Judge or the Magistrate would also call upon the respondent police officer to remain
within the limits of law and strictly abide by the law and procedure and not to cause any
harassment to any of the petitioners (or any citizen) or other members of their families---
Provisions of the. Police Order, kept in view while exercising powers in this regard---If
aggrieved person approaches the Sessions Judge with any grievance of similar kind the
Sessions Judge, Additional Session Judge, or Magistrate shall issue necessary directions
to police even in the absence of any direction from the High Court---District Nazim can
also be advised to come to the aid of aggrieved party and to exercise powers under Art.
35 of the Police Order, 2002---In case the Sessions Judge, the Additional Sessions Judge
or the Judicial Magistrate felt that they, keeping in view the nature of the controversy
between the parties, are unable to give requisite relief to the petitioner before them, they
shall make a reference to the High Court so that effective and speedy relief, is given to
'the citizens and necessary penal action is taken against he delinquent police
functionary---Copy of the order of the High Court in the present case, has been ordered to
be remitted to Additional Registrars of each of the Bench of High Court for being placed
before the Senior Judges, so that a uniform policy is followed at the Principal Seat as well
as the Benches--Copies of the order shall also be sent to all the Sessions Judges of the
Province for information and due compliance.
Ch. Abdul Waheed, Advocate.
Mrs. Shaista Qaiser, Advocate.
Mian Muhammad Aslam, Advocate.
Muhammad Faisal Malik, Advocate.
Rai Bashir Ahmad, Advocate.
Maqbool Elahi Malik, Advocate-General Punjab with Ch. Nasim Sabir Additional
Advocate-General Punjab and Sh. Khalid Habib, Advocate.

ORDER
Writ Petitions Nos.17513/2002, 17591/2002, 17583/2002, 17535/2002, shall be disposed
of by this order.
Mian Khan petitioner in Writ Petition No.17513/2002 is dissatisfied with the
investigation being conducted by the local police and seeks transfer of investigation.
Mst. Saghiran Bibi petitioner in writ petition No.17535/2002 is aggrieved of alleged
harassment being caused to her by the local police.
Rana Naseer Ahmad in writ petition No.17583/2002 is also aggrieved of alleged
harassment being caused to him by police which requires son of the petitioner for
investigation in a criminal case.
Muhammad Arif, petitioner and Muhammad Javed, petitioner, in writ petition
No.17590/2002 and writ petition No.17591/2002 seek issuance of direction to local
police for registration of criminal -case against a number of persons.
2. Notices of the petitions were issued to learned Advocate-General, Punjab. Learned
counsel for the petitioners as well as learned Advocate-General, Punjab who is assisted
by Ch. Nasim Sabir, Addl: Advocate-General, Punjab and Sh. Khalid Habib, Advocate
have been heard in the matter.
3. The registration of criminal case, transfer of investigation from one investigating
officer to another or issuance of a restraint order against the police officer not to cause
harassment to a citizen, essentially are administrative functions which are to be carried
out by the police functionaries concerned or higher police officers in exercise of powers
under section 551, Cr.P.C. and supervisory powers vesting in them under Punjab Police
Rules, 1934 or under provisions of the Police Order (22 of 2002). The District Nazim has
also the power to issue necessary direction to police to carry out its functions in
accordance with provisions of the Order. Directions which have been sought for by the
petitioners through under consideration petitions essentially relate to administrative
duties to be performed by the public functionaries and adjudication of rights in the
conventional sense of the term, by a superior court is not required or involved in the
process. The High Court is the. apex Court under Code of Criminal Procedure, 1898, and
as such it has plenary powers on administrative and adjudicatory side to oversee the
functioning of all public functionaries who are required to exercise any power or to
perform any function under provisions of the Code of Criminal Procedure to ensure strict
enforcement of and compliance with various provisions of law relating to registration of
cases, investigation thereof and ancillary matters. The High Court is fully empowered to
issue an appropriate direction to effectuate the mandate and writ of law. Subordinate
functionaries can also be called upon to perform such functions as the High Court might
require. Sessions Judges, Additional Sessions Judges and Magistrates (hereinafter Judges
and Magistrates) and police/public functionaries can be deputed by High Court to ensure
proper administration of justice. The Judges and Magistrates, even otherwise, are
empowered under section 22-A, Cr.P.C. and obligated under section 22-B, Cr.P.C. to
carry out their function with regard to correct working of police in accordance with law.
The Code of Criminal Procedure, 1898 confers powers on the Judges and Magistrates to
direct the police to carry out its function in accordance with law. The registration of
criminal case, or proper investigation of criminal case can be directed by the Judges and
the Magistrates. The Judges and Magistrates can competently call upon the police
functionaries to desist from causing harassment to people and to remain within the limits
of law. The Judges and Magistrates .have ample power in this regard and they have to
exercise it in the aid of justice and to alleviate the miseries of the common man. The
lower judiciary has to play a more dynamic role in the criminal justice system. The lower
judiciary is vested with enough statutory powers in this regard, but for removal of any
difficulties it is affirmed that any order passed by the Judges or the Magistrates in
exercise of powers under sections 22-A and 22-B, Cr.P.C. pursuant to directions given by
the High Court would have full sanction of the plenary powers of the High Court and
police would be under an obligation to obey the orders passed by the Judges or the
Magistrates.
3. The petitions are disposed of in the following terms:
The petitioner in each case shall produce a copy of the petition as well as this order
before the Sessions Judge of the District who shall look into the grievance of the
petitioner, summon the local Station House Officer and issue necessary directions to him
with regard to registration of case or for holding an inquiry under section 157, Cr.P.C. or
for carrying out proper investigation of the case. Sessions Judge can entrust the matter to
any Additional Sessions Judge or Judicial Ilaqa Magistrate of the police station concerned
to do the needful; as well. The formal inquiry and preparation of record is not required.
However, if needed, an order in writing can be given to the police. Similarly if the
Sessions Judge is satisfied about grievance of the petitioner with regard to defective,
evasive or, less than honest investigation, he shall have the power to transfer investigation
of the case to any other police officer within the District. The direction in this regard can
be given to the District Police Officer to transfer the investigation. The Sessions Judge,
the Additional Sessions Judge or the Magistrate would also call upon the respondent
police officers to remain within the limits of law and strictly abide by the law and
procedure and not to cause any harassment to any of the petitioners (or any citizen) or
other members of their families. The provisions of the Police Order, 2002 should also be
kept in view while exercising powers in this regard, In case an aggrieved person
approached the Sessions Judges with any grievance of the kind noted above, the Judges
or Magistrates shall issue necessary direction to police even in the absence of any
direction from the High Court and the District Nazim can also be advised to come to the
aid of aggrieved party and to exercise powers under section 35 of the Police Order, 2002.
4. As observed above, directions, issuance of which have been sought for through under
consideration petitions are essentially administrative in nature, and do not require
adjudication by High Court and only such intervention which is forensic in nature, is
required which can be recoursed to in chamber by the Hon'ble Judges, the office is
directed to place similar petitions before the Hon'ble Judges in chamber only. There is no
requirement to place the matter before the Hon'ble Judges in Court. In an appropriate
case, the Hon'ble Judge of this Court, keeping in view facts and circumstances of the
case, may hear the case in open court. Hearing of the counsel at great length, in chamber
would not be necessary and is hereby dispensed with from now on.
5. In case the Sessions Judge, the Additional Sessions Judge or the Judicial Magistrate
felt that they, keeping in view nature of the controversy between the parties are unable to
give requisite relief to the petitioner before them, they shall make a reference to this
Court so that effective and speedy relief is given to the citizens and necessary penal
action is taken against the delinquent police functionary.
6. A copy of this order shall be remitted to Additional Registrars of each of the Bench of
this Court for being placed before the Hon'ble Senior Judges, so that a uniform policy is
followed at the Principal Seat as well as the Benches. Copies of the order shall also be
sent to all the Sessions Judges of the Province for information and due compliance.
7. The petitions are disposed of in above terms.
M.B.A./M-1478/L Order accordingly.
2002 P Cr. L J 453
[Lahore]
Before Ijaz Ahmad Chaudhry, J
Rao TALIB HUSSAIN---Petitioner
versus
THE STATE and another---Respondents
Writ Petition No. 19350 of 2001, heard on 22nd November, 2001.
Penal Code (XLV of 1860)---
----Ss. 409/109---Crimina: Procedure Code (V of 1898), S.403--Constitution of Pakistan
(1973), Arts.13 & 199---Constitutional petition---Principle of double
jeopardy---Applicability of---Accused who faced the trial in the case had been
acquitted---State had not filed any appeal or revision against the acquittal of the
accused---Judgment to the extent of acquittal of the accused which had attained finality
was still in field---Judgment of the Trial Court though had been set aside in appeal filed
by the co-accused, but the judgment of the Appellate Court would have the effect only to
the extent of the co-accused and would not affect the acquittal of the accused as that
matter was not thrashed out by the Appellate Court---Re-summoning of the accused was
hit by the principle of double jeopardy and was covered by S.403, Cr.P.C.---Accused
could not be tried for the same offence again---Order whereby ,the accuse was
summoned, was set aside.
Zahid Hussain Khan for Petitioner.
Ch. Muhammad Hanif Khatana, Addl. A.-G. for the State.
Date of hearing: 22nd November, 2001.
JUDGMENT
Through this Constitutional petition the petitioner has challenged the impugned order,
dated 8-8-2001 passed by the learned Special Judge, Anti-Corruption, Lahore, by which
the petitioner has been directed to face .the trial in case F.I.R. No.136 of 1990 registered
on 20-7-1990 against the petitioner and his co-accused under sections 409/109, P.P.C.
with Police Station Saddar, Okara.
2. The brief facts of the case are that the petitioner was an accused alongwith Muhammad
Siddique and Talib Masih and after the conclusion of the investigation the challan was
submitted in the Court of learned Special Judge, Anti-Corruption, Lahore, who, vide
judgment, dated 28-9-1994 convicted the co-accused, namely, Muhammad Siddique and
Talib Hussain and sentenced them to six months' R.I. each with a fine of Rs.2,000 each.
In default of payment of fine they were to undergo further R.I. for one month each. This
conviction has been passed under section 409, P.P.C. However, the petitioner was
acquitted from the charge. The co-accused who was convicted in the abovesaid case filed
criminal appeal against the judgment which has been accepted by, holding that Syed Ijaz
Hussain Rizvi, Special Judge, Anti-Corruption, Lahore wasm not duly appointed and the
judgment delivered by him was set aside and retrial of the case has been ordered.
3. Ch. Karamat Ali, Sahi, learned Special Judge, Anti-Corruption, Lahore after the
remand of the case has also summoned the petitioner to face the trial.
4. Learned counsel for the petitioner contends that the petitioner was acquitted through
judgment, dated 28-9-1994 and the State did not file any appeal or revision against the
acquittal of the petitioner hence the judgment to his extent has attained finality. The
petitioner cannot be summoned to face the trial again as retrial of the petitioner, is hit by
the principle of double jeopardy under section 403, Cr.P.C. Hence the order is illegal and
may be set aside.
5. On the other hand learned Additional Advocate-General, Punjab has opposed this
petition on the ground that the earlier judgment has been declared as illegal by this Court
and the petitioner can be ordered to face the retrial as the earlier judgment is a nullity in
the eye of law.
6. I have heard the learned counsel for the parties and also perused the judgment
impugned in this petition. The petitioner faced the trial in the abovesaid criminal case and
has been acquitted vide judgment, dated 28-9-1994. State had not filed any appeal or
revision against the impugned judgment to the extent of acquittal of the petitioner, hence
the judgment to the extent of the petitioner has attained finality and to the extent of the
petitioner is still in the field. The contention raised by the learned counsel for the
petitioner has force. Though the judgment has been set aside in appeal filed by the
co-accused persons but the judgment of the appellate Court will have the effect only to
the extent of the co-accused and will not affect the acquittal of .the petitioner as this
matter was not thrashed out by the appellate Court as the petitioner was never summoned
by the appellate Court hence the order of the appellate Court is only to the extent of the
co-accused and not to the extent of the petitioner. The resummoning of the petitioner is
definitely hit by the principle of double jeopardy and is covered by section 403, Cr.P.C.
hence the petitioner cannot be tried for the same offence again, as such this writ petition
is accepted and the impugned order, dated 8-8-2001 to the extent of summoning of the
petitioner is set aside. There will be no order as to costs.
H.B.T./T-70/1Petition accepted.
2000 Y L R 754
[Lahore]
Before Raja Muhammad Khurshid, J
MUHAMMAD YAR---Petitioner
versus
THE STATE---Respondent
Criminal Miscellaneous Nos. 1654-B, 131, and 1635-B of 1999, decided on 19th Ju 1999.
Criminal Procedure Code (V of 1898)---
----S.497---Penal Code (XLV of 1861 S.302/148/149/316/109---Bail---Accused who
were police employees had given gruesome, beating to the deceased with "Dandaa
Chhittar" and kicks and when his condition, badly deteriorated removed him to CL office
and he was put in judicial lock-up semi-conscious condition and was given 21 injections
by the accused who also put son material in the mouth of the deceased there causing his
death---Accused by taking la) into their own hands had perished the hums) life instead of
protecting the same as was required of them under the law--Investigation in the case had
also not been conducted diligently as all the Investigating Officers being police officials
had been persistently holding out both the accused innocent and deliberately tried to take
their case out of the ambit of S.302, P. P. C. by substituting the same with 5.316, P.P.C---
Conduct of accused as police officials was very cruel, desperate and dangerous to the
criminal administration of justice and they were not entitled to the benefit of the
provisions contained in third proviso to S. 497(1), Cr. P. C. ---Case of accused was not fit
for bail even on merits as they had been summoned in a complaint instituted by the
complainant under Ss. 302, 109, 748 & 149, P. P. C. ---Bail application of accused was
dismissed accordingly.
Inayatullah Cheema for Petitioner (Muhammad Riaz).
Nemo for the Petitioner (Rafaqat Ali).
Masood Mirza for Petitioner (Muhammad Yar).
Ch. Haider Bukhsh for the Complainant.
Farrukh Humayun for the State.
ORDER
All the three bail petitions arise out of the same F.I.R. and are, therefore, dealt with
together.
2. A case under section 302/148/149, P.P.C., read with section 316/109, P.P.C., was
registered against the petitioners and others at Police Station, Kirana, District Sargodha
vide F.1.R. No. 148, dated 26-5-1997 lodged by Amir complainant.
3. The detailed facts of the case have been given in my order, dated 13-5-1998 passed in
Criminal Miscellaneous No. 1822-B of 1998 titled Muhammad, Yar v. The State.
4. Is contended that Muhammad Riaz and Rafaqat Ali were arrested on 18-7-1997 and
12-6-1997 respectively and as such they ire behind the bars continuously for more than
two years, but the trial of the case has not yet opened. As such it is argued that the case of
the aforesaid petitioners fall within the 3rd proviso to section 497, Cr.P.C., and they are
entitled to bails on statutory ground. On merits also it is contended that they are involved
for an offence under section 316, P.P.C., read with section 109, P.P.C., as the challan has
been submitted under the aforesaid sections and not under section 302, P.P.C. In respect
of Muhammad Yar, it is contended that no positive role is attributed to him in the F.I.R.,
as he was empty handed and had only raised Lalkara. In this respect, it is submitted that
his case is not distinguishable from Muhammad Yar son of Lal, Muhammad Aslam,
Muhammad Ashraf and Muhammad Mumtaz, who have been admitted to bails vide
order, dated 13-5-1998 recorded in Criminal Miscellaneous No.1822-B of 1998. In
addition to that petitioner Muhammad Yar is continuously behind the bars since after his
arrest on 13-6-1997.
5. The bail applications were opposed by the learned counsel for the State assisted by the
learned counsel for the complainant on the ground that on a private complaint filed by the
complainant all the accused have been summoned under section 302, P.P.C., and that the
case has been sent for trial to the Court of Session alongwith challan case.
6. I have considered the foregoing submissions and find that role of Muhammad Yar son
of Salehon cannot be distinguished from Muhammad Yar son of Lal, Muhammad Aslam,
Muhammad Ashraf and Muhammad Mumtaz, who have been admitted to bails as
aforesaid. The petition to his extent (Muhammad Yar son of Salehon) is, therefore,
accepted and he is admitted to bail in the sum of Rs. 50,000 with one surety in the like
amount to the satisfaction of learned trial Court.
7. So far as Muhammad Riaz and Rafaqt Ali are concerned, their case is distinguishable
as they are police employees, former being Head Constable and the latter being an A.S.I.
The motive is clearly against Muhammad Riaz Head Constable who along with aforesaid
A.S.I. had given gruesome beating to the deceased Muhammad Hayat with 'Dandas',
Chittar and Kicks. Due to aforesaid beating the condition of the deceased badly
deteriorated whereupon Rafaqat Ali alongwith other police employees removed him to
the office of C.I.A. (HQ) at Sargodha. The deceased was put in the judicial lock-up in
semi-conscious condition and was giver 2/3 injections by Rafaqat Ali, who- also put
some material in his mouth thereby causing his death. Both the petitioners had taken law
into their own hand and had perished the human life instead of protecting it as is required
of them under the law.
8. It appears that investigation in this case has also not been conducted diligently as all
the Investigating Officers being police officials had been persistently holding out both the
petitioners innocent and deliberately tried to take their case out of the ambit of section
302; P.P.C., by substituting the aforesaid offences with section 316, P.P.C. However, the
conduct of both the petitioners being police officials is very cruel, desperate and
dangerous to the criminal administration of justice. As such they are not entitled to the
provisions contained in 3rd proviso to section 497, Cr.P.C., nor their case is fit for bail on
merits as admittedly they have been summoned in a complaint instituted by the
complainant under sections 302, 109, 148 and 149, P.P.C. Accordingly the bail petition of
Muhammad Riaz and that of Rafaqat Ali are dismissed.
N.H.Q./M 153/1.
Bail refused
2000 Y L R 752
[Lahore]
Before Asif Saeed Khan Khosa, J
ZAKIR HUSSAIN and another---Petitioners
versus
THE STATE- Respondent
Criminal Miscellaneous No.6940-B of 1999, decided on 13th January, 2000.
(a) Criminal Procedure Code (V of 1898)---
----S.497---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979),
S.10/16-- Bail, grant of ---F.I.R. was lodged with a delay of about seven months---No
independent evidence was available on record to prove allegation of commission of Zina
by accused with the lady allegedly enticed by them-- Lady, allegedly enticed by them, in
her Constitutional petition had herself maintained that she was lawfully wedded wife of
one accused and that she had never been given in marriage to person alleged in the
FI.R.-- Persons allegedly enticed, according to FI.R. was a grown up 'lady of about
twenty- two years---Prima facie it was difficult to believe that a lady of such a mature age
would have been enticed away in a manner alleged in FLR.---Such facts had made out
case against accused to be that of further inquiry within provisions of subsection (2) of
S-497, Cr. P. C. entitling accused to be released on bail.
(b) Criminal Procedure Code (V of 1898)---
----S. 497(2)---Grant of bail---Further inquiry---Fugitive from law---Bail, in a case I
calling for further inquiry into guilt of accused would be granted to the accused as a
matter of right and not by way of grace or concession---Concession of bail would be
refused to a fugitive from law only by way of propriety and whenever a question of
propriety was confronted with a question of right then latter (question of right) must
prevail.
Lal Khan Baloch for Petitioners.
A .H. Masood for the State.
ORDER
Zakir Hussain and Alam Sher petitioners are accused persons in case F.I.R. No. 568
registered at Police Station Tandialianwala, District, Faisalabad on 5-7-1997 for offences
under section 10/16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979.
The allegation against the petitioners and their co-accused is that on 9-12-1996 they had
enticed away Mst. Bhiranwan Bibi, daughter of Jaffar complainant, and thereafter, Zakir
Hussain petitioner No. 1 had been committing Zina with her. After their initial arrest in
this case by the local police both the petitioners were admitted to post-arrest bail by the
learned trial Court but subsequently they had become fugitives from law. After having
remained fugitives from law for sometime the petitioners were re-arrested by the police.
Thereafter, an application submitted by the petitioners for post-arrest bail was dismissed
by the learned Additional Sessions Judge, Faisalabad vide order, dated 22-11-1999.
Hence, the present petition before this Court.
2. After hearing the learned counsel for the parties and going through the documents
annexed with this petition it has been noticed that the F.I:R. in this case had been lodged
with a delay of about seven months. As regards the allegation in respect of commission of
Zina by petitioner No.1 with the alleged enticee there appears to be no independent
evidence available with the prosecution in that regard. , As far as the alleged enticee is
concerned she had filed Writ Petition No.2691 of 1998 and Writ Petition No.15338 of
1998 before this Court wherein she had categorically maintained that she was a lawfully
wedded wife of Zakir Hussain petitioner No.1 and that she had never been given in
marriage to Noor Ahmad A prior to that as alleged in the F. I. R. As far as the allegation
regarding her enticement by the petitioners. and others is concerned suffice it to observe
that even according to the F.I.R., the alleged enticee was a grown-up lady. Her age had
been mentioned in the abovementioned writ petitions as about twenty two years. It is
prima facie difficult to believe that a lady of such a mature age would have been enticed
away in the manner alleged in the F.I.R.. The present petition filed by the petitioners is
supported by two affidavits sworn by Jaffar complainant and Noor P.W. who have already
forgiven the petitioners and have offered no objection to grant of bail to the petitioners.
All these facts do indeed render the case against the petitioners to be one of further
inquiry into their guilt within the purview of subsection (2) of section 97, Cr. P. C.
3. The order passed by the learned Additional Sessions Judge, Faisalabad on 22-11-1999
shows that the petitioner had remained fugitives from law for a considerable period of
time and on the basis thereof the learned counsel for the State has vehemently argued that
the petitioners are not entitled to the concession of bail as they have already misused the
said concession granted to them earlier on by the learned trial Court. The learned counsel
for the State is quite justified in making this submission as the said submission is based
upon a rule of propriety according to which a person who has already misused the
concession of bail is ordinarily not extended the same concession again. However, it
cannot be lost sight of that, as already observed above, the case against the petitioners
calls for further inquiry into their guilt. In a case calling for further inquiry into the guilt
of accused persons bail is granted to such accused persons as a matter of right and not by
way of grace or concession. As against that the concession of B bail is refused to a
fugitive from law only by way of propriety. It goes without saying that whenever a
question of propriety is confronted with a question of right then the latter must prevail.
4. For what has been observed above this petition is allowed and the petitioners are
admitted to bail in the sum of Rs. 50,000 (rupees fifty thousand only) each with two
sureties each in the like amount to the satisfaction of the learned trial Court.
H.B.T./Z-2/L Bail granted.
P L D 1998 Karachi 226
Before Abdul Hameed Dogar, J
ABDUL RAZZAK BILLOO and another---Applicants
versus
THE STATE---Respondent
Criminal Bail Application No.2005 of 1997, decided on 1st January, 1998
Criminal Procedure Code (V of 1898)---
----Ss. 497, 154 & 155---Prevention of Corruption Act (II of 1947), S.5(2)---
Penal Code (XLV of 1860), 5.109/275/274/468/471---Drugs Act (XXXI of
1976), Ss.27(2) & 30(2)---Bail, grant of ---F.I.R. on basis of which proceedings ad been
initiated, having not been signed by the complainant, same was without lawful authority
being not in accordance with law--.Case against accused was lodged by Assistant
Director, F.I.A. on the complaint of Federal Inspector Drugs, whereas according to
notification issued by Ministry of Interior and Narcotics Control vide S.H.O.
No.826(1)/97, dated 20-9-1997, Ss.468 & 471, P.P.C. had been taken out from the
Schedule and F.I.A. had been excluded to investigate into the matter---Sections 274 &
275, P.P.C. having never been included in the Schedule, were also out of purview of
F.I.A. to investigate--Section 30(2), Drugs Act, 1976 had made offence under S.27(2) of
Drugs Act, 1976 a non-cognizable one and also that no Court other than Drug Court
would try an offence punishable under said provision---Alleged offence against accused
being at the most punishable with 7 years, would fall out of prohibitory clause of S.497,
Cr.P.C.---Grant of bail to accused, in circumstances, was rule whereas refusal was an
exception---Allegation against accused required further enquiry and in absence of any
reasonable grounds to believe that accused were guilty of alleged offence , accused were
entitled to be released on bail.
1994 PCr.LJ 1065 and PLD 1995 SC 34 ref.
Ilyas Khan and Nooruddin Sarki for Applicants Mushir Alam, Standing Counsel.
ORDER
Applicants seek bail in Crime No.5 of 1997 registered at Sub-Circle Criminal Circle II,
F.I.A. at Police Station' F.I.A./Crime Circle 11, Karachi under section 5(2) of Prevention
of Corruption Act, 1947 read with section 109/275/274/468/471, P.P.C. and section 27(2)
of Drugs Act, 1976.
The facts in brief of the prosecution case are that this case was lodged on 13-12-1997 by
Altaf Hussain, Assistant Director, F.I.A. on the complaint of Ali Akbar Sial, Federal
Inspector Drugs. Consequent upon the complaint a raid was conducted on 11-12-1997 by
the complainant with the assistance of F.I.A. team headed by Altaf Hussain of M/s.
United Agencies owned by applicant Abdul Razzak Billoo and found expired, outdated
medicines/drugs alongwith the stickers showing names of medicines and their expiry
date. The medicines and stocks were seized under seizure memo. in presence of the
applicants and other witnesses. It is further mentioned that the raiding party searched
another store of M/s. R.K. Chemicals Company owned by the applicant Abdul Ghaffar
Billoo and recovered huge quantity of expired outdated medicines which were also seized
in his presence as well as that of witnesses, under seizure memo. The prosecution case
further is that on further enquiry it was found that expired medicines specially injunctions
Sodium Bicorbonate 7.5 % were sold to different Federal and Provincial Government
Hospitals either by changing their outer labels or by putting rubber stamps showing valid
dates of expiry. It is further alleged that on the day of lodging of case, the applicants were
called in the office and were interrogated who could not give satisfactory explanation
with regards to the above stocks and rubber stamps and printed out labels. It is also said
that applicant Billoo confirmed that he had sold the said expired medicines to various
Government Hospitals. The applicants were arrested and interim challan has been
produced. Bail application was filed in the lower Court in which interim bail was granted
on 16-12-1997 which was later on not confirmed and was rejected. Hence this bail
application.
It is contended by Mr. M. Ilyas Khan for the applicants that it is only applicants who have
been shown in custody in the interim challan whereas none from staff of any of the
hospital have been shown either accused or arrested in the case though sufficient time has
lapsed after registration of the case and the same has been thoroughly investigated by the
Investigating Officer Ch. Sardar Khan of F.I.A. Branch Crime Circle II. In view of this
learned counsel states that applicants cannot be booked under section 5(2) of Prevention
of Corruption Act, 1947. He next contended that in view of Notification issued by
Ministry of Interior and Narcotics Control vide S.H.O. No.826(1)/97, dated 20th
September, 1997, sections 468 and 471, P.P.C. have been taken out from the Schedule and
F.I.A. has been excluded to investigate into the matters. So far as sections 274 and 275
are concerned these sections were never included in the schedule as such the same are
also out of the purview of the F.I.A. to investigate. With regard to section 27(2) of the
Drugs Act it is contended that subsection (2) of section 30 of the said Act makes this
offence a non-cognizable one and also that no Court other than Drug Court shall try an
offence punishable under the said offence. Here an F.I.R. has been lodged by F.I.A.
showing Akbar Sial, Inspector Drugs as complainant which according to the learned
counsel is not the requirement of law and complaint in view of section 4(h), Cr.P.C. is to
be lodged before the Court having jurisdiction. This violation vitiate the entire
proceedings. He lastly contended that very F.I.R. on the basis of which the proceedings
have been initiated is not in accordance with law and is without lawful authority as the
same has not been signed by the complainant. In support he placed reliance on the cases
reported as 1994 PCr. LJ 1065 and PLD 1995 SC 34.
Mr. Musheer Alaim, learned Standing Counsel frankly concedes that in the present case
the allegations against the applicants require further probe and he has no objection to the
grant of bail.
Learned counsel for the applicant frankly accepted that the applicants being wholesale
dealers used to keep the expired medicines and file such claims with the original
Companies. Copy of such claim has been placed on record.
From the F.I.R. it transpires that the same is not signed b5 complainant Ali Akbar Sial as
such it cannot takes place of that of F.I.R. The provisions laid down in section 154,
Cr.P.C. stipulates the provisions with regard to lodging of an F.I.R. It shows as to how an
information about the cognizable offence is to be recorded at Police Station for proper
appraisal section 154, Cr.P.C. is reproduced, which reads as under:
"154. Information in cognizable cases.--Every information relating to the commission of
a cognizable offence if given orally to an officer-in chief of a police station, shall be
reduced to writing by him or under his direction be read over to the information; and
every such information whether given in writing or reduced to writing as aforesaid, shall
be signed by the person giving it, and the substance thereof shall be entered in a book to
be kept by such officer in such form as the Provincial Government may prescribe in this
behalf."
From the above provision of law it is mandatory that the information with regard to
commission of cognizable offence given orally or in writings shall be reduced to writing
by police officer- in- charge of police station and shall be read over to the informant and
be got signed by him and shall be entered in a book to be kept by such police officer of
such police station. The amendment made by the concerned Ministry in section 6 of
F.I.A. the authority has been excluded from enquiring into the offence under sections 468
and 471, P.P.C. With regard to sections 274 and 275, P.P.C. these even otherwise are not
included in the Schedule, as such they are also excluded from the purview of
investigation by the F.I.A. Authorities. So far as Drugs Act is concerned subsection (2) of
section 30 of the Act seemingly stipulates that an offence punishable under subsection (2)
of section 27 shall be non-cognizable and it further says that no Court other than Drug
Court shall try with offence. According to this provision of law, a complaint as defines
under section 4(h), Cr.P.C. is to be filed before the Court having jurisdiction and F.I.R. is
not its substitute. In such situation, a procedure laid down in section 155, Cr.P.C. is to be
followed which admittedly has not been followed in this case. The case of Shujauddin v.
The State reported in 1994 PCr.LJ 1065 referred by applicants' counsel is fully applicable
to the facts of the present case and in the referred case F.I.R. has been quashed being
without lawful authority. The alleged offence being at the most punishable with 7 years
would fall out of prohibitory clause of section 497, Cr.P.C. hence, grant of bail is rule
whereas refusal is an exception. This principle has been laid down by Hon'ble Supreme
Court in the case of Tariq Bashir and 5 others v. The State PLD 1995 SC 34. Looking to
the above discussion on factual as well as legal aspect of the case and no objection raised
by learned Standing Counsel, I am of the considered opinion that the allegations against
the applicants require further enquiry and there are no reasonable grounds to believe that
they are guilty of the alleged offence. Accordingly, they are granted bail and shall be
released on their furnishing surety in the sum of Rs.1,00,000 (Rupees one lakh) each with
P.R. Bond each in the like amount to the satisfaction of the Trial Court.
H.B.T./A-170/K Bail granted
1997 P Cr. L J 836
[Lahore]
Before Raja Afrasiab Khan and Ch. Mushtaq Ahmad Khan, JJ
Mian YASIN WATTOO and others---Petitioners
Versus
GOVERNMENT OF PUNJAB and others---Respondents
Writ Petition No.9827 of 1994, decided on 29th August, 1994.
(a) Criminal Procedure Code (V of 1898)---
----Ss. 154 & 196---Penal Code (XLV of 1860), S.124-A/120-B/161/166/172/
173/174/465/4681469/471---Constitution of Pakistan (1973), Arts.6 & 199---
Constitutional petition---Quashing of F.I.R.---Registration of second F.I.R. under the law
was not barred as the allegations levelled in it on the face of them were different from
those of the first F.I.R.---Complainant had competently lodged the second F.I.R. by
giving further details of the incident disclosing commission of different cognizable
offences which the Police Officer could not refuse to register---Section 196, Cr.P.C. did
not in any way debar the police to investigate the case in order to come to the truth as that
provision related to the stage of the trial of accused which had not yet reached---Police
have to perform the functions specifically assigned to them without any outside
interference under Chap. XIV of Criminal Procedure Code, 1898 and the functions of the
Court would commence only after the submission of complete challan to it for trial of the
accused---Interference in the investigation of the case was not called for as it was the
duty of the Investigating Officer to find out the truth on the basis of evidence of the
parties---Constitutional petition was dismissed in limine accordingly.
Maulana Dost Muhammad v. The State 1976 PCr.LJ 184; Muhammad Hanif v. Abdul
Qayyum and 4 others 1970 PCr.LJ 283; Wali Muhammad and 4 others v. The State and
another 1985 PCr.LJ 1342; Neelam Mawaz v. The State PLD 1991 SC 640; Muhammad
Sharif v. The State 1992 PCr.LJ 127; Ghulam Shabbir and 37 others v. Punjab Special
Court (Suppression of Terrorist Activities) No.5, Faisalabad and another 1992 PCr.LJ
1932 and Salman Taseer v. Judge Special Court 1993 SCMR 71 ref.
Ghulam Siddique v. Station House Officer, Dera Ghazi Khan and others PLD 1979 Lah.
263; Dr. Abdul Jabbar Khattak v. The State 1990 PCr.LJ 17.08 and Ch. Pervaiz Elahi v.
Province of Punjab and another PLD 1993 Lah. 955 distinguished.
Malik Shaukat Ali Dogar v. Ghulam Qasim Khakwani PLD 1994 SC 281; Shahnaz
Begum v. The Honourable Judges of the High Court of Sindh and Balochistan and
another PLD 1971 SC 677 and Emperor v. Khawaja Nazir Ahmad AIR 1955 PC 18 rel.
(b) Constitution of Pakistan (1973)---
----Art. 199---Criminal Procedure Code (V of 1898), S.561-A---Constitutional petition---
Quashing of F.I.R.---Investigation is immune from judicial scrutiny by High Court unless
it is being done by a Police Officer not competent to do or is being done with mala fides
or bad faith if no offence is made out on the face of allegations.
Maqbool Elahi Malik, Muhammad Anwar Bhinder, Kh. Muhammad Sharif and
Muhammad Zaman Qureshi for Petitioners.
Mian Abdus Sattar Najam, A.-G. for Respondents.
Date of hearing: 29th August, 1994.
JUDGMENT
RAJA AFRASIAB KHAN, J.--- On 11-8-1994, a case under sections 124-A, 120-B, 161,
166, 172, 173, 174, 465, 468, 469, 471, P.P.C. and Article 6 of the Constitution of the
Islamic Republic of Pakistan, 1973 was registered on the statement of Nasir Masood,
Assistant Security Officer, Punjab Assembly, Lahore, against Ch. Habib Ullah, Ex-
Secretary, Punjab Assembly and others, who are alleged to have committed criminal
conspiracy, seditious acts, defiance of law with intent to cause injury, absconding and
preventing service by deliberately concealing and not answering to the lawful process,
forgeries for the purpose of cheating, harming the reputation of a party, using as genuine
the forged documents for illegal gratification and thereby bringing a Constitutional crisis
in the country and thus attempting to subvert the Constitution through unconstitutional
means amounting to high-treason.
2. The facts, in brief, are that "No Confidence Motion" was carried out with an
overwhelming majority against the then Chief Minister, Punjab (Mr. Ghulam Haider
Wyne) and as a result thereof, Mian Manzoor Ahmad Wattoo was elected as Chief
Minister for the Province of Punjab. Despite the fact that a lawfully elected person was
brought in power, steps were taken to pull down the elected Government and, as such, the
Chief Minister considered it appropriate to dissolve the Provincial Assembly of Punjab.
On 29-5-1993, at 8-45 p.m. Ch. Habib Ullah, the Secretary, Punjab Assembly was taken
away by deceitful means by Ch. Wajahat Hussain and some other members of the
Assembly with ulterior motives. An information in respect of this incident of abduction of
Ch. Habib Ullah was given to the police by Tariq Masood and accordingly F.I.R.
No.118/93 was registered with Police Station Race Course Road, Lahore on 29-5-1993.
During the investigation, efforts were made to recover Ch. Habib Ullah and a
proclamation in the press was also made for the aforesaid purpose. A heavy amount of
prize was also fixed for his recovery. During the hearing of a Constitutional petition,
Lahore High Court, also issued directions through electronic as well as Press Media
directing the abductee to appear before it. It was widely published in the press that
anybody who knew his whereabouts should inform the nearest Sessions Judge or
Registrar of Lahore High Court, who would, in turn, ensure his safe appearance before
the Court. However, he deliberately failed to appear and as a matter of fact, he entered
into a criminal conspiracy with the other accused to commit offences. They prepared a
false No Confidence Motion to be used against the then Chief Minister. This document
was received by Ch. Habib Ullah on 29-5-1993 at 12-00 noon and was used by the
opponents of the then Government in order to defame it. The result was that the smooth
functioning' of the Government was brought to' a standstill. Ch. Habib Ullah intentionally
did not bother knowing fully well that he was summoned to appear before this Court. On
the contrary, it is alleged that he was present and enjoyed the hospitality of opposition
leaders in Islamabad. All of a sudden, he appeared before the Assistant Commissioner,
Islamabad, on 13-6-1993 and made a statement before him. He also appeared before the
High Court on' 26-7-1993 for a similar purpose. In the meantime, a petition under section
561-A, Cr.P.C. vide Criminal Miscellaneous No.182-Q of 1993 was instituted by Ch.
Wajahat Hussain before the High Court, praying for quashment of the F.I.R. No. 118 of
1993, dated 29-5-1993, registered with Police Station Race Course, Lahore. The ground
was that on 13-6-1993, Ch. Habib Ullah appeared before the Assistant Commissioner,
Islamabad, and made a voluntary statement before him under section 164, Cr.P.C.
disclosing that he was not abducted by anybody. On 26-7-1993, he appeared before this
Court and made a statement to the same effect. His explanation for remaining
underground was that on account of prevailing political situation at that time he, of his
own accord, left Lahore and stayed at Rawalpindi and Islamabad with his daughter and
friends to avoid any harm to his life. He stated that "No Confidence Motion", against the
then Chief Minister, was given to him by 20 to 30 members of the Assembly on 29-5-
1993 at about 12-00 noon. According to the allegations, the said document was fake. It is
alleged that Ch. Habib Ullah deliberately absconded and violated the law thereby
facilitating the collapse of Constitutional rule in the country. He was also responsible for
bringing the lawfully established Government into hatred and contempt because of his
wilful disappearance. Being a public servant, he was guilty of misconduct and he did so
in order to secure a wrongful gain. As a result of such like activities, the National and
Provincial Assemblies were dissolved and re-elections were held.
This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan,
1973, has been instituted by Mian Yaseen Wattoo, M.N.A. and 8 others for obtaining a
declaration that registration of F.I.R. No.496/94, dated 11-8-1994 with Police Station
Qilla Gujjar Singh, Lahore, was without lawful authority and of no legal consequence.
3. Mr. Maqbool Elahi Malik, learned counsel contends that registration of the impugned
F.I.R. was illegal because on the same controversy, another F.I.R. No.118/93, dated 29-5-
1993 had already been registered with Police Station Race Course Road, Lahore. The
argument is that on the basis of same set of allegations, the Police Officer had no lawful
authority to register the impugned F.I.R. Learned counsel argues that even if the contents
of the second F.I.R. are admitted to be correct as a whole, no offence whatsoever would
be constituted. It is submitted that without a validly constituted complaint, no case could
be registered under section 124-B, P.P.C. and Article 6 of the Constitution against the
accused under section 196, Cr.P.C. He adds that earlier Ch. Habib Ullah had made a
statement before the High Court saying that he was never abducted and that he, with his.
own free-will went to Rawalpindi and Islamabad just to avoid any untoward incident or
harm to him. According to the learned counsel, in view of the said statement, it was not
possible for the police to have registered the second F.I.R. in respect of the same
occurrence. Learned counsel states that Ch. Habib Ullah had denied that he was abducted
or some offence relating to his abduction was committed. Learned counsel states that
there would be no moral or legal justification to register the F.I.R. after one, year of the
incident. Learned counsel has relied upon the following judgments Maulana Dost
Muhammad v. The State 1976 PCr.LJ 184, Muhammad Hanif v. Abdul Qayyum and 4
others 1970 PCr.LJ 283, Wali Muhammad and 4 others v. The State and another 1985
PCr.LJ 1342, Ghulam Siddique v. Station House Officer, Dera Ghazi Khan and others
PLD 1979 Lah. 263, Dr. Abdul Jabbar Khattak v. The State 1990 PCr.LJ 1708, Neelam
Mawaz v. The State PLD 1991 SC 640, Muhammad Sharif v. The State 1992 PCr.LJ 127,
Ghulam Shabbir and 37 others v. Punjab Special Court (Suppression of Terrorist
Activities) No.5, Faisalabad and another 1992 PCr.LJ 1932 and Saiman Taseer v. Judge
Special Court 1993 SCMR 71 and Ch. Pervaiz Elahi v. Province of Punjab and another
PLD 1993 Lah. 595. In reply, Mian Abdul Sattar Najam learned Advocate General
forcefully contends that there is no bar to register the second F.I.R. because the
allegations in both the F.I.Rs. are altogether different. According to him, an offence of
high treason is also alleged to have been committed by the accused in the 2nd F.I.R. He
maintains that the case is still being investigated by the police and that being so, it is not
possible for this Court to interfere while the investigation is in progress. In support of the
plea, he relies upon Malik Shaukat Ali Dogar v. Ghulam Qasim Khakwani PLD 1994 SC
281, Shahnaz Begum v. The Honourable J-edges of the High Court of Sindh and
Balochistan and another PLD 1971 SC 677 and Emperor v. Khawaja Nazir Ahmad AIR
1955 PC 18.
4. We have heard the learned counsel for the parties at some length and' have also gone
through the record with their assistance. There is no substance in the arguments of
learned counsel for the petitioners and as such they are repelled. There is no bar under the
law to register second F.I.R. because the allegations having been levelled in the F.I.R. on
the face of them are different from those of the first F.I.R. The allegation of high treason
has been levelled in the second F.I.R. which was missing from the first report. We are not
satisfied with the conduct of the accused, Ch. Habib Ullah. He was under law, required to
appear before this Court in the proceedings of first round of litigation. He remained under
cover for known reasons. May be at that time, an attempt was made to hush up the matter.
This being so, the possibility that full and correct particulars of the incident were not
given by the informant cannot be ruled out. Any person may give an information relating
to commission of cognizable offence to the police for its registration and investigation.
This has competently been done by Nasir Mahmood, Assistant Security Officer of the
Assembly while lodging the second F.I.R. because there can never be a legal bar in giving
further details of the incident disclosing commission of different offences. This being so,
the Police Officer could not refuse to receive the information disclosing commission of
other set of offences. The said complaint does disclose commission of various cognizable
offences. There is even no substance in the second limb of argument that a complaint was
required to be made by the competent Authority before a criminal case is registered. This
is not the intent or object of section 196, Cr.P.C. It reads as follows:--
"Section 196, Cr.P.C. Prosecution for offences against the State.--- No Court shall take
cognizance of any offence punishable under Chapter VI or IX-A of the Pakistan Penal
Code (except section 127), or punishable under section 108-A, or section 153-A or
section 294-A, or section 295-A or section 505 of the same Code, unless upon complain
made by order of or under authority from, the Central Government or the Provincial
Government concerned, or some officer empowered in this behalf by either of the two
Governments."
It is evident from the above provisions that no Court shall take cognizance of the offences
mentioned in, the section unless a complaint in this behalf is made by the Central
Government or the Provincial Government concerned. As clearly pointed out above, the
case is being thoroughly investigated by the police and the stage of trial of the accused
has not yet come. There is, therefore, nothing in section 196, Cr.P.C. to debar the police to
investigate this case in order to come to the truth. That provision thus related to a
different situation and does not advance the case of the petitioners. The case law cited by
the learned counsel also does not apply to the facts and circumstances of this case. Ch.
Pervaiz Elahi's case has no application because that covered a different field inasmuch as
the question in respect of registration of second F.I.R. was not involved in that case. In
case of Ghulam Sadiq tentative observations were made by a Division Bench of this
Court at limine stage without hearing the view of the State. Similarly, Dr. Abdul Jabbar
Khatak's case will not apply because in that case trial was pending before the Court. It is
well-settled that the investigation is immune from judicial scrutiny by this Court unless it
is being done by a Police Officer who is not competent to do so or is being done with
mala fides, or bad faith or on the face of allegations, no offence is made out. In case of
Khawaja Nazir Ahmad (supra) a word of caution to the Court in the matter of interfering
with the police investigation before submission of challan was put in the following
words:--
"In their Lordships' opinion, however, the more serious aspect of the case is to be found
in the resultant interference by the Court with the duties of the police. Just as it is
essential that every one accused of a crime should have free access to a Court of justice
so that he may be duly acquitted if found not guilty of the offence with which he is
charged, so it is of the utmost importance that the judiciary should not interfere with the
police in the matters which are within their Province and into which the law imposes
upon them the duty of enquiry. 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
Procedure Code, to give direction 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."
Learned Supreme Court of Pakistan made the following observations on the controversy
in case of Shahnaz Begum (supra):--
"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 this Constitution a High Court has been given
the power of judicial review of executive actions by Article 98 in certain specified
circumstance but even in such a case the High Court cannot move suo motu for, it is
specifically provided in each of the sub-clauses (a), (b), (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 to supervise or control over Investigating 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'. This position, as already pointed out, is not also
disputed by the learned Advocate-General for the Province of Sindh."
Reference may also be made to principles laid down in the case of Shaukat Ali Dogar
(supra) by the Honourable Supreme Court where it was observed as follows:--
"So far as the question of registration of the case without prior sanction of the competent
Authority is concerned, in the case of Emperor v. Khawaja Nazir Ahmad AIR 1955 PC 18
the law laid down was that the prohibition contained in section 197, Cr.P.C. against a
prosecution without the necessary sanction is against the action of taking of cognizance
by the Court. It does not prevent, preclude or otherwise interfere with the power of the
police in the matter or registration of the case and the investigation thereof. The sanction
required under section 197, Cr.P.C. is even otherwise not required in view of our decision
in the case of Zafar Awan PLD 1992 SC 72."
In other words, the police have to perform the functions specifically assigned to them
without any outside interference under Chapter XIV, Part V of E the Code of Criminal
Procedure, 1898. The functions of a Court would commence only when a complete
challan is sent to it for the trial of the accused. This being so, respectfully following the
above case-law, we have not been persuaded to interfere in the investigation of the case.
It is certainly the duty of the Investigating Officer to find out the truth, on the basis of
evidence of the parties. There is, therefore, no substance in this petition which is hereby
dismissed in limine.
N. H. Q./Y-21/L Petition dismissed,
1991 P Cr. L J 1486
[Lahore]
Before Muhammad Munir Khan, J
GHULAM RAIDER---Petitioner
Versus
S.H.O., POLICE STATION QAIMPUR, TEHSIL HASILPUR, DISTRICT
BAHAWALPUR and 2 others---Respondents
Writ Petition No.210 of 1991/BWP, decided on 13th March, 1991.
Penal Code (XLV of 1860)---
----Ss. 452, 392, 344 & 351---Criminal Procedure Code (V of 1898), S.154---Constitution
of Pakistan (1973) Art. 199---Police Officers alongwith 14/15 Constables trespassed into
house of petitioner, caught hold of him, his mother, his wife and other women present in
the house, broke locks of room and forcibly took away house articles, Rs.15,000 motor-
cycle and also tortured them ---Sub-Inspector of Police stated that close relatives of
petitioner were required in criminal cases so he raided the petitioner's house and took
away various articles including bed-sheets, cash and motor-cycle of the petitioner as
suspected property---Police officials did not make any report at local police station
regarding their arrival or intended raid---No police official from the local police station
was associated---Raiding Police took the articles of petitioner on the pretext of those
being stolen property---No departure report was made by the raiding party at the police
station---Report of seizure of property was not made to Area Magistrate---Entry into
petitioner's house and search thereof thus were quite; illegal---Mandatory provisions of
5.165, Cr.P.C. were not complied with--Search-warrant from Ilaqa Magistrate was not
obtained---No reason was recorded in police file for not obtaining search-warrants---No
respectable of the locality was associated with the raid on the house of petitioner---Copy
of the record made under subsection (1) of 5.165, Cr.P.C. was not sent to the Magistrate
nor list of property recovered by the Police officials was furnished---Police officials
under the fanciful colour of their authority thus had committed offence under Ss.452,
392, 344 & 351, P.P.C.---Superintendent of Police was directed to immediately get . a
case registered under the offences on the basis of the complaint---Police officials were
directed to bring back the seized property and deposit the same with Area Magistrate.
Pirzada Muhammad Afzal Nizami for Petitioner.
Respondents Nos.1 to 3 in person.
ORDER
Through this Constitutional petition, Ghulam Haider seeks direction to S.H.O., Police
Station, Qaimpur, Tehsil Hasilpur, District Bahawalpur, for the registration of case
against Ateeq Butt S.I. and Syed Muntazir Shah Moharrir, respondents Nos.2 and 3.
2. The learned counsel for the petitioner submits that on 1-3-1991, respondents Nos.2 and
3 alongwith 14/1S Constables trespassed into the house of Ghulam Haider, petitioner,
caught hold of him, his mother, his wife and other women present in the house, broke the
locks of the room and forcibly took away household articles, Rs.15,600 of the petitioner
and his motor-cycle and also tortured them.
3. Muhammad Ateeq Butt and Syed Muntazir Shah, respondents Nos.2 and 3, have
voluntarily appeared although they were not summoned and only S.H.O., Police Station
Qaimpur, was summoned for today. Ateeq Butt S.I./respondent stated that the close
relatives of Ghulam Hiader petitioner were required in criminal cases, so he raided the
house of the petitioner situate within the limits of Police Station Qaimpur and took away
various articles including bed-sheets, Rs.12,000 and motor-cycle of the petitioner as
suspected stolen property.
4. After hearing the S.H.O., Police Station Qaimpur, respondent No.1, and the other
respondents, namely, Ateeq Butt S.I. and Syed Muntazir Shah Moharrir, I find that the
entire action taken by respondents Nos.2 and 3 was illegal inasmuch as they did not make
any report at Police Station Qaimpur, with regard to their arrival or intended raid on the
house of Ghulam Haider petitioner. They did not associate with them any police official
of the Police Station Qaimpur. Except the clothes, which the persons present in the house
was wearing they took away all articles' including clothes, bed-sheets, cash and motor-
cycle of the petitioner on the pretext of stolen property. They did not make any departure
report at the Police Station. They did not report the seizure of the property to the Illaqa
Magistrate. Their entry into the house and search thereof was also quite illegal. They did
not comply with the mandatory provisions of section 165, Cr.P.C. They did not obtain
search-warrants from the Ilaqa Magistrate and also did not record any reason in the police
file for not obtaining the search-warrants. No respectable person of the locality was
associated with the raid on the house of the petitioner. They did not send the copy of the
record made under subsection (1) of section 165, Cr.P.C. to the Magistrate. They did not
furnish the list of the property removed by them from the house of the petitioner. I feel
that under the fanciful colour of their authority as Police Officers, the respondents have
committed robbery.
5. In this view of the matter, there can be no two opinions that Ateeq Butt S.I., Incharge
Police Post Karampur, and Syed Muntazir Shah Moharrir, Police Post Karampur, Tehsil
Mailsi, have committed the offences under sections 452, 392, 342 and 351, P.P.C. It is
also a clear-cut case of the misuse of the provisions of section 550, Cr.P.C.
6. The Superintendent of Police, Bahawalpur, will immediately get a case registered
under these sections against Ateeq Butt S.I. and Syed Muntazir Shah, Moharrir,
respondents Nos.2 and 3, at Police Station Qaimpur, on the basis of complaint mark `A'.
He will depute responsible officer not below the rank of D.S.P. to investigate the case.
The D.S.P. so appointed will report the progress of the case to the Additional Registrar of
Bahawalpur Bench, Bahawalpur, within two weeks.
7. Instead of depositing the property seized by them from the house of Ghulam Haider
petitioner in the Court of Ilaqa Magistrate, the respondents took away the same to
Karampur, Tehsil Mailsi. Ateeq Butt S.I., respondent No.l, is present in Court. He is
directed to bring back the property seized by him on 1-3-1991 from the house of Ghulam
Haider and deposit the same with Ilaqa Magistrate, Hasilpur, within three days from
today, otherwise serious view of the matter will be taken.
7-A. With the aforesaid observations and directions, the writ petition is disposed of.
8. Copy of this order be sent to Superintendent of Police Vehari, for information and
action, which he deems fit.
MA.K./G-459/L Petition accepted.
1989 P Cr. L J 1945
[Karachi]
Before Sajjad Ali Shah and
Muhammad Ahzhar Ali, JJ
MIANDA-D GHANGHRO--Petitioner
versus
S.H.O., P.S. KANDHRA and others--Respondents
Constitutional Petition No. D-27 of 1989, decided on 7th March, 1989.
(a) Criminal Procedure Code (V of 1898)--
---S.154--Scope of 5.154, Cr.P.C.--Report in cognizable offence-Registration. Section
154, Cr. P.C. is very clear and leaves no room at all for doubt or dispute about the fact
that it is mandatory for Police Officer at police station to register report of the
complainant in a cognizable offence and not only that but the procedure is also prescribed
that report is to be reduced into writing and is to be signed by the complainant and is to
be entered in 154, Cr.P.C. register.
(b) Criminal Procedure Code (V of 1898)—
---S.155—Scope of 5.155, Cr. P. C.--Report in non-cognizable offence--Registration.
Section 155, Cr.P.C. provides that substance of information in non-cognizable offence
shall be entered in a book to be kept for such purpose and informant is to be referred to
the Magistrate. It is further provided that no Police Officer. shall investigate a non-
cognizable case without order of a Magistrate having power to try such case. After
receiving such order from Magistrate, Police Officer can investigate the case and may
exercise the powers in the same way as in a cognizable case.
(c) Criminal Procedure Code (V of 1998)--
---Ss.154 & 155--Requirements of--Police Officer under statutory obligation has to
record F.1„R. of a cognizable case under S.154, Cr.P.C.--Substance of such information is
to be recorded in case of non-cognizable offence in Register maintained under 5.155, Cr.
P. C.
Sawant v. S.H.O., Police Station Sadar, Kasur and anothdf PLD 1975 Lah. 733; M.
Anwar v. S.H.O., Civil Lines Police Station, Lahore and another PLD 1972 Lah. 493;
Nazir Ahmed v. Khushi Muhammad and 2 others 1974 P Cr. L J 579; State v. Zulfikar Ali
Bhutto and others PLD 1978 Lah. 523; Mst. Sarwar v. District Magistrate and others
1985 P Cr. L J 1436; Halim Sarwar v. S.H.O., Police Head Marala and 2 others 1984 P
Cr. L J 2993; Ghiasuddin v. 'S. H.0., Police Station Pindi Bhattian 1983 P Cr. L J 1085
and Muhammad Zafar Iqbal v. Manzoor Ahmad 1988 P Cr. L J 2658 ref.'
(d) Constitution of Pakistan (1973)--
---Art.199--Criminal Procedure Code (V of 1898), S.154--Direction for registration of
case--Petitioner attempted to file case under Ss.342, 323, 355, P.P, C. and S.17(3) of
Offence of. Zina (Enforcement of Hudood) Ordinance, 1979 but his report was not
accepted and F.I.R._ was not recorded--Held, Police Officer was under statutory
obligation to register case--Station House Officer of Police Station concerned was
directed to register F.I.R. of petitioner as allowed under the law.
Agha Saifuddin Babar for Petitioner. Zawar 'Hussain Jafferi, A.A.-G. for Respondents.
Date of hearing: 7th March, 1989.
ORDER
SAJJAD ALI SHAH, J.--This petition is filed under Article 199 of the Constitution of
Islamic Republic of Pakistan, .1973 and grievance of the petitioner is that he is working
as Head Dispenser in Railway Hospital, Sukkur and on 18.1.1989, he went to SDPO-II
Sukkur, namely, Mr. Abdul Rahim Butt and informed him that his relatives Shahzado and
others were wrongfully confined at Police Station Kandhra without registration of any
case against them by SHO Abdul Jabbar Memon. SDPO-II went to the police station
Kandhra and found Shahzado alongwith 5 others detained unlawfully under the orders of
SHO. Such entry was made by SDPO-11 in the daily diary dated 18-1-1989. Persons
unlawfully detained were released by SDPO-II. SHO Abdul Jabbar Memon became
infuriated and registered a false complaint against petitioner and others under sections
365, 377, 342,323/34, P.P.C. and section 12, Offence of Zina (Enforcement of Hudood)
Ordinance, 1979 through one Allahwasayo Shaikh on 19.1.1989. Subsequently house of
petitioner was raided by SHO Abdul Jabbar and police party and he was beaten up and
taken to police station naked where he was maltreated and insulted and kept in lock-up.
Thereafter petitioner was released on bail and he attempted to file case against S.H.O. for
registering a false case against him but his report was not accepted and in consequence
his FIR was not recorded. Prayer in the petition is that SHO P.S. Kandhra be ordered to
register FIR against Abdul Jabbar Memon SHO and PC Abdul Hamid of P.S. Kandhra for
offences under sections 324, 323, 355 PPC and 17 (3) of the Hudood Ordinance.
This petition was admitted to regular hearing vide order dated 28-2-1989 and notice was
issued to respondent No. 1, S.H.O., P.S. Kandhra and respondent No. 2 SDPO-11 Sukkur
(Abdul Rahim Butt) to appear in the Court. On 7-3-1989 S.H.O. Abdul Jabbar Memon
was present in the Court when both the learned counsel appearing for petitioner as well as
respondents were - heard in detail and the petition was allowed for reasons to be recorded
later.
The controversial point involved in this petition is whether it is mandatory for S.H.O. 'or
any other officer at Police Station authorized in this behalf to register FIR of the.
complainant or it is open to him to refuse registration on the ground that no offence is
made out. In this context reference can be made to sections 154 and 155 Cr.P.C. as they
both relate to registration of F I Rs. Section 154 Cr. P. C. relates to information in
cognizable cases and section 155, Cr.P.C. relates to information in non-cognizable cases.
Perusal of section 154, Cr. F. C. clearly shows that it is mandatory in nature and in the
said section at three places word "shall" is used by Legislature to emphasize the fact that
officer at police station is mandatory bound by law to register the FIR in cognizable cases
and he cannot refuse registration on any ground. Reading of this section clearly shows
that every information relating to the commission of cognizable offence, if given orally to
an officer incharge of police station, shall be reduced to writing by him or under his
direction and be read' over to the informant. First "shall" as stated above very clearly in
unequivocal terms requires the police officer to reduce into writing information with
regard to the cognizable offence. He cannot wriggle out of it on any ground and cannot
say that offence is not made out. Second "shall" is used in that section, when it goes on
further to read that such statement shall be signed by the person giving it, which makes it
compulsory for the police officer to get that information or complaint signed by the
complainant and the third "shall" used in the same section is to the effect that such report
shall be entered in a book to be kept by such officer in such form as Provincial
Government may prescribe in this behalf. The third "shall" contemplates maintenance of
register under section 154 Cr. P. C. at police station. Section 154 is very clear and leaves
no room at all for doubt or dispute about the fact that it is mandatory for police officer at.
Police Station to register report of the complainant in a cognizable offence and not only
that but the procedure is also prescribed that report is to be reduced into writing and is to
be signed by the, complainant and is to be entered in 154, Cr. P. C. register.
So far non-cognizable offence is concerned, section 155, Cr. P. C. provides that substance
of such information shall be entered in a book to be kept aside for such purpose and
informant is to be referred to the Magistrate. It is further provided that no police officer
shall investigate a non-cognizable case without order of a Magistrate having power to try
such case. After receiving such order from Magistrate, Police Officer can investigate the
case and may exercise the powers in the same way as in a cognizable case. Joint perusal
of both the sections mentioned above shows that the requirement of law is that the police
officer has to record the F. I. R. mandatorily of a cognizable case under section 154,
Cr.P.C. but if it r is a non-cognizable case then substance of such information is to be
entered in the register maintained under section 155, Cr.P.C. but in each case refusal is
out of question.
In support of what is stated above reference can be made to the case of Sawant v . S. H
.O. Police Station Sadar, Kasur and another PLD 1975 Lah. 733 in which it is held that
language of section 154, Cr.P.C. is imperative and a Police Officer cannot refuse to
register the case on the basis of counter-version given by accused and dub counter-
version as false without first investigating the matter as his duty is to make investigation.
In the case of M. Anwar y. S. H.0. Civil Lines Police Station, Lahore and another PLD
1972 Lah. 493 it is held that if there is an information relating to the commission of
cognizable offence then it falls under section 154, Cr.P.C. and Police Officer is under
statutory obligation to enter it in the prescribed register. Police Officer is bound to receive
the complaint and enter it in the register. If he fails to perform his statutory duty as a
public servant, he renders himself to be dealt with by his superior Officer for neglect of
duty. It does not depend on the sweet will of police officer to register F.I.R. or not. The
question whether F.I.R. is correct or not depends on the investigation which a police
officer is to conduct under section 157, Cr.P.C. and if the contents of F.I.R. turn out to be
false action can be taken as contemplated under section 182 of Cr.P.C. under which first
informant shall be liable to punishment for a term which may extend to six months or
with fine which may extend to one thousand rupees or with both. In the case of Nazir
Ahmed v. Khushi Muhammad and Y others 1974 P Cr. L J 579 it was held that under
section 154, Cr. P. C. Police Officer is statutorily bound to enter report of cognizable
offence in prescribed register. Copy of the petition filed in the High Court disclosing
commission of cognizable offence was sent to the police officer concerned with direction
to register the case. Reference can also be made to the decision of Full Bench of Lahore
High Court in the case of State v. Zulfikar Ali Bhutto and others PLD 1978 Lah. 523 in
which it is held that officer incharge of Police Station is bound to record F. I. R., detect,
apprehend and bring offenders to justice. Police Officer though acting subject to the
supervision of higher officers, yet cannot act arbitrarily, capriciously and whimsically and
is as such bound by law as is any other person and is liable to penalty for violation of
duty or wilful, breach or neglect of any rule or regulation. Police Officer is to be left free
to investigate without any interference from any other agency subject, of course to lawful
orders of competent authority or supervision of higher officers. In the case of Mst. Sarwar
v. District Magistrate and others 1985 P Cr. L J 1436 High Court of Lahore directed
Superintendent of Police to order registering of case against police officer, against whom
there was allegation of rape and to see further advisability of entrusting investigation of
the case to some higher police officer.
On this point additionally reference can be made to the case of Halim Sarwar v. S.H.O.
Police Head Marala and 2 others 1984 P Cr. L J 2993 in which it is held that it is the duty
of police officer to record information and proceed to investigate matter as provided
under section 154, Cr.P.C. It is further observed that second F.I.R. showing a different
grievance could not be refused by police officer on the ground that F.I.R. has been
registered already on the basis of one-sided version. It is open to the police officer to
proceed according to law for cancellation of second F.I.R. if he comes to the conclusion
that second F.I.R. is false or incorrect. In the case of Ghiasuddin v. S.H.O. Police Station
Pindi Bhattian 1983 P Cr. L J 1085 it is held that officer incharge of police station is
under legal obligation to enter, information disclosing commission of cognizable offence
in appropriate register and to conduct investigation in case so registered and such officer
is at liberty to report about cancellation of case if ultimately such report is found baseless.
In the case of Muhammad Zafar Iqbal v. Manzoor Ahmad 1986 P Cr. L J 2658 it is held
that provisions of sections 154 and 157, Cr.P.C. make it incumbent upon officer incharge
of a police station to record the first information report disclosing cognizable offence.
The, same is purport of section 23 of the Police Act, 1861 read with paragraph 25.17 of
Police Rules, 1934. Police could not refuse to enter it in the register prescribed for the
purpose. In the reported case petitioner was wounded by A.S.I. against whom petitioner
wanted to register the case but there was resistance and petition was allowed and S.F.
Sialkot was directed to register criminal case against that A.S.I.
S.H.O. Abdul Jabbar Memon present in the Court stated that he is under suspension for
other reasons and in his place there is another S.H.O. Muhammad Paryal who is now
incharge of P.S. Kandhra. Learned A.A.-G. has conceded the legal position and stated that
this petition is to be allowed.
For the facts and reasons stated above we allow this petition and' direct S.H.O. Police
Station Kandhra to register F.I.R. of the petitioner as allowed under the law. .
M.A. K. / M-835/ K
Petition allowed.
1989 P Cr. L J 369
[Karachi]
Before Imam Ali G. Kazi, J
ABU BAKAR--Applicant
versus
THE STATE and another--Respondents
Criminal Miscellaneous No. 216 of 1988, decided on 4th December, 1988.
(a) Penal Code (XLV of 1860)--
---S. 4--Criminal Procedure Code (V of 1898), S.188--Provisions of Penal Code would be
attracted when any citizen of Pakistan commits such offences even beyond the territories
of the country.
The application of the Pakistan Penal Code has been extended to offences provided for
therein when committed by a citizen of Pakistan even in any country other than Pakistan
itself by the provision made in section 4 of that Code.
It, therefore, follows that the penal provisions of the Pakistan Penal Code will be attracted
if any citizen of Pakistan commits such offences even beyond the territories of the
country. In order to give effect to such a substantive provision of law, provision has also
been made in section 188 in the Criminal Procedure Code.
(b) Criminal Procedure Code (V of 1898)--
---S. 188--Offence committed outside Pakistan--Conduct of inquiry into offence
committed outside Pakistan is prohibited, unless it is certified by the Political Agent of
Pakistan in that country where offence was committed, that in his opinion the charges
were to be inquired into in Pakistan--Where there is no such Political Agent of Pakistan
in another country, sanction of the Federal Government would be necessary--Accusation
cannot be inquired into without the required certificate but the bar does not extend to
mere registering the F.I.R. under section 154, Cr.P.C. and no condition has been laid to
obtain such certificate before registering a complaint--Required certificate, however, can
be obtained after recording the complaint in order to inquire into the charge.

Ali Bhoy Divraj v. Emperor A I R 1925 Sind 88 and Jamil Ahmed Qureshi v. S.H.O. and
another P L D 1980 Lah. 119 ref.
Mumtaz Hussain Shah for Applicant.
Laeeq Ahmed Jafferi on behalf of A.-G. for the State.
Date of hearing: 6th November, 1988.
JUDGMENT
The applicant Abu Bakar has been named as one of the two accused persons in Crime No.
189 of 1988 registered on 31-3-1988 at Police Station Baghdadi, Karachi, South under
section 14 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979. By
this application filed under section 561-A, Cr.P.C. he seeks quashment of that F.I.R.
The facts as given in the F.I.R. briefly stated are that one Younus Suleman by his
complaint dated 19-3-1988 addressed to the Commissioner, Karachi alleged that he had
in the year 1977 gone to Musqat and worked there till 1980 when he proceeded to
Sultanate of Oman and started his business as goldsmith in partnership with one Ali
Saeed Salamul Razki. In 1983 the complainant managed to procure an employment
agreement dated 20-10-1983 for applicant Abu Bakar son of Haji Muhammad Qasim and
Sadiq son of Saleh from his said partner. He thereafter made complete arrangements for
their passage and visa to Sultanate of Oman. Soon after the applicant Abu Bakar son of
Haji Muhammad Qasim reported to his duty, he started remitting various amounts to
different persons of his family in Pakistan and in all remitted about Rs.10,00,000
although he had worked for eight mouths only drawing a salary of Rs.3,600 per month.
The applicant Abu Bakar is alleged to have stolen gold from the shop of complainant at
Oman and sent it to Karachi. This fact according to allegation has been admitted by his
brother Muhammad Ibrahim through his letters. The applicant Abu Bakar after stealing
102 Tolas of gold of the value of Rs.3,00,000 managed to send it to Karachi through one
Muhammad Umar. The applicant Abu Bakar then managed to escape from Oman. After
the gold was checked at Oman, it transpired that he had stolen 162 Tolas of gold and the
complainant was held responsible for such a loss worth about Rs.17,00,000. His shop was
sealed by the Government of Oman.
Sadiq Saleh the other accused person who worked as his driver was also arrested for the
theft of the complainant. It has been alleged that both of the accused persons had stolen
102 Tolas of gold and brought it to Karachi through various methods. The complaint was
endorsed by the Commissioner, Karachi to the Assistant Commissioner and S.D.M.,
Karachi who forwarded the same to S.H.O. of Police Station Baghdadi and it was
incorporated in the F.I.R.
Abu Bakar one of the two accused has filed present application and impleaded the
co-accused Sadiq Saleh as respondent No.2 in the application.
Mr. Mumtaz Hussain Shah, Advocate appearing for the applicant has urged that an officer
incharge of police station is competent to investigate a cognizable offence only when it is
committed within the local area of his station as provided under section 156(1), Cr.P.C. It
is, therefore, that a police station is defined under section 4(1) (s), Cr.P.C. to include a
local area that may be specified by the Provincial Government. According to him as the
offence took place not only beyond the prescribed limits of Police Station Baghdadi but
beyond the territorial limits of Pakistan itself, the Officer Incharge of Baghdadi Police
Station is not competent to enquire into the alleged offence. According to him, since the
alleged offence has been committed beyond the territorial limits of the concerned police
station, the F.I.R. registered against the applicant Abu Bakar deserves to be quashed. He
has relied on a case reported in P L D 1975 Lah. 521. Further as the F.I.R. has been
registered after a delay of 3 to 7 months it deserves to be quashed on that ground as well.
He has relied on 1986 P Cr. L J 1089.
Mr. Laiq Ahmed appearing for the State in reply to arguments mentioned above has
merely stated that as the Commissioner, Karachi had endorsed the complaint, it was
competently lodged by the officer incharge of the police station therefore, the F.I.R. does
not deserve to be quashed.
The application of the Pakistan Penal Code has been extended to offences provided for
therein when committed by a citizen of Pakistan even in any country other than Pakistan
itself by the provision made in section 4 of that Code. It, therefore, follows that the penal
provisions of the Pakistan Penal Code will be attracted if any citizen of Pakistan commits
such offences even beyond the territories of the country. In order to give effect to such a
substantive provision of law, provision has also been made in section 188 in the Criminal
Procedure Code, which reads as under:-
"Liability for offences committed outside Pakistan. When a (citizen of Pakistan) commits
an offence at any place without and beyond the limits of (Pakistan), or
when a servant of the State (whether a citizen of Pakistan or not') commits an offence in
(tribal area) or
when any person commits an offence on any ship or aircraft registered in (Pakistan)
wherever it may be, he may be dealt with in respect of such offence as if it has been
committed at any place within (Pakistan) at which he may be found:
Political Agents to certify fitness of inquiry into charge:
Provided that (notwithstanding anything in any of the preceding sections of this Chapter)
no -charge as to any such offence shall be inquired into in (Pakistan) unless the Political
Agent, if there is one, for the territory in which the offence is allegedly to have-been
committed, certifies that, in his opinion, the charge ought to be inquired into in
(Pakistan), and, where there is no Political Agent, the sanction of the (Federal
Government) shall be required:
Provided, also, that any proceedings taken against any person under this section which
would be a bar to subsequent proceedings against such person for the same offence if
such offence had been committed in (Pakistan) shall be a bar to further proceedings
against him under (the Extradition Act, 1972 `XXI of 1972'), in respect of the same
offence in any territory beyond the limits of (Pakistan)."
The first proviso to this section prohibits the conduct of an inquiry into such offences
unless it is certified by the Political Agent of Pakistan in that country where offence has
been committed that in his opinion the charges are to be inquired into in Pakistan. In case
where there is no political agent sanction of the Federal Government will be necessary. It
appears that both the learned counsel appearing for the parties in this case omitted to take
note of section 4, P.P.C. and section 188, Cr.P.C. According to provision of section 188,
Cr.P.C. the accusation cannot be inquired into without the required certificate but the bar
does not extend to mere registering the F.I.R. under section 154, Cr.P.C. and nowhere a
condition has been laid to obtain such a certificate before registering a complaint. It,
therefore, follows that the required certificate can be obtained after recording the
complaint in order to inquire into the charge.
In view of the above I do not consider this to be a fit case where F.I.R. relating to the
offences in question may be quashed. In order to comply with the provision of law
contained in section 188, Cr.P.C. it will be open to the complainant and investigating
authorities to obtain such certificate to be able to inquire into the charges and take further
action as may be found to be in accordance with law. Investigation will, therefore, be
postponed till then. I am indeed fortified in arriving at such a conclusion in view of
judgments reported in Ali Bhoy Jivraj v. Emperor A I R 1925 Sind 88 and Jamil Ahmed
Qureshi v. S.H.O. and another P L D 1980 Lah. 119.
In view of the above this application is dismissed with a direction as given above.
M.B.A./A-454/K Application dismissed.
1983 P Cr. L 1051
Before Khalilur Rehman Khan, J
MUHAMMAD IBRAHIM--Petitioner
Versus
MUHAMMAD HANIF AND OTHERS-Respondents
Criminal Revision No. 815 of 1978, decided on 7th March, 1981
(a) Criminal Procedure Code (V of 1898)-
Ss. 154 to 176, 193(3), 200 & 202-Scope of sections-Cognizance of offence on
complaint-Order of discharge no bar to subsequent trial of accused-Police recording
opinion contrary to allegation-Such opinion not binding on Court-Accused, held, can be
summoned--Accused can be summoned either on report of Police or on a complaint
where facts complained of constitute an offence and where prima facie case of
commission of an offence by accused made out-Law providing a remedy of approaching
Court by filing a complaint and such remedy, held, cannot be either refused or
circumscribed on consideration that Police has recorded an opinion contrary to
allegations made out in complaint-Criminal Procedure Code (V of 1898), S. 439.
The submissions that the petitioner having been found innocent and having been
discharged, could not be summoned in the complaint on the basis of the material
produced, without looking into the record of the investigation or examining the
Investigating Officer; that summoning of the accused who has been so discharged after
thorough investigation, would render the exercise done under the provisions contained in
sections 154 to 173, Cr. P. C. redundant or that it will facilitate the involvement of
innocent persons in the criminal cases, have no support from any provision of law or
principle of administration of criminal justice. It will be seen that in the case of
cognizable offences, the agency of police comes into motion and after holding the
investigation, the purpose of which is to collect evidence in support of the allegations
contained in the report made, the matter is ultimately brought before a Court of
competent jurisdiction. The Magistrate under section 173(3), Cr. P. C. may make an order
for the discharge of the bond submitted by the accused to the police or pass other order as
he may think fit. The order of discharge, so passed, does not bar subsequent trial of
accused. The provisions contained to sections 154 to 176 provide one of the methods for
bringing culprits before a competent Court for being dealt with according to law and to
be punished by the Court if proved guilty. A reference to section l90 Cr. P. C. would show
that a Criminal Court can take cognizance of any offence :-(a) upon receiving a complaint
of facts which constitute such offence ; (b) upon a report in writing of such facts made by
any police officer, (c) upon information received from any person other than a police
officer, or upon his own knowledge or suspicion, that such offence has been committed.
Under section 193 Cr. P. C. except as otherwise expressly provided by the Code or by any
other law for the time-being in force, no Court of Session shall take cognizance of any
offence as a Court of original jurisdiction unless the case has been sent to it under section
190 (3) and under this subsection, a Magistrate taking cognizance under subsection (1) of
section 1.90 of an offence triable exclusively by a Court of Session, shall without
recording any evidence send the case to a Court of Session for trial. It is apparent that
upon receipt of a complaint, a Magistrate taking cognizance of an offence triable
exclusively by a Court of Session, is to send the case to that Court for trial and the Court
of Session then under section 202, Cr. P. C. may either enquire into the case itself or
direct an inquiry or investigation to be made by a police officer or by such other person as
it thinks fit for the purpose of ascertaining the truth or falsehood of the complaint. While
acting under this subsection, no such direction is to be made unless the complainant has
been examined on oath under the provision of section 200. It is so provided in the proviso
to the said subsection (1). Subsection (2) of section 202, however, provides that instead of
directing an investigation under the provisions of subsection (1) a Court of Session may
direct the investigation to be made by any Magistrate subordinate to it. It is, therefore,
apparent that cognizance can betaken and accused can be summoned either on report of
the police or on a complaint filed by the complainant, where the facts complained of
constitute an offence and where a prima facie case of commission of an offence by the
accused has been made out. The law thus provides the remedy of approaching the Court
by filing a complaint and such remedy cannot be either refused or circumscribed on the
consideration that the police has recorded an opinion contrary to the allegations being
made in a complaint. Opinion of the police is not binding on a Criminal Court as it is the
determination of the Court itself arrived at after proper trial and in accordance with"1aw,
which confers a right on the accused not to be tried again for the same offence.
(b) Criminal Procedure Code (V of 1898)
----- Ss. 174, 176, 202 & 439-Cognizance of offence on complaint Court of competent
jurisdiction coming to conclusion that case prima facie made out against accused-Plea
that while summoning an accused m a complaint opinion of Police recorded during
investigation should not be ignored so that unscrupulous complainants may not involve
innocent persons, held, cannot be accepted-Criminal Court only has to form an opinion
on basis of material produced before it. Even an order of discharge, admittedly, does not
bar the holding of a trial in case a Criminal Court of competent jurisdiction comes to the
conclusion that the case prima facie made out against such an accused merits to be tried
in accordance with law. The plea that while summoning an accused in a complaint, the
opinion of the police recorded during investigation should not be ignored rather be given
weight so that unscrupulous complainants may not feel free to involve innocent persons
in criminal litigation thereby forcing them to undergo rigours of criminal trial, cannot be
accepted as the same has neither the support of any authority nor the scheme of the
Criminal Procedure Code allows the adoption of the course. It is the Criminal Court itself
which has to form an opinion on the basis of the material produced before it, on the
question whether the allegations made prima facie constitute an offence and as such
furnish sufficient ground for proceeding against the accused. The other mode to ask the
Court to take cognizance of an offence is by moving a complaint. This mode cannot be
rendered ineffective because of the fact that police during investigation was not able to
collect evidence against an accused or otherwise was of the opinion that allegations made
are not worthy of credence.
Fateh Sher v. Khan Yasin Khan P L D 1959 Lah. 660 rel.
(c) Criminal Procedure Code (V of 1898)
----Ss. 154 to 176, 203, 211, 265-K & 250 read with S. 439---Cognizance of offence on a
complaint--Safeguard against frivolous, vexatious or malicious complaints against
innocent persons-Legislature making adequate provisions for curbing such complaints--
Sufficient provisions of law available to safeguard interest of people proceeded against
without reasonable cause---By taking cognizance of offence on a complaint neither
provisions of Ss. 154 to 176 rendered nugatory nor interest of justice in any way suffers.
Plea that innocent persons should not be made to face the rigours of a criminal trial, it
will be seen that the Legislature has made adequate provisions for curbing frivolous,
vexatious or malicious complaints. In this connection section 211, Cr. P. C. may be
referred. It is also open to the accused who is summoned, to show to the Court that he has
been summoned without any reasonable cause or on the basis of insufficient material as
he can seek dismissal of the complaint under section 203, Cr. P. C. Even at later stage of
the trial he can make out a case of acquittal under section 265-K, Cr. P. C, Moreover, in
case he is able to establish that the proceedings initiated against him were frivolous,
unwarranted or mala f1de, he can claim compensation under section 250, Cr. P. C. Thus
sufficient provisions have been made to safeguard the interest of the person proceeded
against without reasonable cause. By taking cognizance of the offence on a complaint,
neither the provisions contained in sections 154 to 176 of the Cr. P. C. are rendered
nugatory nor the interest of justice, in any way, suffers.
(d) Criminal Procedure Code (V of 1898)-
----Ss. 202 (1), (2) & 349-Penal Code (XLV of .1860), S. 302Cognizance of offence on.
complaint-Examination of Police Of Officers---Inquiry and investigation under S. 202(1)
& (2) - Examination of Police Officers having investigated case not necessary-Police
cannot be considered to be a party to proceedings and at that stage neither order of
discharge nor opinion of Investigating Officers that accused innocent, held, sufficient to
render order of issuing warrant of arrest for accused illegal.-[Complaint].
There is no provision of law in support of the plea that in the inquiry to be held under
subsection (I) or investigation to be made under subsection (2) of section 202, Cr. P. C.
examination of the police officers who had investigated the case, is necessary. The police
cannot be considered to be a party to the proceedings. At that stage, even the accused
person is neither to be associated nor is to be heard. Thus, for the reasons noted above,
neither the order of discharge nor the opinions of the Investigating Officers to the effect
that the petitioner is innocent, is sufficient to render the impugned order illegal or
improper.
(e) Criminal Procedure Code (V of 1898)-
----Ss. 200, 202(2) & 439-Penal Code (XLV of 1860), S. 302Cognizance of offence on
complaint-Case triable by Court of Session-Examination of complainant not mandatory-
Contention that due to failure to examine complainant order passed under S. 202(2)
directing that investigation be made by Magistrate was illegal, held, has no merit---
Provision of S. 200 not mandatory in relation to cases triable by Court of Session.-
[Complaint].
Kamal Khan v. Muhammad Naeem and 4 others P L D 1979 Quetta 69 and Taj
Muhammad and 2 others v. The State and another P L D 1979 Quetta 172 rel.
(f) Criminal Procedure Code (V of 1898)—
-- Ss. 203, 154 & 176-Complaint-Accused summoned on basis of insufficient material.
can seek dismissal of complaint under S. 203.[Complaint].
(g) Criminal Procedure Code (V of 1898)-
--- S. 265-A to 265-N & 265-K-Court has power to acquit accused at any stage of case if
it considers that there is no possibility of accused being convicted of any offence.-
[Complaint].
Ch. Rafique Ahmad Bajwa for Petitioner.
Wasim Sajjad for Respondents.
Date of hearing : 2nd March, 1983.
JUDGMENT
Briefly stated the facts forming background of the controversy raised in this Criminal
Revision under section 439, Cr. P. C. are that a case under section 302, P. P. C. was
registered vide F. I. R. No. 228 on 7-11-1977 against Ali Muhammad and Muhammad
Ajmal on the statement of one Muhammad Ishaq with Police Station Nishatabad, District
Faisalabad. On the same day, in respect of the same incident F. I. R. No. 229 was
registered with the same police station on the statement of Muhammad Hanif against
Muhammad Ayyub and Muhammad Ibrahim, the present petitioner. The parties gave their
own version of the incident in which Muhammad Ayyub died on the side of the petitioner
and Ali Muhammad died on the side of the respondent, The investigation was conducted
by Muhammad Anwar Khan, the then S. H. O. who recorded the---opinion that the
petitioner was innocent. The Investigation was then conducted by Zafar Abbas Shah, the
then S. D. P. O. Chak Jhumra and it is stated that he also agreed with the opinion of the
former Investigating Officer. On further investigation conducted by Iqrar Husain Shah D.
S. P. it was recommended that the name of the petitioner be placed in column No. 2 of the
challan. An incomplete challan was submitted on 11-12-1977. As P. D. S. P. was of the
opinion that Muhammad Ibrahim petitioner be got discharged, the matter was referred to
the Senior Superintendent of Police. He also agreed with the P. D. S. P. and the report was
lard before the District Magistrate who ultimately discharged the petitioner. Muhammad
Hanif, complainant in F. I. R. No. 229, the respondent, then filed a complaint in the Court
of Ilaqa Magistrate on 29-4-1918 and vide order dated 2-5-1978 the same was sent to the
learned Sessions Judge for further proceedings. The complaint was then marked, to
Additional Sessions Judge 1, but from his Court it was withdrawn and was sent to
Additional Sessions Judge 11 as the connected challan case was pending before him. The
transferee Court then vide order dated 5-6-1978 entrusted the complaint to Assistant
Commissioner/Magistrate Section 30, Faisalabad, for the purpose of ascertaining in the
truth or falsehood of the complaint under section 202(2), Cr. P. C. The learned Magistrate
recorded the statement of the complainant and the witnesses produced before him, and on
the basis of the material collected by him, he submitted his report dated 12-9-1978
recording the opinion that a prima facie case under section 302/307, P. P. C. was made
out. The learned Additional Sessions Judge then vide order dated 11-10-1978 directed
issuance of warrants for arrest of the petitioner and thus summoned him as an accused in
the case. This order is under challenge in this revision petition on the following
grounds :-
(i) the petitioner, having been found innocent during investigation conducted by
three different police officers as a result of which the order of discharge was also
passed, could not be summoned in the complaint on the basis of the statements of
the complainant and his witnesses without looking into the record of investigation
or without examining the Investigating Officers. The reasons being that the
summoning of an accused person on the basis of the complaint Would give
licence to complainants to implicate any innocent person, especially, those who
have established their innocence during the investigation held ;
(ii) the order of summoning the petitioner as an accused has the effect of rendering
the provisions of sections 154 to 173, Cr. P. C. redundant ;
(iii) the order passed under section 202(2), Cr. P. C. marking the complaint to the
Magistrate for investigation was illegal as the learned Additional Sessions Judge
did not himself examine the complainant. The order passed without examination
of the complainant was illegal and all the proceedings held thereafter are equally
illegal ;
(iv) that the impugned order, in any case, is illegal as sufficient material was not
brought on record to warrant summoning of the petitioner as an accused.
I may add at this stage, that the learned Counsel for the petitioner also argued that
the complaint was directly filed in the Court of the learned Additional Sessions
Judge and that as cognizance was directly taken by the Sessions Court illegally,
the entire proceedings held on the complaint were illegal and without jurisdiction.
This point was not, however, pressed by him when it was pointed out by the
learned Counsel for the respondent that the complaint was filed before the Ilaqa
Magistrate and it was the Magistrate who had taken cognizance of the complaint
and had thereafter sent the complaint to the Sessions Court, as is provided by
section 190(3), Cr. P. C. This question, therefore, need not be gone into, as the
same does not arise in this case.
2. In respect of other contentions, the case of the learned Counsel for the respondent was
that examination of the complainant is necessary if the order is passed under subsection
(1) of section 202 directing a police officer to hold an investigation or inquiry, but
where a Court of Session is acting under subsection (2) for issuing direction to a
Magistrate to conduct the investigation, the examination of the complainant is not
necessary. He argued that in case the examination of a complainant before passing
the order is necessary, then the failure to examine the complaint would amount to
a mere irregularity, which is curable under section 537, Cr. P. C.
3. I have considered the respective submissions of the parties and I am of the considered
view that this revision petition is without any merit and accordingly must fail. My
reasons for arriving at this conclusion are as follows:
The submissions that the petitioner having been found innocent and having been
discharged, could not be summoned in the complaint on the basis of the material
produced, without looking into the record of the investigation or examining the
Investigating Officers; that summoning of the accused who has been so discharged after
thorough investigation, would render the exercise done under the provisions contained in
section 154 to 173, Cr. P. C. redundant or that it will facilitate the involvement of
innocent persons in the criminal cases, have no support from any provision of law or
principle of administration of criminal justice. It will be seen that in the case of
cognizable offences, the agency of police comes into motion and after holding the
investigation, the purpose of which is to collect evidence in support of the allegations
contained in the report made, the matter is ultimately brought before a Court of
competent jurisdiction. The Magistrate under section 173(3), Cr. P. C. may make an order
for the discharge of the bon submitted by the accused to the police or pass other order as
he may think fit. The order of discharge, so passed, does not bar subsequent trial of the
accused. The provisions contained in sections 154 to 176 provide one of the methods for
bringing culprits before a competent Court for being dealt with according to law and to
be punished by the Court if proved guilty. A reference to section 190, Cr. P. C. would
show that a Criminal Court can take cognizance of any offence :-(a) upon receiving a
complaint of facts which constitute such offence ; (b) upon a report in writing of such
facts made by any police officer, (c) upon information received from any person other
than police officer, or upon his own knowledge or suspicion, that such offence has been
committee. Under section 193, Cr. P. C. except as otherwise expressly provided by the
Code or by any other law for the time being in force, no Court of Session take cognizance
of any offence as a Court of jurisdiction unless the case has been sent to it under section
190(3) under subsection (1) original and under this subsection, a Magistrate taking
cognizance of section 190 of an offence tribal exclusively by a Court of Session, shall
without recording any evidence send the case to a Court of Session for trial. It is apparent
that upon receipt of a complaint, a Magistrate taking cognisance of an offence triable
exclusively by a Court of Session, is to send the case t that Court for trial and the Court of
Session then under section 202, Cr. P. C. may either enquire into the case itself or direct
an inquiry or investigation t be made by a police officer or by such other person as it
thinks fit for the purpose of ascertaining the truth or falsehood of the complaint. While
acting under this subsection, no such direction is to be made unless the complainant has
been examined on oath under the provisions of section 200. It is so provided in the
proviso to the said subsection (1). Subsection (2) o section 202, however, provides that
instead of directing an investigation under the provisions of subsection (1) a Court of
Session may direct the investigation to be made by any Magistrate subordinate to it. It is,
therefore, apparent that cognizance can be taken and accused can be summon either on
report of the police or on a complaint filed by the complainant, where the facts
complained of constitute an offence and where a prima facie case of commission of an
offence by the accused has been made out. The law thus provides the remedy of
approaching the Court by filing a complaint and such remedy cannot be either refused or
circumscribed on the consideration that the police has recorded an opinion contrary to the
allegations being made m a complaint. It was conceded by the learned Counsel for the
petitioner that opinion of the police is not binding on a Criminal Court as it is the
determination of the Court itself arrived at after proper trial and in accordance with law,
which confers a right on the accused not to be tried again for the same offence. Even an
order of discharge, admittedly, does not bar the holding of a trial in case a Criminal Court
of competent jurisdiction comes to the conclusion that the case prima facie made out
against such an accused merits to be tried in accordance with law. The plea that while
summoning an accused in a complaint, the opinion of the police recorded during
investigation should not be ignored rather be given weight so that unscrupulous
complainants may not feel free to involve innocent persons in criminal litigation thereby
forcing them to undergo rigour of criminal trial, cannot be accepted as the same has
neither the support The authority nor the scheme of the Criminal Procedure Code allows
the adoption of the course canvassed by the learned Counsel. In Fateh Sher v. Khan Yasin
Khan (1) it was observed that The Magistrate dismissing a complaint under section 203,
Cr. P. C. cannot possibly look into reports submitted under section 174 or section 176, Cr.
P. C. nor can he dismiss the complaint on the basis of such a report. He could only
dismiss the complaint by looking at the complaint and the statement of the complainant
on oath and the report and nothing else." It is the Criminal Court itself which has to form
an opinion on the basis of the material produced before it, on the question whether the
allegations made prima facie constitute an offence and as such furnish sufficient ground
for proceedings against the accused. The other mode to ask the Court to take cognizance
of an offence is by moving (l) P L D 1959 Lah. 660 a complaint. This mode cannot be
rendered ineffective because of the fact that police during investigation was not able to
collect evidence against an accused or otherwise was of the opinion that allegations made
are not worthy of credence. As regard the plea that innocent persons should not be made
to face the rigours of 9 criminal trial, it will be seen that the Legislature has made
adequate provisions for curbing frivolous, vexatious or malicious complaints. In this
connection section 211. Cr. P. C. may be referred. It is also open to the accused who is
summoned, to show to the Court that h has been summoned without any reasonable cause
or on the basis of insufficient material as he can seek dismissal of the complainant under
section 203, Cr. P. C. Even at later stage of the trial he can make out a case of acquittal
under section 265-K, Cr. P. C. Moreover, in case he is able to establish that the
proceedings initiated against him were frivolous, unwarranted or mala fide, he can claim
compensation under section 250, Cr. P. C. Thus sufficient provisions have been made to
safeguard the interest of the person proceeded against without reasonable cause. 1 am,
therefore, of the view that by taking cognizance of the offence on a complaint, neither the
provisions contained in sections 154 to 176 of the Cr. P. C. are rendered nugatory nor the
interest of justice, in any way, suffers.
Again, learned Counsel has not even cited a single provision of law in support of the plea
that in the inquiry to be held under subsection (1) or investigation to be made under
subsection (2) of section 202, Cr. P. C. examination of the police officers who had
investigated the case, is necessary. The police cannot be considered to be a party to the
proceedings. At that G stage, even the accused person is neither to be associated nor is to
be heard. Thus, for the reasons noted above, neither the order of discharge nor the
opinion of the Investigating Officers to the effect that the petitioner is innocent, is
sufficient to render the impugned order illegal or improper.
4. The other submission that due to failure to examine the complainant, the order passed
under section 202(2) directing that the investigation be made by the Magistrate was
illegal, is also without any merit. In Kamal Khan v. Muhammad Naeem and 4 others (P L
D 1979 Quetta 69) the view taken was that due to non recording of the statement under
section 200, Cr. P. C. this being not a mandatory provision in relation to cases triable by
the Court of Session, no prejudice could be or has been caused." Again, in Taj
Muhammad and 2 others v. The State, and another (P L D 1979 Quetta 172) it was held
that examination of complainant on oath before issuing of any process is not obligatory
for Sessions Court. In this case also, nothing has been urged to show that any prejudice
was caused to the petitioner on account of not examining the complainant by the
Additional Sessions Judge himself before directing the Magistrate to hold the
investigation.
5. The last submission that sufficient material was not brought on record so as to warrant
the summoning of the petitioner, need not be gone into as the petitioner, admittedly,
approached this Court without even tendering appearance in the trial Court and as any
expression of opinion by me at this stage may adversely affect the case of either of the
parties. Assuming that the petitioner was summoned on the basis of insufficient material,
it was open to him to represent his point of view by seeking dismissal of the complaint I
under section 203, Cr. P. C. Moreover, the trial is to proceed in accordance with the
provisions contained in sections 265-A to 265-N, including section 265-K, where under
the Court has the power to acquit an accused person at any stage of the case, if it
considers that there is no possibility of the accused being convicted of any offence.
6. For the reasons given above, this revision petition is dismissed.
7. The record of the complaint case shall be sent back to the learned Sessions Judge
immediately, who will either himself hold the trial, expeditiously, alongwith the
connected challan cases or will entrust it to some Additional Sessions Judge for the
purpose.
Petition accepted.
1979 P Cr. L J 521
[Lahore]
Before Gul Muhammad Khan and Abdul Shakurul Salam, JJ
KAURA-Petitioner
Versus
THE STATE-Respondent
Review Application No. 69 of 1976 in Writ Petition No. 511 of 1976, decided on 4th
November, 1978.
(a) Criminal Procedure Code (V of 1898)-------
-------S. 154--Review petition-Recording of second F. I. R.-Review petition against order
of High Court conceding prayer of respondent for recording second F. I. R. relating to
same occurrence filed with prayer that order be reviewed to be recalled and writ petition
filed against petitioner dismissed--Section 154, however, contemplating only one F. I. R.
and only one such report could go into evidence in a case Order recalled, in
circumstances-Constitution of Pakistan (1973), Art. 199.-[First Information Report-
Review].
Lakhmir v. The State P L D 1968 Quetta 7; Ramzan v. State P L D 1967 Lah. 588 and
Mansur Ali v. State 1970 P Cr. L J 287 ref.
(b) Criminal Procedure Code (V of 1898)-----
-- Ss. 154 & 161-Distinction-Section 154 contemplates lodging of report of cognizable
offence for which a Police Officer after investigation finds correctness of occurrence and
action so taken-Statements and material recorded after F. I. R. received fall in realm of
investigation and all statements recorded thereafter come under S. 161, Cr. P. C.
(c) Police Rules, 1934—
--- Rule 24.1 read with rule 24.3-.F. I. R. recording of---Rule 24.1 deals with recording in
writing of First Information relating to an offence whether cognizable or non-
cognizable--Rules 24.1 & 24.3, distinction-In former, information disclosing commission
of cognizable offence recorded in F. I. R. register as well gas in Station Diary whereas in
later, information regarding non-cognizable offence recorded in Station Diary only.
(d) Criminal Procedure Code (V of 1898)-----
----Ss. 156 & 161 read with Punjab Police Rules, 1934, r. 21.1(4) Purpose of recording F.
I. R.-Primary purpose of F. I. R. is to inform about commission of cognizable offence to
be investigated by a Police Officer under S. 156 -Police Officer may then find out source
of information, names of offenders and witnesses and whether informant himself an eye-
witness as per r. 21.1(4)-Information regarding occurrence coming out later in point of
time to be taken down as statements before police under S. 161, Cr. P. C.-[Statement b.-
fore police-First Information Report].
S. M. Zubair for Petitioner.
Nemo for the State.
Date of bearing: 4th November, 1978.
JUDGMENT
GUL MUHAMMAD KHAN, J.-----One Haji Jewan was murdered on 7th of February,
1976, in respect of which occurrence, a First Information Report was lodged by one Issa,
his elder brother, on 8th of February, 1976 at Serial No. 23 of P. S. Saddar, Dera Ghazi
Khan. He named Ghulam Muhammad as the sole assailant.
2. Ghulam Muhammad the above-named assailant was also murdered the same day and
consequently another F. I. R. No. 24 was lodged at the same Police Station. The present
applicant and 4 of others were accused of that offence. Ghulam Siddiq respondent No. 2
who is son of Haji Jewan deceased, filed Writ Petition No. 511 of 1976 against the S. H.
O. and the petitioner. He implicated some of the respondents in the writ petition as the
assailants and prayed that another F. I. R. be ordered to be recorded.
3. The case came up before a learned Single Judge of this Court on 14th of May, 1976
when it was conceded on behalf of the State that a report of Ghulam Siddiq shall also be
registered. That petition was disposed of accordingly.
4. Feeling aggrieved of that order the present petitioner filed a petition for special leave to
appeal and prayed that the order of the learned Single Judge be set aside. Their Lordships
of the Supreme Court, however, directed the petitioner to approach the High Court for
review of the order so that the same could be rectified. The relevant observations are as
under:---
"It appears to us that once the case was registered vide F. I. R. 23 dated 7-2-76 in
respect of the murder of Haji Jewan the registration of a fresh report
notwithstanding the divergent version contained therein was not called for
inasmuch as the ball had already been set rolling and the police was not only
 competent but also duty bound to unearth the true facts and trace the real culprits.
The impugned order seems to .be the result of some confusion or accidental slip.
Indeed learned counsel pointed out that on the same day on similar facts the
learned Chief Justice had declined to issue any direction to the police for the
registration of afresh case regarding the same transaction though a counter-
version was alleged in that case also. In these circumstances we consider the
better course would be to approach the High Court for a review of the order, and
there is no reason why the High Court should not rectify the situation."
5. The petitioner then filed the present review petition and prayed that the order dated
14th of May, 1976 be reviewed to be recalled and the writ petition be dismissed with
costs. It is contended by the learned counsel that the provision of section 154, Cr. P. C.
under which the F. I. R. is registered does not conceive of a second information being
recorded with regard to the same occurrence. He also referred to Lakhmir v. The State (P
L D 1968 Quetta 7), wherein a second statement of the informant recorded by the
Tehsildar during investigation was ignored and the First Information Report recorded by
the police was taken to be the F. I. R; A Division Bench of this Court in Ramzan v. State
(P L D 1957 Lah. 588) also took the same view that a statement recorded after
commencement of investigation is not the First Information Report. A learned Single
Judge of the Dacca High Court took the same view in Mansur Ali v. State (1970 P Cr. L
J287) that section 154, Cr. P. C. contemplates only one First Information Report and only
one such report can go into evidence in case.
6. Nobody appeared on behalf of the respondents to contest this petition: We, however,
considered the plea being raised and have come to the conclusion that the previous order
merits being recalled.
7. Section 154, Cr. P. C. reads as under:----
"Every information relating to the commission of a cognizable offence if given
orally to an officer incharge of police-station, shall be reduced to writing by him,
or under his direction and be read over to the informant; and every such
information, whether given in writing or reduced to writing as aforesaid, shall be
signed by the person giving it, and the substance thereof shall be entered in a book
to be kept) by such officer in such form as the Provincial Government may
prescribe in this behalf:"
It is quite clear from the wording of this section that the report being lodge' before the
police is with regard to the commission of a cognizable offence. It is on that basis that
Police Officer is entitled to investigate the matter, in order to find out the facts of the
case. The investigation necessarily involves, finding out, if the reported occurrence is
correct? Was it committed the was it has been reported ? Were the accused named in the
F.I.R. responsible for the Occurrence? What evidence or other material is available to
supported finding? So all actions taken, statements recorded and material collected, after
the first information was received fall in the real of investigation, therefore, all statements
recorded, thereafter, shall come under section 161, Cr. P. C. a not section 154. Cr. P. C.
8. Rule 24.1 of the Police Rules, deals with the recording of the first information relating
to an Offence, whether cognizable or non-cognizable. It is provided therein that every
such information shall be recorded, in-writing, by the officer incharge of a police station.
The Police Officer thus, is obliged to record in Writing, every information relating to the
commission of any Offence. The only distinction made here is that the information
disclosed commission of a cognizable offence s to be recorded in the First Information
Report Register as well as station diary under rule 24.1(2) while the informs iron with
regard to non-cognizable offence is to be recorded in the station diary only under rule
24.3. Further, the Police Officer at that time is not necessarily concerned with the
correctness of the information, though he can refuse to record information in the F. I. R.
Register if he reasonably suspects its correctness. He may in that case record the
information in the station register.
9. It is a common ground in both sets of information’s that Haji Jewan was murdered. The
question whether Ghulam Muhammad had committed the offence or some one else had,
however, to be resolved during investigation. The second information, therefore,
pertained to the investigation part and could in no case fall to be recorded under section
154, Cr. P. C. Further, an information by some one else is not a prerequisite to recording
the F. I. R. Under rule 24.1(2) a Police Officer can record the F. I. R. even on his own
suspicion of commission of an offence. He. therefore, will not be required to record F. I.
R. at the instance of a complainant subsequently in respect of the same occurrence. It
may be relevant to reproduce in full rule 24.1(2) to elucidate point in issue
 "With the exception of cases mentioned in rule 24.10 below, in every case in
which the officer in charge of a police station, from information or otherwise, has
reason to suspect the commission of an offence which he is empowered under
section 156, Criminal Procedure Code, to investigate, he shall enter in full such
information or other intelligence as soon as practicable in the First Information
Report Register, shall have each copy signed, marked or sealed by the informant
if present, shall seal each with the station seal, and shall dispose of the copies in
accordance with rule 24,5, and if he abstains from investigation under either of
the provisions to section 157 of the Code he shall submit the copy intended for the
Magistrate through the Superintendent. At the same time a reference to such
report shall be entered in the Station Diary, register No.11."
Further it is also not necessary that every information prima facie disclosing a cognizable
offence be recorded. In case of a suspicion about its correctness a Police Officer may
enter the substance of the information or intelligence in a station diary and shall also
record his reason for suspecting that alleged offence has not been committed. Reference
be made to Rule 24.4. However, a copy of such a report is to be sent to the Inspector
Police, and other superior Police Officer and the District Magistrate for their perusal and
orders.
10. It is quite obvious from the above that the primary purpose of the F. I. R. is to inform
about the commission of a cognizable offence which a Police Officer is empowered to
investigate under section 156, Cr. P. C. The Police Officer receiving that information may
question the informant to find out his source of information about the names of the
offenders and the witnesses and whether the informant himself was an eye-witness as laid
down in rule 21.1(4). All other informations with regard to that occurrence coming out
later in point of time have to be taken down as statements of those persons before the
police under section 161, Cr. P. C. The version given by Ghulam Siddiq, therefore should
have teen considered as a statement under section 161, Cr. P. C. only. The order to
register a second F. I. R. in that situation, vas not justified in law, even if there was a
concession made on the part of the State.
For the reasons given above, we accept this review application, recall the order of the
learned Single Judge dated 14th of May, 1976, and dismiss the Writ Petition No. 511 of
1976.
As no one appeared to defend this case, there will be no order as to costs.
Review application accepted.
1970 P Cr. L J 111
[Lahore]
Before Muhammad Afzal Cheema and Muhammad Afzal Khan, JJ
MUHAMMAD IQBAL alias BALA-Convict-Appellant
versus
THE STATE-Respondent
Criminal Appeal No. 421. and Murder Reference No. 148 of 1968, decided on 21st July
1969.
(a) Criminal Procedure Code (V of 1898)
S. 154-First Information Report-Telephonic message respecting commission of crime
recorded by police in daily diary-Not F. I. R.-Complainants subsequent statement being
earliest as fulfilling condition of section 154, held to be rightly treated as F. I. R.
Muhammad Afzal v. The State P L D 1960 Lah. 97 and Muhammad Siddik v. The Crown
P L D 1954 F C 112 rel.
(b) Witness-Evidence
-Prosecution witnesses related to deceased and also residents of locality where deceased
lived - Such witnesses appearing to have no motive to falsely implicate accused Mere fact
that prosecution witnesses related to deceased and residents of same locality-Held, would
afford no justification to reject their testimony.
(c) Penal Code (XLV of 1860)
S. 302-Murder-Contributory circumstance-Contention that death followed not as a direct
consequence of injury but surgical operation intervened as contributory
circumstance-Held, no mitigating circumstance in favour of accused, accused being
directly responsible for consequences of fatal shot fired by him.
Murad v. The State P L D 1.957 Lah. 332 rel.
(d) Criminal Procedure Code (V of 1898)
S. 103-Searchcontention that search was had because no person from locality associated
with it-No such question put to police officer conducting search, held, sufficient answer
Police officer may have had good reasons not to do so.
Mela and others v. The State P L D 1962 Lah. 58 rel.
Mian Mahmood Ali Kasuri for Appellant.
Aslam Riaz Hussain, Addl. A.-G. assisted by Rashid Aziz for the State.
Dates of hearing : 24th and 25th June 1969.
JUDGMENT
MUHAMMAD AFZAL CHEEMA, J.-Vide his judgment dated the 20th of May 1968,
the Additional Sessions Judge, Lahore, at Sahiwal convicted Muhammad-Iqbal alias Bala
a shop-keeper of Okara under section 302, P. P. C. for the murder of Muhammad Sharif
deceased and sentenced him to death. He was also convicted under section 13 of the
Arms Ordinance, 1965 with an award of one year rigorous imprisonment to be suffered in
the event of non-confirmation of sentence of death. Criminal Appeals Nos. 421 and 422
of 1968, have been filed by him respectively, against his convictions and sentences and
we have also before us his case under section 374; Cr. P. C. for the confirmation of
sentence of death. This judgment will dispose of the appeals, as well as the murder
reference.
2. The relevant facts of the case are that on 23rd of January 1966, which happened to be
Eid day, at about 3-15 p. m., Muhammad Sharif deceased accompanied by his relation
Muhammed Nawaz complainant, a resident of Gojra, proceeded from his house in
Chamra Mandi, Okara, in order to see off the latter. They were joined by Muhammad
Yousaf and Jehangir P.Ws. As they reached in front of Naz Cinema, the appellant
suddenly appeared in front of them and challenged Muhammad Sharif deceased that he
would not be spared. So saying, he took out a revolver from the left fold of his loin cloth
and fixed a shot at Muhammad Sharif .who was hit on the chest: In the meantime. Hanif
P. W. 11, another resident of Chamra Mandi arrived there. The appellant fired four more
shots and ran towards the railway station. Many people gathered at the spot. The
deceased was removed by the aforesaid persons to the hospital in a state of consciousness
and was admitted. At about 4-00 p. m. a telephonic message was received by the
Moharrir Head Constable from doctor Mumtaz Ahmad P. W. 2 A. M. O. Outdoor
Dispensary, Okara, intimating about the admission of Muhammad Sharif, the injured
person. This report was entered at serial No. 7 of the daily diary and a copy of the same
was sent to A. S. I. Gulzar Hussain Incharge Police Post No. 1 to whose jurisdiction the
matter pertained. The copy of the relevant report is Exh., D. E. on the record.
Subsequently, to the same effect, a letter Exh. D. G. was addressed by the doctor, Civil
Hotpital, Okara, to the S. H. O., Police Station, Okara Gulzar Hussain A. S. I., Police Post
No. 1, Okara, reached the hospital and inquired from the doctor vide application Exh. P.
L. as to the , fitness of the injured person to make a statement. The query was answered
by the doctor in the negative ride report Exh. P.L/1. Gulzar Hussain A. S. I., then
recorded the statement of Muhammad Nawaz complainant Exh. P. E. who was present in
the hospital. Exh. P. E. explains the motive mentioned therein namely that 1i years prior
to the occurrence, one Riaz Muhammad, a relative of the deceased had been beaten by
the appellant and some others. The appellant and the other accused were challaned in that
case. It was in connection with that earlier fight that some time before the occurrence the
deceased and the appellant, had exchanged hot words and had abused each other when
the appellant had threatened the deceased with dire consequences. The statement of
Muhammad Nawaz Exh. P. E. was treated as F. I. R. in the case.
3. Doctor Mumtaz Ahmad, medically examined Muhammad Sharif deceased while he
was still alive and vide his report Exh. P. D. found the following injury on his person :-
A wound of entry on the left side of chest below the left nipple, margins of entry charred
(blackened) ¼" x ¼" shirt, waskat, sweater, corresponding to injury having hole,
blackening on the shirt, wasket, sweater was present.
The following note was also added by the doctor.
A white with black lined karaline shirt P. 3 Latha Jacket (wasket) P.4 and sweater
multi-coloured P. 5 (brown light blue, light yellow), handed over to police, bearing my
signatures and date. Blackening more marked as shirt, less on wasket, and faintly present.
The clothes viz. karaline shirt P. 3, waist-coat P. 4 and sweater P. 5 belonging to the
deceased were taken into possession by Gulzar Hussain A. S. I. P. W. 15, vide memo,
Exh. P. F. He also recorded the statements of the eye-witnesses. It appears that on the
following day, Muhammad Sharif was removed to Mayo Hospital, Lahore, where he was
admitted late in the night, was operated upon and expired soon thereafter. On the
following morning i.e. 25th January 1966, Gulzar Hussain A. S. I. having received
information regarding the expiry of Muhammad Sharif deceased reached Lahore and
prepared his inquest report Exh. P. M. and injury statement Exh. P. N. He sent the dead
body for post mortem examination under the escort of Muhammad Sadiq constable which
was performed by Doctor Muhammad Zahir Khan, on 25th January 1966 at 1.00 p. m.
who vide his report Exh. P. H. found it to be a dead body of a young adult with the
following injury on his person :-
"A gun shot entrance wound round in shape about ¼" x ¼" on the front of left side of
chest, just below the left nipple, about 3" to the left side of middle line. The margins were
inverted and eechymosed. The skin around the wound was slightly blackened."
There was no exist wound. On disection the left side of therax, left pleura, left lung were
reputured, and the sixth left rib was fractured. Likewise, the peritoneum, the diaphram
and the stomach were found ruptured. In the opinion of the doctor, the cause of death was
cardiorespiratory failure due to shock and haemorrhage on account of injury No.1, caused
by a fire-arm. This injury was sufficient to cause death, in the ordinary course of
nature. .Probable time between injury and death was about. 35 hours and between death
and post-mortem examination was 18 hours. The doctor had also extracted a bullet P. 6
whose identity was latter disputed in the lower Court, but admitted at the trial which was
taken into possession by Gulzar Hussain A. S. I. vide memo. Exh.. P: B. Report Exh. P. J.
was relating to the death of Muhammad Sharif and purporting to be in the hand of Dr.
Abdus Samad who did not enter in the witness box, was handed over to Gulzar Hussain
A. S. h. which read as follows :---
"Patient's name. Muhammad Sharif
Age :- 22 years.
Diagnosis :- Bullet wound chest (L).
Admitted :- 24-1-1966 Exh-. 24-1-1966
Registered No. 11-45 p. m.
Bed No. 20. 11-50 p. m.
Expired due to cardiorespiratory failure due to Surgical shock due to Bullet wound Chest
(L).
ABDUS SAMAD
M/S."
The, role next played by Gulzar Hussain, A. S. I. in regard to the investigation, however
was that on receipt of information he raided the house of one Tai Din alias Taja living in
Eid Gah locality Okara, in the presence of Agha Khan P. W. 13 and Noor Muhammad P.
W. 14 and arrested the appellant from inside a room. Revolver P. 1 was recovered from
the appellant along with empties P. 2/1-5 and one live cartridge P. 2/6, which were take
into possession vide memo. Exh. P. C. A sketch of the revolver Exh. P. C./ I was prepared,
and the revolver and the empties were sealed into separate parcels. He got prepared site
plan Exh. P. A./1 on 14th February 1966. He also prepared site-plan Exh. P. R. of place of
recovery. It appears that on 26th January 1966, the appellant while - in police custody,
submitted an application Exh. P. G./1 to the S. D. M., Okara, through Ch. Ikram-ul-Haq
pleader expressing apprehension of torture at the hands of the police and praying for
being medically examined. The prayer was allowed by the S. D. M. on the same day vide
endorsement on the application and the S. H. O., Okara, was directed to get the appellant
medically examined. It would also be relevant to mention in this context to report Exh. D.
E. of daily diary of Okara Police Station which refer inter alia to the arrest of the
appellant. The relevant ' portion of that ' report reads as follows :-
"Case No. 12/66, under section 302, P. P. C. Muhammad Iqbal alias Bala son of Din
Muhammad, caste Arain, accused resident of Okara in the aforesaid case arrested, was
brought and after his personal search, being recovered nothing, was put in the judicial
lock-up."
4. It was not till 14th March 1966 that three sealed parcels, one containing revolver P. 1,
the other containing five empties P. 1 to P. 5 and the third containing a crime bullet which
presumably was 'extracted from the body of the deceased, were sent to the Forensic
Science Laboratory, Lahore. Vide report Exh. P. Q. 1; the crime bullet C. 3 and C. 4 were
found to have been fired from the revolver P. 1: No opinion could be expressed regarding
the crime empties C. 1, C. 2 and C. 5. Likewise nothing could be opined regarding the
crime bullet.
5. The appellant pleaded not guilty to the charge, denied allegations of recovery of his
pistol and explained his arrest as follows :-
"When I learned on 25th January 1966 that a false case had been registered against me, I
appeared before the police, who kept me in illegal custody. I made an application Exh. P.
G/1 to the S. D. M. Okara for my production for remand and for medical examination
through my counsel. As soon as the S. I. who was in Court, came to know about this
application he foisted a false recovery upon me with the help of Ghulam Muhammad
maternal uncle of the deceased and at 5.00 p.m. on 26th January I was sent in the police
lock up."
To a question as to why this case was brought against him the appellant replied as
follows:-
"I have been falsely implicated on account of enmity with Muhammad Nawaz and Abdur
Razzaq who acted behind the scene. Jahangir P. W. is a servant of Abdur Razzaq since
partition and is still working with him. He has no independent business. Hanif P. W. and
Muhammad Nawaz P. W. are near relations of the deceased. Muhammad Nawaz P. W.
belongs to Gojra and all the P. Ws. alongwith Abdur Razzaq were running a dramatic club
under the name of Shahid Dramatic Club Okara Muhammad Yousuf P.-W. has an alias
'Shahid' and in order to avoid the disclosure they have intentionally given him up. Copy
of a ticket has been produced in Court. 'The papers marked X, Y and tin the connected
file under section 13 of the Arms Ordinance and the order sheet of the year 1965 in
regard to this arms case attached on that file, may also be read in my defence."
He produced no witness in defence arid relied upon the documents referred to above.
6. The learned counsel for the appellant raised the following contentions before us :-
(i) That in view of the undeniable position that the hurt case which allegdly furnished the
motive, had been compromised there was no motive in existence for the appellant to
assault on the deceased.
(ii) That the occurrence took place at 3-30 p.m. at a distance of four furlongs from the
Police Station and yet the ..report was not lodged till 5 p. m.
(iii) That the statement of Muhammad Nawaz Exh. P. E. cannot be legitimately taken as
the F. I. R. in the case of the telephonic message received by the Moharrir Head
Constable of Police Station Okara, from Dr. Mumtaz Ahmad, at 4 p. m. on the 23rd of
January 1966 and the letter Exh. D. G. of even date address by the doctor to S. H. O.
Okara.
(iv) That although the occurrence took place in. front of Naz Cinema which 'at the
relevant time was admittedly a very frequented place yet none of the eye-witnesses
belongs to that place, and on the contrary, they all belong to Chamra Mandi locality of
which ,the deceased was himself the resident.
(v) That there was not a single disinterested witness in the case, Muhammad Nawaz P. W.
9, and Hamid P. W.' I 1 being admittedly related to the deceased, and Jahangir P. W. 12
who denied the suggestion of relationship was admittedly also a resident of Chamra
Mandi.
(vi) That the eye-witness account given by the P. Ws. was not in accord with the medical
evidence which clearly indicated that the shot had been fired from almost a point blank
range.
(vii) That even otherwise, the death of the deceased did not follow as a direct
consequence of the pistol shot but the intervening factor of surgical operation had also
contributed to it As clearly mentioned in Exh. P. J.
(viii) That the recovery of pistol P. 1 along with five empties and one live cartridge
attributed to the appellant was a total fabrication and a forgery pure and simple.
(ix) That no sanctity could be attached to the investigation of this case which was
conducted in flagrant violation of the provisions contained in section 172, Cr. P. C.
7. As regards the first contention relating to motive, the position taken up by the appellant
was that the complainant had filed an application seeking permission of the S. D. M.,
Okara for effecting a compromise in that case and further that Riaz who had appeared as
an eye-witness in that case did not implicate the appellant, here is nothing on the record
to falsify the position taken up by the appellant and as such the alleged motive does not
stand fully established: However, it is well-settled that in cases where direct ocular
evidence is available the absence or the weakness of motive would not be very material.
8. Coming to the next contention relating to delay, it cannot be denied that the occurrence
took place at 3-30 p.m. at a distance of half a mile from Police Station' Okara where the
report Exh. P. E./1 was lodged at 5 p. m. In the circumstances narrated earlier. it cannot
be justifiably contended that the delay has remained unexplained. Obviously in a case.
where a person is seriously injured, the first anxiety, of the people around him would be
to remove him to the hospital and try to save his life rather than to rushing to the police
station. It was on receipt of a message from the doctor that A. S. I. Gulzar Hussain
repaired to the hospital and recorded, the statement of Muhammad Nawaz complainant
on the basis of which the case was formely registered under section 307, P. P. C. Again, it
'is not delay per se which could invariably be construed against the prosecution unless
there are other doubtful circumstances suggesting elaboration unless embellishment. .
9. As regards the next contention as to whether in view of the telephonic message sent by
Dr. Mumtaz Ahmad on the basis of which report Exh. D. E. was recorded in the Daily
Diary of the Police Station, supplemented by letter Exh. D. G. to the same effect, the
statement of Muhammad Nawaz complainant Exh. P. E. may be legitimately taken as the
F. I. R. in the case, the learned Additional Advocate-General contended that neither letter
Exh. D. G. nor report, Exh. D. E. based on the telephonic message fulfilled the
requirements of an F. I. R. as envisaged by the provisions contained in section 154, Cr. P.
C. It was argued that since the earlier statement fulfilling these conditions was one made
by Muhammad Nawaz Exh. P. E. this alone could be treated as the first F. I. R. Reliance
was placed .on Muhammad Afzal v. The State (P L D 1960 Lah. 97) and Muhammad
Siddik v. The Crown (P L D 1954 F C 112). Having considered the two authorities, we
are clearly of the view that they furnish a complete answer to the objection raised by the
learned counsel for the appellant and as such 'statement Exh. P. E. was rightly treated as
the F.I.R.
10. Coming now to the next contention it may be straightaway conceded that the
occurrence had taken place in broad daylight in front of a cinema on the day of Eid when
obviously a large number of people would have been present to see it. However, keeping
in view the too well known and deplorable lack of public spiritedness in our society, we
would not be surprised that only the persons who had accompanied the deceased at the
relevant time were prepared to come forward and state the truth. Even otherwise, it stands
fully established that Hanif P. W. 11 whose arrival is mentioned in the F. I. R. was
running a small hotel in front of the cinema. This, in fact, was the opening sentence of the
statement of this witness at the trial. Notwithstanding, therefore, his admitted relationship
with the deceased, there is hardly any reason either to doubt his presence at the relevant
time or to disbelieve his testimony. In a single accused case of broad day-light
occurrence, like the instant one, where there is no question of either mistaken identity or
otherwise false substitution, and where the appellant was named in the F. I. R. lodged
without delay as the solitary assailant, we see no reason to disbelieve the testimony of the
three eye-witnesses, namely, Muhammad Nawaz complainant P.W.9. Hanif P. W. 11 and
Jehangir P. W. 12. Muhammad Nawaz had given a cogent explanation of his being
present at the relevant time, namely, that the deceased had gone to see him off at the
bus-stand. The mere fact. therefore, that these witnesses were residents of Chamra Mandi,
a locality where the deceased also resided, or they were related to him would not justify
the rejection of their testimony in the absence of any motive to falsely implicate the
appellant in a case of murder. It was, in our view, rightly accepted by the learned trial
Judge.
11. Coming to the next contention, we have not b; en able to find any semblance of a
conflict between the ocular evidence and the medical evidence. No doubt the blackening
clearly indicated, as opined by the doctor, that the shot was fired at the deceased from a
distance within four feet, but this cannot be said as being in conflict with the ocular
evidence. According to Muhammad Nawaz complainant, the distance between the
appellant and the deceased would be five to six feet and normally when a person stretches
out his hand to fire a pistol shot this would reduce the distance by another two feet so as
to bring it within the blackening range. It would thus be wrong to say that there is any
conflict in the medical and the ocular evidence in this regard.
12. As regards the next contention that death had not followed as a direct consequence of
the injury, but a surgical operation had also intervened as a contributory circumstance, as
clearly mentioned in Exh. P. J., Murad v. The State (P L D 1957 Lah. 332) furnishes a
complete answer. In cases of this nature a surgical operation cannot be construed as a
mitigating circumstance in favour of the appellant who, nonetheless, would be directly
responsible for the, consequences of the fatal shot fired by him.
13. Coming now to the next important contention, relating to the evidence of recovery of
pistol P. 1 the learned Additional Advocate-General tried to argue that the appellant was
arrested on 26-1-1966 at 10 a. m. from the house of Taj Din alias Goonga, when pistol P.
I was allegedly recovered from his possession. It is stated that it was on the same evening
at 5.55 p. m. that after having been interrogated during the day that he was ultimately
shut in the lock-up and a formal report No. 13/D-F. was made in this regard to the effect
that nothing had been recovered on his personal search. It was argued that this could not
negative the evidence of recovery of the pistol which is otherwise based on' the testimony
of Agha Khan P. W. 13 and Nur Muhammad P. W.14 who could not justifiably be dubbed
as stock-witnesses of the M0 police. In answer to the argument that no person from the °'
locality had been associated with the search, the learned Additional St` Advocate-General
contended that no such question was put to M, the police Officer who might have had
good reasons not to do so. p Ch Reliance was placed in this regard on. Mela and others v.
The State (P L D 1962 Lah. 58). We feel that the argument has been sufficiently met.
14. In answer to the objection that the search of the house of Taj Din was conducted in
violation of the provisions contained in sections 164 and 165, Cr. P. C. for the reason that
he and his wife being admittedly present were not associated with it, the learned
Advocate-General contended that the omission was not vitiative of the proceedings and
that any irregularity on the part of the police officer conducting search would not
invalidate the proceedings. Reliance was placed in this regard on Kochan Velayudhan v.
The State of Kerala (A I R 1961 Ker. 8) and United Oil Mills v. Collector of Customs and
Central Excise Cochin (A I R 1963Kerala 241). Having regard to all the concomitant
circumstances, we are not, fully convinced as to the genuineness of the recovery of pistol
P. 1 for more than one reason. In the first instance, from a perusal of the application Exh.
P. G. dated 26-1-1966, moved on behalf of the appellant by his counsel before the S. D.
M. Okara, would clearly show that the appellant was already in the custody of the police,
that no remand had yet been taken by the Investigating Officer, and that the appellant was
apprehensive of being tortured. This, considered in the light of report No. 13 dated
26-1-1966 Exh. D.F. indicating that nothing was recovered on the personal search of the
appellant, would give an impression that the recovery of pistol P.1 was not free from
doubt. What is more surprising, however, is the fact that no empties were recovered at the
spot, and he carried them all along in his pistol which were recovered from its chamber
along with one live cartridge. On the top of it there is a clear violation of section 172, Cr.
P. C. in that no reference was made in the case diary to the place of recovery as admitted
by Manzoor Ahmad S. I. in his cross-examination. Consequently, we do not consider it
safe to place reliance on this rather doubtful evidence of recovery. But even if the
evidence of recovery is excluded from consideration, and it is also conceded that the
provisions contained in sections 165 and 172 of the Cr. P. C., were not strictly complied
with by the Investigating Officer, we are clearly of the view that in the presence of direct
over-whelming and reliable evidence available against the appellant, supported by
medical evidence, the case against the appellant was proved to the -hilt. Consequently, we
dismiss' this appeal and confirm the sentence of death.
15. In view of our finding on the doubtful nature of evidence of recovery, it would follow
as a necessary corrolary therefrom that the appellant's conviction under section 13 of the
Arms Ordinance was not well founded and has to be set aside. Accordingly, his appeal
No, 422 of 1968 is allowed, which otherwise would be wholly immaterial in view of the
confirmation of the sentence of death.
Appeal dismissed
1970 P Cr. L J 287

[High Court Dhaca]

Before Abdul Hakim, J

MANSUR ALI AND 2 OTHERS-Accused-Appellants

Versus

THE STATE-Respondent

Criminal Appeal No. 489 of 1966, decided on 5th November 1969.

(a) Witness

-Contradictory statements in committing Court and -trial Court-Motive, other than stating
truth-Such witness basically dishonest and untrustworthy-Doubt thus thrown on such
statement must go to benefit of accused unless its resolution possible with reference to
other credible evidence and not on mere assumptions.

A witness who gives contradictory statements in the committing Court and in the trial
Court with a motive other than stating the truth is a basically dishonest and untrustworthy
witness. Where a witness is found to speak lie and perjure evidence in a case with a
motive other than stating the truth, doubt is thrown on his statement which must go to the
benefit of the accused unless its resolution is possible with reference- to other credible
evidence and not on mere assumptions regarding the motives by which the witness might
have been guided in. making the variant statements.

Adalat v. Crown P L D 1956 F C 171 rel.

(b) Witness

-Hostile witness-Evidence of hostile witness always to be considered with caution but not
to he excluded entirely-Part of such evidence of fitting in with other evidence may be
accepted, even if witness contradicting himself on such point-Evidence of hostile witness
before committing Court transferred to trial Court-Not –by itself sufficient for conviction
of accused unless .supported by other evidence on record-Criminal Procedure Code (V of
1898), S. 288. The evidence of a hostile witness shall always be considered with-great
caution, because of its inherent defects. It is true that the evidence of a hostile witness
should not be excluded entirely from consideration and that part of the evidence which
fits in with ether evidence on record should be accepted,, even though on that point . the
Witness had contradicted himself. The evidence being contradictory and the witness
being untrustworthy, it is for the Court to decide whether the whole of the evidence of the
witness should be rejected or the portion which fits in with the probabilities, facts and
circumstances of the case should be accepted and how much weight should be given on
that evidence. In such circumstances if on scrutiny the Court finds other evidence on
record to reconcile the conflict introduced by the hostile witness then the portion of his
evidence which fits in with, the other evidence in the case may be accepted to strengthen
the other positive evidence on record. But if there is no other evidence on record to
support the prosecution case then the committing Court's evidence of a hostile witness
will not alone be sufficient to warrant conviction of the accused. It is risky to convict the
accused solely on the basis of the committing Court's evidence of the hostile witnesses
without any other evidence on record to support the same.

17 P L R (Dacca) 697 and 9 D L R 247 rel.

(c) First Information Report

-Suo motu report lodged by police after investigation pursuant to report lodged by
informant-Cannot be treated as F. I. R.
It is now well-established that any information relating to commission of a cognizable
offence reduced to writing and duly signed. by the informant and the information first in
point of time on the basis of which the police investigation has started is the first
information report in a case.

Information lodged a first information report in the case. The police, however, registered
an unnatural death case on that report and submitted a final report in the matter. A suo
motu report was then lodged by the police and that report was treated as a first
information report in the case. A question arose as to which of these reports should he the
first information report in the case.

Held, the report given by the Police long after the information given by the informant
cannot, in the circumstances, be treated as the first information report.

5 D L R 369 and 16 P L R-(Dacca) 345 rel.

(d) Criminal Procedure Code (V of 1898)

S. 154-First Information Report-Section 154 contemplates only one F.I.R. Two F. I. R.s.
cannot go in evidence in a case.

Section 154, Cr. P. C. contemplates only one first information report and only one such
report can go into evidence in a case. Law never permits two first information reports to
be admitted in evidence.

Akhtaruddin Ahmad for Appellants.

Shah Hurmatullah for the State.

Dates of hearing : 31st October and 4th November 1969.

JUDGMENT

The three appellants along with another were convicted under section 201, P. P. C. and
sentenced to suffer rigorous imprisonment for two years each, by the Additional Sessions
Judge, 2nd Court, Bakerganj.

The prosecution case, in short, is that in the afternoon of 20-I-65, while going to Bilbilash
Hat P.W. 1 Abdul Huq and P. W. 4 Fazle Karim saw accused Abdul Karim beat his wife
Rabeya Khatun as she did not convey her paternal land to her husband Karim in spite of
requests. P. W. 2 Abdul Hashem and others also saw the assault and asked Karim not to
assault his wife any more. At about 8 p. m. when P. Ws. 1 and 4 were returning from the
said Hat they learnt from P. W. 2 Abdul Hashem that Rabeya Khatun had died. They all
went to the house of Karim and saw Rabeya lying dead on the floor of his but. Some of
them asked Karim not to bury the dead body without informing the authorities, but later
on P. Ws. 2 and 4 saw the present accused-appellants and Abdul Karim along with others
burying the dead body during the mid-night of that very night. P. W. 1 Abdul Huq learnt
about it from them on the following morning and lodged a first information report (Exh.
1) at about 13 hours on 21-1-65 with the Police at Bauphal P. S. on the above allegations.
The local police took up the matter, went to the locality, saw the grave of Rabeya Khatun
in the house of accused Karim and held preliminary enquiry over the matter. After
obtaining permission of the Sub-Divisional Magistrate, Patuakhali, P. W. 8' Sub-Inspector
Abdul Wahed Khan exhumed the dead body of Rabeya from her grave on 22-1-65 in
presence of constable P. W. 5, Ansar Commander P. W. 6 and other local witnesses, held
inquest over the dead body and sent it to P. W. 3 Dr. Q. A. Siddtque, Sub-Divisional
Medical Officer, Patuakhali for post-mortem examination. On receipt of the medical
report he submitted final report in the unnatural death case and lodged a fresh first
information report (Exh. 3) and after completion of investigation submitted a
charge-sheet against the said Abdul Karim and the present appellants on various sections.

A competent Magistrate held preliminary enquiry into the case and committed accused
Abdul Karim to face trial under section 302/201, P. P. C. and the present
accused-appellants, under section 201, P. P. C.
Accused Abdul Karim was separately tried for an offence punishable under section 302,
P. P. C. The present appellants along with Abdul Karim, were put on trial under section
201, P. P. C. in the case.

The plea of the accused was one of innocence. They asserted that Rabeya died a natural
death and she was buried in normal courage of things. They also claimed that they did not
participate in the burial of Rabeya nor were present at the time of her burial there.
Accused Abdul Latif also took a plea of alibi.

Eight witnesses for the prosecution and none for the defence were examined in the case.
Some documents and material exhibits were also produced before the Court. The learned
Additional Sessions Judge considering the evidence and materials on record, convicted
and sentenced the accused-appellants as stated above. Being aggrieved thereby, they have
preferred this appeal. Accused Abdul Karim is not an appellant here.

Mr. Akhtaruddin Ahmed, the learned Advocate appearing for the appellants has taken me
through the judgment and depositions and contended that the charge against the accused
has not been proved by the evidence on record ; that P. Ws. 2 and 4 are basically
dishonest and in view of their contradictory statements in the two Courts, they cannot be
relied on and that the learned Additional Sessions Judge has wrongly treated the police
report (Exh.3) as the first information report in the case and that has seriously prejudiced
the accused appellants.

The fact that Rabeya Khatun, wife of accused Abdul Karim died on 20-1-65 and her dead
body was buried on the night following the day in the house of said Abdul Karim, is not
at all disputed. There are sufficient evidence on record to show that accused Abdul Karim
assaulted his wife Rabeya mercilessly in the afternoon of 20-1-65. P. Ws. 1, 2 and 4 have
uniformly stated in their depositions that they saw the accused Abdul Karim beating his
wife on 20-1-65. P. W. 2 has further stated that on seeing the assault on Rabeya, he along
with others went to the house of Karim and requested him not to assault her any more.
The evidence of. P. Ws. I, 2 and 4 also show that they learnt in the evening at about 8 p.
m. that Rabeya had died as a result of the assault and on hearing that they went to the
house of Karim and saw Rabeya lying dead on the floor of his house.

The evidence of P. Ws. 5, 6 and 8 disclose that the dead body of Rabeya Khatun was
exhumed from her grave on 22-1-65. P. W. 8 sent the dead body of Rabeya to P. W. 3 Dr.
Q.A, Siddique, Sub-Divisional Medical Officer, Patuakhali for post-mortem examination.
P. W. 5 Constable No. 907 produced the dead body to the Doctor identified the same
before him. The doctor, P. W. 3 who held post-mortem' examination on the dead body of
Rabeya Khatun found three injuries on her person. P. W. 3 has given a vivid description
of the injuries in his deposition. He has also opined that the death of Rabeya was due to
the shock as a result of the injuries and also the asphyxia as a result of strangulation
which were ante-mortem in nature and homicidal in character. There iq nothing on record
to disbelieve the evidence of the doctor.

The evidence of P. W. 3 coupled with the evidence of P. Ws. 1, 2 and 4 prove beyond all
reasonable doubt that Rabeya died on 20-1-65 as a result of assault and strangulation, in
the manner as alleged by the prosecution.

The death or murder of Rabeya has not been challenged here. The main question for
consideration in the case is whether the accused-appellants knowing or having reason to
believe that an offence had been committed, caused any evidence of the commission of
that offence to disappear, with the intention of screening, the ofender from legal
punishment or in other words, whether the accused-appellants knowing that Rabeya had
been killed by accused Karim, buried Rabeya Khatun or were present at the time of her
burial there, with the intention of screening the offender Abdul Karim from legal
punishment.

Let us test the' evidence on the point, P. W. 1 the informant did not see the burial of
deceased Rabeya on the alleged night. He cannot, therefore. say who buried her or
participated in the burial of Rabeya Khatun. He only stated that P. W. 2 Abdul Hashem
and P. W. 4 Fazle Karim reported to him next morning that Rabeya was buried by the
present accused-appellants. His evidence is thus a hearsay one.

P. Ws. 2 and 4 do not support the prosecution case in the trial Court. P. W. 2 does not
implicate the present accused appellants as the persons who buried Rabeya Khatun but
names H some other persons. P. W. 4 names only the accused Abdul Karim and some
other people as the persons who buried Rabeya on the alleged night. They do not admit
that they reported to P. W. 1, next morning that the present appellants buried Rabeya
Khatun. The witnesses are thus supporting the defence version here. They deposed in the
committing Court in favour of the prosecution. The attention of the witnesses was,
therefore drawn to the committing Court's evidence by the public prosecutor and
thereafter their evidence in the committing Court were put in under section 288, Cr. P. C.
They stated in the committing Court that they saw the accused-appellants to bury the
dead body of Rabeya on the fateful night, It is thus evident that they have given two
different versions in two different Court and completely gone back on their statements
given in the committing Court. In this volt-face of the witnesses, the learned Advocate for
the accused-appellants has argued that P. Ws. 2 and 4 are basically dishonest and their
evidence, whether of the trial Court or the committing Court, should altogether be left out
of consideration.
A witness who gives contradictor, statements in the committing Court and in the trial
Court with a motive other than stating the truth is a basically dishonest and untrustworthy
witness. Where a witness is found to speak lie and perjure evidence in a case with a
motive other than stating the truth, doubt is thrown on his statement which must go to the
benefit o A the accused unless sits resolution is possible with reference other credible
evidence and not on mere assumption regarding the motives by which the witness might
have been guided in making the variant statements. This view receives support from the
case of Adalat v. Crown (P L D 1956 F to 171).
The evidence of a hostile witness shall always be considered with great caution, because
of its inherent defects. It is true that the evidence of a hostile witness should not be
excluded entirely from consideration and that part of the evidence which fits in with other
evidence on record should be accepted, even though on that point the witness had
contradicted himself. But in view of the somersaults, the credibility of the witness having
been shaken, his evidence cannot be given due weight. The evidence being contradictory
and the witness being untrustworthy, it is for the Court to decide whether the whole of the
evidence of the, witness should be rejected or the portion which fits in with the
probabilities, facts and circumstances of the case should be accepted and how much
weight should be given on that evidence.
In such circumstances if on scrutiny the Court finds other evidence on record to reconcile
the conflict introduced by the hostile witness then the portion of his evidence which fits
in with the other evidence in the case may be accepted to strengthen the other positive
evidence on record. But if there is no other evidence on record to support the prosecution
case then the committing Court's. evidence of a hostile witness will not alone be
sufficient to warrant conviction of the accused. In this connection, the cases reported in
17 PLR (Dacca) 697 and 9 DLR 247 may be referred to.
In the instant case, there is no other evidence on record to support the committing Court's
statements of P. Ws. 2 and 4. In the circumstances, even treating the committing Court's
evidence of the witnesses put in under section 288, Cr. P. C., as substantive evidence, the
prosecution case cannot be said to have been proved beyond reasonable doubt. It is risky
to convict the accused solely on the basis of the committing Court evidence of the hostile
witnesses without any evidence on record C to support the same. As indicated earlier, P.
W. 1 did not see the burial of Rabeya himself. He has political rivalry with the accused.
He has also contradicted' his earlier statement in the committing Court on material point.
His evidence cannot be, used for corroborating the evidence of P. Ws. 2 and 4. The othot
witnesses have not said anything against the accused. Thus there is practically no
evidence on record to show that the present accused-appellants actually buried Rabeya on
the alleged night. In the circumstance, in my opinion, the accusedappellants are entitled
toy benefit of doubt and they must get the benefit of the same.
P. W. 1 lodged a first information report Exh. 1 in the case on 21-1-65. The police,
however, registered an unnatural death case on that report and submitted a final report in
the matter. A suo motu report was then lodged by the police and that -report being Exh. 3
was treated as a first information report in the case. A question has arisen here as to which
of these reports should be the first information report in the case. Mr. Akhtaruddin Ahmed
has made a grievance that the learned Sessions Judge has wrongly treated the police
report as the first. information report in the case and that has caused a serious
prejudice to the accused-appellants.
It is now well established that any information relating t commission of a cognizable
offence reduced to writing and duly signed by the informant and the information first in
point of time n on the basis of which the police investigation has started is th first
information report in a case. There are numerous authoritie on the point. In this
connection, the cases reported in 5 D L R 369 and 16 P L R (Dacca) 345 may be referred
to.
In the instant case, P. W. 1 has lodged an information giving full description of a
cognizable offence and the police has reduced it into writing and the informant has duly
signed it. It appears that the police also went to the spot on the basis of that report and
took some preliminary steps on it. In the circumstances, it is not understood why the
information given by P. W. I should not be treated as a first information report in the case.
The report given by the Police long after the information given by P. W. 1 cannot, in the
circumstances, be treated as they first information report.
Another thing to be pointed out here is that there cannot be two first information reports
in a case. It appears that the learned Additional Sessions Judge has used both the reports
as first information reports in this case and marked them as Exhs. 1 and 3. Section 154,
Cr. P. C. contemplates only one first) information report and only one such report can go
into evidence in a case. Law never permits two first information reports to be admitted in
evidence but the learned Sessions Judge has admitted both the informations, Exits. 1 and
3 ac evidence, contrary to the provisions of law. The procedure adopted by the learned
Judge has created complication both for the prosecution and the defence and in the
circumstances, the accused can rightly complain that they have been prejudiced in the
trial as they could not take contradiction from the informant with reference to the real
first information report.
For the reasons stated above, this appeal is allowed and the order of conviction and
sentence is set aside.
The accused-appellants shall be released forthwith if not required in any other
connection.
Appeal allowed.
P L D 2005 Lahore 470

Before Iftikhar Hussain Chaudhry, C. J., Asif Saeed Khan Khosa and Sheikh Abdul

Rashid, JJ

KHIZER HAYAT and others---Petitioners

Versus

INSPECTOR-GENERAL OF POLICE (PUNJAB), LAHORE and others---

Respondents

Writ Petitions Nos. 11862, 14415, 17169 and 16453 of 2004, decided on 1st June, 2005.

(a) Criminal Procedure Code (V of 1898)---

----Ss. 22, 22-A, 22-B & 25---Justices of the Peace---Historical and global perspective in
respect of the role of a Justice of the Peace in keeping the peace in the society, if any,
surveyed.

Justice of the Peace, as the name' itself suggests, was an institution conceived and
conjured up centuries ago mainly to assist the police and the other law enforcing agencies
in maintaining peace in the society but over the last many centuries this concept has
witnessed many developments, and variations in different parts of the world. In some
countries the role of a Justice of the Peace is still restricted to an administrative function
and relevant only till a stage when a crime is not yet committed or where it has been
committed and not yet reported to the police and not beyond that stage but in others the
role of a Justice of the Peace has been enlarged and extended to exercise of some judicial
and other powers including trial of petty offences and trifling civil disputes as well.

The concept of a Justice of the Peace has evolved and developed over the last many
centuries; it had originated in England and had been introduced by the British colonists in
some of their colonies; the original role of a Justice of the Peace was conservation of the
peace within the area of his jurisdiction through administrative and ministerial measures
but gradually his role was enlarged in some countries to include a minor judicial role qua
summary trial of petty civil and criminal cases; and every enlargement of his role had
been achieved through express legislation. It is quite clear that beyond the express
authority, both administrative and judicial, conferred upon him by a statute a Justice of
the Peace does not possess any implied or inherent jurisdiction to dispense justice among
the people in his local area.

During their rule over the Indo-Pak sub-continent the British colonists had also
introduced the concept of Justices of the Peace in the local system of governance and
conservation of the peace. However, with almost simultaneous introduction of an
elaborate system of hierarchy of Magistrates the role of Justices of the Peace never
assumed any significant importance in the Indo-Pak sub-continent and Justices of the
Peace were never conferred any judicial power. Although since their original induction in
the system some additional powers have been bestowed upon Justices of the Peace from
time to time yet their role essentially remains restricted so far to conservation of the
peace and in case of breach of the peace their role ends by apprehending the culprit, if
possible, and by reporting the breach of the peace to the police. It can, thus, be observed
without any fear of contradiction that at least in the context of Pakistan the role of a
Justice of the Peace at the present juncture in Pakistan history is primarily of rendering
assistance to the police in the matters of keeping the peace and, in case of breach of the
peace, apprehending the culprit and rendering assistance to the police in investigation of
the crime. On November 21, 2002 ex-officio Justices of the Peace in Pakistan were
conferred an additional role through promulgation of the Criminal Procedure (Third
Amendment) Ordinance (Federal Ordinance No. CXXXI) of 2002 and this role was in
respect of entertaining complaints and issuance of appropriate directions to the police
authorities concerned regarding registration of criminal cases, transfer of investigation of
criminal cases and in respect of neglect, failure or excess committed by a police authority
in relation to its functions and duties. These and other roles of a Justice of the Peace and
an ex-officio Justice of the Peace in Pakistan are evident from provisions of Ss.22, 22-A
and 22-B of the Code of Criminal Procedure, 1898.

Halsbury's Laws of England 4th Edn., Vol.29; Jowitt's Dictionary of English Law 2 nd
Edn., Vol. 1; Encyclopaedia Britannica, Vol. 13; The New Encyclopaedia Britannica 15 th
Edn., Vol. 6; Corpus Juris Secundum Vol. 51; The Encyclopaedia Americana
(International Edn.); American Jurisprudence 2nd Edn., Vol. 47; Words and Phrases
(Permanent Edn.); Grolier Encyclopaedia of Knowledge; Collier's Encyclopedia Vol. 13;

The Law Lexicon of British India; Venkataramaiya's Law Lexicon with Legal Maxims,
2nd Edn; K.J. Aiyar's Judicial Dictionary, 11th Edn.; Law Terms and Phrases Judicially
Interpreted with Legal Maxims and Legal Words and Phrases in Ordinary Usage; Hand
Bhook of Legal Terms and Phrases by M. Ilyas Khan and Words and Phrases Legally
defined 2nd Edn. ref.

(b) Criminal Procedure Code (V of 1898)---

----Ss. 22, 22-A, 22-B & 25---Justice of the peace/ex-officio Justice of the Peace---Role
statutorily defined in Pakistan for a Justice of the Peach/ex-officio Justice of the Peace,
detailed.

Provisions of Ss.22, 22-A, 22-B and 25 of the Code of Criminal Procedure, 1898 show
that the roles statutorily defined in Pakistan for a Justice of the Peace are, by and large, as
follows:

A Justice of the Peace in Pakistan has the powers (a) to make an arrest in circumstances
enumerated in sections 54 and 55, Cr.P.C. and to hand over custody of the arrested person
to the officer in charge of the nearest Police Station;

(b) to call upon any member of the police force on duty to aid him in arresting or
preventing the escape of a person involved in commission of a cognizable offence;

(c) to call upon any member of the police force on duty to aid him in the prevention of
crime, breach of the peace or disturbance of the public tranquility; and

(d) to issue a certificate of identification of a person, to verify any document and to attest
any document.

An ex-officio Justice of the Peace in Pakistan (i.e., Sessions Judges and nominated
Additional Sessions Judges in the relevant Districts under section 25, Cr.P.C.) has the
power to issue appropriate directions, to the police authorities concerned on a complaint
regarding non-registration of criminal case, transfer of investigation from one police
officer to another and neglect, failure or excess committed by a police authority in
relation to its functions and duties.

The duties of a Justice of the Peace in Pakistan are

(a) to make inquiries and-to report in writing to the nearest Magistrate and to the officer
in charge of the nearest police station whenever he receives information of an occurrence
of any incident involving a breach of the peace or of commission of any offence within
his local area;

(b) if the information received by him is in respect of commission of a cognizable offence

then to also prevent any interference with the place of occurrence or removal of anything
therefrom;

(c) to render assistance to a police officer,, if so required in writing by him, making an

investigation in respect of any offence within the relevant local area; and

(d) to record any statement, if so required in writing by a police officer making an

investigation in respect of any offence within the relevant local area, made under
expectation of death by a person in respect of whom a crime is believed to have been
committed.

(c) Criminal Procedure Code (V of 1898)---

----Ss. 22, 22-A & 22-B---Justice of the Peace---Functions to be performed---Nature---
Powers and duties of a Justice of the Peace or an ex-officio Justice of the Peace in
Pakistan as provided in Ss.22-A & 22-B, Cr.P.C. do not involve any jurisdiction which
can be termed as judicial in nature or character---Functions to be performed by a Justice
of the Peace or an ex-officio Justice of the Peace are merely administrative and
ministerial in nature and character---Principles.

The powers and duties of a Justice of the Peace or an ex-officio Justice of the Peace in
Pakistan as provided in sections 22-A and 22-B, Cr.P.C. do not involve any jurisdiction
which can be termed as judicial in nature or character. In this context the role of a Justice
of the Peace or an ex-officio Justice of the Peace in Pakistan is sharply different from that
now enjoyed by their counterparts in the United Kingdom and the United States of
America where some . judicial role regarding summary trial of petty 'civil and criminal
cases has been conferred upon the Justices of the Peace through legislative intervention.

That surely is not the case in Pakistan where no statute confers any judicial power upon a
Justice of the Peace or an ex-officio Justice of the Peace. Functions to be performed by a
Justice of the Peace or an ex-officio Justice of the Peace in Pakistan are merely
administrative and ministerial in nature and character. Such view is fortified by, the
provisions of section 6, Cr.P.C. which categorizes the classes of criminal courts and
Magistrates in Pakistan and a Justice of the Peace or an ex-officio Justice of the Peace is
not included in any such class of courts or Magistrates. Apart from that sections 28 and
29, Cr.P.C. specify as to which Courts are to try which offences and in those, sections too
a Justice of the Peace or an ex-officio Justice of the Peace does not figure at all.

Pir Abdul Qayyum Shah v. S.H.O. and 4 others 2005 PCr.LJ 357 ref.

(d) Criminal Procedure Code (V of 1898)---

----Ss. 22-A(6) & 25---Justice of the Peace/ex-officio Justice of the Peace---Extent and
scope of direct interference by an ex-officio Justice of the Peace under S.22-A(6), Cr.P.C.
explored.

A Justice of the Peace or an ex-officio Justice of the Peace in Pakistan performs functions
which art administrative and ministerial in nature and not judicial in character. Even the
superior Courts of Pakistan having constitutional, legal, supervisory and inherent judicial
jurisdiction have consistently and consciously refrained from directly interfering with
investigation of a criminal case by the police and, therefore, it is but obvious that Justices
of the Peace or ex-officio Justices of the Peace possessing only administrative and
ministerial powers should be twice shy of such direct interference.

Thus, if despite possessing constitutional, legal, supervisory and inherent judicial powers
the superior Courts of Pakistan have generally considered it imprudent and ill-advised to
directly interfere with investigation of a crime by the police then it appears to be nothing
but stating the obvious that a Justice of the Peace or an ex-officio Justice of the Peace
possessing merely administrative and ministerial powers should all the more be reluctant
and hesitant in issuing directions to the police as to how and by whom a criminal case is
to be investigated. It must not be lost sight of that a Justice of the Peace in Pakistan has
no judicial powers and an ex-officio Justice of the Peace is a Justice of the Peace only by
virtue of the office that he already holds and his powers as such do not become judicial
simply because the other office already held by him happens to be a judicial office. By
virtue of his jurisdiction under section 22-A(6), Cr.P.C. an ex-officio Justice of the Peace
can issue appropriate directions to the police authorities concerned on the basis of
complaints regarding non-registration of a criminal case, transfer of investigation from
one police officer to another and neglect, failure or excess committed by a police
authority in relation to its functions and duties but the directions to be issued by an ex-
officio

Justice of the Peace under section 22-A(6), Cr.P.C. are to be directions to the concerned
police authorities to attend to the grievance of the complaining person in accordance with
the relevant law and through the jurisdiction under section 22-A(6), Cr.P.C. An ex-officio
Justice of the Peace cannot arrogate to himself the power of redressing the actual
grievance itself. An exception to this can be visualized 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 the Peace to the concerned police officer to do
the needful. Under section 22-A(6), Cr.P.C. an ex-officio Justice of the Peace is to
perform the role of a facilitator and that of a bridge or a conduit between the complaining
persons and the police authorities concerned and the jurisdiction under section 22-A(6),
Cr.P.C. does not allow an ex-officio Justice of the Peace to put on the mantle of a higher
police authority himself and to start exercising all those executive powers himself which
the relevant law has vested in the concerned- police authorities.

This interpretation appears to be a correct statement of the law as the same is in accord
with the ratio decidendi of the precedent cases besides being a safe and prudent approach
vis-a-vis the well-entrenched constitutional doctrine of separation of powers. If in their
capacity as ex-officio Justices of the Peace judicial officers like Sessions Judges and
Additional Sessions Judges are allowed to play a proactive, hands on and upbeat role of
direct interference in the administrative working of the police then such executive role of
judicial officers may militate against the constitutional mandate of separation of the
Judiciary from the Executive enshrined in Article 175(3) of the Constitution of the
Islamic Republic of Pakistan, 1973. In that eventuality the provisions of section 22-A(6),
Cr.P.C. may themselves become vulnerable to a serious challenge on the touchstone of
the Constitution.

Emperor v. Khwaja Nazir Ahmad AIR (32) 1945 PC 18; Federation of Pakistan v. Shah
Muhammad Khan and others PLD 1960 SC (Pak) 85; Shahnaz Begum v. The Hon'ble
Judges of the High Court of Sindh and Balochistan and another PLD 1971 SC 677;
Muhammad Saeed Azhar v. Martial Law Administration, Punjab and others 1979 SCMR
484; Malik Shaukat Ali Dogar and 12 others v. Ghulam Qasim Khan Khakwani and
others PLD 1994 SC 281; Brig. (Retd.) Imtiaz Ahmad v. Government of Pakistan through
Secretary, Interior Division, Islamabad and 2 others 1994 SCMR 2142; Anwar Ahmad
Khan v. The State and another 1996 SCMR 24; Muhammad Latif v. Sharifan Bibi and
another 1998 SCMR 666; Muhammad Ali and 12 others v. District Magistrate, Faisalabad
and 3 others PLD 1978 Lah. 1325.; Nasir Ali Inspector-General of Police, Punjab, Lahore
and 8 others 2000 YLR 225 ref.

(e) Criminal Procedure Code (V of 1898)--

----S. 22-A(6)---General complaints in the context of criminal justice, against the

working of the Police in the Province of Punjab and kind of "directions" can/should an
ex-officio Justice of the Peace issue in respect of such complaints while exercising his
jurisdiction under S.22-A(6), Cr.P.C.---High Court, for facility of cognition and for
guidance of the ex-officio Justice of the Peace in the Province of Punjab recorded resume
and conclusions on the subject.

High Court had framed the following questions and had required the counsel for the
parties to address arguments in respect of the same so as to assist the Court in arriving at
an appropriate decision:

(a) Looked at in historical and global perspective what is the role of a Justice of the Peace
in keeping the peace in the society, in maintenance of law and order and in the criminal
justice system, if any?

(b) Whether in .Pakistan a Justice .of the Peace or an ex-officio Justice of the Peace
exercises judicial powers or his functions are merely administrative and ministerial in
nature and character?

(c) What, in the context of-his jurisdiction under section 22-A(6), Cr.P.C., is the extent
and scope of direct interference by an ex-officio Justice of the Peace in Pakistan with
investigation of a criminal case by the police?

(d) What, in the framework of criminal justice, are the general complaints against the
working of the police in the Province of the Punjab and what kind of "directions"
can/should an ex-officio Justice of the Peace issue in respect of such complaints while
exercising his jurisdiction under section 22-A(6), Cr.P.C.?

(e) What are the remedies against non-compliance of directions issued by an ex-officio
Justice of the Peace under section 22-A(6), Cr.P.C.?
(f) Whether the orders passed by different ex-officio Justices of the Peace impugned
through the present and the connected writ petitions are legally sustainable or not?
Generally the public at large brings the following kinds of complaints against the police
before the High Court while invoking writ jurisdiction of High Court under Article 199 of
the Constitution and now similar complaints are being brought before ex-officio Justices
of the Peace by filing petitions under section 22-A(6), Cr.P.C.:

(i) complaints about unjustified harassment by the police in the absence of any criminal
case having been registered against the aggrieved person;

(ii) complaints regarding failure of the police to register a criminal case despite
commission of a cognizable offence having been reported to it;

(iii) complaints pertaining to failure by the investigating officer to add appropriate penal
provisions to an FIR or a cross-version of the accused party;

(iv) complaints about failure by the investigating officer to record a cross-version of the
accused party;

(v) complaints regarding failure to arrest an accused person nominated in the FIR or in
the cross-version of the accused party;

(vi) complaints pertaining to unfair, biased and improper investigation and, thus, seeking
transfer of the investigation; and

(vii), complaints about failure to finalize investigation of a criminal case and to submit a
Challan within a reasonable time.

High Court adverted to each one of such complaints one by one so as to examine what
kind of directions can/should be issued by an ex officio Justice of the Peace under section
22-A(6), Cr.P.C. in respect of such complaints. While exercising its constitutional
jurisdiction regarding judicial review of administrative action a High Court is not to
substitute its own decision for that of the competent authority and that, after stating the
correct legal position, the High Court is to issue a direction to the competent authority to
pass an appropriate order in terms of the legal position so declared. Likewise, 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 the 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 the 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 the 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. In this view of the
matter if an ex-officio Justice of the Peace can issue the desired direction under section
22-A(6), Cr.P.C. activating the available legal remedy or procedure which the High Court
would also have done if seized of a writ petition filed in that regard under Article 199 of
the Constitution then the remedy before an ex-officio Justice of the Peace under section
22-A(6), Cr.P.C. can ordinarily be termed and accepted as an adequate alternate statutory
remedy busting a direct recourse by an aggrieved person to the High Court by invoking
its extraordinary jurisdiction under Article 199 of the Constitution. - It is, therefore,
declared that in the matters of complaints against the working of the police covered by
the provisions of section 22-A(6), Cr.P.C. an aggrieved person, except where the High
Court feels satisfied that it is an exceptional case arising out of extraordinary
circumstances warranting direct interference by the High Court and rendering the remedy
under section 22-A(6), Cr.P.C. inadequate, cannot tile a writ petition before this Court
under Article 199 of the Constitution before availing of the normally adequate alternate
statutory remedy before an ex-officio Justice of the Peace under section 22-A(6), Cr.P.C.
For facility, of cognition and for guidance of the ex-officio Justices of the Peace in the
Province of the Punjab the discussion is summed up with the following resume and
conclusions:

(i) The powers and dudes of a Justice of the Peace or an ex-officio Justice of the Peace in
Pakistan stand specified in sections 22-A and 22-B, Cr.P.C. and they possess no other
additional power and perform no other additional duty except that which is specifically
conferred upon them by a statute.

(ii) The powers and duties of a Justice of the Peace or an ex-officio Justice of the Peace in
Pakistan do not involve any jurisdiction which can be termed as judicial and the functions
performed by him are merely administrative and ministerial in nature and character.

(iii) The superior Courts of Pakistan having constitutional, legal, supervisory, and
inherent judicial jurisdiction have consistently and consciously refrained from directly
interfering with investigation of a criminal case by the police and, therefore, Justices of
the Peace or ex-officio Justices of the Peace possessing only administrative and
ministerial powers should be twice shy of such direct interference.

(iv) The directions to be issued by an ex-officio Justice of the Peace under section 22-
A(6), Cr.P.C. are to be directions to the concerned police authorities to attend to the
.grievance of the complaining person in accordance with the relevant law and through the
jurisdiction under section 22-A(6), Cr.P.C. An ex-officio Justice of the Peace cannot
arrogate to himself the power of redressing the actual grievance itself. An exception to
this is a case 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 the Peace
to the concerned police officer to do the needful. Under section 22-A(6), Cr.P.C. an ex-
officio Justice of the Peace is to perform the role of a facilitator and that of a bridge or a
conduit between the complaining persons and the police authorities concerned and the
jurisdiction under section 22-A(6), Cr.P.C. does not allow an ex-officio justice of the
Peace to put on the mantle of a higher police authority himself and to start exercising all
those executive powers 1oimself which the relevant law has vested in the concerned
police authorities.

(v) Barring exceptional and extraordinary cases, the remedy before an ex-officio Justice
of the Peace under section 22-A(6), Cr.P.C. can ordinarily be termed and accepted as an
adequate alternate statutory remedy ousting a direct recourse by an aggrieved person to
the High Court by invoking its -extraordinary jurisdiction under Article 199 of the
Constitution.

(vi) The proceedings before an, ex-officio Justice of the Peace under section 22-A(6),
Cr.P.C. are essentially summary in character. He is not required to treat such proceedings
as regular lis and no elaborate orders having semblance of a judgment are required to be
passed.

(vii) In such proceedings notice, if required, may be issued only to the concerned police
officer and not to any private party as no direction adverse to any private party is to be
issued in such proceedings. A direction to the relevant police officer regarding activating
any legal remedy of the complaining person cannot be termed as a direction adverse to
any party. Even a direction to a police officer to comply with a mandatory provision of
law cannot be called a direction adverse to any person. Under Articles 4 and 5 of the
Constitution it is an inalienable right of every citizen to be treated in accordance with the
law and obedience to the law is an inviolable obligation of every citizen.

(viii) Complaints about unjustified harassment by the police.--A complaint before an

ex-officio Justice of the Peace under section 22-A(6), Cr.P.C. which does not contain all
the necessary factual details regarding the date, time and place of the alleged harassment
as well as full particulars of the concerned police officer who is being complained against
is to be out-rightly dismissed. In an appropriate complaint of this nature the ex-officio
Justice of the Peace may require the concerned police officer to submit his comments to
the complaint. If through his comments the relevant police officer fails to satisfy the ex-
officio Justice of the Peace regarding falsity of the allegations leveled against him then
the ex-officio Justice of the Peace may, depending upon the circumstances of the case,
either warn the relevant police officer not to transgress the limits of the law in future or
may issue a direction to the relevant higher police authority or the relevant Public Safety
and Police Complaints Commission to consider the complaint and to take appropriate
action against the delinquent police officer under the relevant provisions of the Police
Order, 2002. In an extreme case of highhandedness and totally unjustified harassment the
ex-officio Justice of the Peace may issue a direction to the relevant police authority to
register a criminal case against the delinquent police officer if he had seemingly
committed some cognizable offence during the harassment perpetrated by him.

(ix) Complaints regarding failure of the police to register a criminal case.—The

officer in charge of the relevant Police Station may be under a statutory obligation to
register an F.I.R. whenever information disclosing commission of a cognizable offence is
provided to him but the provisions of section 22-A(6), Cr.P.C. do not make it obligatory
for an ex-officio Justice of, the Peace to necessarily or blind-foldedly issue a direction
regarding registration of a criminal case whenever a complaint is filed before him in that
regard. An ex-officio Justice of the Peace should exercise caution and restraint in this
regard and he may call for comments of the officer in charge of the relevant Police
Station in respect of complaints of this nature before. taking any decision of his own in
that regard so that he may be apprised of the reasons why . the local police have not
registered a criminal case in respect of the complainant's allegations. If the comments
furnished by the officer in charge of the relevant Police Station disclose no justifiable
reason for not registering a criminal case on the basis of the information supplied by the
complaining person then an ex-officio Justice of the peace would be justified in issuing a
direction that a criminal case be registered and investigated. It is not obligatory for the
officer in charge of a Police Station or for ,an ex-officio Justice of the Peace to afford an
opportunity of hearing to the accused party before registration of a criminal case or
before issuing a direction in that regard. In an appropriate case; depending upon the
circumstances thereof, an exofficio Justice of the Peace may refuse to issue a direction
regarding registration of a criminal case and may dismiss the complaint under section 22-
A(6), Cr.P.C. reminding the complaining person of his alternate statutory remedies under
sections 156(3) and 190, Cr.P.C. The impression entertained by a large section of the
legal community in our country that in case of filing of a private complaint the accused
person cannot be arrested and recovery cannot be effected from him is nothing but
erroneous and fallacious.

(x) Complaints about failure by an investigating officer to add appropriate penal

provisions to an F.I.R. or a cross-version of the accused party.--Such complaints are
not worthy of being taken with any degree of seriousness by an ex-officio Justice of the
Peace. The stands taken by the complaining persons in this regard normally touch the
merits of the allegations and an ex-officio Justice of the Peace would be' well advised to
refrain front entering into any such controversy at a premature stage. The overall incharge
of a criminal case is the Area Magistrate who, even during the progress of an
investigation, gets many opportunities to go through the record of investigation
conducted by the police and in an appropriate case and at an appropriate stage he can
require the investigating officer to consider addition or deletion of any, penal provision.
After submission of a report under section 173, Cr.P.C./Challan the Magistrate taking
cognizance of the offence or the trial Court taking cognizance of the case can take
cognizance of any offence disclosed by the material available on the record of
investigation even if the police have not invoked the relevant penal provision. Even at the
time of framing of the charge a trial Court can frame a charge in respect of any offence
disclosed by the record even if the same finds no mention in the report submitted under
section 173, Cr.P.C./Challan. With so many opportunities being available with the
Magistrate and the trial Court regarding rectification of a mistake, deliberate or
otherwise, committed by the police in this connection it would be unwise for an ex-
officio Justice of the Peace to interfere with such a matter at an inappropriate and
premature stage. In case of receipt of such a complaint an ex-officio Justice of the Peace
may advise the complaining person to approach the Area Magistrate or the trial Court, as
the case may be, rather than entertaining such a complaint himself.

(xi) Complaints about failure by the investigating officer to record a cross-version of

the accused party.--While dealing with a complaint of this nature an ex-officio Justice of
the Peace should call for comments of the investigating officer explaining as to why he
has not recorded the version of the accused party and if such comments confirm the
complaint that despite having been approached in that regard by the accused party the
investigating officer has not recorded the version of the accused party and there is no
valid or justifiable reason for such default on his part then a direction may be issued by
the ex-officio Justice of the Peace to the investigating officer to do the needful or in the
alternative the Superintendent of Police (Investigation) of the relevant District may be
directed by the ex-officio Justice of the Peace to attend to this aspect of the matter and to
ensure that the needful is done by the investigating officer without further ado.

(xii) Complaints regarding failure by the police to arrest an accused person.—A

general impression entertained by some quarters that an arrest of a suspect or an accused
person is necessary or sine qua non for investigation of a crime is misconceived. A
suspect is not to be arrested straightaway upon registration of an F.I.R. or as a matter of
course and, unless the situation on the grounds so warrants, the arrest is to be deferred till
such time that sufficient material or evidence becomes available on the record of
investigation prima facie satisfying the investigating officer regarding correctness of the
allegation levelled by the complainant party against such suspect or regarding his
involvement in the crime in issue. The law requires an investigating officer to be
generally slow in depriving a person of his liberty on the basis unsubstantiated allegations
and, thus, insistence by the interest 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. 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. It must always be remembered that delaying the arrest till after formation of
an opinion regarding prima facie correctness of the allegation against a suspect goes a
long way in deterring false, frivolous and motivated complaints and also that there may
not be any adequate recompense or reparation for an unjustified arrest. It would be
preposterous arid a mockery of justice if a person may be deprived of his liberty first and
later on the allegation against him may be found by the arresting agency itself to be
bogus; trumped up or false. Such an approach would amount to putting the cart before the
horse.

(xiii) Complaints seeking transfer of investigation of criminal cases.--The job of an

investigating officer is not to satisfy the parties to the case or to render any opinion about
guilt or innocence of an accused person but his duty is only to collect all the relevant
evidence. In the reports to be submitted by the police in connection with investigation of
a criminal case it can comment about sufficiency or otherwise of the evidence available
against an accused person but it cannot comment upon believability or otherwise of the
evidence becoming available on the record against such accused person. The question of
believability or otherwise of such evidence is to be attended to by the relevant Magistrate
or the trial Court. The trend of getting a fresh investigation of a criminal case conducted
after submission of a Challan and after taking of cognizance by the trial Court is not to be
encouraged. By virtue of the provisions of Article 18(5) of the Police Order, 2002 a
District Police Officer cannot interfere with the process of investigation and, thus, an ex-
officio Justice of the Peace cannot direct a District Police Officer to attend to the
complaining person's grievance regarding an investigation. Article 18(6) of the Police
Order, 2002 specifies the only manner in which investigation of a criminal case can be
changed. There is no other law authorizing or empowering any other police officer or
authority to change the investigation of a criminal case. Any change or transfer of
investigation of a criminal case by any officer or authority other than those mentioned in
Article 18(6) of the Police Order, 2002 is to be void and a nullity. `Verification' of
investigation, if necessary, must be confined to verification of the record of investigation
and such an exercise cannot be allowed to be conducted in a manner giving it a colour of
fresh investigation with fresh conclusions. The verifying officer has to confine himself, to
the record of investigation already conducted and cannot substitute his own conclusions
for those of the investigating officer and if he finds any serious fault with the
investigation already conducted then the verifying officer can bring such fault to the
notice of the Superintendent of Police (Investigation) of the concerned District who can
then initiate the process contemplated by the provisions of Article 18(6) of the Police
Order, 2002 for change of investigation. An ex-officio Justice of the Peace cannot step
into the shoes of a competent police authority so as to himself pass an order transferring
investigation of a criminal case and his role in this regard is confined only to getting the
process under Article 18(6) of the Police Order, 2002 activated if the complaint before
him establishes that the complaining person's recourse under section 18(6) of the Police
Order, 2002 has remained unattended to so far. If the complaining person has not yet even
applied before the competent authorities under Article 18(6) of the Police Order, 2002
seeking change of investigation then his complaint under section 22-A(6), Cr.P.C. is not
to be entertained by an ex-officio Justice of the Peace as no occasion has so far arisen for
interference in the matter by an ex-officio Justice of the Peace. If the competent
authorities under Article 18(6) of the Police Order, 2002 have already attended to the
request of the complaining person regarding transfer of investigation and have not found
the case to be a fit case for transfer of investigation then too an ex-officio Justice of the
Peace cannot interfere in the matter as the competent authorities have already consciously
attended to the matter and there is nothing left for the ex-officio Justice of .the Peace to
get activated or initiated. An ex officio Justice of the peace is not to assume the role of an
appellate, revisional or supervisory authority in that respect. An ex-officio Justice of the
Peace, like any judicial or other authority outside the police hierarchy, should be
extremely slow in directly interfering with the matter of transfer of investigation and in
an appropriate case he may interfere only where the authorities mentioned in Article
18(6) of the Police Order, 2002 have already been approached by the complaining person
but such authorities have failed to attend to his grievance and the application of the
complaining person is lying unattended to. Even in such a case an Justice of the Peace
may refuse to interfere in the matter unless it is established to his satisfaction that some
specific and particular material pieces of evidence had been missed out by the
investigating officer and the same remain to be collected by the police. An ex-officio
Justice of the Peace may not interfere in such a matter unless he feels satisfied that the
required evidence had either not been collected or that further evidence is required to be
collected in a given case and the recourse of the complaining person to the authorities
mentioned in Article 18(6) of the Police Order, 2002 in that regard has so far remained
unattended to. In such, a ease an ex-officio Justice of the Peace may issue a direction to
the concerned police authority to get the process under. Article 18(6) of the Police Order,
2002 activated so that an appropriate and suitable decision on the complaining person's
grievance can be made by the competent authorities under Article 18(6) of the Police
Order, 2002 one way or the other. While attending to such a complaint an ex-officio
Justice of the .Peace cannot issue a direction changing the investigation of a criminal case
on his own. Any attempt by a party to get the investigation changed only to obtain a
favourable opinion from an investigating officer regarding guilt or innocence of an
accused person is to be nipped in the bud.

(xiv) Complaints about failure of the police to finalize investigation of a criminal

case and to submit a Challan in time.--An ex-officio Justice of the Peace seized of a
complaint regarding failure of the police to finalize investigation' of a criminal case and
to submit a Challan within the stipulated period should require the investigating officer of
the relevant case to explain the reason for the delay in that regard and he may also require
him to explain as to why a recommendation may not be made to the concerned quarters
for appropriate action in terms of the action taken by the Supreme Court of Pakistan in
the case of Hakim Mumtaz Ahmed and another v. The State (PLD 2002 Supreme Court
590). If the explanation submitted by the investigating officer is found by the ex-officio
Justice of the Peace to be unsatisfactory then he may issue a direction to the
Superintendent of Police (Investigation) of the relevant District to ensure finalization of
investigation and submission of Challan at the earliest possible and may also, depending
upon the circumstances of the case, either warn the relevant investigating officer to be
careful in that regard in future or issue a direction to the relevant higher police, authority
or the relevant Public Safety and Police Complaints Commission to consider the
complaint and to take appropriate action against the delinquent police officer under the
relevant provisions of the Police Order, 2002 or under any other law applicable to such
misconduct.

(xv) An ex-officio Justice of the Peace in Pakistan does not perform or discharge any
judicial function and, therefore, the law relating to Contempt of Court is inapplicable to
an alleged non-compliance of any direction issued by him under section 22-A(6), Cr.P.C.
However, a direction issued by him under section 22-A(6), Cr.P.C. is grounded in lawful
authority conferred upon him by the said legal provision and by virtue of the provisions
of Article 4(1)(m) of the Police Order, 2002 every police officer is under a duty to obey
and promptly execute all lawful orders. There are, therefore, threefold remedies available
against non-compliance of directions issued by an ex-officio Justice of the Peace under
section 22-A(6), Cr.P.C., i.e. firstly, upon a complaint received by him regarding
noncompliance of his earlier direction an ax-officio Justice of the Peace can issue a
direction to the relevant police authority to register a criminal case against the delinquent
police officer under Article 155(c) of the Police Order, 2002 or, secondly, he can issue a
direction to the relevant higher police authority or the relevant Public Safety and Police
Complaints Commission to take appropriate action against the delinquent police officer
under the relevant provisions of the Police Order, 2002 or under any other law relevant to
such misconduct and, thirdly, the complaining person can approach this Court under
Article 199 of the Constitution seeking issuance of an appropriate writ directing the
defaulting police officer to do what the law requires him to do.

(xvi) It needs to be clarified that a petition filed under section 22-A(6), Cr.P.C. before an
ex-officio Justice of the Peace is to be termed only a `petition' and such a petition cannot
be branded, dubbed or called a `Writ Petition'. It must be borne in mind that jurisdiction
to issue a `writ' is traditionally a high prerogative jurisdiction of a High Court which
dates back to antiquity and is now recognized by the Constitution. Thus, the writ
jurisdiction of a High Court must not be confused with a statutory jurisdiction of an ex-
officio Justice of the Peace which is exercised by Sessions Judges and Additional
Sessions Judges.

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Muhammad Alain and another v. Additional Secretary to Government of N.-W.F.P.,
Home & Tribal Affairs Department and 4 others PLD 1987 SC 103.; Nasira Surriya v.
Muhammad Aslam and 7 others 1990 SCMR 12; Syed Waqar Hussain Shah v. The State
PLD 1988 Lah. 666; Mst. Kausar Bibi v. The Deputy Inspector-General of Police, Crimes
Branch, Punjab; Lahore and 2 others 1996 PCr.LJ 124; Ali Muhammad v. Inspector-
General of Police, Punjab, Lahore and another 2001 PCr.LJ 1054 and Mehr Allah Bakhsh
v. D.I.G., Multan and five others 2001 PCr.LJ 801 ref.

(f) Criminal Procedure Code (V of 1898)---

----Ss. 22-A(6)---Complaint about unjustified harassment by the Police in the absence of

any criminal case having been registered against the aggrieved person---Kind of
"directions" can/should an ex-officio Justice of Peace issue in respect of such complaint
while exercising his jurisdiction under S.22-A(6), Cr.P.C. elaborated.

As regards the jurisdiction of an ex-officio Justice of the Peace regarding complaints

about unjustified harassment by the police in the absence of any criminal case having
been registered against the aggrieved person more often than' not such complaints are
couched in vague, unspecific and generalized terms and sometimes such complaints are
motivated with considerations other than bona fide. An ex-officio Justice of the Peace
must remain watchful, alert and vigilant in this respect while handling all such
complaints. It goes without saying that an allegation of fact levelled in such a complaint
must contain all the necessary factual details regarding the date, time and place of the
alleged harassment as well as full particulars of the concerned police officer who is being
complained against. In the absence of such precision and exactitude in the complaint the
relevant police officer, when required by the ex-officio Justice of the Peace to submit his
comments, can remain contented with a bare and bald denial of the allegations leaving
the exofficio Justice of the Peace with no other option but to dismiss such a complaint as
having remained unsubstantiated. However, if the complaint contains the necessary
factual details. and through his comments the relevant police officer fails to satisfy the
ex-officio Justice of the Peace regarding falsity of the allegations levelled against him
then the exofficio Justice of the Peace may, depending upon the circumstances of the
case, either warn the relevant police officer not to transgress the limits of, the law in
future or may issue a direction to the relevant higher police authority or the relevant
Public Safety and Police Complaints Commission to consider the complaint and to take
appropriate action against the delinquent police officer under the relevant provisions of
the Police Order, 2002. In an extreme case of highhandedness and totally unjustified
harassment the ex-officio Justice of the Peace may issue a direction to the relevant police
authority to register a criminal case against the delinquent police officer if he had
seemingly committed some cognizable offence during the harassment perpetrated by him.

(g) Criminal Procedure Code (V of 1898)---

----S. 22-A(6)---Complaint regarding failure of the police to register a criminal case

despite commission of a cognizable offence having been reported to, it---Kind of
"directions" can/should an ex-officio Justice of the Peace issue in respect of such
complaint while exercising his jurisdiction under S.22-A(6), Cr.P.C. elaborated.

As regards the complaints regarding failure of the police to register a criminal case
despite commission of a cognizable offence having been reported to it there is no
gainsaying the fact that the provisions of section 154, Cr.P.C. in that respect are quite
explicit and the duty of the officer in charge of the local Police Station in that regard is
mandatory in nature. However, the officer in charge of the relevant Police Station may be
under a statutory obligation to register an F.I.R. whenever information disclosing
commission of a cognizable offence is provided to him but the provisions of section 22-
A(6), Cr.P.C. do not make it obligatory for an ex-officio Justice of the Peace to
necessarily or blind-foldedly issue a direction regarding registration of a criminal case
whenever a complaint is filed before him in that regard. The use of the word "may" in
section 22-A(6), Cr.P.C. clearly shows that the jurisdiction of an ex-officio Justice of the
Peace in that regard is discretionary in nature, and understandably so. It is unfortunate
that concepts and notions of truth and justice are becoming more and more subjective in
the society and the machinery of criminal law with its coercive process is increasingly
being utilized by motivated persons or parties for achieving objectives which are self
serving.

Thus, there is a pressing need on. the part of the ex-officio Justices of the Peace to
exercise caution and restraint before issuing a direction regarding registration of a
criminal case. It is prudent and advisable for an exofficio Justice of the Peace to call for
comments of the officer in charge of the relevant Police Station in respect of complaints
of this nature before taking any decision of his own in that regard so that he may be
apprised of the reasons why the local police has not registered a criminal .case in respect
of the complainant's allegations. It may well be that the complainant has been
economizing with the truth and the comments of the local police may help in completing
the picture and making the situation clearer for the ex-officio Justice of the Peace
facilitating him in issuing a just and correct direction, if any. If, however, the comments
furnished by the officer in charge of the relevant Police Station disclose no justifiable
reason for not registering a criminal case on the basis of the information supplied by the
complaining person then an ex-officio Justice of the Peace would be entirely justified in
issuing a direction that a criminal case be registered and investigated. It is clarified that it
is not obligatory for the officer in charge of a Police Station or for an exofficio Justice of
the Peace to afford an opportunity of hearing to the accused party before registration of a
criminal case or before issuing a direction in that regard. In an appropriate case,
depending upon the circumstances thereof, an ex-officio Justice of the Peace may refuse
to issue a direction regarding registration of a criminal case and may dismiss the
complaint under section 22-A(6), Cr.P.C. reminding the complaining person of his
alternate statutory remedies under sections 156(3) and 190, Cr.P.C. Experience shows that
there are cases where the complainant party may be better off in pressing its allegations
and remaining in control of its case by tiling a private complaint rather than forcing the
police to register a criminal case and to investigate when the police is itself not convinced
of the complainant party's allegations being correct. The impression entertained by a large
section of the legal community in Pakistan that in case of filing of a private complaint the
accused person cannot be arrested and recovery cannot be effected from him is nothing
but erroneous and fallacious. By virtue of the provisions of section 202(1), Cr.P.C. a
Court seized of a private complaint can "direct an inquiry or investigation to be made by
any Justice of the Peace or, by a police officer or by such other person as it thinks fit".
The powers available during an investigation, enumerated in Part V, Chapter XIV of the
Code of Criminal Procedure, 1898 read with section 4(1)(1) of the same Code, include
the powers to arrest an accused person and to effect recovery from his possession or at his
instance. Such powers of the investigating officer or the investigating person recognize
no distinction between an investigation in a State case' and an investigation in a
complaint case. That section 91, Cr.P.C. deals only with procuring attendance of a person
before the Court and after his availability before the Court the matter of his admission to
bail or not rests in the hands of the Court and that the impression about automatic
admission of an accused person to bail in a case of a private complaint is erroneous.
Thus, in appropriate cases the ex-officio Justices of the Peace would be serving the
interests of justice well by dispelling wrong impressions about inadequacy of the remedy
of filing a private complaint and by encouraging the complaining persons to take charge
of their allegations against the accused party by filing a private complaint rather than
forcing an unwilling or unconvinced police officer to be in control of their cases.

(h) Criminal Procedure Code (V of 1898)---

----S.22-A(6)---Complaint pertaining to failure by the Investigating Officer to add

appropriate penal provisions to an F.I.R. or a cross-version of the accused party---Kind of
"directions" can/should an exofficio Justice of the Peace issue in respect of such
complaint while exercising his jurisdiction under S.22-A(6), Cr.P.C., elaborated.

The complaints about failure by an investigating officer to add appropriate penal

provisions to an F.I.R. or a cross-version of the accused party are not uncommon but they
are normally not worthy of being taken with any degree of seriousness by an ex-officio
Justice of the Peace. The stands taken by the complaining persons in this regard normally
touch the merits of the allegations and an ex-officio Justice of the Peace would be well
advised to refrain from entering into any such controversy at a premature stage and to
consider, by, appreciating the factual aspects of a given case, as to which offences are or
are not disclosed by the allegations contained in an F.I.R. or a cross-version. It goes
without saying that the overall incharge of a criminal case is the Area Magistrate who,
even during the progress of an investigation, gets many opportunities to go through the
record of investigation conducted by the police and in an appropriate case and at an
appropriate stage he can. require the investigating officer to consider addition or deletion
of any penal provision. Be that as it may, after submission of a report under section 173,
Cr.P.C./Challan the Magistrate taking cognizance of the offence or the trial Court taking
cognizance of the case can take cognizance of any offence disclosed by the material
available on the record of investigation even if the police have not invoked the relevant
penal provision. Even at the time of framing of the charge a trial Court can frame a
charge in respect of an offence disclosed by the record even if the same finds no mention
in the report submitted under section 173, Cr.P.C./Challan. With so many opportunities
being available with the Magistrate and the trial Court regarding rectification of a
mistake, deliberate or otherwise, committed by the police in this connection it would be
unwise for an ex-officio Justice of the Peace to interfere with such a matter at an
inappropriate and premature stage.

An ex-officio Justice of the Peace may follow suit while dealing with complaints of the
like nature, In case of receipt of such a complaint an ex-officio Justice of the Peace may
advise the complaining person to approach the Area Magistrate or the trial Court, as the
case may be, rather than entertaining such a complaint himself.

(i) Criminal Procedure Code (V of 1898)---

----S. 22-A(6)---Complaint about failure by the Investigating Officer to record a cross

version of the accused party---Kind of "directions" can/should an ex-officio Justice of the
Peace issue in respect of such complaint while exercising his jurisdiction under S.22-
A(6), Cr.P.C. elaborated.

While dealing with a complaint of this nature an ex-officio Justice of the Peace should
call for comments of the investigating officer explaining as to why he has not recorded
the version of the accused party and if such comments confirm the complaint that despite
having been approached in that regard by the accused party the investigating officer has
not recorded the version of the accused party and there is no valid or justifiable reason for
such default on his part then a direction may be issued by the ex-officio Justice of the
Peace to the investigating officer to do the needful or in the alternative the Superintendent
of Police (Investigation) of the relevant District may be directed by the ex-officio Justice
of the Peace to attend to this aspect of the matter and to ensure that the needful is done by
the investigating officer without further ado.

(j) Criminal Procedure Code (V of 1898)---

----S. 22-A(6)---Complaint regarding failure to arrest an accused person nominated in the

F.I.R. or in the cross-version of the accused party--Kind of "directions" can/should au ex-
officio Justice of the Peace issue in respect of such complaint while exercising his
jurisdiction under S.22-A(6), Cr.P.C. elaborated.

The complaints filed before ex-officio Justices of the Peace regarding failure by the
police to arrest an accused person nominated in an F.I.R. or implicated through a cross
version of the accused party are quite frequent and it has been observed that more often
than not such complaints stem from a basic misconception about the circumstances in
which an accused person is allowed by the ,taw to be arrested in a criminal case. For the
purpose of removal of such misinterpretation and misconstruction of the relevant legal
provisions the legal position in this regard in some detail is restated hereunder.

Under section 22-A(1), Cr.P.C. a Justice of the Peace has the jurisdiction to exercise all
those powers of arrest in the relevant local area which powers are available to a police
officer referred to in section 54, Cr.P.C. and to an officer in charge of a Police Station
referred to in section 55, Cr.P.C. The powers of arrest in both the said sections are the
same but they relate to different situations.

An arrest of a person in connection with a criminal case is not to be a matter of course

and the power to arrest is conditional upon fulfilment of the requisite legal requirements.
One of the cardinal principles of criminal law and jurisprudence is that an accused person
is presumed. to be innocent until .proved guilty before a Court of law. However, of late a
growing tendency has been noticed on the part of the complainant party to insist upon
arrest of an" accused person nominated by it in the F.I.R. and an increasing willingness,
nay eagerness, on the part of the investigating officer of a criminal case to effect arrest of
the accused person even before initiating or launching a proper investigation of the
allegations levelled in the F.I.R. Such an approach has been found to be absolutely
against the spirit of the relevant law, to be wrought with inherent dangers to cherished
liberty of citizens who may ultimately be found to be innocent and to amount to putting
the cart before the horse.

A general impression entertained by some quarters that an arrest of a suspect or an

accused .person is necessary or sine qua non for investigation of a crime is misconceived
and the same portrays scant knowledge of the relevant statutory provisions. Section 46,
Cr.P.C. provides as to how an arrest is to be made, section 54, Cr.P.C. deals with arrest by
a police officer without a warrant, section 55, Cr.P.C. pertains to arrest of vagabonds, etc.
by an officer in charge of a Police Station, section 59, Cr.P.C. caters for a situation where
a private person may effect an arrest and section 151, Cr.P.C. authorizes a police officer
`to arrest a person in order to prevent commission of a cognizable offence. Section 169,
Cr.P.C. visualizes a situation where a suspect may be released if the investigating officer
finds no sufficient evidence or reasonable ground for suspicion against him.

According to Article 4(1)(j) of the Police Order; 2002 it is a duty of every police officer
to "apprehend all persons whom. he is legally authorised to apprehend and for whose
apprehension sufficient grounds exist". Rules 24.1, 24.4 and 24.7 of the Police Rules,
1934 (which are still in vogue due to the provisions of Article 185 of the Police Order,
2002) clearly contemplate situations where an information received by the police
regarding commission of a cognizable offence may be doubted or even found false. Rule
25.2(1) of the Police Rules authorizes-an investigating officer to associate "any person"
with the investigation and Rule 25.2(2) categorically provides that "No avoidable trouble
shall be given to any person from whom enquiries are made and no person shall be
unnecessarily detained". Rule 25.2(3) clinches the issue by clarifying that "It is the duty
of an investigating officer to find out the truth of the matter under investigation. His
object shall be to discover the actual facts of the case and to arrest the real offender or
offenders. He shall not commit himself prematurely to any view of the facts for or against
any person. As if this were not enough, Rule 26.1 emphasizes that "Section 54, Code of
Criminal Procedure, authorizes any police officer to arrest without a warrant any person
who has been concerned in any cognizable offence or against whom a reasonable
complaint has been made, or credible information has been received, or a reasonable
suspicion exists, of his having been so concerned. The authority given under this section
to the police to arrest without a warrant is, however, permissive and not obligatory.

Whenever escape from justice or inconvenient delay is likely to result from the police
failing to arrest, they are bound to do so; but in no other cases. The, law allows a police
officer to apply to a Magistrate for a warrant or a summons instead of making the arrest
immediately, and this discretion shall -be exercised whenever possible and expedient. The
law also allows a police officer in any bailable case to take security under section 170,
Criminal Procedure Code from an accused person to appear before a, Magistrate without
first arresting him" (emphasis has been supplied by us). Rules 26.2 and 26.9 provide
further guidelines to the police officers involved in investigation of crimes requiring.
them not to unnecessarily interfere with the liberty of suspects "until the investigation is
sufficiently complete" and "the facts justify arrest". According to Rule 26.1 the facts
justifying an immediate arrest may include a possibility of the suspect escaping from
justice or inconvenient delay likely to result from the police failing to arrest.

All the statutory provisions and the precedent cases manifestly point towards the
intention of the law that a suspect is not to be arrested straightaway upon registration of
an F.I.R. or as a matter of course and that, unless the situation on the grounds so warrants,
the arrest is to be deferred till such . time that sufficient material or evidence becomes
available on the record of investigation prima facie satisfying the investigating officer
regarding correctness of the allegations levelled by the complainant party against such
suspect or regarding his involvement in the crime in issue. 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. It must always
be remembered that delaying the arrest till after formation of an opinion regarding prima
facie correctness of the allegation against a suspect goes a long way in deterring false,
frivolous and motivated complaints and also that there may not be any adequate
recompense or reparation for an unjustified arrest. It would be preposterous and a
mockery of justice if a person may be derived of his liberty first and later on the
allegations against him may be found by the arresting agency itself to be bogus, trumped
up or false. That surely would be, as observed above, putting the cart before the horse.

(k) Criminal Procedure Code (V of 1898)---

----S. 22-A(6)---Complaint pertaining to unfair, biased and improper investigation and

thus, seeking transfer of the investigation---Said issue engaged the High Court's serious,
particular and detailed consideration-Kind of "directions" can/should an ex-officio Justice
of the Peace issue in respect of such complaint while exercising his jurisdiction under
S.22-A(6), Cr.P.C. elaborated.

The complaints about unfair, biased and improper investigation and, thus, seeking
transfer of investigation of the relevant criminal case are generally the most frequent
complaints that are filed before the exofficio Justices of the Peace under section 22-A(6),
Cr.P.C. and are often subject-matter of writ petitions filed before High Court and,
therefore, this area has also engaged Court's serious, particular and detailed consideration.
Filing of such complaints is generally grounded in a basic misunderstanding that the
parties to a criminal case must feel satisfied with the investigation thereof. Unfortunately
the concepts of truth and justice are becoming more and more subjective in the society
and the machinery of criminal law with its coercive process is increasingly being utilized
by motivated persons or parties for achieving objectives which are self-serving.. Left to
the parties to a criminal case they would never be satisfied with the investigation unless
their version is accepted by the police as correct.

The term `investigation' has been defined by section 4(1)(1) of the Code of Criminal
Procedure, 1898 as "--- all proceedings under this Code for the collection of evidence by
a police officer or by any person (other than a Magistrate) who is authorized by a
Magistrate in this behalf". The job of an investigating officer is, thus, only to collect all
the relevant evidence pertaining to the allegation levelled regarding the crime in issue so
as to dig out the truth enabling and facilitating the relevant Court to administer justice
between the parties. His job is not to satisfy the parties to the case or to arrogate to
himself the role of an adjudicator rendering an opinion regarding guilt or innocence of
any person. In the reports to be submitted by the police in connection with investigation
of a criminal case it can comment about sufficiency or otherwise of the evidence
available against an accused person but it cannot comment upon believability or
otherwise of the evidence becoming available on the record against such accused person.

The question 'of believability or otherwise of such evidence is to be attended to by the

relevant Magistrate or the trial Court. It is very rare that a complaint of the nature under
discussion points out that any particular evidence is available in the case and the same is
not being collected by the investigating officer but the bids of the parties seeking transfer
of investigation are by far, directed mainly to obtain a favourable opinion from the
investigating officer supporting a party's version. An investigating officer of a criminal
case is not to render any opinion regarding guilt or innocence of an accused person and
under the relevant statutory provisions contained in the Code of Criminal Procedure,
1898, the Police Order, 2002 and the Police Rules, 1934 he is only to collect all the
relevant evidence and to submit his report and the collected evidence and material before
the relevant Magistrate so that the Magistrate or the trial Court can then form their own
independent opinions regarding sufficiency or otherwise of the evidence and material in
order to decide whether to take cognizance of the offence and of the case or not, to
summon any person to face a trial or pot and to frame a charge against a person or not.

Column No. 2 of the Challan submitted in a criminal case is generally misunderstood and
the same is erroneously being construed as meant for those accused persons who are
found by the police to be innocent. It is generally being ignored that the said column of
the Challan is to contain the names of the absconding accused persons against whom
Challan is not being submitted because they could not be associated with the
investigation and is also to contain the details of the accused persons being forwarded in
custody or released on bond with or without sureties. Such details have absolutely no
relevance to the question of innocence or otherwise of the accused persons. Section 172,
(1), Cr.P.C. requires that "Every police officer making an investigation under this Chapter
shall day by day enter his proceedings in the investigation in a diary, setting forth the
time at which the information reached him, the time at which he began and closed his
investigation, the place or places visited by him, and a statement of the circumstances
ascertained through his investigation". There is no mention in section 172(1), Cr.P.C. of
any opinion of the investigating officer about guilt or innocence of an accused person.

Likewise, in section 173, Cr.P.C., under. which the. police is required to submit its final
or interim report about the investigation before a Magistrate which report is also called a
Challan, there is absolutely no mention of any opinion of the police regarding guilt or
innocence of an accused person. There is No. 1aw or legal instrument in existence in this
country requiring an investigating officer of a criminal case or any police officer to
record his opinion about guilt or innocence of an accused person. Be that as it may, the
law is firmly settled on the point to the extent of being trite that an opinion of the police
regarding guilt or innocence of an accused person is inadmissible in evidence being
irrelevant and that an accused person whose name has been placed in column No. 2 of the
Challan or an accused person not even mentioned in any column of the Challan can also
be summoned by a trial Court to face a trial if, in the opinion of the Court, sufficient
material is available on the record to proceed against him. A misconceived competition
and race between the parties to obtain a favourable opinion from the investigating officer,
despite such opinion being inadmissible in evidence being, irrelevant, has been found to
be the real reason for most of the bids made by the parties to a criminal case to get the
investigation of such case transferred. Such trends and tendencies have to be curbed with
all the firmness that is required as they are playing havoc with investigations, breeding
corruption amongst the police, introducing extraneous influences in the working of the
police, delaying finalization of investigations and trials and choking the exofficio Justices
of the Peace as well High Court with unwarranted complaints and writ petitions.

No law or regulation gives a complainant a vested right, which can be enforced by a writ
to have his complaint investigated by a particular branch of the Police.

The necessity for making a direction can only arise in a case where no investigation has
started. The power to issue a direction cannot be invoked where investigation has already
commenced in accordance with law by authorities competent to investigate under the
Criminal Procedure Code nor does the power to "direct" include the power to "transfer"
from one competent investigating agency to another. This would be unwanted
interference with the investigation.

The system of re-investigation in criminal cases is a recent innovation which is always

taken up at the instance of influential people and favourable reports obtained. This in no
way assists the Courts in coming to a correct conclusion, it rather creates more
complications to the Court administering justice.

Delay in filing police report/challan is being caused for another reason namely that on the
behest of the accused/complainant/State investigations in the cases are transferred from
one police agency to another under section 158, Cr.P.C. on account of showing non-
confidence by one for the other party in the Investigating Agencies particularly in the
Province of Punjab. Such device is followed invariably in every case and this reason
independently also causes delay in submission of challan or commencement of trial of
accused persons.

The purpose of investigation of. a criminal case, as is evident from section 4(1)(1) of
Cr.P.C. is mere collection of evidence and nothing more. The duty of the officer
investigating a criminal case is to collect all such evidence and then to submit the same
before a Court of competent jurisdiction which Court alone then has the powers to
determine the guilt or innocence of the person accused of the commission of such an
offence. It is true that section 169 of the Cr.P.C. authorizes an Investigating Officer or the
officer incharge of the police station to release an accused person on his executing a
bond, with or without a surety, if in the opinion of such a police officer sufficient
evidence or reasonable grounds of suspicion justifying the forwarding of an accused to, a
Magistrate were not available. This however, cannot be equated with a power of final
determination of the guilt or innocence of the accused persons which power, as has been
mentioned above, stands reserved exclusively for the Magistrates and the trial Courts.

These very provisions of section 169 of the Cr.P.C. are a clear indicator to the said effect
because release of an accused person under this section is subject to the orders of a
Magistrate, who may refuse to take cognizance of the case in terms of the report of the
concerned police officer or may still take cognizance and try an accused person or send
him for trial. It may be added that the provisions of section 63 of the Cr.P.C. which
provide that an accused person could be discharged only under the special order of a
Magistrate and the provisions of Rule 24.7 of the Police Rules, 1934 which provides that
an F.I.R. can be cancelled only by a Magistrate, even if the Investigating Officer or the
S.H.O. were of the opinion that such an F.I.R. deserved to be cancelled, are further
evidence of the fact that the final word in respect of the fate of an accused person is either
of a Magistrate or of the learned trial Court and the S.H.O. or the investigating Officer
were mere instruments to assist such Magistrates or Courts of law in reaching a final
conclusion.

It will, therefore, be noticed that while the Investigating Officers have powers to
investigate cases and while the officers incharge of police stations including the superior
police officers, who are also S.H.Os. by virtue of section 551 of the Cr.P.C. have powers
to withdraw investigations from one police officer and to entrust the same to another
police officer and also to order further investigations in a matter, the sole purposes of
such-like transfer of investigations and directing of further investigations is to be the
collection of evidence and nothing more. These powers vesting in the S.H.Os. and the
superior police officers can, therefore, be exercised only and only where it is found that
the required evidence had either not been collected or that further evidence was vi
required to be collected in a given case.

Of late, frequent situations have started coming to the notice of the Courts where repeated
investigations arc ordered and where investigations are repeatedly transferred from one
police officer to another without disclosing any reason for such orders which leads to an
inference that such-like orders were passed not for the purposes for which the requisite
powers had been conferred on the police officers but for purposes other than legal and
bona ode. Needless to add that suchlike repeated investigations and such like transfers of
investigations do not only complicate issues making the task of the Courts of law snore
arduous but also result in wastage of time and inordinate delays towards the final
conclusion of cases.

This evil can be, successfully, combated by making it incumbent upon the authority
transferring the investigation or ordering reinvestigation should comment upon the
quality of the investigation and pinpoint the shortcomings or lapses made by the
Investigating Officer. The authority if convinced after going through the record that either
the Investigating Officer is inefficient, incapable or mixed up with one of the parties for
any reason and only then investigation may be transferred and that too after recording
reasons in writing. It shall propose action against Investigating Officer for misconduct,
inefficiency and corruption as the case may be. That would be effective measures to
check the illegal tendency of transferring the investigation or ordering reinvestigation
without any study of the `Zimnis' and appreciating the efforts made by the Investigating
Officer.

Trend of getting a fresh investigation of a criminal case conducted after submission of a

challan and taking of cognizance by the trial Court cannot be approved. In the absence of
any particular material piece of evidence shown to have been missed out by the
investigating officer and yet to be collected by the police there can hardly be any
occasion for holding a fresh investigation at such a stage. If such fresh investigation is
meant only to obtain a fresh opinion of an investigating officer regarding guilt or
innocence of an accused person then, apart from the reasons mentioned above, such fresh
investigation is likely to be legally inconsequential because an F.I.R. cannot be cancelled
or an accused person discharged at such a stage for the reason that after taking of
cognizance of the case by a trial Court the question of guilt or innocence of an accused
person or the matter of his release can be determined only by the Court and none else.
By virtue of the provisions of Article 18(5) of the Police Order, 2002 a District Police
Officer cannot interfere with the process of investigation. According to Article 18(6) of
the Police Order, 2002 the first change of investigation can, in areas other than the
Capital City District, be ordered only by the Additional Inspector-General of Police
(Investigation Branch) and that too only after deliberations and recommendations by a
Board headed by an officer not below the rank of Senior Superintendent of Police and
including two Superintendents of Police, one being in charge of the investigation in the
concerned District. According to the same Article second change of investigation may
only be allowed with the approval of the Provincial Police Officer (Inspector-General of
the Police in a Province) or the Capital City Police Officer, as the case may be. There is
no other law authorizing or empowering any other police officer or authority to change
the investigation of a criminal case. Any change or transfer of investigation of a criminal
case by any officer or authority other than those mentioned in Article 18(6) of the Police
Order, 2002 is to be void and a nullity. In some cases police officers other than those
mentioned in Article 18(6) of the Police Order, 2002 have been changing investigation of
criminal cases in the name of `verification' of investigation. The law is quite settled on
the point that where the law requires a thing to be done in a particular manner then that
thing must be done in that manner alone or not at all. In any case if an investigation by an
investigating officer is to be verified by some other officer then such verification must be
confined to verification of the record of investigation and such an exercise cannot be
allowed to be conducted in a manner giving it a colour of fresh investigation with fresh
conclusions. The verifying officer has to confine himself to the record of investigation
already conducted and cannot substitute his own conclusions for those of the
investigating officer and if he finds any serious fault with the investigation already
conducted then the verifying officer can bring such fault to the notice of the
Superintendent of Police (Investigation) of the concerned District who can then initiate
the process contemplated by the provisions of Article 18(6) of the Police Order, 2002 for
change of investigation. In some cases an impression is being entertained among some
senior police officers that the provisions of Article 18(6) of the Police Order, 2002 pertain
to `vertical' change of investigation and not to `horizontal' transfer of investigation, the
former standing for change of investigation by authorities outside and above the relevant
District and the latter denoting transfer of investigation by officers performing duties
within the relevant District. Such a distinction is innovative but totally artificial and self-
created and a distinction motivated to defeat the very purposes of Article 18(6) of the
Police Order, 2002 so as to perpetuate the maladies for the removal of which the said
Article had been introduced. High Court categorically rejected all notions regarding such
a distinction.

An ex-officio Justice of the Peace cannot step into the shoes of a competent police
authority so as to himself pass an order transferring investigation of a criminal case and
that his role in this regard is confined only to get the process under Article 18(6) of the
Police Order, 2002 activated if the complaint before him establishes that the complaining
person's recourse under section 18(6) of the Police Order, 2002 has remained unattended
to so far. It, thus, follows that if the complaining person has not yet even applied before
the competent authorities under Article 18(6) of the Police Order, 2002 seeking change of
investigation then his complaint under section 22-A(6), Cr.P.C. is not to be entertained by
an ex-officio Justice of the Peace as no occasion has so far arisen for interference in the
matter by an ex-officio Justice of the Peace. The same principle has consistently been
followed by High Court while dealing with writ petitions seeking transfer of
investigations.

If the competent authorities under Article 18(6) of the Police Order, 2002 have already
attended to the request of the complaining person regarding transfer of investigation and
have not found the case to be a tit case for transfer of investigation then too an ex-officio
Justice of the Peace cannot interfere in the matter as the competent authorities have
already consciously attended to the matter and there is nothing left for the ex-officio
Justice of the Peace to get activated or initiated. An exofficio Justice of the Peace is not to
assume the role of an appellate, revisional or supervisory authority in that respect.

An ex-officio Justice of the Peace, like any judicial or other authority outside the police
hierarchy, should be extremely slow in directly interfering with the matter of transfer of
investigation and in an appropriate case he may interfere only where the authorities
mentioned in Article 18(6) of the Police Order, 2002 have already been approached by
the complaining person but such authorities have failed to attend to his grievance and the
application of the complaining person is lying unattended to. Even in such a case an ex-
officio

Justice of the Peace may refuse to interfere in the matter unless it is established to his
satisfaction that some specific and particular material pieces of evidence had been missed
out by the investigating officer and the same remain to be collected by the police.

An ex-officio Justice of the Peace may not interfere in such a matter unless he feels
satisfied that the required evidence had either not been collected or that further evidence
is required to be collected in a given case. In such a case an ex-officio Justice of the
Peace may issue a direction to the concerned police authority to get the process under
Article 18(6) of the Police Order, 2002 activated so that an appropriate and suitable
decision on the complaining person's grievance can be made by the competent authorities
under Article 18(6) of the Police Order, 2002 one way or the other. While attending to
such a complaint an ex-officio Justice of the Peace cannot issue a direction changing the
investigation of a criminal case on his own.

(l) Criminal Procedure Code (V of 1898)---

----S. 22-A(6)---Complaint about failure to finalize investigation of a criminal case and to

submit a challan within a reasonable time---Kind of "directions" can/should an ex-officio
Justice of the Peace issue in respect of such complaint while exercising his jurisdiction
under S.22-A(6), Cr.P.C. elaborated.

An ex-officio Justice of the Peace seized of a complaint regarding failure of the Police to
finalize investigation of a criminal case and to submit a challan, within the stipulated time
should require the investigating officer of the relevant case to explain the reason for the
delay in that regard and also to explain as to why a recommendation may not be made by
him to the concerned quarters for appropriate action in terms of the action taken by the
Hon'ble Supreme Court of Pakistan in the above mentioned case. If the explanation
submitted by the investigating officer is found by the ex-officio Justice of the Peace to be
unsatisfactory then he may issue a direction to the Superintendent of Police
(Investigation) of the relevant District to ensure finalization of investigation and
submission of Challan at the earliest possible time and may also, depending upon the
circumstances of the case, either warn the relevant investigating officer to be careful in
that regard in future or issue a direction to the relevant higher police authority or the
relevant Public Safety and Police Complaints Commission to consider the complaint and
to take appropriate action against the delinquent police officer under the relevant
provisions of the Police Order, 2002 or under any other law applicable to such
misconduct.

(m) Criminal Procedure Code (V of 1898)---

----S. 22-A(6)---Remedies against non-compliance of directions issued by an ex officio

Justice of the Peace enumerated.

An ex-officio Justice of the Peace in Pakistan does not perform or discharge any judicial
function and, therefore, the law relating to Contempt of Court is inapplicable to an
alleged non-compliance of any direction issued by him under section 22-A(6), Cr.P.C.
However, a direction issued by him under section 22-A(6), Cr.P.C. is grounded in lawful
authority conferred upon him by the said legal provision and by virtue of the provisions
of Article 4(1)(m) of the Police Order, 2002 "every police officer" is under a "duty" to
"obey and promptly execute all lawful orders". There are, therefore, threefold remedies
available against non-compliance of directions issued by an ex-officio Justice of the
Peace under section 22-A(6), Cr.P.C., i.e. firstly, upon a complaint received by him
regarding non-compliance of his earlier direction an ex-officio Justice of the Peace can
issue a direction to the relevant police authority to register a criminal case against the
delinquent police officer under Article 155(c) of the Police Order, 2002 or, secondly, he
can issue a direction to the relevant higher police authority or the relevant Public Safety
and Police Complaints Commission to take appropriate action against the delinquent
police officer under the relevant provisions of the Police Order, 2002 or under any other,
law relevant to such misconduct and, thirdly; the complaining person can approach this
Court under Article 199 of the Constitution seeking issuance of an appropriate writ
directing the defaulting police officer to do what the law requires him to do.

(n) Criminal Procedure Code (V of 1898)---

----S. 22-A(6)---Unsustainability or otherwise of the impugned orders passed by different

ex-officio Justices of the Peace mentioned.

Nemo for Petitioner (in Writ Petition No. 11862 of 2004)

Nemo for Petitioner (in Writ Petition No. 14415 of 2004).

Erum Sajjad Gul for Petitioner (in Writ Petition No. 17169 of 2004).

Tanvir Ahmad Sheikh for Petitioner (in Writ Petition No. 16453 of 2004).

Muhammad Hanif Khatana, Additional Advocate-General, Punjab with Tahir Mahmood

Gondal, Assistant Advocate-General for Respondents No. 1 to 6 and 8 (in Writ Petition
No. 11862 of 2004), Respondents No. 1 to 4 (in Writ Petition No. 14415 of 2004),
Respondent No. 1 (in Writ Petition No. 17169 of 2004) and Respondents Nos. 1 to 4 (in
Writ Petition No. 16453 of 2004).

Muhammad Javed Kasuri for Respondent No. 5 (in Writ Petition No. 14415 of 2004).

Zaheer-ud-Din Babar for Respondent No. 5 (in Writ Petition No. 16453 of 2004).

Nemo for the Remaining Respondents (in all the Writ Petitions).

Dates of hearing: 11th, 18th, 24th February and 3rd March, 2005.

JUDGMENT

ASIF SAEED KHAN KHOSA, J.---The question involved in these writ petitions is not
quis custodiet ipsos custodies, i.e. who will watch the watchmen but the issue is how the
watchmen are to be watched. The watchmen in this case arc the police and those who
have been assigned the duty to watch such watchmen, in the context of the present case,
are the ex-officio Justices of the Peace who have recently been entrusted by the
legislature the jurisdiction to entertain complaints against conduct of the police and to
issue appropriate directions in that regard to the police authorities concerned. Justice of
the Peace, as the name itself suggests, was an institution conceived and conjured up
centuries ago mainly to assist the police and the other law .enforcing agencies in
maintaining peace in the society but over the last many centuries this concept has
witnessed many developments and variations in different parts of the world. In some
countries the role of a Justice of the Peace is still restricted to an administrative function
and relevant only till a stage when a crime is not yet committed or where it has been
committed and not yet reported to the police and not beyond that stage but in others the
role of a Justice of the Peace has been enlarged and extended to exercise of some, judicial
and other powers including trial of petty offences and trifling civil disputes as well. In the
case in hand we have been called upon to determine the nature, scope and extent of the
functions and jurisdiction of a Justice of the Peace or an ex-officio Justice of the Peace
vis-a-vis the working of the police in our country.

2. The facts giving rise to Writ Petition No. 11862 of 2004 arc that the petitioner therein
is the complainant of and respondent No. 7 therein is an accused person in case F.I.R. No.
388 registered at Police Station Sadar Kamalia, District Toba Tek Singh on 20.12.2003 in
respect of offences under sections 395, 353, 324, 186, 148, 149, 337-F(iv), 337-F(v) and
337-L(2), PPC and section 7 of the Anti-Terrorism Act, 1997. It was alleged in the FIR
that the accused party had launched an assault upon a police party performing its lawful
duty. The investigation of that case was taken in hand by the Investigation Wing of Toba
Tek Singh police but respondent No. 7 felt dissatisfied with the same and he moved an
application before the Deputy Inspector-General of Police, Faisalabad Range, Faisalabad
seeking transfer of the investigation. The said application was referred to the Standing
Board as contemplated by the Police Order, 2002 and Circular No. 1/2002 issued by the
Provincial Police Officer (Inspector-General of Police), Punjab. After due deliberations
the Standing Board recommended transfer of the investigation of that case to Range
Crime, Faisalabad. The, Deputy Inspector-General of Police; Faisalabad Range,
Faisalabad agreed with the recommendation of the Standing Board and thereafter the
Additional Inspector-General of Police, Investigation Branch, Punjab, Lahore passed an
order on 14-4-2004 transferring investigation of that case and entrusting the same to the
Regional Investigation Branch, Faisalabad. On 22-5-2004 respondent No. 7 submitted an
application under section 22-A(6), Cr.P.C. before the learned Sessions Judge, Toba Tek
Singh in his capacity as an ex-officio Justice of the Peace complaining therein that in the
cross-version of the same incident advanced by the accused party the investigating
agency had failed to add section 354-A, P.P.C. and had also failed to arrest the accused
persons mentioned in the cross-version. Labouring under a mistaken impression that the
investigation of the above mentioned criminal case had been transferred by the Deputy
Inspector-General of Police, Faisalabad Range, Faisalabad and not by the Additional
Inspector-General of Police, Investigation Branch, Punjab, Lahore as contemplated by the
provisions of the Police Order, 2002 and Circular No. 1/2002 issued by the Provincial
Police Officer, Punjab the learned Sessions Judge, Toba Tek Singh, instead of attending to
the grievances actually voiced by respondent No. 7 against respondent No. 6, passed an
order on 27-5-2004 withdrawing investigation of the relevant criminal case from the
Regional Investigation Branch, Faisalabad and entrusting the same to the District Police
Officer, Toba Tek Singh in person. The operative part of the said order passed by the
learned Sessions Judge, Toba Tek Singh reads as follows:

"Under the Police Order, 2002, DIG could not transfer the investigation of the relevant
case from one police official to the other and, thus, Mohammad Hanif, DSP Crime
Branch Faisalabad, respondent No. 3 has been entrusted with the investigation of the
relevant case illegally and without lawful authority. It has been submitted by counsel for
the petitioner that investigation of the relevant case be made over to DPO, T.T. Singh
with a direction to investigate the relevant case independently and honestly. In these
circumstances I withdraw the investigation of the relevant case from Muhammad Hanif,
DSP Crime Branch, Faisalabad respondent No. 3 and make over the same to District
Police Officer, Toba Tek Singh and he is directed to carry out the investigation of this
case by himself independently, honestly and fairly. The I.O./Muhammad Hanif, DSP
Crime Branch, Faisalabad respondent No. 3 is directed to hand over the police file to
DPO, T. T. Singh."

After receipt of that order the District Police Officer, Toba Tek Singh, instead of
conducting the investigation personally, required respondent No.6 to do the needful and
this prompted respondent No. 7 to file an application before the learned Sessions Judge,
Toba Tek Singh on 28-6-2004 seeking implementation of the earlier order passed by the
learned Sessions Judge, Toba Tek Singh on 27-5-2004. On 5-7-2004 the learned Sessions
Judge, Toba Tek Singh disposed of that application of respondent No.7 with a direction to
the District Police Officer, Toba Tek Singh. The operative part of the said order reads as
follows:

"The grievance of the petitioner is that DPO T.T. Singh has not been investigating the
relevant case by himself and has made over the investigation of this case to DSP
Investigation respondent No. 2. It has been submitted by DSP respondent No.2 that he
has already brought it to the notice of DPO, T.T. Singh that relevant case is to be
investigated by him (DPO T.T. Singh). DPO T.T. Singh is directed to carry out the
investigation of the relevant case in compliance with the order of this court dated 27-5-
2004, otherwise legal action may be taken against him."

The orders dated 27-5-2004 and 5-7-2004 passed by the learned Sessions Judge, Toba
Tek Singh have been assailed by the petitioner before this Court through the above
mentioned writ petition. In the connected Writ Petition No. 14415 of 2004 the order dated
9-8-2004 passed by the learned Sessions Judge, Toba Tek Singh, in Writ Petition No.
17169 of 2004 the order dated 13-9-2004 passed boy the learned Additional Sessions
Judge, Lahore and in Writ Petition No. 16453 of 2004 the order dated 15-9-2004 passed
by the learned Sessions Judge, Hafizabad have been challenged before this Court.

Through the said impugned orders different ex-officio Justices of the Peace had
transferred investigation of the relevant criminal cases themselves when one party or the
other had felt dissatisfied with investigation of such cases. All these petitions have been
clubbed together for a consolidated hearing and we propose to decide the same together
through the present consolidated judgment. In view of some jurisprudential and legal
issues of public importance involved in these petitions the present Full Bench has been
constituted to render an authoritative pronouncement on all such issues and the related
subjects so as to remove the prevalent confusion in such respects and to provide guidance
to all concerned in these regards.

3. During the course of hearing of these writ petitions on 11-2-2005 we had framed the
following questions and had required the learned counsel. for the parties to address
arguments in respect of the same .so as to assist us in arriving at an appropriate decision
of these petitions:

(a) Looked at in historical and global perspective what is the role of a Justice of the Peace
in keeping the peace in the society, in maintenance of law and order and in the criminal
justice system, if any?.

(b) Whether in Pakistan a Justice of the Peace or an ex-officio Justice of the Peace
exercises judicial powers or his functions are merely administrative and ministerial in
nature and character?

(c) What, in the context of his jurisdiction under section 22-A(6), Cr.P.C., is the extent
and scope of direct interference by an ex officio Justice of the Peace in Pakistan with
investigation of a criminal case by the police?

(d) What, in the framework of criminal justice, are the general complaints against the
working of the police in the Province of the Punjab and what land of "directions"
can/should an ex-officio Justice of the Peace issue in respect of such complaints while
exercising his jurisdiction under section 22-A(6), Cr.P.C.?

(e) What are the remedies against non-compliance of directions issued by an ex-officio
Justice of the Peace under section 22-A(6), Cr.P.C.?

(f) Whether the orders passed by different ex-officio Justices of the Peace impugned
through the present and the connected writ petitions are legally sustainable or not?

4. Elaborate arguments have been addressed before us by the learned counsel for the
parties and the learned Additional Advocate-General, Punjab on these questions and some
supporting material has been produced by them in elucidation of their respective
submissions and contentions.

5. It has been argued by the learned counsel for .the petitioners that in our country a
Justice of the Peace is only to assist the police in maintaining peace in the locality and
under section 22-A(6), Cr.P.C. an ex-officio Justice of the Peace can only get the process
and procedure of the relevant law activated but he cannot supervise or superintend the
police by issuing binding commands to it in respect of investigation of a criminal case.

They have maintained in unison that an ex-officio Justice of the Peace cannot transfer
investigation of a criminal case on his own and he can only require the relevant police
authority to initiate or finalize the procedure provided for the purpose by Article 18(6) of
the Police Order, 2002. They have further argued that while issuing a direction to the
police in his capacity as an ex-officio Justice of the Peace under section 22-A(6), Cr.P.C.
a Sessions Judge or an Additional Sessions Judge does not functioning as a Court and that
the said jurisdiction is only administrative and ministerial in nature and character.

They have gone on to submit that after the recent introduction of section 22-A(6) in the
Code of Criminal Procedure, 1898 there is a lot of confusion prevailing among the legal
community as well as the ex-officio Justices of the Peace themselves regarding the true
nature and scope of the newly conferred jurisdiction under section 22-A(6), Cr.P.C. and
such confusion ought to be removed by this Court for the guidance of all concerned.

6. The learned counsel for the private respondents have maintained that the investigations
being conducted in the relevant criminal cases were unfair and partial and in that
backdrop the relevant ex-officio Justices of the Peace had felt persuaded to transfer the
investigations so as to ensure fairness of the same. They have submitted that the
impugned orders passed by the relevant ex-officio Justices of the Peace fostered the ends
of justice and, therefore, they are not liable to be interfered with by this Court. They have
claimed that under section 22-A(6), Cr.P.C. an ex-officio Justice of the Peace is well
within his jurisdiction to ensure that the course of investigation of a criminal case remains
fair and correct.

7. The learned Additional Advocate-General, Punjab has argued before us that by virtue
of his jurisdiction under section 22-A(6), Cr.P.C. an ex-officio Justice of the Peace can
issue appropriate directions to the police authorities concerned on the basis of complaints
regarding non-registration of a criminal case, transfer of investigation from one police
officer to another and neglect, failure or excess committed by a police authority in
relation to its functions and duties. He has, however, taken a categorical stand before us
that the directions to be issued by an ex-officio Justice of the Peace under section 22-
A(6), Cr.P.C. are to be directions to the concerned police authorities to attend to the
grievance of the complaining person in accordance with the relevant law, and through his
jurisdiction under section 22-A(6), Cr.P.C. an ex-officio Justice of the Peace cannot
arrogate to himself the power of, redressing of the actual grievance itself. According to
the learned Additional Advocate-General, under section 22-A(6), Cr.P.C. an ex-officio
Justice of the Peace is to perform the role of a facilitator and that of a bridge between the
complaining persons and the police authorities concerned and the jurisdiction under
section 22-A(6), Cr.P.C. does not allow an ex-officio Justice of the Peace to put on the
mantle of a higher police authority himself and to start exercising all those executive
powers himself which the relevant law has vested in the concerned police authorities. He
has also maintained that the jurisdiction of an ex-officio Justice of the Peace under
section 22-A(6), Cr.P.C. is an administrative jurisdiction and the directions issued in
exercise of such jurisdiction are not judicial in nature or character. With these
submissions the learned Additional Advocate-General has maintained that through the
orders impugned through the present writ petitions the learned Sessions Judges and
Additional Sessions Judges had issued directions which were beyond the pale of their
authority under section 22-A(6), Cr.P.C. and, therefore, the impugned orders are not
sustainable in law.

8. We have attended to the facts of these cases as well as the submissions made by the
learned counsel -for the parties and have also gone through the material referred to before
us with due scrutiny and consideration. In respect of question number (a) regarding the
historical and global perspective in respect of the role of a Justice of the Peace in keeping
the peace in the society, in maintenance of law and order and in the criminal justice
system, if any, we have been able to lay our hands on the following information and
material and, despite a lot of overlapping and repetition therein, we deem it advantageous
to reproduce the same here for facility of reference and consolidation of information:

Halsbury's Laws of England (Fourth Edition, Volume 29, published in 1979 by

Butterworths, London, UK):

"The name "Justice of the peace" was first given to the office of magistrate by the
Justices of the Peace Act, 1361.---

In ancient times the duty of conserving the peace lay primarily upon the holders of
certain offices, some of which were held by royal appointment and some by election.

Examples of the former were the Lord Chancellor, the Lord Steward, the Lord Marshall,
and the justices of the King's Bench, who had jurisdiction throughout the kingdom.

Justices of the Common Pleas and barons of the Exchequer were conservators within the
limits of their courts and justices of assize and goal delivery within the limits of their
commissions. Sheriffs and coroners were examples of elected officers who were peace
conservators within their counties and constables within their townships or hundreds.

There were also persons elected by the general body of freeholders of each county to act
as peace conservators for the county. Furthermore, there were conservators of the peace
by prescription and by tenure of land.

The process by which the ancient keepers of the peace with executive functions were
transformed into justices with judicial powers can be traced in the history of the
fourteenth century. In 1327 the King, who is "by his office and dignity royal the principal
conservator of the peace within his dominions", assumed the right of appointing all
conservators.

In 1344 it was enacted that "two or three of the best of reputation in the counties shall be
assigned keepers of the peace by the King's commission; and at what time need shall be,
the same, with other wise and learned in the law, shall be assigned by the King's
commission to hear and determine felonies and trespasses done against the peace in the
same counties, and to inflict punishment reasonably according to [law and reason, and]
the manner of the deed".

After the transformation of keepers of the peace into justices with judicial powers, other
statutes followed by which. the number and authority of justices were regulated. By the
Jurisdiction in Liberties Act, 1535 it was again enacted that no person or persons, of what
estate, degree or condition so-ever they be, should have any power or authority to make
justices of the peace, but that all such officers should be made by letters patent under the
King's Great Seal in the name and by the authority of the King and his heirs. The Act
contained a saving for the County Palatine of Lancaster, where the right of appointment is
vested in the Sovereign in right of the Duchy. This right, which has thug been vested in
the Crown, may not, without legislation to that end, be delegated to any other authority.

At the beginning of the twentieth century the law concerning justices of the peace was
derived from a number of statutes, some of them centuries old. The effect of legislation in
the middle years of this century was to simplify and consolidate this branch of the law
and subsequently to reform it notably by extending the powers of magistrates sitting in
magistrates' courts.

The appointment and instruction of justices, and the keeping of the supplemental list, are
regulated by the Administration of Justice Act, 1973, as are the appointment, retirement
and superannuation of stipendiary magistrates.

The Justices of the Peace Acts, 1949 and 1968 govern the residence qualification of
justices, disqualification, the size and chairmanship of benches and the administration of
magistrates' courts. The Administration of Justice Act, 1964 deals with the
indemnification of justices out of local funds.---

Justices of the peace for any commission area, other than stipendiary magistrates and ex
officio justices, are appointed on behalf and in the name of Her Majesty under the hand of
the Lord Chancellor or, in greater Manchester, Merseyside or Lancaster, the Chancellor
of the Duchy of Lancaster.---

The commission of the peace is the authority under which justices exercise their
jurisdiction. It is the commission which gives justices the ancient common law powers of
conservators of the peace in addition to the statutory powers more recently conferred. ---

Jowitt's Dictionary of English Law (Second Edition, Volume 1, published in 1977 by

Sweet & Maxwell Limited, London, UK):

"Justices of the Peace. Justices of the peace were first appointed by the statute 1327, 1
Edw. 3, st. 2, : c. 16. In England and Wales a commission of the peace is issued under the
Great Seal addressed generally, and not by name, to all such persons as may from time to
time hold office as justices of the peace for the commission area. The commission areas
are the metropolitan and non-metropolitan counties, the London commission areas and
the City of London. --- The form of the commission of the peace was settled by all the
judges in 1590 and continues with little alteration. Justices for any commission area
(other than stipendiary magistrates) are appointed on behalf of the Crown and in the name
of Her Majesty by instrument under the hand of the Lord Chancellor.---. In the counties
of Greater Manchester, Merseyside and Lancashire the appointments are made by the
Chancellor of the Duchy of Lancaster ---. The Lord Mayor and aldermen continue to be
ex-officio justices in the City of London---

The authority of justices of the peace is either ministerial or judicial. They are said to act
ministerially when, in the case of indictable offences, they merely initiate the proceedings
by issuing a warrant of apprehension, taking the depositions and committing for trial.
They act judicially when they exercise their summary jurisdiction, whether criminal or
civil. ---

By virtue of their commission, justices of the, peace have jurisdiction in all matters
relating to the preservation of the public peace; and in case of an actual or apprehended
breach of the peace within their own view, they may commit the offender without warrant
or information. Most commonly, however, their jurisdiction is exercised by binding over
persons to keep the peace. ---

Before a justice who has been appointed is at liberty to act he must take the oath of
allegiance and judicial oath in the form respectively prescribed.---

The property qualification of a justice of the peace required by the Justices Qualification
Acts, 1744 and 1785 was abolished by the Justices of the Peace Act, 1906. A clergyman is
not as a rule appointed if a layman is available.

Except under a direction by the Lord Chancellor a justice of the peace must reside in or
within fifteen miles of the area for which he is appointed. ---

The Justices of the Peace Act, 1968 abolished ex officio justices of the peace, lowered the
retiring age of justices and provided for the payment to justices of a financial loss
allowance: Apart from that justices of the peace act gratuitously, receiving no salary or
fee. ---

Women may be appointed justices of the peace. ---

The office of justice of the peace subsists during the pleasure of the Crown. A justice may
be removed from office by instrument under the hand of the Lord .Chancellor. The office
is also determinable (1) by express writ under the Great Seal; (2) by writ of supersedeas
(q.v.); (3) by accession to the office of sheriff during the year of shrievalty.

The duties of a justice of the peace are of a varied character. They are of four principal
kinds: (1) To commit offenders to trial before a judge and jury, upon being satisfied that
there is a prima facie case against them; (2) To try and punish summarily; (3) To sit with
the judge of the Crown Court on the hearing of appeals from magistrates' courts, on
proceedings on committal for sentence and in other cases on the direction of the Lord
Chancellor ---; (4) To deal with the licensing of places for the sale of intoxicating liquor,
and of persons to deal in game, etc. ---

The management of such administrative business as the licensing of theatres and the
levying of county rates, was transferred from the justices to county councils by the Local
Government Act, 1888, s. 3, as amended by the Local Government Act, 1933."

Encyclopaedia Britannica (Volume 13, published, in 1966 by Encyclopaedia Britannica

Inc., Chicago, USA):

"Justice of the Peace, in England, 'a magistrate appointed by special commission under
the. great seal to keep the peace within the jurisdiction for which he is appointed. Justices
for counties are appointed by the crown on the advice of the lord chancellor, with the
recommendation. of the lord lieutenant of the county. Justices for boroughs having
municipal corporations and separate commissions of the peace are appointed by the
crown, the lord chancellor adopting the recommendation of the town council, the local
advisory committee, or acting independently.

Apart from a small body of professional (stipendiary) magistrates, mainly in London and
large towns, J.Ps. are unpaid and have no professional legal qualification. For guidance
on law and on the rules of evidence, they rely on their salaried clerk. The latter must be
either a barrister of not less than 14 years' standing, or a solicitor of the supreme court, or
have served for not less than seven years as clerk to a metropolitan or stipendiary
magistrate, or have been attached to a metropolitan magistrate's court.

The jurisdiction of the petty sessional courts, in which the J.Ps. sit, is wide and
multifarious, embracing both criminal and civil work, and a number of matters, such as
licensing, which are administrative rather than strictly judicial and derive from the period
when the justices were often the only properly constituted local authority. The criminal
jurisdiction is of two types: (1) committing persons accused of the more serious offences
to trial at higher courts where there is a prima facie case for the prosecution; (2) hearing
and determining summarily the less serious charges. Magistrates may not impose a
sentence of more than . six months' imprisonment. Selected magistrates sit in juvenile
courts to deal with matters, by no means exclusively criminal charges, involving young
persons under the age of 17, and these courts have special rules. Of the civil jurisdiction,
other than that affecting children and young persons, that in matrimonial cases is the most
important.

In the United States, justices of the peace usually are elected, although sometimes they
are appointed by executive authority. They constitute the lowest of the state courts, and
their maximum award in civil cases is generally limited to about $300; in criminal
matters they may try only misdemeanours Ordinarily they may not impose a jail sentence
in criminal case if the person tried prefers to pay the fine imposed. Other duties and
powers commonly include the performance of marriage services, the issuance of warrants
for arrest, and the holding of inquests."

The New Encyclopaedia Britannica (15th Edition, Volume 6, published in 1994 by

Encyclopaedia Britannica, Inc., Chicago, USA):

"justice of the peace, in Anglo-American legal systems, a local magistrate empowered

chiefly to administer criminal or civil justice in minor cases. A justice of the peace may,
in some jurisdictions, also administer oaths and perform marriages.

In England and Wales a magistrate is appointed by the lord chancellor, on behalf of the
crown, to keep the peace within a specified district. The duties of the modern-day justices
of the peace, who preside in the magistrates' courts of England and Wales, evolved from
those first bestowed upon them under the Justice of the Peace Act of 1361. In essence, the
justices continue to deal mostly with minor criminal matters and continue to send more
serious cases to a higher court for disposition --- since 1971, to the Crown Court or any of
the courts that make up the High Court of Justice.

The modern justice of the peace in England and Wales, as formerly, is usually a lay
person. But each appointee now undergoes a training course in basic law and in the
administrative duties of the magistrates' court. On matters of law, advice is provided by a
clerk to the justice. Lay magistrates must number at least two to hear a case. Paid,
fulltime magistrates may hear cases alone. In some less serious criminal matters, a justice
of the peace may sit with a judge of the Crown Court.

In England and Wales there are some 28,500 justices of the peace, one-third of whom are
women. The rising case load of juvenile matters now takes a larger proportion of
magistrates' Court time. The justices who hear these cases, or rule on the care of children,
also take special courses in juvenile law.

In Australia the main function of the justice of the peace is to authenticate the execution
of documents.

United States,. justices of the peace are elected or appointed and sit on the lowest of the
state courts hearing minor civil matters and petty criminal cases, usually misdemeanours.
They officiate at weddings, issue arrest warrants, deal with traffic offences, and hold
inquests."

Corpus Juris Secundum (Volume 51, published in 1967 by The American Law Book
Company, Brooklyn, N.Y., USA):

"A justice of the peace has been defined as a judicial officer of inferior rank, holding a
court not of record, and usually having civil jurisdiction of limited nature, for the trial of
minor cases, to an extent prescribed by statute, and for the conservation of the peace and
the preliminary hearing of criminal complaints and the commitment of offenders.---

The office of justice of the peace is one of great antiquity, and his jurisdiction has varied
from time to time, depending either on the terms of commission or particular statutes. In
England prior to the act of I Edward III, there were no justices, ec nominee, but there
existed a class of officers known as conservators or wardens of the peace, in addition to
which were certain other common-law officers, such as sheriffs, constable and coroners,
who by virtue of their office had the powers t conservators. The `act of I Edward III
chapter 16 directed the certain persons be assigned or appointed in each county ;
conservators or wardens of the peace; and from this time peat officers were appointed and
commissioned by the King. However, neither the officers designated by this act nor those
exercising the same powers prior thereto had any judicial functions, their powers being
purely ministerial. Subsequent statutes enacted during the reign of Edward III conferred
judicial powers on persons appointed as conservators, and the appellation of "justices of
the peace" was given them. Gradually their powers were still further enlarged, and they
came to constitute a very important agency in the administration of local Government. It
does not appear, however, that they had any civil jurisdiction.--

In the United States the powers and duties of such officers have been so enlarged and so
fully defined by the statute of the various states that they are in effect wholly statutory;
and especially this is true as to the jurisdiction of justices in civil causes, which is of
purely statutory origin. So, the office of justice of the peace is subject to limitations in its
scope and perquisites, and to the imposition of conditions."

The Encyclopaedia Americana (International Edition published in 1997 by Grolier

Incorporated, International Headquarters, Danbury, Connecticut, USA):

"Justice of the Peace, an official who has jurisdiction over the trial of small civil suits and
of criminal cases involving minor offences. His or her judicial power extends to actions
based on contract or on the taking, detaining, or injuring of personal property, provided in
both types of cases that the amount involved is within a defined limit. In general, justices
of the peace are prohibited from trying cases where the title to land is involved. Their
jurisdiction over criminal cases is similarly limited, being determined by the maximum
punishment that can be imposed in a particular case. In addition to their authority to try
cases, justices of the peace have other powers and duties, including the preliminary
examination of persons' accused of crime, the holding of inquests, the issuing of search
warrants, and the solemnization of marriages. The primary functions of justices of the
peace are judicial, but holders of the office also frequently act in an administrative
capacity. The number of justices for a given territory, such as a town or precinct, is
determined by constitutional or - statutory provisions.

Justices are generally elected by the vote of the people but they are sometimes appointed.
The origin of the office can be traced back to England in the 13th century. At that time
officials now known as justices of the peace were called keepers, or conservators, of the
peace, and statutory provision was made for their appointment by the crown in each
county. In the 14th century they became known a> justices of the peace, in recognition of
their increased judicial powers. Thereafter their police, judicial, and administrative duties
were considerably enlarged by the legislature. During the 16th, 17th, and 18th centuries
justices of the peace became virtual rulers of the counties. Toward the end of the 19 th
century, however, most of their administrative powers were transferred by statute to
elected councils, although they retained their judicial powers.

In what is now the United States the office of justice of the peace existed from earliest
colonial times. In the 20th century this office, which is provided for by state constitutions
and statutes, is connected with the judicial departments of state governments."

American Jurisprudence (Second Edition, Volume 47, published in 1969 by The

Lawyers Co-operative Publishing Company, Rochester, USA):

"In the early judicial system of England, justices of the peace were mere conservators of
the peace, as the name implies, exercising no judicial functions. Eventually, however,
they were invested with judicial powers, and the office of justice of the peace was a part
of the legal system brought here by the English colonists. In most states, the office is
provided for by the Constitution and general laws, and is regarded as of importance to the
people at large, since it opens the door of justice near their homes; and not only affords
an inexpensive and speedy remedy for minor grievances as to rights of property, but also
renders substantial aid in prevention and punishment of crime.
Today, the office of justice of the peace is a public office connected with the judicial
department of the state government, and a justice of the peace is, to a certain extent, a
judicial officer. Most of his powers and duties are of a judicial nature, although he also
acts in many instances in an administrative capacity.---

Justices bf the peace are generally elected by the people although provision is also made,
in some instances, for their selection by appointment.---

Justices of the peace --- are not in a strict sense judges, since their duties are
administrative as well as judicial.---

It is sometimes provided that the incumbent of some other public office shall be ex-
officio a justice of the peace.

The jurisdiction of justices of the peace as judicial officers is the result of constitutional
or statutory provision. The governing provision usually limits not only the class of cases
that ;justices may hear and determine, but also the procedure they must observe.

Although a liberal construction should be given to provisions that relate to the

jurisdiction of justices of the peace, with a view aimed at the promotion of justice, the
justices have and can exercise no powers except those conferred. Accordingly, their acts
in a case over which they do not have jurisdiction are, in general, void, notwithstanding
that the attempted exercise of jurisdiction was made in good faith.---

It has been broadly stated that a justice of the peace has no jurisdiction of any action
unknown at common law and not authorized by statute. And, as a rule, a court of a justice
of the peace does not have equitable jurisdiction.---

A writ of certiorari has been held a proper remedy to review the judgment of a justice of
the peace.---

The powers and duties of justices --- (of the peace in the United States of America at
present include) the preliminary examination of persons accused of crime, the holding of
inquests, the appointment of special constables, the issuance of search warrants, the
imposition of punishment for contempt, the taking of acknowledgments and
solemnization of marriages.---

In civil matters a justice of the peace has been conferred the jurisdiction in matters
involving actions based upon contracts, tort, recovery of exemplary damages, attachment
and garnishment but in most of such matters the jurisdiction has been limited to a
maximum dollar value.

The jurisdiction of justices of the peace in criminal proceedings is generally prescribed

and regulated by constitutional and statutory provisions. The authority of justices of the
peace to try criminal matters is often limited to minor offences, notwithstanding that their
criminal jurisdiction as committing magistrates may extend to crimes of higher grades."

Words and Phrases (Permanent Edition, published in 1967 by West Publishing

Company, Minn., USA):

"The true conception indicated by the term "justice of the peace", as disclosed by our
Constitution and statutes, is that of an officer having both judicial and political functions
--- judicial, in that he holds a court and decides matters of litigation arising between
parties; political, in that he is a member of the quarterly county court, which is the
governing agency or legislative body of the county. ---

A "justice of the peace" is defined to be a public officer invested with judicial powers for
the purpose of preventing breaches of the peace and bringing to punishment those who
have violated the law. Their common-law powers relate exclusively to matters affecting
the public peace, and to the arrest and punishment of wrongdoers. ---

The origin of the office of justice of the peace is stated by' Blackstone in 1 Comm. 349:
"The common law hath ever had a special care and regard for the conservation of the
peace, for peace is the very end and foundation of civil society; and therefore, before the
present constitution of justices was invented, there were peculiar officers appointed by
the common law for the maintenance of the public peace. Of these some had and still
have this power annexed to other offices which they hold; others had it merely by itself,
and were thence named `keepers of the peace'. Those that were so virtue officer, still
continue; but the latter sort are superseded by the modern justices." ---

At common law `justices of the peace' were merely conservators or keepers of the
peace.---

The original understanding of the official designation "justices of the peace" semis to
have been that they were conservators of the peace. Before they had justices of the peace
in England there was a class of officers known as "conservators of the peace". In the
reign of Edward the Third an act of Parliament ordained "that every shire of the realm
good men and lawful, which were no, maintainers of evil nor barrators on the county,
should be assigned to keep the peace, to repress all intention of uproar and force even in
the first seed thereof and before it should grow up to any offer of danger"--- The statute
referred to gave to justices of the peace the common-law. powers which conservators had
exercised, and subsequent acts greatly enlarged them, but they have not, as is held in the
English books, any jurisdiction save that which statutes give them. ---

Justices of the peace have been 'known to the common law of England for a century and a
half before America was discovered. They were in their original institution mere
conservators of the peace, exercising no judicial function. It is said in 3 Burn, J.P., 19 th
Edn., p. 4, that by the statute of 1 Edw. III, which is the first statute that ordains the
assignment of justices of the peace by the King's commission, they had no other power
but only to keep the peace. But from time to time their powers were enlarged, and they
came to constitute a very important agency in the administration of local government in
England. They discharged a great variety of duties connected with the support of the
poor, the reparation of the highways, the imposition and levying of parochial rates, and
other local affairs. They were invested with judicial powers for the first time, it seems, by
the statute of 34 Edw. III, c. 1, which gave them power to try felonies, but then only when
two or more acted together, and not singly; and it is said by Blackstone (Volume 1, p.
349) they then acquired the more honourable appellation of `justices'. In England justices
of the peace had never exercised jurisdiction over civil cases. The office of justices of
peace was brought to America by the English colonists. From the earliest colonial period
it has existed in America. Justices of the peace in America, as in England, have been
invested with various and important functions connected with local administration, quite
independent of their judicial authority. It is important to notice that the judicial function
exercised by justices of the peace was a graft upon their original authority, and that the
enlargement of their powers has not been in this direction alone, but that by gradual
accretion they have come to constitute a most important factor in the corporate
administrative life in towns and counties."

Grolier Encyclopaedia of Knowledge (published in 1993 by Grolier Incorporated,

Danbury, Connecticut, USA):

"A justice of the peace is a local magistrate with limited judicial power. Justices of the
peace are usually elected officials in the United States, although in some states they are
appointed. They usually have the power to try minor criminal cases and civil cases
involving small amounts of money. Their other duties include issuing arrest and search
warrants, holding preliminary hearings in criminal cases, holding inquests, and
performing marriage ceremonies. The office was created in 14th century England, where
subsequent justices of the peace were powerful agents of the King, responsible for
keeping the peace in each county. By the end of the 19th century they had lost their
administrative (but not judicial) authority."

Collier's Encyclopaedia (Volume 13, published in 1993 by P. F. Collier, New York, N.Y.,
USA):

"JUSTICE OF THE PEACE, a local judicial tribunal of limited jurisdiction which

stands at the bottom of the U.S. system of state courts. Developed as a court of first
instance in medieval England, this office has had a rich and varied history. Transplanted
to North America in colonial days, it has been widely used, particularly during the
simpler, agricultural phase of development, when limited transportation facilities made
quite clear the need for a court close to every man's door that could settle disputes
expeditiously, economically, and effectively. With increasing industrialization and
concentration of population in cities, the office has tended to be supplemented by the
mayor's court, the police court, and the municipal courts. Originally organized to conform
to a theory of local self-government, which required the popular election of all offices
and provided compensation for them by a fee system, the office has frequently been held
by a man of the neighborhood without formal legal training who served during his spare
time. While this system met the needs of pioneer days, it is not viewed as satisfactory for
an urban society. But the office is still employed as a court of limited and inferior
jurisdiction in civil and criminal cases. In criminal cases its jurisdiction is usually limited
to misdemeanours and to preliminary hearings for more serious offences. In civil cases its
jurisdiction is confined to disputes involving very small amounts. Its jurisdiction in all
cases is usually limited by statute, and it does not constitute a court of record."

The Law Lexicon of British India (published in 1940 by The Madras Law Journal
office, Mylapore, India):

"A justice of the peace is a judicial officer of inferior rank, holding a court, and having
usually civil jurisdiction of a limited nature, for the trial of minor cases, to an extent
prescribed by special or general statutes, and for the conservation of the peace and the
preliminary hearing of criminal complaints and the commitment of offenders; a judicial
officer of special and limited jurisdiction, both civil and criminal. In English law justices
of the peace are judges of record appointed by the crown to the justices within a certain
district for the conservation of the peace, and for the execution of the divers things,
comprehended within their commission and within divers statutes, committed to their
charge.

Justice of the peace is an inferior magistrate appointed by special commission under the
Great Seal to keep the peace within the county, borough, or liberty for which he is
appointed. "The whole Christian world", says Lord Coke, "hath not the like office as
justice of the peace, if duly executed".

A `justice of the peace' is defined to be a public officer invested with judicial powers for
the purpose of preventing breaches of the peace and bringing to punishment those who
have violated the law."

Venkataramaiya's Law Lexicon with Legal Maxims (Second Edition, published in

1996 by Law Publishers (India) Private Limited, Allahabad, India)

"Justice of the Peace. Person who by appointment is a justice within a certain district for
the conservation of the peace and for the execution of other prescribed duties; he may act
ministerially (e.g. by issuing a warrant, or in the preliminary investigation of indictable
offences), and in civil summary proceedings."

K. J. Aiyar's Judicial Dictionary (Eleventh Edition, published in 1997 by The Law

Book Company (Private) Limited, Allahabad, India):

"Justice of the Peace. High placed officials by virtue of their offices or private men
appointed by special commission from the State Government for keeping the peace and
to inquire into and determine felonies and other misdemeanours."

Law Terms & Phrases Judicially Interpreted with Legal Maxims and Legal Words
and Phrases in ordinary usage (by Sardar Muhammad Iqbal Khan Mokal, published in
1996 by PLD Publishers, Lahore, Pakistan):

"Justice of the peace. High placed officials by virtue of their offices or private men
appointed by special commission from the state Government for keeping the peace and to
inquire into and determine felonies and other misdemeanours."

Hand Book of Legal Terms & Phrases (by M. Ilyas Khan, published by PLD
Publishers, Lahore in 1994):
"Justice of peace.-- Generally abbreviated as J.P., it is a person appointed by the State
within a certain district for the conservation of peace and for certain other duties
especially empowered to perform. "

Words and Phrases Legally Defined (Second Edition, published in 1969 by

Butterworths, London, UK):

"The name "justice of the peace" was first given to the office of magistrate by the Justices
of the Peace Act, 1361. -------"

9. From the information and material referred to above it emerges that the concept of a
Justice of the Peace has evolved and developed over the last many centuries; it had
originated in England and had been introduced by the British colonists in some of their
colonies; the original role of a Justice of the Peace was conservation of the peace within
the area of his jurisdiction through administrative and ministerial measures but gradually
his role was enlarged in some countries to include a minor judicial role qua summary trial
of petty civil and criminal cases; and every enlargement of his role had been achieved
through express legislation. It is quite clear that beyond the express authority, both
administrative and judicial, conferred upon him by a statute a Justice of the Peace does
not possess any implied or inherent jurisdiction to dispense justice among the people in
his local area.

10. During its rule over the Indo-Pak sub-continent the British colonists had also
introduced the concept of Justices of the Peace in the local system of governance and
conservation of the peace. However, with almost simultaneous introduction of an
elaborate system of hierarchy of Magistrates the role of Justices of the Peace never
assumed any significant importance in the Indo-Pak sub-continent and Justices of the
Peace were never conferred any judicial power. Although since their original induction in
the system some additional powers have been bestowed upon Justices of the Peace from
time to time yet their role essentially remains restricted so far to conservation of the
peace and in case of breach of the peace their role ends by apprehending the culprit, if
possible, and by reporting the breach of the peace to the police. It can, thus, be observed
without any fear of contradiction that at least in the context of Pakistan the role of a
Justice of the Peace at the present juncture in our history is primarily of rendering
assistance to the police in the matters of keeping the peace and, in case of breach of the
peace, apprehending the culprit and rendering assistance to the police in investigation of
the crime. On November 21, 2002 ex-officio Justices of the Peace in Pakistan were
conferred an additional role through promulgation of the Criminal Procedure (Third
Amendment) Ordinance (Federal Ordinance No. CXXXI) of 2002 and this role was in
respect of entertaining complaints and issuance of appropriate directions to the police
authorities concerned regarding registration of criminal cases, transfer of investigation of
criminal cases and in respect of neglect, failure or excess committed by a police authority
in relation to its functions and duties. These and other roles of a Justice of the Peace and
an ex-officio Justice of the Peace in our country are evident from the following
provisions of the Code of Criminal Procedure, 1898 (commonly abbreviated as Cr.P.C.):

Section 22, Cr.P.C.:

"A Provincial Government so far as regards the territories subject to its administration
may by notification in the official Gazette, appoint such persons resident within Pakistan
and not being the subjects of any foreign State as it thinks fit to be Justices of the Peace
within and for the local area mentioned in such notification."

Section 22, Cr.P.C. (Punjab amendment):

"Appointment of Justices of the Peace. The Provincial Government may, by

notification in the official Gazette, appoint for such period as may be specified in the
notification, and subject to such rules as may be made by it any person who is a citizen of
Pakistan and as to whose integrity and suitability it is satisfied, to be a Justice of the
Peace for a local area to be specified in. the notification, and more than one Justice of the
Peace may be appointed for the same local area."

Section 22-A, Cr.P.C.:

"Powers of Justice of the Peace. (1) A Justice of the Peace for any local area shall, for
the purpose of making an arrest, have within such area all the powers of a police officer
referred to in section 54 and an officer in charge of a police station referred to in section
55.

(2) A Justice of the Peace making an arrest in exercise of any powers under subsection (1)
shall, forthwith, take or cause to be taken the person arrested before the officer in charge
of the, nearest police station and furnish such officer with a report as to the circumstances
of the arrest and such officer shall thereupon re-arrest the person.

(3) A Justice of the Peace for any local area shall have powers, within such area, to call
upon any member of the police force on duty to aid him:

(a) in taking or preventing the escape of any person who has participated in the
commission of any cognizable offence of against whom a reasonable complaint has been
made or credible information has been received or a reasonable suspicion exists of his
having so participated; and

(b) in the prevention of crime in general and, in particular, in the prevention of a breach
of the peace or a disturbance of the public tranquility.

(4) Where a member of the police force on duty has been called upon to render aid under
subsection (3), such call shall be deemed to have been made by a competent authority.

(5) A Justice of the Peace for any local area may, in accordance with such rules as may be
made by the Provincial Government:

(a) issue a certificate as to the identity of any person residing within such area, or

(b) verify any document brought before him by any such person, or

(c) attest any such document required by or under any law for the time being in force to
be attested by a Magistrate, and until the contrary is proved, any certificate so issued shall
be presumed to be correct and any document so verified shall be deemed to be duly
verified, and any document so attested shall be deemed to have been as fully attested as if
he had been a Magistrate.

(6) An ex-officio Justice of the 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 22-B, Cr.P.C.:

"Duties of Justices of the peace. Subject to such rules as may be made by the Provincial
Government, every Justice of the Peace for any local area shall, (a) on receipt of
information of the occurrence of any incident involving a breach of the peace, or of the
commission of any offence within such local area, forthwith make inquiries into the
matter and report in writing the result of his inquiries to the nearest

Magistrate and to officer in charge of the nearest police station;

(b) if the offence referred to in clause (a) is a cognizable offence, also prevent. The
removal of any thing from, or the interference in any way with, the place of occurrence of
the offence;

(c) when so required in writing by a police, officer making an investigation under Chapter
XIV in respect of any offence committed within such local area:

(i) render all assistance to the police officer making such an investigation;
(ii) record any statement made under expectation of death by a person in respect of whom
a crime is believed to have been committed."

Section 25 Cr.P.C.:

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

11. The above mentioned provisions of the Code of Criminal Procedure, 1898 show that
the roles statutorily defined in Pakistan for a Justice of the Peace are, by and large, as
follows:

A Justice of the Peace in Pakistan has the powers

(a) to make an arrest in circumstances enumerated in sections 54 and 55, Cr.P.C. and to
hand over custody of the arrested person to the officer in charge of the nearest Police
Station;

(b) to call upon any member of the police force an duty to aid him in arresting or
preventing the escape of a person involved in commission of a cognizable offence;

(c) to call upon any member of the police force on duty to aid him in the prevention of
crime, breach of the peace or disturbance of the public tranquility; and

(d) to issue a certificate of identification of a person, to verify any document and to attest
any document.

An ex-officio Justice of the Peace in Pakistan. (i.e., Sessions Judges and nominated
Additional Sessions Judges in the relevant Districts under section 25, Cr.P.C.) has the
power to issue appropriate directions to the police authorities concerned on a complaint
regarding non-registration of criminal case, transfer of investigation from one police
officer to another and neglect, failure or excess committed by a police authority in
relation to its functions and duties.

The duties of a Justice of the Peace in Pakistan are

(a) to make inquiries and to report in writing to the nearest Magistrate and to the officer
in charge of the nearest police station whenever he receives information of an occurrence
opt any incident involving a breach of the peace or of commission of any offence within
his local area;

(b) if the information received by him is in respect of commission of a cognizable offence

then to also prevent any interference with the place of occurrence or removal of anything
therefrom;

(c) to render assistance to a police officer, if so required in writing by him, making an

investigation in respect of any offence within the relevant local area; and

(d) to record any statement, if so required in writing by a police officer making an

investigation in respect of any offence within the relevant local area, made under
expectation of death by a person in respect of whom a crime is believed to have been
committed.

The learned Additional Advocate-General, Punjab as well as the learned counsel for the
parties in the present writ petitions have not been able to refer to any other material
before us showing that a Justice of the Peace or an ex-officio Justice of the Peace in
Pakistan has any other power or duty besides those alluded to by us above.

12. Adverting now to question number (b) framed by us as to whether in Pakistan a

Justice of the Peace or an. ex-officio Justice of the Peace exercises judicial powers or his
functions are merely administrative and ministerial in nature and character we have
already observed above in our discussion in respect of question number (a) that the
powers and duties of a Justice of the Peace or an ex-officio Justice of the Peace in
Pakistan as provided in sections 22-A and 22-B, Cr.P.C. do not involve any jurisdiction
which can be termed as judicial in nature or character. In this context the role of a Justice
of the Peace or an ex-officio Justice of the Peace in Pakistan is sharply different from that
now enjoyed by their counterparts in the United Kingdom and the United States of
America where some judicial role regarding summary trial of petty civil and criminal
cases has been conferred upon the Justices of the Peace through legislative intervention.

That surely is not the case in Pakistan where no statute confers any judicial power upon a
Justice of the Peace or an ex-officio Justice of the Peace. We can, therefore, safely hold
that functions to be performed by a Justice of the Peace or an ex officio Justice of the
Peace in Pakistan are merely administrative and ministerial in nature and character. We
feel fortified in so holding by the provisions of section 6, Cr.P.C. which categorizes the
classes of criminal courts and Magistrates in Pakistan and a Justice of the Peace or an ex-
officio

Justice of the Peace is not included in any such class of courts or Magistrates. Apart from
that sections 28. and 29, Cr.P.C. specify as to which courts are to try which offences and
in those sections too a Justice of the Peace or an ex-officio Justice of the Peace does not
figure at all. In the case of Pir Abdul Qayyum Shah v. S.H.O. and four others [2005
PCr.LJ 357] a learned Judge-in-Chamber of this Court has already held that a revision
petition is not competent against an order, passed by an ex-officio Justice of the Peace
under section 22-A(6), Cr. P.C. because the jurisdiction conferred under the said
provision of law is administrative in nature and not judicial and, thus, not amenable to
revisional jurisdiction of this Court.

13. Through question number (c) mentioned above we wanted to explore the extent and
scope of direct interference by an ex-officio Justice of the Peace under section 22-A(6),
Cr.P.C. with investigation of a criminal case by the police. We have already concluded
above that a Justice of the Peace or an ex-officio Justice of the Peace in Pakistan
performs functions which are administrative and ministerial in nature and not judicial in
character. The case-law referred to by us hereinbelow would show that even the superior
courts of Pakistan having constitutional, legal, supervisory and inherent judicial
jurisdiction have consistently and consciously refrained from directly interfering with
investigation of a criminal case by the police and, therefore, it is but obvious that Justices
of the Peace or ex-officio Justices of the Peace possessing only administrative and
ministerial powers should be twice shy of such direct interference. The following
precedent cases may advantageously be referred to in this context:

Emperor v. Khwaja Nazir Ahmad [AIR (32) 1945 Privy Council 18]:

"In their Lordships' opinion however; the more serious aspect of the case is to be found in
the resultant interference by the Court with the duties of the police. Just as it is essential
that every one accused of a crime should have free access to a Court of justice so that he
may be duly acquitted if found not guilty of the offence with which he has been charged,
so it is of the utmost importance that the judiciary should not interfere with the police in
matters which are within their province and into which the law imposes upon there the
duty of enquiry. 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 S.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 begun
when a charge is preferred before it and not until then."

Federation of Pakistan v. Shah Muhammad Khan and others [PLD 1960 Supreme Court
(Pak.) 85]:

"No law or regulation gives a complainant a vested right, which can be enforced by a writ
to have his complaint investigated by a particular branch of the Police, and the law gives
powers to the Central Government by a general or special order to take away the
jurisdiction and powers of' investigation and arrest of the Special Police Establishment by
the Proviso to section 2(2) of the Ordinance referred to above [Pakistan Special Police
Establishment Ordinance (VIII of 1948)]. The respondent No. 1, therefore, had no right
to maintain a petition for writ and the High Court was in error in issuing a direction on
such a petition. The order of the High Court is, therefore, set aside and this appeal is
allowed." Shahnaz Begum v The Hon'ble Judges of the High Court of Sind and
Baluchistan and another [PLD 1971 Supreme Court 677]:

"We are in respectful agreement with this view and have no difficulty at all in holding
that the word "direct" in clause 22 [of the Letters Patent of the High Courts of West
Pakistan] also bears the same sense and, therefore, the necessity for snaking a direction
can only arise in a case where no investigation has started. The power to issue a direction
cannot be invoked where investigation has already commenced in accordance with law
by authorities competent to investigate under the Criminal Procedure Code nor does the
power to "direct" include the power to "transfer" from one competent investigating
agency to another. This would be unwanted interference with the investigation which has
been disapproved of by the Judicial Committee of the Privy Council in the case of
Emperor v. Kh. Nazir Ahmad. "

Muhammad Saeed Azhar v. Martial Law Administrator, Punjab and others [1979 SCMR
484]:

"The learned Judge in the High Court also appears to us to be right in taking the view that
the question of the alleged mala fide on the part of the local police also requires factual
investigation, which could not be undertaken by the High Court in the exercise of its writ
jurisdiction."

Malik Shaukat Ali Dogar and 12 others v. Ghulam Qasim Khan Khakwani and others
[PLD 1994 Supreme Court 281]:

"As regards the abiding control over the investigation which was sought to be exercised
by mandating periodical reports to be submitted on the progress of investigation, we were
in doubt in view of the precedent law laid down by this Court. To that limited extent, we
had directed notice to issue to the respondents "whether such supervision and control
over investigation and directions pertaining to it is permissible in view of the
observations made by this Court in Shahnaz Begum v. The Hon'ble Judges of the High
Court of Sindh and Balochistan and another PLD 1971 SC 677".

In response to our notice, Syed Niaz Ali Shah, Additional Advocate-General has appeared
and submitted that though the registration of the case on the directions of the High Court
could not be seriously objected to, the continued control over investigation before challan
was submitted was something which the law and the, precedent of this Court do not
permit. We have converted these petitions into appeals.---

As regards the nature of the continued control exercised by the Court over the
investigation---

We consider that the t continued control over the investigation exercised by the Court as
in this case was prejudicial to the accused and detrimental to the fairness of the procedure
apart from being without jurisdiction."

Brig. (Retd.) Imtiaz Ahmad v. Government of Pakistan through Secretary, Interior

Division, Islamabad and 2 others [1994 SCMR 2142]:

"The significance of the above-quoted observations lies in the fact that one of the
declarations sought by the petitioner was to direct the Government "to place all
incriminating material before the High Court to enable it to exercise judicial review to
ensure that the criminal proceedings are not being initiated for reasons and purposes
extraneous to statute". In other words what the petitioner wanted the High Court to do
was to assume the role of Investigator. This could obviously not be done, for the authority
to register and investigate a criminal case in law vests in the police and not in Court. We
must hold, therefore, that the learned judges in the High Court were entirely justified in
not assuming that role."

Anwar Ahmad Khan v. The State and another [1996 SCMR 24]:
"The orders sought to be quashed are nothing but an effort on the part of the learned
Judges to obtain information and ensure that inquiry is held and report is submitted by the
inquiry officers in proper time. It. has been observed that in cases involving offences of
serious and sensational nature, often inquiry officers are appointed leading to no result at
all. The proceedings suffer from delays, laches and unnecessary adjournments and
noncooperation

by the officers. and public alike. When the case under investigations is under judicial
scrutiny by a superior Court, it can direct concerned authorities to finalize their reports
within a reasonable time. The High Court in passing the impugned order did not interfere
with the investigation. It merely required the concerned officer to be more alert, vigilant,
prompt and dutiful. There had been complaint of harassment by the police of the relations
of the deceased forcing them to compound. If the matter had been allowed to be delayed,
such tactics may have succeeded.

The learned counsel's contention that the High Court has been supervising the inquiry is
completely misconceived. The High Court had given time to the Advocate-General to get
information about the progress made by the inquiry officer appointed by the Government.

It also noted how far the Investigating Officer was at variance with the opinion of the
judicial inquiries and whether any action was taken in pursuance of the judicial inquiry, if
not, for what reason. The learned counsel has referred to Shahnaz Begum v. The
Honourable Judges of High Court of Sindh and Baluchistan PLD 1971 Supreme Court
677. The facts of that case were completely different and the principles laid down there
do not apply in the present case.---

It is well-settled principle that where investigation is mala fide or without jurisdiction, the
High Court in exercise of its Constitution jurisdiction under Article 199 is competent to
correct such proceedings and pass necessary order to ensure justice and fairplay. The
investigating authorities do not have the entire and total authority of running investigation
according to their whims.

The contention that the High Court has been directing to register criminal case against
Anwar Ahmad; S.H.O., is not correct. There is no such direction in any of the orders
passed by the learned Judges.---Such querry made by the Court cannot tantamount to be a
direction to arrest and prosecute the petitioner.---

In the case of Muhammad Latif v. Sharifan Bibi and another [1998 SCMR 666] a
direction was issued by this Court to the Senior Superintendent of Police, Sheikhupura to
register a criminal case against a police officer for falsely involving a citizen in an
entirely cooked up criminal case and to get such a case investigated by a gazetted police
officer. The Hon'ble Supreme Court, of Pakistan upheld the said order of this Court while
observing that:

"The apprehensions expressed on behalf 'of the petitioner are unfounded. It is true that it
is not appropriate for the High Court to start parallel enquiry at investigation stage. Here;
the impugned order passed by the High Court for investigation of the. case by a gazetted
Police Officer did not amount to interference with the investigation. The High. Court in
exercise of its Constitutional jurisdiction was right in issuing the aforesaid directions in
order to ensure justice and fairplay, particularly, in view of the subsequent statement
made by the D.S.P. that a false case was registered against the detenu Amjad with ulterior
motive."

Muhammad Ali and 12 others v. District Magistrate, Faisalabad, and 3 others [PLD 1978
Lahore 1325]:

"It has often been stressed by superior Courts that the police investigation in the crime
would not be interfered with or stifled by superior Courts in extraordinary jurisdiction,
either under section 561-A; Cr.P.C:, or under writ jurisdiction. --- Repeated interference
through orders of various types in writ jurisdiction would, on the one hand, bring the
investigating agencies and trial agencies to a grinding halt; on the other, would also choke
the normal relief giving channels of the superior Courts. A simple exercise of a
visualization of accused and complainants, in all types of cases, coming to the High Court
for correction in writ jurisdiction, at almost all conceivable stages (a discriminatory
reaction of shutting out cases of other sections of society, involving violence, property,
etc., as examples, would not then be possible) would present a colossal problem to tackle
with, which could not be the intention of the law-maker. Fourthly, the machinery for
tracing and collection of evidence in crimes available with superior Courts cannot be a
safe substitution for mass of ordinary laws/rules in this behalf applied at the regular
investigation and trial of crimes. And lastly, without the necessary machinery and
requisite time for holding detailed enquiries, it would be hazardous exercise for a superior
Court to take upon itself the duty to investigate such like matters in the world of crime
and criminals. Without doing so, it would be almost impossible to interfere with the
police actions and investigations in writ jurisdiction. That is why after giving due caution,
their Lordships of the Supreme Court used extremely guarded language in imagining a
possibility and that too, only very rare, for such an action, in Shahnaz Begum's case (PLD
1971 SC 677)."

Nasir Ali v. Inspector-General of Police, Punjab, Lahore and 8 others [PLJ 2000 Lahore
865)

"I cannot help observing that this petition is diabolically misconceived. It is not the
function of this Court to sit in judgment over the findings or conclusions of the
Investigating Officers of criminal cases. It had been settled over half a century ago that
while investigating a crime reported to it the police performs a statutory duty and its
operational and investigational independence in that respect is worthy of as much sanctity
and respect as the independence of the judiciary in its adjudicatory domain. A reference
in this respect may be made to the case of Emperor v. Khawaja Nazir Ahmad (AIR (32)
1945 Privy Council 18). In pursuance of that principle this Court is generally slow in
interfering with the police investigation. No exceptional circumstance has been pointed
out in this case so as to warrant a departure from the said beaten track."

Thus, if despite possessing constitutional, legal, supervisory and inherent judicial powers
the superior courts of this country have generally considered it imprudent and ill-advised
to directly interfere with investigation of a crime by the police then it appears to be
nothing but stating the obvious that a Justice of the Peace or an ex-officio Justice of the
Peace possessing merely administrative and ministerial powers should all the more be
reluctant and hesitant in issuing directions to the police as to how and by whom a
criminal case is to be investigated. It must not be lost sight of that a Justice of the Peace
in Pakistan has no judicial powers and an ex-officio Justice of the Peace is a Justice of the
Peace only by virtue of the office that he already holds and his powers as such do not
become judicial simply because the other office already held by him happens to be a
judicial office. In this view of the matter the learned Additional Advocate-General,
Punjab has appeared to us to be entirely justified in maintaining that by virtue of his
jurisdiction under section 22-A(6), Cr.P.C. an ex-officio Justice of the Peace can issue
appropriate directions to the police authorities concerned on the basis of complaints
regarding non-registration of a criminal case, transfer of investigation from one police
officer to another and neglect, failure or excess committed by a police authority in
relation to its functions and duties but the directions to be issued by an ex-officio Justice
of the Peace under section 22-A(6), Cr.P.C. are to be directions to the concerned police
authorities to attend to the grievance of the complaining person in accordance with the
relevant law and through the jurisdiction under section 22-A(6), Cr.P.C. an ex-officio
Justice of the Peace cannot arrogate to himself the power of redressing the actual
grievance itself. An exception to this can be visualized by us 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 the Peace to the concerned police
officer to do the needful. The learned Additional Advocate-General has also been found
by us to be quite correct in maintaining that under section 22-A(6), Cr.P.C. an ex-officio
Justice of the Peace is to perform the role of a facilitator and that of a bridge or a conduit
between the complaining persons and the police authorities concerned and the
jurisdiction under section 22-A(6), Cr.P.C. does not allow an ex-officio Justice of the
Peace to put on the mantle of a higher police authority himself, and to start exercising all
those executive powers himself which the relevant law has vested in the concerned police
authorities. This interpretation appears to us to be a correct statement of the law as the
same is in accord with the ratio decidendi of the above mentioned precedent cases besides
being a safe and prudent approach vis-a-vis the well entrenched constitutional doctrine of
separation of powers. We may add that if in their capacity as ex-officio Justices of the
Peace Judicial officers like Sessions Judges and Additional Sessions Judges are allowed
to play a proactive, hands-on and upbeat role of direct interference in the administrative
working of the police then such executive role of judicial officers may militate against the
constitutional mandate of separation of the Judiciary from the Executive enshrined in
Article 175(3) of the Constitution of the Islamic Republic of Pakistan, 1973. In that
eventuality the provisions of section 22-A(6), Cr.P.C. may themselves become vulnerable
to a serious challenge on the touchstone of the Constitution.

14. This brings us to question number (d) as to what, in the context of criminal justice,
are the general complaints against the working of the police in the Province of the Punjab
and what kind of "directions" can/should an ex-officio Justice of the Peace issue in
respect of such complaints while exercising his jurisdiction under section 22-A(6),
Cr.P.C. Our experience at the Bench of this Court shows that generally the public at large
brings the following kinds of complaints against the police before this Court while
invoking writ jurisdiction of this Court under Article 199 of the Constitution and now
similar complaints are being brought before ex-officio Justices of the Peace by filing
petitions finder section 22-A(6), Cr.P.C.:

(i) complaints about unjustified harassment by the police in the absence of any criminal
case having been registered against the aggrieved person;

(ii) complaints regarding failure of the police to register a criminal case despite
commission of a cognizable offence having been reported to it;

(iii) complaints pertaining to failure by the investigating officer to add appropriate penal
provisions to an FIR or a cross-version of the accused party;

(iv) complaints about failure by the investigating officer to record a cross-version of the
accused party;

(v) complaints regarding failure to arrest an accused person nominated in the FIR or in
the cross-version of the accused party;

(vi) complaints pertaining to unfair, biased and improper investigation and, thus, seeking
transfer of the investigation; and

(vii) complaints about failure to finalize investigation of a criminal case and to submit a
Challan within a reasonable time.

We intend to advert to each one of such complaints one by one so as to examine what
kind of directions can/should be issued by an ex-officio Justice of the Peace under section
22-A(6), Cr.P.C. in respect of such complaints. But before that we may observe with
emphasis that it is by slow a settled proposition of law that while exercising its
constitutional jurisdiction regarding judicial review of administrative action a High Court
is not to substitute its own decision for that of the competent authority and that, after
stating the correct legal position, the High Court is to issue a direction to the competent
authority to pass an appropriate order in terms of the legal position so declared. Likewise,
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
the 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 the 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. We have already observed above that while
exercising his jurisdiction under section 22-A(6), Cr.P.C. an ex-officio Justice of the
Peace is only to activate the available regal 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. In this view of the matter if an ex officio Justice of the
Peace can issue the desired direction under action 22-A(6); Cr.P.C. activating the
available legal remedy or procedure which the High Court would also have done if seized
of a writ petition filed in that regard under Article 199 of the Constitution lien the remedy
before an ex-officio Justice of the Peace under section 22-A(6), Cr.P.C. can ordinarily be
termed and accepted as in adequate alternate statutory remedy ousting a direct recourse
by an aggrieved person to the High Court by invoking its extraordinary jurisdiction under
Article 199 of the Constitution. A similar view in this regard has already been expressed
by a learned Judge-in-Chamber of the Hon'ble Sindh High Court in the case of
Muhammad Yousaf v. Dr. Madad Ali alias Gulab Laskani and 8 others [PLD 2002
Karachi 328] and also by another learned Judge-in-Chamber of the same Court in the
case of Shahnawaz v. Raja Tanveer and seven others [2005 PCr.LJ 487] and we
respectfully endorse the said view. It is, therefore, declared that in the matters of
complaints against the working of the police covered by the provisions of section 22-
A(6), Cr.P.C. an aggrieved person, except where the High Court feels satisfied that it is an
exceptional case arising out of extraordinary circumstances warranting direct interference
by the High Court and rendering the remedy under section 22-A(6), Cr.P.C. inadequate,
cannot file a writ petition before this Court under Article 199 of the Constitution before
availing of the normally adequate alternate statutory remedy before an ex-officio Justice
of the Peace under section 22-A(6), Cr.P.C. 15. As regards the jurisdiction of an ex-officio
Justice of the Peace regarding complaints about unjustified harassment by the police in
the absence of any criminal case having been registered against the aggrieved person we
may observe on the basis of our experience that more often than not such complaints are
couched in vague, unspecific and generalized terms and sometimes such complaints are
motivated with considerations other than bona fide. An ex-officio Justice of the Peace
must remain watchful, alert and vigilant in this respect while handling all such
complaints. It goes without saying that an allegation of fact levelled in such a complaint
must contain all the necessary factual details regarding the date, time and place of the
alleged harassment as well as full particulars of the concerned police officer who is being
complained against. In the absence of such precision and exactitude in the complaint the
relevant police officer, when required by the ex-officio Justice of the Peace to submit his
comments, can remain contented with a bare and bald denial of the allegations leaving
the ex-officio Justice of the Peace with no other option but to dismiss such a complaint as
having remained unsubstantiated. However, if the complaint contains the necessary
factual details and through his comments the relevant police officer fails to satisfy the ex-
officio Justice of the Peace regarding falsity of the allegations levelled against him then
the ex-officio Justice of the Peace may, depending upon the circumstances of the case,
either warn the relevant police officer not to transgress the limits of the law in future or
may issue a direction to the relevant higher police authority or the relevant Public Safety
and Police Complaints Commission to consider the complaint and to take appropriate
action against the delinquent police officer under the relevant provisions of the Police
Order, 2002. In an extreme case of highhandedness and totally unjustified harassment the
ex-officio Justice of the Peace may issue a direction to the relevant police authority to
register a criminal case against the delinquent police officer if he had seemingly
committed some cognizable offence during the harassment perpetrated by him.

16. As regards the complaints regarding failure of the police to register a criminal case
despite commission of a cognizable offence having been reported to it there is no
gainsaying the fact that the provisions of section 154, Cr.P.C. in that respect are quite
explicit and the duty of the officer in charge of the local Police Station in that regard is
mandatory in nature. However, we may hasten to add that the officer in charge of the
relevant Police Station may be under a statutory obligation to register an F.I.R. whenever
information disclosing commission of a cognizable offence is provided to him but the
provisions of section 22-A(6), Cr.P.C. do not make it obligatory for an ex-officio Justice
of the Peace to necessarily or blind-foldedly issue a direction regarding registration of a
criminal case whenever a complaint is filed before him in that regard. The use of the
word "may" in section 22-A(6), Cr.P.C. clearly shows that the jurisdiction of an exofficio
Justice of the Peace in that regard is discretionary in nature, and understandably so. It is
unfortunate that concepts and notions of truth and justice are becoming more and more
subjective in our society and the machinery of criminal law with its coercive process is
increasingly being utilized by motivated persons or parties for achieving objectives which
are self-serving. Thus, there is a pressing need on the part of the exofficio Justices of the
Peace to exercise caution and restraint before issuing a direction regarding registration of
a criminal case. We, therefore, deem it prudent and advisable for an ex-officio Justice of
the Peace to call for comments of the officer in charge of the relevant Police Station in
respect of complaints of This nature before taking any decision of his own in that regard
so that he may be apprised of the reasons why the local police have not registered a
criminal case in respect of the complainant's allegations. It may well be that the
complainant has been economizing with the truth and the comments of the local police
may help in completing the picture and making the situation clearer for the ex-officio
Justice of the Peace facilitating him in issuing a just and correct direction, if any. If,
however, the comments furnished by the officer in charge of the relevant Police Station
disclose no justifiable reason for not registering a criminal case on the basis of the
information supplied by the complaining person then an ex-officio Justice of the Peace
would be entirely justified in issuing a direction that a criminal case be registered and
investigated. We may clarify that it is not obligatory for the officer in charge of a Police
Station or for an exofficio Justice of the Peace to afford an opportunity of hearing to the
accused party before registration of a criminal case or before issuing a direction in that
regard. The law in this respect stands settled and we may refer in this context to the cases
of Saeed Ahmad and others v. Naseer Ahmad and others [PLD 2000 Lahore 208 (DB)]
and Muhammad Aslam v. Additional Sessions Judge and others [2004 PCr.LJ 1214].

Even the Hon'ble Supreme Court of India has expressed the same view in the case of
Union of India and another v. W. N. Chadha [ 1993 SCMR 285). We may also add that in
an appropriate case, depending upon the circumstances thereof, an ex-officio Justice of
the Peace may refuse to issue a direction regarding registration of a criminal case and
,may dismiss the complaint under section 22-A(6), Cr.P.C. reminding the complaining
person of his alternate statutory remedies under sections 156(3) and 190, Cr.P.C.
Experience shows that there are cases where the complainant party may be better of in
pressing its allegations and remaining in control of its case by filing a private complaint
rather than forcing the police to register a criminal case and to investigate when the
police is itself not convinced of the complainant party's allegations being correct. The
case of Hazoor Bakhsh v. Senior Superintendent of Police, Rahimyar Khan and 12 others
[PLD 1999 Lahore 417 (DB)] elaborately deals with the question of adequacy of the
remedy of a private complaint in such situations. We may also clarify that the impression
entertained by a large section of the legal community in our country that in case of filing
of a private complaint the accused person cannot be arrested and recovery cannot be
effected from him is nothing but erroneous and fallacious. By virtue of the provisions of
section 202(1), Cr.P.C. a Court seized of a private complaint can "direct an inquiry or
investigation to be made by any Justice of the Peace or by a police officer or by such
other person as it thinks fit". The powers available during an investigation, enumerated in
Part V, Chapter XIV of the Code of Criminal Procedure, 1898 read with section 4(1)(1) of
the same Code, include the powers to arrest an accused person and to effect recovery
from his possession or at his instance. Such powers of the investigating officer or the
investigating person recognize no distinction between an investigation in a State case and
an investigation in a complaint case. In the case of Noor Nabi and three others v. The
State [2005 PCr.LJ 505] a learned Judge-in-Chamber of the Hon'ble Sindh High Court
has already clarified that section 91, Cr.P.C. deals only with procuring attendance of a
person before the Court and after his availability before the Court the matter of his
admission to bail or not rests in the hands of the Court and that the impression about
automatic admission of an accused person to bail in a case of a private complaint is
erroneous. Thus, in appropriate cases the ex-officio Justices of the Peace would be
serving the interests of justice well by dispelling wrong impressions about inadequacy of
the remedy of filing a private complaint and by encouraging the complaining persons to
take charge of their allegations against the accused party by filing a private complaint
rather than forcing an unwilling or unconvinced police to be in control of their cases.

17. The complaints about failure by an investigating officer to add appropriate penal
provisions to an F.I.R. or a cross-version of the accused, party are not uncommon but they
are normally not worthy of being taken with any degree of seriousness by an exofficio

Justice of the Peace. The stands taken by the complaining persons in this regard normally
touch the merits of the allegations and an ex-officio Justice of the Peace would be well
advised to refrain from entering into any such controversy at a premature stage and to
consider, by appreciating the factual aspects of a given case, as to which offences are or
are not disclosed by the allegations contained in an F.I.R. or a cross-version. It goes
without saying that the overall incharge of a criminal case is the Area Magistrate who,
even during the progress of an investigation, gets many opportunities to go through the
record of investigation conducted by the police and in an appropriate case and at an
appropriate stage he can require the investigating. officer to consider addition or deletion
of any penal provision. Be that 8 it may, after submission of a report under section 173,
Cr.P.C./Challan the Magistrate taking cognizance of the offence or the trial court taking
cognizance of the case can take cognizance of any offence disclosed by the material
available on the record of investigation even if the police have not invoked the relevant
penal provision. Even at the time of framing of the charge a trial Court can frame a
charge in respect of an offence disclosed by the record even if the same finds no mention
in the report submitted under section 173, Cr.P.C./Challan. With so many opportunities
being available with the Magistrate and the trial Court regarding rectification of a
mistake, deliberate or otherwise, committed by the police in this connection it would be
unwise for an ex-officio Justice of the Peace to interfere with such a matter at an
inappropriate and premature stage. In the case of Nadeem Sarwar v. Station House
Officer, Police Station Sadar, Hafizabad and 2 others [2000 YLR 756] this Court had
handled a similar complaint in the following manner:

"The petitioner is an accused person in case F.I.R. No.466 registered at Police Station
Sadar, Hafizabad on 14-12-1999 for offences under sections 322/279, PPC. It has been
prayed by the petitioner through the present petition that section 322, P.P.C. may be
ordered to be deleted from the said F. I. R. as the same is not attracted to the facts alleged
in the F.I.R. At the outset I must observe that this petition is diabolically misconceived to
this extent. Controlling the insertion or deletion of a section of a penal statute in Column
No. 3 of an F.I.R. is surely not a function of this Court while exercising its writ
jurisdiction under Article 199 of the Constitution. All that is required in a situation and at
the stage like the, one in the present case is that the petitioner is to convince the
Investigating Officer of the case that a certain provision invoked in the F.I.R. may not be
pressed against him as the same is not. attracted to the allegations contained in the
narrative part of the F.I.R.. The real F.I.R. is the narrative part of the F.I.R. and not
Columns Nos. 1 to 5 thereof which are to be filled in by a Moharrir or other police
official. A similar objection can. surely be raised by the petitioner not only before the
Investigating Officer but also before the Court dealing with his bail application or holding
his trial. This petition calls for no occasion by this Court to interfere in the matter at such
a stage."

An ex-officio Justice of the Peace may follow suit while dealing with complaints of the
like nature. In case of receipt of such a complaint an ex-officio Justice of the Peace may
advise the complaining person to approach the Area Magistrate or the trial Court, as the
case may be, rather than entertaining such a complaint himself.

18. As far as the complaints received by an ex-officio Justice of the Peace about failure
by the investigating officer to record a cross-version of the accused party are concerned
suffice it to observe that the following observations made by this Court in the above
mentioned case of Nadeem Sarwar v. Station House Officer Police Station Sadar
Hafizabad and 2 others [2000 YLR 756] show the way as to how such complaints are to
be dealt with by the ex-officio Justices of the Peace:

"Another grievance voiced by the petitioner in the present petition is that the
Investigating Officer of the above mentioned criminal case, respondent No. 1 herein, is
not associating the petitioner with the investigation of the said case. Although I have
remained unconvinced of such an assertion by the petitioner but for the benefit of all
concerned it is hereby observed that it is a statutory duty of every Investigating Officer of
a criminal case to associate the accused person with the investigation and also to record
his version of the incident in question. I have no doubt in my mind that if the petitioner
approaches respondent No.1 in this regard then respondent No.1 shall associate him with
the investigation of the above mentioned criminal case and shall also record his version
of the incident."

While dealing with a complaint of this nature an ex-officio Justice of the Peace should
call for comments of the investigating officer explaining as to why he has not recorded
the version of the accused party and if such comments confirm the complaint that despite
having been approached in that regard by the accused party the investigating officer has
not recorded the version of the accused party and there is no valid or justifiable reason for
such default on his part then a direction may be issued by the ex-officio Justice of the
Peace to the investigating officer to do the needful or in the alternative the Superintendent
of Police (Investigation) of the relevant District may be directed by the ex-officio Justice
of the Peace to attend to this aspect of the matter and to ensure that the needful is done by
the investigating officer without further ado.
19. The complaints filed before ex-officio Justices of the Peace regarding failure by the
police to arrest an accused person nominated in an F.I.R. or implicated through a cross
version of the accused party are quite frequent and we have observed that more often than
not such complaints stem from a basic misconception about. the circumstances in which
an accused person is allowed by the law to be arrested in a criminal case. For the purpose
of removal of such misinterpretation and misconstruction of the relevant legal provisions
we have decided to restate the legal position in this regard in some detail.

20. Under section 22-A(1), Cr.P.C. a Justice of the Peace has the jurisdiction to exercise
all those powers of arrest in the relevant local area which powers are available to a police
officer referred to in section 54, Cr.P.C. and to an officer in charge of a Police Station
referred to in section 55, Cr.P.C. The powers of arrest in both the said sections are the
same but they relate to different situations. In the case of Abdul Qayyum v. S.H.O. Police
Station Shalimar, Lahore [1993 PCr.LJ 91] this Court had an opportunity to attend to the
requirements of section 54, Cr.P.C. and it was observed by this Court as follows:

"Under the provisions of clause first of section 54, Cr.P.C., the Police Officer can arrest a
person in the following four conditions:-

(a) The accused is involved in a cognizable offence;

(b) Against the accused a reasonable complaint has been made for the said offence;

(e) A credible information is received by the Police Officer that he is involved in a

cognizable offence; and

(d) Reasonable suspicion exists that the said person is involved in the cognizable offence.

The expression `credible information' is not a technical legal expression importing that
the information must be given upon oath or affirmation. It includes any information
which in the judgment of the officer to whom it is given appears entitled to credit in the
particular instance and which he believes. The credible information mentioned therein
need not be in writing.--

The object of section 54, Cr.P.C. is to give the widest powers to the Police Officers to
arrest the persons who are involved in cognizable cases and the only limitation placed
upon their power is the necessary requirement of reasonability and credibility to prevent
the misuse of the powers by the Police Officers.

As the powers mentioned above given to the Police Officers under section 54, Cr.P.C.
encroaches upon the liberty of a person, this wide power has to be construed, interpreted
and defined strictly. A general definition of what constitutes reasonableness in a
complaint or suspicion and credibility of information cannot be given. Both must depend
upon the existence of tangible legal evidence within the cognizance of the Police Officer
and, he must judge whether the evidence is sufficient to establish the reasonableness and
credibility of the charge, information or suspicion. It has been laid down by this Court in
1992 PCr.LJ 131: An arrest which is beyond the provisions of section 54, Cr.P.C. would
be illegal and void per se'."

Prior to that in the case of Muhammad Shafi v. Muhammad Boota and another [PLD
1975 Lahore 729] this Court had observed that

"The words "reasonable suspicion" (in section 54, Cr.P.C.) do not mean a mere vague
surmise, but a bona fide belief on the part of the Police Officer that an offence has been
committed or is about to be committed. Such belief has to be founded on some definite
averments tending to show suspicion on the person arrested.--- The action of a police
Officer under section 54, Cr.P.C. must be guarded inasmuch as he should first satisfy
himself about the credibility of the information which, as staled already, should relate to
definite facts. It was not at all the intention of the law-giver that the Police Officer should
at his own sweet will arrest anybody he likes, although he may be a peace loving citizen
of the country."
The Hon'ble Sindh High Court had also observed in the case of Muhammad Siddiq v.
Province of Sindh through Home Secretary, Karachi and 2 others [PLD 1992 Karachi 358
(DB)] that

"It will thus be seen that the first sub-clause of section 54(1), Cr.P.C. a person can be
arrested without a warrant in the following circumstances:-

(a) If he be concerned in any cognizable offence.

(b) Against whom a reasonable complaint has been made.

(c) Against whom credible information has been received that he is concerned with
commission of such offence.

(d) If reasonable suspicion exists about him being so concerned.

It is true that a Police Officer has been conferred sufficient powers to arrest a person in
the investigation of a cognizable offence if he be concerned with commission of such
offence. But such a power can be exercised only in those cases where a Police Officer is
possessed of some evidence indicating involvement of a person under the four situations
mentioned in section 54(1), Criminal Procedure Code."

In the case of Mst. Razia Pervez and another v. The Senior Superintendent of Police,
Multan and 5 others [1992 P.Cr.L.J. 131] this Court had observed as follows:

"No doubt, the Police Officer can arrest a person where a reasonable suspicion exists of
his having been concerned in any cognizable offence but power given to the Police
Officer under this section (section 54, Cr.P.C.) being an encroachment on the liberty of a
citizen is not unlimited. It is subject to the condition stated therein. An arrest purporting
to be under this section would be illegal unless the circumstances specified in the various
clauses of the section exist. This section does not give free licence to a Police Officer to
arrest anybody he may like. In order to act under this section, there must be a reasonable
suspicion of the person to be arrested having been concerned in a cognizably offence. An
arrest of a citizen in a reckless disregard of the conditions imposed in this section would
make the arrest and detention of the subject illegal and the Policy Officer arresting or
detaining the subject would be exposed to prosecution under the Pakistan Penal Code and
also for departmental action under the relevant rules."

The above mentioned precedent cases clearly show that an arrest of a person in
connection with a criminal case is not to be a matter of course and the power to arrest is
conditional upon fulfilment of the requisite legal requirements.

21. One of the cardinal principles of criminal law and jurisprudence is that an accused
person is presumed to be innocent until proved guilty before a Court of law. However, of
late we have noticed a growing tendency on the part of the complainant party to insist
upon arrest of an accused person nominated by it in the F.I.R. and an increasing
willingness, nay eagerness, on the part of the investigating officer of a criminal case to
effect arrest of the accused person even before initiating or launching a proper
investigation of the allegations 'levelled in the F. I. R. Such an approach has been found
by us to be absolutely against the spirit of the relevant law, to be wrought with inherent
dangers to cherished liberty of citizens who may ultimately be found to be innocent and
to amount to putting the cart before the horse! It had been observed by the Hon'ble
Supreme Court of Pakistan in the case of Brig. (Retd.), F.B. Ali and another v. The State
[PLD 1975 Supreme Court 506] that "In my view the mere lodging of an information
does not make a person an accused nor does a person against whom an investigation is
being conducted by the police can strictly be called an accused. Such a person may or
may not be sent up for trial. The information may be found to be false: An accused is,
therefore, a person charged in a trial. The Oxford English Dictionary defines an
"accused" as a person "charged with a crime" and an "accusation" as an "indictment".
Aiyer in his Manual of Law Terms also gives the same meaning. I am of view, therefore,
that a person becomes an accused only when charged with an offence. The Criminal
Procedure Code also uses the word "accused" in the same sense, namely; a person over
whom a Court is exercising jurisdiction."
Even the Hon'ble Federal Shariat Court had remarked in the case of Mst. Asho and 3
others v. The State [1987 PCr.LJ 538] that "Mere levelling accusations against a person in
F.I.R. does not make him. an accused person unless and until some evidence implicating
such person in the commission of the offence is available."

We may add in this context that a general impression entertained by some quarters that an
arrest of a suspect or an accused person is necessary or sine qua non for investigation, of
a crime is misconceived and the same portrays scant knowledge of the relevant statutory
provisions. We may briefly allude to such statutory provisions here. Section 46, Cr.P.C.
provides as to how an arrest is to be made, section 54, Cr.P.C. deals with arrest by a
police officer without a warrant, section 55, Cr.P.C. pertains to arrest of vagabonds, etc.
by an officer in charge of a Police Station, section 59, Cr.P.C. caters for a situation where
a private person may effect an arrest and section 151, Cr.P.C. authorizes a police officer
to arrest a person in order to prevent commission of a cognizable offence. Section 169,
Cr.P.C. visualizes a situation where a suspect may be released if the investigating officer
finds no sufficient evidence or reasonable ground for suspicion against him. The
arameters of such arrests are essentially those already discussed in the above mentioned
recedent cases. According to Article 4(1)(j) of the Police Order, 2002 it is a duty of every
olice officer to "apprehend all persons whom he is legally authorised to apprehend and
for whose apprehension sufficient grounds exist". Rules 24.1, 24.4 and 24.7 of the Police
Rules, 1934 (which are still in vogue due to the provisions of Article 185 of the Police
Order, 2002) clearly contemplate situations where an information received by the police
regarding commission of a cognizable offence may be doubted or even found false. Rule
25.2(1) of the Police Rules authoriezes an investigating officer to associate "any person
with the investigation and Rule 215-2(2) categorically provides that "No avoidable
trouble shall be given to any whom enquiries are made and no person shall be,
unnecessarily detained". Rule 25.2(3) clinches the issue by clarifying that "It is the duty
of an investigating officer to find out the truth of the matter under investigation. His
object shall be to discover the actual facts of the case and to arrest the real offender or
offenders. He shall not commit himself prematurely to any view of the facts for tit against
any person" (emphasis has. been supplied by us). As if this were not enough, Rule 26.1
emphasizes that "Section 54, Code of Criminal Procedure, authorizes any police officer to
arrest without a warrant any person who has been concerned in any cognizable offence or
against whom a reasonable complaint has been made, or credible information has been
received, or a reasonable suspicion exists, of his having been so concerned. The authority
given under this section to the police to arrest without a warrant is, however, permissive
and not obligatory. Whenever escape from justice or inconvenient delay is likely to result
from the police failing to arrest, they are bound to do so; but in no other cases. The law
allows a police officer to apply to a Magistrate for a warrant or a summons instead of
making the arrest immediately and this discretion shall be exercised whenever possible
and expedient. The law also allows a police officer in any bailable case to take security
under section 170, Criminal Procedure Code from an accused person to appear before a
Magistrate without first arresting him" (emphasis has been supplied by us). Rules 26.2
and 26.9 provide further guidelines to the police officers involved in investigation of
crimes requiring them not to unnecessarily interfere with the liberty of suspects "until the
investigation is sufficiently complete" and "the facts justify arrest". According to Rule
26.1 the facts justifying an immediate arrest may include a. possibility of the suspect
escaping from justice or inconvenient delay likely to result from the police failing to
arrest.

22. All the statutory provisions and the precedent cases mentioned above manifestly point
towards the intention of the law that a suspect is not to be arrested straightaway upon
registration of an F.I.R. or as a matter . of course and that, unless the situation on the
grounds so warrants, the arrest is to be deferred till such time that sufficient material or
evidence becomes available on the record of investigation prima facie satisfying the
investigating officer regarding correctness of the allegations levelled by the complainant
party against such suspect or regarding his involvement in the-crime in issue. 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. It must always be remembered that delaying the arrest till after formation of
an opinion regarding prima facie correctness of the allegation against a suspect goes a
long way in deterring false, frivolous and motivated complaints and also that there may
not be any adequate recompense or reparation 'for an unjustified arrest. It would be
preposterous and a mockery of justice if a person may be deprived of his liberty first and
later on the allegations against him may be found by the arresting agency itself to be
bogus, trumped up or false. That surely would be, as observed above, putting the cart
before the horse.

23. The complaints about unfair, biased and improper investigation and, thus, seeking
transfer of investigation of the relevant criminal case are generally the most frequent
complaints that are filed before the exofficio Justices of the Peace under section 22-A(6),
Cr.P.C. and are often subject matter of writ petitions filed before this Court and, therefore,
this area has also engaged our serious, particular and detailed consideration.

We may straightaway observe in this context that filing of such complaints is generally
grounded in a basic misunderstanding that the parties to a criminal case must feel
satisfied with the investigation thereof. We have already observed above that
unfortunately the concepts of truth and justice are becoming more and more subjective in
our society and the machinery of criminal law with its coercive process is increasingly
being utilized by motivated persons or parties for achieving objectives which are
selfserving.

Left to the parties to a criminal case they would never be satisfied with the investigation
unless their version is accepted by the police as correct. The term `investigation' has been
defined by section 4(1)(1) of the Code of Criminal Procedure, 1898 as "--- all
proceedings under this Code for the collection of evidence by a police officer or by any
person (other than a Magistrate) who is authorized by a Magistrate in this behalf". The
job of an investigating officer is, thus, only to collect all the relevant evidence pertaining
to the allegation levelled regarding the crime in issue so as to dig out the truth enabling
and facilitating the relevant Court to administer justice between the parties. His job is not
to satisfy the parties to the case or to arrogate to himself the role of an adjudicator
rendering an opinion regarding guilt or innocence of any person. In the reports to be
submitted by the police in connection with investigation of a criminal case it can
comment about sufficiency or otherwise of the evidence available against an accused
person but it cannot comment upon believability or otherwise of the evidence becoming
available on the record against such accused person. The question of believability or
otherwise of such evidence is to be attended to by the relevant Magistrate or the trial
Court. It is very rare that a complaint of the nature under discussion points out that any
particular evidence is available in the case and the same is not being collected by the
investigating officer but the bids of the parties seeking transfer of investigation are by far,
as already noticed by the Hon'ble supreme Court of Pakistan and this Court in the cases
referred to below, directed mainly to obtain a favourable opinion from the investigating
officer supporting a party's version. We may clarify here for the benefit of all concerned
that an investigating officer of a criminal case is not to render any opinion regarding guilt
or innocence of an accused person and under the relevant statutory provisions contained
in the Code of Criminal Procedure, 1898, the Police Order, 2002 and the Police Rules,
1934 he is only to collect all the relevant evidence and to submit his report and the
collected evidence and material before the relevant Magistrate so that the Magistrate or
the trial Court can then form their own independent opinions regarding sufficiency or
otherwise of the evidence and material in order to decide whether to take cognizance of
the offence and of the case or not, to summon any person to face a trial or not and to
frame a charge against a person or not. We may further clarify that column No. 2 of the
Challan submitted in a criminal case is generally misunderstood and the same is
erroneously being construed as meant for those accused persons who are found by the
police to be innocent. It is generally being ignored that the said column of the Challan is
to contain the names of the absconding accused persons against whom Challan is not
being submitted because they could not be associated with the investigation and is also to
contain the details of the accused persons being forwarded in custody or released on bond
with or without sureties. Such details have absolutely no relevance to the question of
innocence or otherwise of the accused persons. Section 172(1), Cr.P.C. requires that
"Every, police officer making an investigation under this Chapter shall day by day enter
his proceedings in the investigation in a diary, setting forth the time at which the
information reached him, the time at which he began and closed his investigation, the
place or places visited by him, and a statement of the circumstances ascertained through
his investigation". There is no mention in section 172(1), Cr.P.C. of any opinion of the
investigating Officer about guilt or innocence of an accused person. Likewise, in section
173, Cr.P.C., under which the police is required to submit its final or interim report about
the investigation before a Magistrate which report is also called a Challan, there is
absolutely no mention of any opinion of the police regarding guilt or innocence of an
accused person. As a matter of fact the learned counsel for the parties to this case as well
as the learned Additional Advocate-General, Punjab have conceded before us that there is
no law or legal instrument in existence in this country requiring an investigating officer
of a criminal case or any police officer to record his opinion about guilt or innocence of
the accused person. Be that as it may, the law is firmly settled on the point to the extent of
being trite that an opinion of the police regarding guilt or innocence of an accused person
is inadmissible in evidence being irrelevant and that an accused person whose name has
been placed in column No. 2 of the Challan or an accused person not even mentioned in
any column of the Challan can also be summoned by a trial Court to face trial if, in the
opinion of the Court, sufficient material is available on the record to proceed against him.
A misconceived competition and race between the parties to obtain a favourable opinion
from the investigating officer, despite such opinion being inadmissible in evidence being
irrelevant has been found by us to be the real reason for most of the bids made by the
parties to a criminal case to get the investigation of such case transferred. Such trends and
tendencies have to be curbed with all the firmness that is required as they are playing
havoc with investigations, breeding corruption amongst the police, introducing
extraneous influences in the working of the police, delaying finalization of investigations
and trials and choking the ex-officio Justices of the Peace as well this Court with
unwarranted complaints and writ petitions.

24. We may mention here that as back as almost half a century ago the Hon'ble Supreme
Court of Pakistan had categorically declared in the case of Federation of Pakistan v. Shah
Muhammad Khan and others [PLD 1960 Supreme Court (Pak.) 85] that "No law or
regulation gives a complainant a vested right, which can be' enforced by a writ to have
his complaint investigated by a particular branch of the Police---The respondent No. 1,
therefore, had no right to maintain a petition for writ and the High Court was in error in
issuing a direction on such a petition. The order of the High Court is, therefore, set aside
and this appeal is allowed."

We may also again refer to the above mentioned case of Shahnaz Begum v. The Hon'ble
Judges of the High Court of Sind and Baluchistan and another [PLD 1971 Supreme Court
6771 wherein the Hon'ble Supreme Court of Pakistan had clearly observed that "We ace
in respectful agreement with this view and have 'no difficulty at all in holding that the
word "direct" in clause 22 [of the Letters Patent of the High Courts of West Pakistan] also
bears the same sense and, therefore, the necessity for making a direction can only arise in
a case where no investigation has started. The power to issue a direction cannot be
invoked where investigation has already commenced in accordance with law by
authorities competent to investigate under the Criminal Procedure Code nor does the
power to "direct" include the power to "transfer" from one competent investigating
agency to another. This would be unwanted interference with the investigation ---."

In the case of Riaz Hussain and others v. The State [1986 SCMR 1934] the Hon'ble
Supreme Court of Pakistan had strongly deprecated and disapproved the trend of holding
multiple investigations of a criminal case by observing as follows:

"So far as the innocence of Ghulam Abbas, Riaz Hussain and Zahid Hussain appellants
during re-investigation is concerned, this was urged before the learned trial Court and
repelled by it after due consideration .and there exists no reason with us to come to a
different conclusion. The occurrence in this case had taken place in September 1974 and
the final report of the reinvestigation was submitted in April 1977, i.e., after a lapse of
about three years. How on earth any significance can be attached to a report compiled
anti submitted after such a long time, especially when there was every possibility of
fabrication of evidence. The system of re-investigation in criminal cases is a recent
innovation which is always taken up at the instance of influential people and favourable
reports' obtained. This in no way assists the Courts in coming to a correct conclusion, it
rather creates more complications to the Court administering justice. We, therefore,
disapprove this . system altogether. "

This aspect of the matter was again commented upon by the Hon'ble Supreme Court of
Pakistan in the case of Hakim Mumtaz Ahmed and another v. The State [PLD 2002
Supreme Court 590] and the following observations were made in this respect:

"Before taking up other points involved in this case we consider it appropriate to note that
delay in filing police report/challan is being caused for another reason namely that on the
behest of the accused/complainant/State investigations in the cases are transferred from
one police agency to another under section 158, Cr.P.C. on account of showing non-
confidence by one or the other party in the Investigating Agencies particularly in the
Province of Punjab. Such device is followed invariably in every case and this reason
independently also causes delay in submission of challan or commencement of trial of
accused persons."

In the case of Muhammad Yousaf v. Inspector-.General of Police and 4 others [PLD 1997
Lahore 1351 this Court had reiterated the same position by observing that "As regards re-
opening of investigation, I may refer to a Supreme Court judgment titled Riaz Hussain v.
The State (1986 SCMR 1934), wherein the Court observed that the system of re-
investigation in criminal cases, is a recent innovation always taken up at the instance of
influential people to obtain favourable reports which in no way assists the Courts in
coming to a correct conclusion, it rather creates more complications to the Courts
administering justice."

In the case of Muhammad Arif v. Inspector-General of Police, Punjab, Lahore and 3

others [2000 YLR 1960] this Court had reaffirmed the said position and had elaborated
that "The purpose of investigation of a criminal case, as is evident from section 4(1)(1) of
Cr.P.C. is mere collection of evidence and nothing more. The duty of the officer
investigating a criminal case is to collect all such evidence and then to submit the same
before a Court of competent jurisdiction which Court alone then has the powers to
determine the guilt or innocence of the person accused of the commission of such an
offence. It is true that section 169 of the Cr.P.C. authorizes an Investigating Officer or the
officer incharge of the police station to release an accused person on his executing a
bond, with or without a surety, if in the opinion of such a police officer sufficient
evidence or reasonable grounds of suspicion justifying the forwarding of an accused to a
Magistrate were not available. This however, cannot be equated with a power of final
determination of the guilt or innocence of the accused persons which power, as has been
mentioned above, stands reserved exclusively for the Magistrates and the trial Courts.

These very provisions of section 169 of the Cr.P.C. are a clear indicator to the said effect
because release of an accused person under this section is subject to the orders of a
Magistrate, who may refuse to take cognizance of the case in terms of the report of the
concerned police officer or may still take cognizance and try an accused person or send
him for trial. It may be added that the provisions of section 63 of the Cr.P.C. which
provide that an accused person could be discharged only under the special order of
Magistrate and the provisions of Rule 24.7 of the Police Rules, 1934 which provides that
an F.I.R. can be cancelled only by a Magistrate, even if the Investigating Officer or the
S.H.O. were of the opinion that such an F.I.R. deserved to be cancelled, are further
evidence of the fact that the final word in respect of the fate of an accused person is either
of a Magistrate or of the warned trial Court and the S.H.O. or the Investigating Officer
were mere instruments to assist such Magistrates or Courts of law in reaching a final
conclusion.

It will, therefore, be noticed that while the Investigating Officers have powers to
investigate cases and. while the officers incharge of police stations including the superior
police officers, who are also S.H.Os. by virtue of section 551 of the Cr.P.C. have powers
to withdraw investigations from. one police officer and to entrust the same to another
police officer and also to order further investigations in a matter, the sole purposes of
such-like transfer of investigations and directing of further investigations is to be the
collection of evidence and nothing more. These powers vesting in the S.H.Os. and the
superior police officers can, therefore, be exercised only and only where it. is found that
the required evidence had either not been collected or that further evidence was required
to be collected in a given case.

Of late, frequent situations have started coming to the notice of the Courts where repeated
investigations are ordered and where investigations are repeatedly transferred from one
police officer to another without disclosing any reason for such orders which leads to an
inference that such-like orders were passed not for the purposes for which the requisite
powers had been conferred on the police officers but for purposes other than legal and
bona fide. Needless to add that such-like repeated investigations and such-like transfers
of investigations do not only complicate issues making the task of the Courts of law more
arduous but also result in wastage of time and inordinate delays towards the final
conclusion of cases.

My Lords in the Supreme Court declared in Riaz Hussain and others v. The State (1986
SCMR 1934 at 1942) that system of reinvestigation in criminal cases was a recent
innovation which was always taken at the instance of influential people for favourable
reports obtained and this was in no way assisting the Courts in coming to correct
conclusions and rather created. mare complications for the Courts administering justice.

Their lordships of the Supreme Court went on to add that such a system was disapproved
altogether."

In an earlier case of Muhammad Younas and others v. I.G. Police and others [1999 PCr.LJ
163 at 165] it was observed by this Court that:

"--- The investigation was transferred from one agency to the other and from one officer
to the other in a mechanical manner, arbitrarily, capriciously and above all without
application of mind. It is interesting to note that it has not been brought to the notice of
this Court in spite of query that did the high-ups including Respondent No. 1 take any
action against any of the Investigating Officer for faulty investigation or for mixing up
with either party or for failure to conclude the investigation efficiently. There was none.
This fact alone proved it beyond any shadow of doubt that there was no purpose to
transfer the investigation except to please someone, may be the then Chief Minister. "

It was consequently directed by this Court in that case that:

"This evil can be, successfully; combated by making it incumbent upon the authority
transferring the investigation or ordering reinvestigation should comment upon. The
quality of the investigation and pinpoint the shortcomings or lapses made by the
Investigating Officer. The authority if convinced after going through the record that either
the Investigating Officer is inefficient, incapable or mixed up with one of the parties for
any reason and only then investigation may be transferred and that too after recording
reasons in writing. It shall propose action against Investigating Officer for misconduct,
inefficiency and corruption as the case may be. That would be effective measures to
check the illegal tendency of transferring the investigation or ordering reinvestigation

without any study of the `Zimnis' and f appreciating the efforts made by the Investigating
Officer."

We respectfully reiterate the observations made in the above mentioned cases and
emphasize compliance of the same by all concerned.

25. We may add in this context that we cannot appreciate or approve the trend of getting a
fresh investigation of a criminal case conducted after submission of a Challan and taking
of cognizance by the trial Court. In the absence of any particular material piece of
evidence shown to have been missed out by the investigating officer and yet to be
collected by the police there can hardly be any occasion for holding a' fresh investigation
at such a stage. If such fresh investigation is meant only to obtain a fresh opinion of an
investigating officer regarding guilt or innocence of: an accused person then, apart from
the reasons mentioned above, such fresh investigation is likely to be legally
inconsequential because an F.I.R. cannot be cancelled or ,an accused person discharged at
such a stage for the reason that after taking of cognizance of the case by a trial Court the
question of guilt or innocence of an accused person or the matter of his release can be
determined only by the Court and none else. A reference in this respect may be made to
the cases of Muhammad Alam and another v. Additional Secretary to Government of NW
F.P. Home & Tribal Affairs Department and 4 others [PLD 1987 Supreme Court 103],
Nasira Surriya v. Muhammad Aslam and 7 others [1990 SCMR 12], Syed Waqar Hussain
Shah v. _The State [PLD 1988 Lahore 666] and Mst. Kausar Bibi v. The Deputy
Inspector-General of Police Cringes Branch, Punjab, Lahore and 2 others, [1996 PCr.LJ
124].

26. By virtue of the provisions of Article 18(5) of the Police Order, 2002 a District Police
Officer cannot interfere with the process of investigation. According to Article 18(6) of
the. Police Order, 2002 the, first change of investigation can, in areas other than the
Capital City District, be ordered only by the Additional Inspector-General of Police
(Investigation Branch) and that too only after deliberations and recommendations by a
Board headed by an officer not below the rank of Senior Superintendent of Police and
including two Superintendents of Police, one being in charge of the investigation in the
concerned District. According to the same Article second change of investigation may
only be allowed with the approval of the Provincial Police Officer (Inspector-General of
the Police in a Province) or the Capital City Police Officer, as the case may be. There is
no other law authorizing for empowering any other police officer or authority to change
the investigation of a criminal case. We can, therefore, safely hold that any .change or
transfer of investigation of a criminal case by any officer or authority other than those
mentioned in Article 18(6) of the Police Order, 2002 is to be void and a nullity. It has
come to our notice in some other cases that police officers other than those' mentioned in
Article 18(6) of the Police Order, 2002 have been changing investigation of criminal
cases in the name of `verification' of investigation. It may he clarified 'by us that the law
is quite settled on the point that where the law requires a thing to be done in a particular
manner then that thing must be done in that manner alone or not at all. In any case if an
investigation by an investigating officer 'is to be verified by some other officer then such
verification must be confined to verification of the record of investigation and such an
exercise cannot be allowed to be conducted in. a manner giving it a colour of fresh
investigation with fresh conclusions. The verifying officer has to confine himself to the
record of investigation already, conducted and cannot substitute his own conclusions for
those of the investigating officer and if he finds any serious fault with the investigation
already conducted then the verifying officer can bring such fault to the notice of the
Superintendent of Police (Investigation) of the' concerned District who can then initiate
impression is being entertained among some senior police officers that the provisions of
Article 18(6) of the Police Order, 2002 pertain to `vertical' change of investigation and
not to `horizontal' transfer of investigation, the former standing for change of
investigation by authorities outside and above the relevant District and 'the latter denoting
transfer of investigation by officers performing duties within the relevant District. We
have found such a distinction to be innovative but totally artificial and self-created and a
distinction motivated to defeat the very purposes of Article 18(6) of the Police Order,
2002 so as to perpetuate the maladies for the removal of which the said Article had been
introduced. We, therefore, categorically reject all notions regarding such a distinction.

27. We have already observed above that an ex-officio Justice of the Peace cannot step
into the shoes of a competent police authority so as to himself pass an order transferring
investigation of a criminal case and that his role in this .regard is confined only to get the
process under Article 18(6) of the Police Order, 2002 activated if the complaint before
him establishes that the complaining person's recourse under section 18(6) of the Police
Order, 2002 has remained unattended to so far. It, thus, follows that if the complaining
person has not yet even applied before the competent authorities under Article 18(6) of
the Police Order, 2002 seeking change of investigation then his complaint under section
22-A(6), Cr.P.C. is not to be entertained by an ex-officio Justice of the Peace as no
occasion has so far arisen for interference in the matter by an ex-officio Justice of the
Peace. The same principle has consistently been followed by this Court while dealing
with writ petitions seeking transfer of investigations. This is evident from the following
observations made by this Court in the case of Ali Muhammad v. Inspector-General of
Police, Punjab, Lahore and another [2001 PCr.LJ 1054]
"Since almost a century, the mechanism and methodology for carrying out an
investigation by the police has been clearly laid down with great detail. It is for this
reason that the superior Courts have been holding time and again that investigation
regarding the commission of offences is both the duty as well as the prerogative of the
police and is a matter which is not within the domain of the Courts.---

An essential ingredient for the assumption of jurisdiction under 'Article 199 of the
Constitution of the Islamic Republic of Pakistan of 1973, is that this Court must be
satisfied that there is no other adequate remedy provided by law. This is the sine qua non.

In the absence of this essential ingredient, the High Court does not assume muchless
exercise its extraordinary discretionary Constitutional jurisdiction to issue writ in the
nature of direction, declaration and habeas corpus or quo warranto.

If a citizen is not satisfied with the method or manner in which an investigation is being
carried out by a Police Officer an immediate and adequate remedy is available by making
a representation to the next higher police officer. The police are a statutory organization
set up under the Police Act and Rules having its own hierarchy to look after its own
affairs including matters pertaining to law and order and investigation into the
commission of offences which must culminate in the final report of the Investigating
Officer to be submitted to a Competent Court for trial without inordinate delay.

Interference in this process by the Courts would be like throwing a hammer in the spokes
of the wheel and dragging the whole process to a grinding halt which is not the intention
of the Constitution and the law."

28. It also goes without saying that if the competent authorities under Article 18(6) of the
Police Order, 2002 have already attended to the request of the complaining person
regarding transfer of investigation and have not found the case to be a fit case for transfer
of investigation then too an ex-officio Justice of the Peace cannot interfere in the matter
as the competent authorities have already consciously attended to the matter and there is
nothing left for the ex-officio Justice of the Peace to get activated or initiated. An ex-
officio

Justice of the Peace is not to assume the role of an appellate, revisional or supervisory
authority in that respect. A similar approach was adopted by this Court in the case of
Mehr Allah Bakhsh v. D.I.G. Multan and five others [2001 PCr.LJ 801] while dealing
with a writ petition seeking transfer of investigation of a criminal case and it was
observed as follows:

"The petitioner is the complainant of case F.I.R. No. 361 of 2000 registered at Police
Station Sarai Sadhu, District Khanewal and through the present petition he has sought
transfer of investigation of the said criminal case.

The contents of this writ petition show that three investigations have already been held in
this case and in the last such investigation conducted by respondent No. 2 the accused
persons were found to be innocent and the case set up by the petitioner in the F.I.R. was
opined to be false. It is also mentioned in the memorandum of the present writ petition
that the present petitioner had approached the Superintendent of Police, Khanewal and
the Deputy Inspector-General of Police, Multan the process contemplated by the
provisions of Article 18(6) of the Police Order, 2002 for change of investigation. It has
also come to our notice in some other cases that an Range, Multan for transfer of
investigation of the said criminal case but they had refused to transfer investigation of the
case.

This Court is generally slow in interfering with investigation of a criminal case which
function lies exclusively within the domain of the police. Holding of multiple and
repeated investigations of a criminal case has been deprecated by the Honourable
Supreme Court of Pakistan and by this Court in the cases of Riaz Hussain and others v.
The State 1986 SCMR 1934 and Muhammad Arif v. Inspector-General of Police, Punjab,
Lahore and 3 others 2000 YLR 1960. The. Superintendent of Police, Khanewal and the
Deputy Inspector-General of Police, Multan Range, Multan have already attended to the
grievances of the petitioner and they have decided not to transfer investigation of this
case. This Court is not to supervise or control investigation of a criminal case and to
interfere in the matter where the highest functionaries of the police in the area have
already applied their conscious minds to the matters involved. A reference in this regard
may be made to the cases of Emperor v. Khawaja Nazir Ahmad AIR (32) 1945 PC 18,
Shahnaz Begum v. The Honourable Judges of the High Court of Sindh and Balochistan
and another PLD 1971 SC 677 and Malik Shaukat Ali Dogar and 12 others v. Ghulam
Qasim Khan Khakwani and others PLD 1994 SC 281. A writ of mandamus can be issued
by this Court when there is a legal duty case upon a public functionary to act in a
particular manner and it is shown to the satisfaction of this Court that such a public
functionary is not performing the said legal duty. For the purposes of the present petition
it may be observed that there was no legal duty cast upon the Superintendent of Police,
Khanewal and the Deputy Inspector-General of Police, Multan Range, Multan to
necessarily transfer investigation of the above mentioned criminal case upon a request
made by the petitioner in that regard. In these circumstances the prayer regarding
issuance of a writ of mandamus against them in this respect is clearly misconceived. For
all these reasons this petition is hereby dismissed in limine."

29. It follows from the discussion made above that an ex-officio Justice of the Peace; like
any judicial or other authority outside the police hierarchy, should be extremely slow in
directly interfering with the matter of transfer of investigation and in an appropriate case
he may interfere only where the authorities mentioned in Article 18(6) of the Police
Order, 2002 have already been approached by the complaining person but such
authorities have failed to attend to his grievance and the application of the complaining
person is lying unattended to. Even in such a case an ex-officio Justice of the Peace may
refuse to interfere in the matter unless it is established to his satisfaction that some
specific and particular material pieces of evidence had been missed out by the
investigating officer and the same remain to be collected by the police. We may
emphasize that an ex-officio Justice of the Peace may not interfere in such a matter unless
he feels satisfied that the required evidence had either not been collected or that further
evidence is required to be collected in a given case. In such a case an ex-officio Justice of
the Peace may issue a direction to the concerned police authority to get the process under
Article 18(6) of the Police Order, 2002 activated so that an appropriate and suitable
decision on the complaining person's grievance can be made by the competent authorities
under Article 18(6) of the Police Order, 2002 one way or the other. We may, however,
once again clarify that while attending to such a complaint an ex-officio Justice of the
Peace cannot issue a direction changing, the investigation of a criminal case on his own.

30. As regards the complaints about failure of the police to finalize investigation of a
criminal case and to submit a Challan within a reasonable time we find that sufficient
guidance is already available in this respect in the shape of an elaborate judgment handed
down by the Hon'ble Supreme Court of Pakistan in the case of Hakim Mumtaz Ahmed
and another v. The State [PLD 2002 Supreme Court 590] wherein it had been concluded
as follows:

"However, our emphasis is that notwithstanding the fact that before or after completion of
investigation period prescribed under section 167, Cr.P.C. if it is not possible to submit
final report, the Investigating Agency should strictly adhere to the provisions of section
1730), Cr.P.C. and must submit interim challan through Public Prosecutor for trial and the
accused arrested in the case should not be kept in custody for indefinite period without
any legal justification."

In that ease the Hon'ble Supreme Court was pleased to direct the Inspector-General of
Police, Punjab to take action against the Senior Superintendent of Police, Mandi
Bahauddin for failing to supervise the investigation of that case effectively as a result
whereof submission of Challan was delayed. A similar action was also ordered to be
taken against the Station House Officer of the relevant Police Station as well as the
investigating officer of the said criminal case. The Law Secretary, Government of the
Punjab was also directed by the Hon'ble Supreme Court to take action against the District
Attorney, Mandi Bahauddin for not submitting a Challan in the Court having jurisdiction
within the stipulated period. The Registrar of this Court was also directed by the Hon'ble
Supreme Court to bring the matter to the. notice of the Hon'ble Chief Justice of this Court
for initiating action against the Magistrate who had failed to insist upon submission of a
Challan within the period stipulated by the law. Apart from that the Hon'ble Supreme
Court was pleased to direct as under:
"Copies of this judgment shall also be sent to the Home Secretaries and Inspectors-
General of Police of all the Provinces including Commissioner and Inspector-General of
Police, Islamabad Capital Territory and Registrars of all the High Courts, for ensuring
strict compliance of section 173(1) read with section 344, Cr.P.C. respectively so in future
challans of criminal cases are submitted within the stipulated period of 14 days as
provided under section 173(1), Cr.P.C. failing which action should be taken against the
concerned officers for noncompliance of these directions."

In view of the above mentioned observations made and directions issued by the Hon'ble
Supreme Court of Pakistan an ex-officio Justice of the Peace seized of a complaint
regarding failure of the police to finalize investigation of a criminal case and to submit a
Challan within the stipulated time should require the investigating officer of the relevant
case to explain the reason for the delay in that regard and also to explain as to why a
recommendation may not be made by him to the concerned quarters for appropriate
action in terms of the action taken by the Hon'ble Supreme Court of Pakistan in the above
mentioned case. If the explanation submitted by the investigating officer is found by the
ex-officio Justice of the Peace to be unsatisfactory then he may issue al direction to the
Superintendent of Police (Investigation) of the relevant District to ensure finalization of
investigation and submission of Challan at the earliest possible and may also, depending
upon the circumstances of the case, either warn the relevant investigating officer to be
careful in that regard in future or issue a direction to the relevant higher police authority
or the relevant Public Safety and Police Complaints Commission to consider the
complaint and to take appropriate action against the delinquent police officer under the
relevant provisions of the Police Order, 2002 or under any other law. applicable to such
misconduct.

31. Adverting now to question number (e) posed above regarding the remedies, against
non-compliance of directions issued by an ex-officio Justice of the Peace under section
22-A(6), Cr.P.C. we may restate the legal position discussed above that an ex-officio
Justice of the Peace in Pakistan does not perform or discharge any judicial function and,
therefore, the law relating to Contempt of Court is inapplicable to an alleged
noncompliance of any direction issued by him under section 22-A(6), Cr.P.C. However, a
direction issued by him under section 22-A(6), Cr.P.C. is grounded in lawful authority
conferred upon him by the said legal provision and by virtue of the provisions of Article
4(1)(m) of the Police Order, 2002 "every police officer" is under a "duty" to "obey and
promptly execute all lawful orders". There, are, therefore, threefold remedies available
against non-compliance of directions issued by an ex-officio Justice of the Peace under
section 22-A(6), Cr.P.C., i.e. firstly, upon a complaint received by him regarding non-
compliance of his earlier direction an ex-officio Justice of n the Peace can issue a
direction to the relevant police authority to register a criminal case against the delinquent
police officer under Article 155(c) of the Police Order; 2002 or, secondly, he can issue a
direction to the relevant higher police authority or the relevant Public Safety and Police
Complaints Commission to take appropriate action against the delinquent police officer
under the relevant provisions of the Police Order, 2002 or under any other law relevant to
such misconduct and, thirdly, the complaining person can approach this Court under
Article 199 of the Constitution seeking issuance of an appropriate writ directing the
defaulting police officer to do what the law requires him to do.

32. Finally, attending to question number (t) mentioned above regarding legal
sustainability or otherwise of the impugned orders passed by different ex-officio Justices
of the Peace we have found that as far as Writ Petition No. 11862 of 2004 is concerned
both the impugned orders dated 27-5-2004 and 5-7-2004 passed by the learned Sessions
Judge, Toba Tek Singh suffer from various jurisdictional infirmities and are, therefore,
liable to be struck down. Through the original petition filed by respondent No. 7 therein
under section 22-A(6), Cr.P.C. on 22-5-2004 he had prayed for issuance of a direction
regarding addition of section 354-A, P.P.C. to the cross-version of the accused party and
also for issuance of a direction to the investigating officer of the relevant criminal case to
arrest the accused party of the cross-version. The learned Sessions Judge had, however,
travelled beyond those prayers and was pleased to transfer the investigation of the said
criminal case merely upon a verbal request of the learned counsel for respondent No. 7!

This is evident from the following part of the impugned order dated 27-5-2004: "It has
been submitted by counsel for the petitioner that investigation of the relevant case be
made over to DPO, T. T. Singh with a direction to investigate the relevant case
independently and honestly. In these circumstances I withdraw the investigation of the
relevant case from Muhammad Hanif. DSP Crime Branch, Faisalabad. respondent No. 3
and make over the same to District Police Officer, Toba Tek -Singh and he is directed to
carry out the investigation of this case by himself independently, honestly and fairly. The
I.O/Muhammad Hanif, DSP Crime Branch, Faisalabad respondent No. 3 is directed to
hand over the police file to DPO, T. T. Singh."

That order surely suffered from multiple legal maladies. Firstly, the learned Sessions
Judge had no jurisdiction to pass an order transferring the investigation himself.

Secondly, the learned Sessions Judge could not have travelled beyond the prayers made
in writing before him by respondent No.7. Thirdly, the learned Sessions Judge ought not
to have abdicated his authority in the matter before the verbally expressed wishes of the
learned counsel for respondent No.7. And, fourthly, the very premise of the learned
Sessions Judge in transferring the investigation was misconceived and against the facts.

The learned Sessions Judge laid entertained an impression that the Deputy Inspector-
General of Police, Faisalabad Range, Faisalabad had transferred the investigation of the
relevant criminal case on his own despite having no jurisdiction in that regard under the
Police Order, 2002. It was observed by the learned Sessions Judge in the impugned order
dated 27-5-2004 that:

"Under the Police Order .2002, DIG could not transfer the investigation of the relevant
case from one police official to the other and, thus, Muhammad Hanif DSP Crime Branch
Faisalabad, respondent No. 3 has been entrusted with the investigation of the relevant
case illegally and without lawful authority. "

These observations of the learned Sessions Judge were clearly against the factual position
as the document appended with Writ Petition No. 11862 of 2004 as Annexure-B shows
that originally the investigation of that case was taken in hand by the Investigation Wing
of Toba Tek Singh police but respondent No. 7 had felt dissatisfied with the same and he
had moved an application before the Deputy Inspector-General of Police, Faisalabad
Range, Faisalabad seeking transfer of the investigation. The said application was referred
to the Standing Board as contemplated by the Police Order, 2002 and Circular No. 1/2002
issued by the Provincial Police Officer, Punjab. After due deliberations the Standing
Board had recommended transfer of the investigation of that case to Range Crime,
Faisalabad. The Deputy Inspector-General of Police, Faisalabad Range, Faisalabad had
agreed with the recommendation of the Standing Board and thereafter the Additional
Inspector-General of Police, Investigation Branch, Punjab, Lahore had passed an order on
14-4-2004 transferring investigation of that case and entrusting the same to the Regional
Investigation Branch, Faisalabad. This clearly establishes that all the necessary
requirements contemplated by Article 18(6) of the Police Order, 2002 had in fact been
fulfilled and the order regarding transfer of investigation had been passed by the
competent authority mentioned in the said Article and the learned Sessions Judge had
passed the impugned order dated 27-5-2004 upon having been swayed by assumptions
which were against the record.

33. As far as the other impugned order passel by the learned Sessions Judge, Toba Tek
Singh on 5-7-2004 in Writ Petition No. 11862 of 2004 is concerned we find that the same
is also not sustainable as the same required the District Police Officer, Toba Tek Singh to
carry out and implement the earlier order passed by the learned Sessions Judge, Toba Tek
Singh on 27-5-2004 which order has already been found by us to be unsustainable. A
superstructure built upon quicksand or unsound foundation has to crumble and collapse.

34. As regards Writ Petition No. 14415 of 2004, Writ Petition No. 17169 of 2004 and
Writ Petition No. 16453 of 2004 it is evident that through the orders impugned therein the
relevant ex-officio Justices of the Peace had ventured to transfer the investigations of the
relevant criminal. cases on their own which, as held by us above, was beyond the pale of
their authority and jurisdiction under section 22-A(6), Cr.P.C. Thus, the said impugned
orders are also not legally sustainable.
35. For facility of cognition and for guidance of the ex-officio Justices of the Peace in the
Province of the Punjab the discussion made above is summed up with the following
resume and conclusions:

(i) The powers and duties of a Justice of the Peace or an ex-officio Justice of the Peace in
Pakistan stand specified in sections 22-A and 22-B, Cr.P.C. and they possess no other
additional power and perform no other additional duty except that which is specifically
conferred upon them by a statute.

(ii) The powers and duties of a Justice of the Peace or an ex-officio Justice of the Peace in
Pakistan do not involve any jurisdiction which can be termed as judicial and the functions
performed by him are merely administrative and ministerial in nature and character.

(iii) The superior, courts of Pakistan having constitutional, legal, supervisory and inherent
judicial jurisdiction have consistently and consciously refrained from directly interfering
with investigation of a criminal case by the police and, therefore, Justices of the Peace or
ex-officio Justices of the Peace possessing only administrative and ministerial powers
should be twice shy of such direct interference.

(iv) The directions to be issued by an ex-officio Justice of the Peace under section 22-
A(6), Cr.P.C. are to be directions to the concerned police authorities to attend to the
grievance of the complaining person in accordance with the relevant law and through the
jurisdiction under section 22-A(6), Cr.P.C. an ex-officio Justice of the Peace cannot
arrogate to himself the power of redressing the actual grievance itself. An exception to
this is a case 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 the Peace
to the concerned police officer to do the needful. Under section 22-A(6), Cr.P.C, an
exofficio Justice of the Peace is to perform the role of a facilitator and that of a bride or a
conduit between the complaining persons and the police authorities concerned and the
jurisdiction under section 22-A(6), Cr.P.C. does not allow an ex-officio Justice of the
Peace to put on the mantle of a higher police authority himself and. to start exercising all
those executive powers himself which the relevant law has vested ins the concerned
police authorities.

(v) Barring exceptional and extraordinary cases, the remedy before f an ex-officio Justice
of the Peace under section 22-A(6), Cr.P.C. can ordinarily be termed and accepted as an
adequate alternate statutory remedy ousting a direct recourse by an aggrieved person to
the High Court by invoking its extraordinary jurisdiction under Article 199 of the
Constitution.

(vi) The Proceedings before, an ex-officio Justice of the Peace under section 22-A(6),
Cr.P.C. are essentially summary in character. He is not required to treat such proceedings
as regular lis and no elaborate orders having semblance of a judgment are required o be
passed.

(vii) In such proceedings notice, if required, may be issued only to the concerned police
officer and not to any private party as no direction adverse to any private party is to be
issued in such proceedings. A direction to the relevant police officer regarding activating,
any legal remedy of the complaining person cannot be termed as a direction adverse to
any party. Even a direction to a police officer to comply with a mandatory provision of
law cannot be called a direction adverse to any person. Under Articles 4 and 5 of the
Constitution it is an inalienable right of every citizen to be treated in accordance with the
law and obedience to the law is an inviolable obligation of every citizen.

(viii) Complaints about unjustified harassment by the police. A complaint before an

exofficio Justice of the Peace under section 22-A(6), Cr.P.C. which does not contain all
the necessary factual details regarding the date, time and place of the alleged harassment
as well as full particulars of the concerned police officer who is being complained against
is to be out-rightly dismissed. In an appropriate complaint of this nature the ex-officio
Justice of the Peace may require the concerned police officer to submit his comments to
the complaint. If through his comments the relevant police officer fails to satisfy the
exofficio Justice of the Peace regarding falsity of the allegations levelled against him then
the ex-officio Justice of the Peace may, depending upon the circumstances of the case,
either warn the relevant police officer not to transgress the limits of the law in future or
may issue a direction to the relevant higher police authority or the relevant Public Safety
and Police Complaints Commission to consider the complaint and to take appropriate
action against the delinquent police officer under the relevant provisions of the Police
Order, 2002. In an extreme case of highhandedness and totally unjustified harassment the
ex-officio Justice of the Peace may issue a direction to the relevant police authority to
register a criminal case against the delinquent police officer if he had seemingly
committed some cognizable offence during the harassment perpetrated by him.

(ix) Complaints regarding failure of the police to register a criminal case: The officer in
charge of the relevant Police Station may be under a statutory obligation to register an
F.I.R. whenever information disclosing commission of a cognizable offence is provided
to him but the provisions of section 22-A(6), Cr.P.C. do not make it obligatory for an
exofficio

Justice of the Peace to necessarily or blind-foldedly issue a direction regarding

registration of a criminal case whenever a complaint is filed before him in that regard. An
ex-officio Justice of the Peace should exercise caution and restraint in this regard and he
may call for comments of the officer in charge of the relevant Police Station in respect of
complaints of this nature before taking any decision of his own in that regard so that he
may be apprised of the reasons why the local police have not registered a criminal case in
respect of the complainant's allegations. If the comments furnished by the officer in
charge of the relevant Police Station disclose no justifiable reason for not registering a
criminal case on the basis of the information supplied by the complaining person then an
ex-officio Justice of the Peace would be justified in issuing a direction that a criminal
case be registered and investigated. It is not obligatory for the officer in charge of a
Police Station or for an ex-officio Justice of the Peace to afford an opportunity of hearing
to the accused party before registration of a criminal case or before, issuing a direction in
that regard. In an appropriate case, depending upon the circumstances thereof, an
exofficio Justice of the Peace may refuse to issue a direction regarding registration of a
criminal case and may dismiss the complaint under section 22-A(6), Cr.P.C. reminding
the complaining person of his alternate statutory remedies under sections 156(3) and 190,
Cr.P.C. The impression entertained by a large section of the legal community in our
country that in case of filing of a private complaint the accused person cannot be arrested
and recovery cannot be effected from him is nothing but erroneous and fallacious.

(x) Complaints about failure by an investigating officer to add appropriate penal

provisions to an F.I.R. or a cross-version of the accused party: Such complaints are not
worthy of being taken with any degree of seriousness by an ex-officio Justice of the
Peace. The stands taken by the complaining persons in this regard normally touch the
merits of the allegations and an ex-officio Justice of the Peace would be well advised to
refrain from entering into any such controversy at a premature stage. The over all
incharge of a criminal case is the Area Magistrate who, even during the progress of an
investigation, gets many opportunities to go through the record of investigation
conducted by the police and in an appropriate case and at an appropriate stage he can
require the investigating officer to consider addition or deletion of any penal provision.

After submission of a report under section 173, Cr.P.C./Challan the Magistrate taking
cognizance of the offence or Court taking cognizance of the case can take cognizance of
any offence disclosed by the material available the investigation even if the police have
not invoked the relevant penal provision. Even at the time of framing of the charge a trial
Court can frame a charge in respect of any offence disclosed by the record even if the
same finds no mention in the report submitted under section 173, Cr.P.C./Challan. With
so many opportunities being available with the Magistrate and the trial Court regarding
rectification of a mistake, deliberate or otherwise, committed by the police in this
connection it would be unwise for an ex-officio Justice of the Peace to interfere with such
a matter at an inappropriate and premature stage. In case of receipt of such .a complaint
an ex officio Justice of the Peace may advise the complaining, person to approach the
Area Magistrate or the trial Court, as the case may be, rather than entertaining such a
complaint himself.

(xi) Complaints about failure by the investigating officer to record a cross-version of the
accused party: While dealing with a complaint of this nature an ex-officio Justice of the
Peace should call for comments of the investigating officer explaining as to why he has
not recorded the version of the accused party and if such comments confirm the
complaint that despite having been approached in that regard by the accused party and if
officer has not recorded the version of the accused party and if there is no valid or
justifiable reason for such default on his part then a direction may be issued by the
exofficio Justice of the Peace to the investigating officer to do the needful or in the
alternative the Superintendent of Police (Investigation) of the relevant District may be
directed by the ex-officio Justice of the Peace to attend to this aspect of the matter and to
ensure that the needful is done by the investigating officer without further ado.

(xii) Complaints regarding failure by the police to arrest an accused person. A general
impression entertained by some quarters that an arrest of a suspect or an accused person
is necessary or sine qua non for investigation of a crime is misconceived. A suspect is not
to be arrested straightaway upon registration of an F.I.R. or as a matter of course and,
unless the situation on the grounds so warrants, the arrest is to be deferred till such time
that sufficient material or evidence becomes available on the record of investigation
prima facie satisfying the investigating officer regarding correctness of the allegation
levelled by the complainant party against' such suspect or regarding his involvement in
the crime in issue. The law requires an investigating officer to be generally slow in
depriving a person of his liberty on the basis of unsubstantiated allegations .and, thus.,
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. 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. It must always be remembered that delaying .the arrest till after formation of
an opinion regarding prima facie correctness of the allegation against a suspect goes a
long way in deterring false, frivolous and motivated complaints and also that there may
not be any adequate recompense of reparation for an unjustified arrest. It would be
preposterous and a mockery of justice if a person may be deprived of his liberty first and
later on the allegation against him may be found by the arresting agency itself to be
bogus, trumped up or false. Such an approach would amount to putting the cart before the
horse.

(xiii) Complaints seeking transfer of investigation of criminal cases: The job of an

investigating officer is not to satisfy the parties to the case or to render any opinion about
guilt or innocence of an accused person but his duty is only to collect all the relevant
evidence. In the reports to be submitted by the police in connection with investigation of
a criminal case it can comment about sufficiency or otherwise of the evidence available
against an accused person but it cannot comment upon believability or otherwise of the
evidence becoming available on the record against such accused person. The question of
believability or otherwise of such evidence is to be attended to by the relevant Magistrate
or the trial court. The trend of getting a fresh investigation of a criminal case conducted
after submission of a Challan and after taking of cognizance by the trial Court is not to be
encouraged. By virtue of the provisions of Article 18(5) of the Police Order, 2002 a
District Police Officer cannot interfere with the process of investigation and, thus, an
exofficio Justice of the Peace cannot direct a District Police Officer to attend to the
complaining person's grievance regarding an investigation. Article 18(6) of the Police
Order, 2002 specifies the only manner in which investigation of a criminal case can be
changed. There is no other law authorizing or empowering any other police officer or
authority to change the investigation of a criminal case. Any change or transfer of
investigation of a criminal case by any officer or authority other than those mentioned in
Article 18(6) of the Police Order, 2002 is to be void and a nullity. `Verification' of
investigation, if necessary, must be confined to verification of the record of investigation
and such an exercise cannot be allowed to be conducted in a manner giving it a colour of
fresh investigation with fresh conclusions. The verifying officer has to confine himself to
the record of investigation already conducted and cannot substitute his own conclusions
for those of the investigating officer and if he finds any serious fault with the
investigation already conducted then the verifying officer can bring such fault to the
notice of the Superintendent of Police (Investigation) of. the concerned District who can
then initiate the process contemplated by the provisions of Article 18(6) of the Police
Order, 2002 for change of investigation. An ex-officio Justice of the Peace cannot step
into the shoes of a competent police authority so as to himself pass an order transferring
investigation of a criminal case and his role in this regard is confined only to getting the
process under Article 18(6) of the Police Order, 2002 activated if the complaint before
him establishes that the complaining person's recourse under section 18(6) of the Police
Order, 2002 has remained unattended to so far. If the complaining person has not yet even
applied before the competent authorities under Article 18(6) of the Police Order, 2002
seeking change of investigation then his complaint under section 22-A(6), Cr.P.C. is not
to be entertained by an ex-officio Justice of the Peace as no occasion has so far arisen for
interference in the matter by an ex-officio Justice of the Peace. If the competent
authorities under Article 18(6) of the Police Order, 2002 have already attended to the
request of the complaining person regarding transfer of investigation and have not found
the case to be a fit case for transfer of investigation then too an ex-officio Justice of the
Peace-cannot interfere in the matter as the competent authorities have already
consciously attended to the matter and there is nothing left for the ex-officio Justice of the
Peace to get activated or initiated. An ex-officio Justice of the Peace is not to assume the
role of an appellate, revisional or supervisory authority in that respect. An ex-officio
Justice of the Peace, like any judicial or other authority outside the police hierarchy,
should be extremely slow in directly interfering with the matter of transfer of
investigation and in an appropriate case he may interfere only where the authorities
mentioned in Article 18(6) of the Police Order, 2002 have already been approached by
the complaining person but such authorities have failed to attend to his grievance and the
application of the complaining person is lying unattended to. Even in such a case an
exofficio Justice of the Peace may refuse to interfere in the matter unless it is established
to his satisfaction that some specific and particular material pieces of evidence had been
missed out by the investigating officer and the same remain to be collected by the police.

An ex-officio Justice of the Peace may not interfere in such a matter unless he feels
satisfied that the required evidence had either not been collected or that further evidence
is required to be collected in a given case and the recourse of the complaining person to
the authorities mentioned in Article 18(6) of the Police Order, 2002 in that regard has so
far remained unattended to. In such a case an ex-officio Justice of the Peace may issue a
direction to. the concerned police authority to get the process under Article 18(6) of the
Police Order, 2002 activated so that an appropriate and suitable decision on the
complaining person's grievance can be made by the competent authorities under Article
18(6) of the Police Order, 2002 one way or the' other. While attending to such a
complaint an ex-officio Justice of the Peace cannot issue a direction changing the
investigation of a criminal case on his own. Any attempt by a party to get the
investigation changed only to obtain a favourable opinion from an investigating officer
regarding guilt or innocence of an accused person is to be nipped in the bud.

(xiv) Complaints about failure of the police to finalize investigation of a criminal case
and to submit a Challan in time. An ex-officio Justice of the Peace seized of a complaint
regarding failure of the police to finalize investigation of a criminal case and to submit a
Challan within the stipulated period should require the investigating officer of the
relevant case to explain the reason for the delay in that regard and he may also require
him to explain as to why a recommendation may not be made to the concerned quarters
for appropriate action in terms of the action taken by the Hon'ble Supreme Court of
Pakistan in the case of Hakim Mumtaz Ahmed and another v. The State [PLD 2002
Supreme Court 590]. If the explanation submitted by the investigating officer is found by
the ex-officio Justice of the Peace to be unsatisfactory then he may issue a direction to the
Superintendent of Police (Investigation) of the relevant District to ensure finalization of
investigation and submission of Challan at the earliest possible and may also, depending
upon the circumstances of the case, either warn the relevant investigating officer to be
careful in that regard in future or issue a direction to the relevant higher police authority
or the relevant Public Safety and Police Complaints Commission to consider the
complaint and to take appropriate action against the delinquent police officer under the
relevant provisions of the Police Order, 2002 or under any other law applicable to such
misconduct.

(xv) An ex-officio Justice of the Peace in Pakistan does not perform or discharge any
judicial function and, therefore, the law relating to Contempt of Court is inapplicable to
an alleged non-compliance of any direction issued by him .under section 22-A(6), Cr.P.C.
However, a direction issued by him under section 22-A(6), Cr.P.C. is grounded in lawful
authority conferred upon him by the said legal provision and by virtue of the provisions
of Article 4(1)(m) of the Police Order, 2002 every police officer is under a duty to obey
and -promptly execute all lawful orders. There are, therefore, threefold remedies
available against non-compliance of directions issued by an ex-officio Justice of the
Peace under section 22-A(6), Cr.P.C., i.e. firstly, upon a complaint received by him
regarding non-compliance of his earlier direction an ex-officio Justice of the Peace can
issue a direction to the relevant police authority to register a criminal case against the
delinquent police officer under Article 155(c) of the Police Order, 2002 or, secondly, he
can issue a direction to the relevant higher police authority or the relevant Public Safety
and Police Complaints Commission to take appropriate action against the delinquent
police officer under the relevant provisions of the Police Order, 2002 or under any other
law relevant to such misconduct and, thirdly, the complaining person can approach this
Court under Article 199 of the Constitution seeking issuance of an appropriate writ
directing the defaulting police officer to do what the law requires him to do.

(xvi) It needs to be clarified that a petition filed under section 22-A(6), Cr.P.C. before an
ex-officio Justice of the Peace is to be termed only a `petition' and such a petition cannot
be branded, dubbed or called a `Writ Petition'. It must be borne in mind that jurisdiction
to issue a `writ' is traditionally a high prerogative jurisdiction of a High Court which
dates back to antiquity and is now recognized by the Constitution. Thus, the writ
jurisdiction of a High Court must not be confused with a statutory jurisdiction of an
exofficio Justice of the Peace which is exercised by Sessions Judges and Additional
Sessions Judges.

36. For what has been discussed above Writ Petition No. 11862 of 2004, Writ Petition
No. 14415 of 2004, Writ Petition No. 17169 of 2004 and Writ Petition No. 16453 of 2004
are allowed and the impugned orders passed by the Sessions Judge, Toba Tek Singh on
27-5-2004 and 5-7-2004 as well as the impugned order passed by the learned Sessions
Judge, Toba Tek Singh on 9-8-2004, the impugner order passed by the 'learned Additional
Sessions Judge, Lahore on 13-9-2004 and the impugned order passed by the learned
Sessions Judge, Hafizabad on 15-9-2004 respectively are declared to be without lawful
authority and of no legal effect. There shall be no order as to costs.

(Sd.)
(Iftikhar Hussain Chaudhry)
Chief Justice
(Sd.)
(Asif Saeed Khan Khosa)
Judge
(Sd.)
(Sheikh Abdul Rashid)
Judge
M.B.A./K-105/L Order accordingly.