Malik Muhammad farooq khattak advocate

25/04/2025

09/12/2024

شناخت پریڈ، تفتیش، مقدمات کا غلط اندراج، سماعت مقدمہ میں تاخیر، حکومت/پولیس/پراسیکیوشن اور عدلیہ کی ذمہ داریاں۔
سپریم کورٹ کارہنما فیصلہ
2024 S C M R 757
It is the basic duty of the state under Article 37(d) of the constitution to ensure inexpensive and expeditious justice. When the legal machinery fails to deliver justice within a reasonable time, it not only violates the constitutional mandate, but also leads to frustration. The basic duty of the judges is to protect the fundamental rights of every person in all circumstances. Judges are under obligations to discharge their duty and perform their functions with open mind, without any influence or pressure. The government must also take steps to curb the trend of registration of false and frivolous litigation; and to ensure that the frivolous litigants are not let off scot-free for such acts.

The prosecution’s case rests upon the identification parade and recovery of the alleged amount from the houses of the stated respondents. The Magistrate who conducted the identification parade in jail, stated that five rows consisting of under-trial prisoners and the respondents were made. In each row, one of the respondents was made to sit. The witnesses were asked one by one to identify the accused. Consequently, they identified all the respondents in one go. Though the Magistrate managed to make five rows consisting of the under-trial prisoners and each of the respondents, but the fact remains that they all were present in the same premises under one roof. The manner in which the Magistrate managed to conduct the identification parade leads us to a conclusion that it was a combined and joint identification parade.
Joint identification parade is a nullity. Besides, the abductee saw the persons for the first time when he was abducted, whereas, the complainant witnessed those for the first time, who allegedly received the ransom amount from him. It is noteworthy that the persons who abducted the abductee and those who received the ransom amount were not known to the witnesses prior to the identification parade. It was, therefore, necessary for the witnesses to have had given some features of each of the respondents, with their specific role, during the investigation, before the identification parade, enabling the Magistrate to manage the person of identical features for the purpose of including them in identification parade as dummies. It is an admitted fact that the witnesses did not disclose any such fact in respect of the respondents. Moreover, in order to maintain secrecy, it was the responsibility of the concerned police to ensure that the accused should not witness by the witnesses while in police station lock-up or in police custody. The police was required to have taken every precaution to conceal the identity of the detainees before conducting the identification parade. All these precautions should not only be taken, but must have been proved to have been taken. There is nothing on the record to prove that any step was taken by the police in this behalf. Before conducting the identification parade, the respondents had raised an objection before the Magistrate that the witnesses saw them in the lockup and their photographs were published in the newspapers in connection with some other case. The prosecution did not deny the objection. The Magistrate was required to record the objection and to decide its fate, but he ignored the objection and instead, continued to complete the process of identification parade. The identification was conducted after a lapse of more than two years of the occurrence, therefore, it is hard to believe that the witnesses could still have momentary glimpse of the respondents. Under such circumstances, the presumption would be that they were picked from amongst the other persons during that identification, because the witnesses had access to the police station and saw the respondents in the police lock-up and might have saw their pictures published in the newspapers before the identification parade. Evidence of such witnesses, identifying the respondents as accused, looses it efficacy. The respondents are mainly picked up in the identification parade, and the role attributed to them is not stated by the witnesses, the identification parade in the circumstances was not in line with Article 22 of the Qanoon-eShahadat Order, 1984, hence, is of no evidentiary value and cannot be relied upon.

We have observed in number of cases that accused are acquitted in genuine cases because of poor or colourable investigation; lack of ameliorating skills of investigating authorities; non-availability of modern equipments and techniques with investigating agencies; lack of evidence or reluctance of witnesses to cooperate with the prosecution for multiple reasons, one of which is that there is no mechanism in vogue for their protection. Sometimes, in genuine cases, the accused are acquitted for the reason that the complainant conceals necessary facts or widens the net by involving person(s) having no nexus with the case, in order to pressurize the main culprit. In certain cases, the accused are acquitted by the courts without properly appreciating the evidence and law in its true perspective. Similarly, in some cases, the accused are convicted by the Trial Courts, but subsequently, they are acquitted by the High Courts or by this Court because of lack of evidence. In any case, wrongful acquittal or wrongful conviction is a breach of law and an abuse of process of the Court.

The basic duty of the Judges is to protect the fundamental rights of every person, including a complainant and an accused, in all circumstances. They are under obligation to discharge their duties and perform their functions with open mind, without any influence or pressure, fear or favour, affection or ill-will, honestly, justly and to the best of their ability, by applying the Constitution and law in their true perspective, on the basis of facts and circumstances of each case. In doing so, they are required to get the assistance of lawyers, prosecutors and guidance from the judgments of this Court and the High Courts, in order to reach a correct conclusion. This will protect the fundamental rights of the people to a possible extent, will serve the interest of justice, and will also boost faith and confidence of people in our judicial system. We do not doubt the integrity and competence of any Judge. There might be multiple reasons for wrong decision, but there should be no excuse for a Judge in delivering a judgment contrary to the law and facts. In any case, the Judges must be aware of their judicial powers and must exercise them to reach a correct conclusion, in order to protect the fundamental rights of the people and to promote the interest of justice.

The Code of Criminal Procedure, 1898 (“Cr.P.C.”) provides a procedure for investigation of criminal cases and their trial. Section 173 of Cr.P.C. requires that the police must complete investigation and submit its report within a period of 14 days from the date of recording of an FIR. In most of the cases, the investigating officers submit reports with unjustified delay, which is one of the obstacles in early disposal of cases5. Similarly, non-observance of mandatory provisions of Cr.P.C. and relevant Rules by the investigating officers, result into acquittal of real culprits. Sometimes, false accusation is made against persons who in reality, are not involved in a case, but for no reason, they are subjected to prolong litigations. Because of the neglect of the investigating authorities, the real culprit is either kept from being punished for the offence actually committed or an innocent person is detained or even wrongly convicted by the courts. Such act of the investigating officers is in violation of the Constitution and law. In any case, it is against the fundamental rights of a person, which eventually creates a wrong perception and sends a negative message against the judiciary.

It is obligatory upon the Trial Court to ensure constitutional guarantee of life, liberty, fair trial and due process enshrined in Articles 9 and 10A of the Constitution. Section 265-D of Cr. P.C. provides that the Trial Court should consider all the available material, whereafter, if it is of the opinion that there is ground for proceeding with the trial of the accused, it shall frame in writing a charge against the accused. If no charge could be framed or if charge is framed, but there is no probability of the accused being convicted of the charge on the basis of the material available on the record, the Trial Court has power under sections 265-K and 249-A, of Cr.P.C., as the case may be, to acquit an accused at any stage of the case, either on its own motion or upon an application in this behalf filed by an accused after providing opportunity of hearing to all concern. Such power is mandatory in nature, which must be exercised judiciously in order to prevent the abuse of process of law and frivolous and malicious litigation, which will also result into curtailing the backlog.
Shared by:Syed Naeem Ali Adv.
Another issue which is being faced by the litigants is the inordinate and unreasonable delay in conclusion of criminal trials and appeals/petitions, without any substantial progress, which is a crucial challenge to the Administration of Criminal Justice System in our country. Such delay is antithetic to the foundational principles of liberty, fair trial and due process. Under such circumstances, it is the primary duty of the investigating agencies and every judge of the country to take into account such fundamental rights of persons, whose cases are brought before them by strict adherence to law.

There is no doubt that the prosecuting agencies and the courts are over-burdened because of increase in the number of cases as a result of population explosion and lack of basic facilities, necessary for early dispensation of justice, but still they are under constitutional and legal obligations to conduct and conclude fair investigation and fair trial within a stipulated period to the possible extent, or in a reasonable period where there is no time limit provided by law for doing so. Within the prevailing system, it is difficult to achieve the desired results, but some improvements could be made into the system by proper management in order to streamline the investigation and judicial proceedings. Such goal cannot be achieved without the cooperation of investigating agencies, complainants, lawyers, prosecutors and all relevant persons/authorities. It is incumbent upon investigating officers, lawyers and prosecutors to follow the law and cooperate with courts so as to avoid unnecessary and unjustified delays in early disposal of the cases. Likewise, cooperation between investigating agencies and prosecutors/complainants is essential in order to pursue the matter to ensure timely and fair conclusion of the cases.

To address the deficiencies in prosecution’s cases, and to avoid unreasonable delays in the timely conclusion of criminal trials and appeals, it is an obligation of the State under Article 37(d) of the Constitution to ensure inexpensive and expeditious justice. In this behalf, the vacancies of judicial officers across the country must be filled in on merits, without any delay; to consider increase in the number of judges, wherever it is so required; to ensure upgradation of the investigation mechanism, introduction of modern techniques, equipments, devices and tools; conducting regular and fruitful training courses for the investigating officials; ensuring independence of judiciary and the investigating agencies, providing basic facilities, friendly and workable atmosphere to the Courts, the investigating agencies, ensuring safety and protection of the judicial officers, investigating officials and witnesses. The Government must also take steps to curb the trend of registration of false and frivolous litigation; and to ensure that the frivolous litigants are not let off scot-free for such acts. By taking all such measures, certain laws are required to be amended or certain legislation is required, which may be considered by the Government and the Parliament/Assemblies. Till the time, such a policy is devised or necessary enactments are made, the courts must exercise their powers already granted by available laws to do complete justice and to discourage frivolous and malicious litigation.

Against Acquittal/Anti-Terrorism Act
Crl.P.235-L/2015
Mehboob Hassan v. Akhtar Islam, etc

09/12/2024

U.S.B (Universal Serial Bus) is "document" and if prosecution submits U.S.B. containing video recording of raid conducted at the time of occurrence with challan report in the court, then accused(naeem) is entitled to get copy of the same.
Crl. Appeal.51928/24
Muhammad Iqbal Vs The State etc.
Mr. Justice Farooq Haider
2024 LHC 4445

This judgment has been dictated and pronounced on 08.10.2024 whereas after preparation, signed on 14.10.2024.

09/12/2024

Apart from technique of signposting and piggybacking for conducting examination in chief of a witness, there are in place certain other suitable and practiced rules in every nook and corner of the world in the Courts. In terms of ‘Form of questions’, guidelines are as under
(i) Do not lead
(ii) Avoid wide question and ask focused/specific/targeted questions
(iii) Avoid long question and ask short, simple questions
(iv) Avoid compound questions and ask one question at a time
(v) one point at a time
(vi) Have a dialogue and ensure the questions follow on
(vii) establish facts not conclusions
(viii) Avoid comment, build to a point.

For sequence or structure of questions, following rules are followed;
(i) Help the witness to tell the story
(ii) paint a picture
(iii) Help the Court to follow
(iv) use the exhibits and photos
(v) use of plans
(vi) avoid irrelevancies
(vii) listen to the answers
(viii) avoid quick fire questions
(ix) avoid interrupting
(x) use piggybacking as cited above.

To have a control on the witness, techniques are as follows;
(i) Ask precise question
(ii) know your material
(iii) demonstrate clear direction
(iv) know where you are going
(v) plan transition or alternate questions

Crl. Appeal 10549/21
Rao Hamayun Waqas Vs The State .
2024 YLR 2546
PLJ 2024 Cr.C 989

09/12/2024

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Cross Refrence Citation Name : 2006 MLD 691 PESHAWAR-HIGH-COURT-NWFP
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Date: June 7, 2011
From: Pakistan Law Reporter
Publisher: Right Vision Media
Document Type: Article
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PESHAWAR: 2006 M L D 691

[Peshawar]

Before Muhammad Raza Khan, J

SAKHI AN---Petitioner

Versus

THE STATE and another---Respondents

Criminal Revision No.37 of 2005, decided on 1st February, 2006.

(a) Qanun-e-Shahadat (10 of 1984)---

----Art. l33---Criminal trial---Eye-witnesses, examination of---Practice of recording oral evidence of all eye-witnesses on same day---Logic behind such practice stated.

Recording of evidence of an eyewitness is imperative for the just decision of a case, particularly when the number of eye-witnesses is restricted to two only. However, it is a general practice that the same set of witnesses are examined on the same day and particularly the oral evidence of the eye-witnesses has to be recorded on the same day, so that the line of defence is not exposed to the witnesses and the answers to the cross-examination are given truthfully. This is one of the modes of testing, the veracity of the witnesses. When one witness is examined, the cross-examination of the other party is not within his notice; otherwise he will repeat the answers to the cross-examination recorded by the other witness.

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

----S.540---Penal Code (XLV of 1860), 5.302---Abandoned eye-witness after closing evidence by prosecution, re-summoning of---Validity---Had there been an omission, a mistake or negligence, then same could be rectified under S.540, Cr.P.C.---Had closing of evidence been mistake of Public Prosecutor only, then same could be ignored, but subsequently private Counsel of complainant had also closed evidence under his signatures---Such conscious exercise of a choice to close evidence twice under valid signatures of Public Prosecutor and private counsel of complainant could not be undone as same would give rise to a practice to call...

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"Cross Refrence Citation Name : 2006 MLD 691 PESHAWAR-HIGH-COURT-NWFP." Pakistan Law Reporter, 7 June 2011. Gale Academic OneFile, link.gale.com/apps/doc/A258261042/AONE?u=anon~973e0b7b&sid=sitemap&xid=15d08e33. Accessed 16 Nov. 2024.
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09/12/2024

COMPLETE LAW ON 22-A

22-A & 22-B
ARTICLE 175 (3) OF THE CONSTITUTION OF THE ISLAMIC REPUBLIC OF PAKISTAN 1973 AND SECTIONS 22-A, AND 25 OF THE CRIMINAL PROCEDURE CODE 1898



1- AMENDMENT IN THE CRIMINAL PROCEDURE CODE 1898

A- On November 21, 2002 ex-officio Justice of the Peace in Pakistan were conferred an additional role through promulgation of the Criminal Procedure (Third Amendment) Ordinance (Federal Ordinance No.C###I) 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 and in respect of neglect, failure or excess committed by the police authorities in relation to its functions and duties. PLD 2005 Lah 470.

B- The provisions of sections 22-A, & 22-B, Cr.P.C, have been added to the Statute Book whereby Sessions Judges and Judge of a High Court, by virtue of their office being justice of peace, can exercise all powers of a police u/s 54. Cr.P.C. PLD 2002 Kar 328.



2- OBJECT OF THE AMENDMENT

A- Amendments in the Criminal Procedure Code 1898, have been so made to lessen the burden of High Court which was created through filing of writ petitions seeking registration of cases and transfer of investigations. PLD 2007 SC 539, 2005 MLD 1593.

B- Object of Section 22-A Cr.P.C. is only, that if a grievance is voiced with regard to non-registration of FIR in a cognizable offence, Justice of the Peace in terms of said section can only direct/suggest as to whether in the terms of Section 154, Cr.P.C the S.H.O. had acted legally or illegally. 2007 P.Cr.L.J 124.

C- Object of Section 22-A Cr.P.C. is to provide a responsible forum at the door step of citizen for rescue against unlawful declines relating to registration of cases in cognizable offences. PLD 2008 Pesh 53.



3- POWERS OF JOP, TO ISSUE DIRECTIONS UNDER SECTION 22-A(6)(i) Cr.P.C.

A- Only jurisdiction which can be exercised by an Ex-officio Justice of the Peace under Section 22-A, Cr.P.C is to examined whether the information disclosed by the applicant did or did not constitute a cognizable offence and if it did then to direct the concern SHO to record an FIR, without going into the veracity of the information in question and no more. PLD 2007 S.C.539.

B- Ex-officio Justice of Peace is empowered to direct registration of case. 2010 P.Cr.L.J. 1466.



C- Powers conferred on Sessions Judge u/s 22-A (6), Cr.P.C. though are not at par with those of writ mandamus, but are substantially of that nature when Sessions Judge as the justice of peace, could direct in charge of a Police Station to register a criminal case reported to it if cognizable offence was made out. 2005 YLR 3297.



D- Condition precedent is simply two fold; first it must be information and secondly it must relate to a cognizable offence on the face of it and not merely in the light of subsequent events. 2007 P.Cr.L.J 145.

E- Every information relating to commission of a cognizable offence pertains only to the information so supplied and do not pertain to actual commission of the cognizable offence and that information supplied should be about an alleged commission of a cognizable offence of his truthfulness or otherwise the concerned police official has only to satisfy himself to the extent that information is in respect of a cognizable office. PLD 2003 Lah. 228.

F- Under provision of Section 22-A(6) Cr.P.C. complaint regarding non-registration of criminal case can be made before ex-officio Justice of the Peace which u/s 25, Cr.P.C, is Sessions Judge. 2005 P.Cr.L.J. 487.

G- Special provisions of S. 22-A(6)(iii), Cr.P.C. explicitly providers that Sessions Judge acting as Ex-officio justice of the peace can always issue appropriate direction to the police authorities on a complaint regarding none-registration of criminal case or negligence or failure by police authorities in relation to its functions. PLD 2005 Kar 285.

H- Sessions Judge is empowered to issue as ex-officio justice of peace appropriate directions to police authorities on a complaint regarding (i) non-registration of criminal case; (ii) transfer of investigation from one police station to other (iii) to take notice of neglect, failure or excess committed by police authority to relation in its functions and duties. NLR 2004 Crl (Lah) 351.

J- An Ex-officio Justice of the Peace in Pakistan (i-e Sessions Judge and nominated Additional Sessions Judge in the relevant District 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. PLD 2005 LHR 470, 2005 P.Cr.L.J 487.

K- Power conferred on ex officio justice of peace under Sections 22-A and 22-B, Cr.P.C. deal with issues relating to non-registration of FIR, transfer of investigation under article 18(6) of the Police order, 2002 and neglect, failure or excess committed by a Police Authority. 2011 YLR 2141.



L- Ex-officio Justice of Peace is empowered to direct registration of case. 2010 P.Cr.L.J. 1466.



M- Justice of the Peace passed order with direction to SHO concern to record the statement of the petitioner and proceed further strictly in accordance with law. SHO should recorded statement u/s 154, Cr.P.C. and hand-over the copy of the FIR to the petitioner without any delay. 2010 P.Cr.L.J. 296.



N- The Justice of the Peace could issue orders for registration of a case on an application under Sections 22-A & 22-B, Cr.P.C. against the respondent. PLD 2006 Lah 460.



P- The directions to be issued by an ex-officio justice of peace under this section or to be direction to be concerned Police authorities to attend to the grievance of the complaining person in accordance with the relevant law and through the jurisdiction u/s 22-A (6) Cr.P.C. PLD 2005 Lah.470, PLJ 2005 Lah. 1571.



Q- Sessions Judge acting as Justice of Peace is equally competent to issued appropriate direction regarding registration of case, transfer of investigation or any wrong done by the police authorities in the performance of their duties. 2004 YLR 56.



R- Under S.22-A, Cr.P.C. if Justice of Peace would find that an incident had taken place, then he was required under the law to issue directions for registration of case. 2011 YLR 27.



S- Justice of the Peace is possessed with jurisdiction under section 22-A (6), Cr.P.C, to decide after examining information as to whether or not any cognizable offences made out. He cannot delegate such powers and functions to Police. 2008 YLR 2301.



T- Section 22-A, Cr.P.C. gives power to the Sessions Judge to direct registration of case, in case of failure of the police official to discharge their statutory obligation as vested in them u/s 154, Cr.P.C. PLD 2000 Lah 208, 2004 P.Cr.L.J.1214.



U- Justice of the Peace can issue direction when there is complaint in respect to non-registration of a case and if such complaint is brought before him then he can simply direct that police has to act in accordance with law and entertain the complaint and if cognizable offence is made out then further action be taken in accordance with law. 2008 MLD 1142.



V- Section 22-A (6) has provided authority to Justice of the Peace to issue appropriate direction to police authorities on a complaint regarding non registration of FIR. PLD 2008 Pesh. 53.



W- Perusal of clause (iii) of subsection (6) of Section 22-A show that its purse no embargo for passing such an order during the investigation, if any neglect, failure or excess committed by the Police authority in relation to its functions and duties brought to the notice of court and proper direction to eradicate the failure of the Police Officials in sough. PLD 2008 Pesh 1.



X- Whenever a police officer fails to register a criminal case, a direction to do so can always be issued by the Justice of the Peace u/s 22-A (6) (1) Cr.P.C. though it will be for such officer to determine whether the matter falls u/s 154 or 155. 2007 P.Cr.L.J. 909.

Y- REJECTION OF COMPLAINT BY THE JUSTICE OF THE PEACE

a)- Justice of Peace is competent to examined complainant with full application of legal mined and is not supposed to accept and believe the same as gospel of truth. If Justice of Peace after examination or complainant with full application of legal mind comes to the conclusion that allegation set up by complainant person to be ridiculous, or self-contradictory or vague or barred by law or offensive to public policy and accepted standard of morality, he may be legally justify to turn down the request of registration of a case. 2008 YLR 2301.



b)- Application filed under Ss. 22-A(6), 22-B, Cr.P.C., for registration of a case allowed by the ex officio Justice of Peace. Accused challenge the order. Dispute related to shops. Dispute between the parties could be resolved by civil Court, registration in such a case is not approved. 2011 YLR 1768.



c)- Ex-officio Justice of the Peace, after examination of complaint, come to the conclusion that the allegation leveled by the complaining person appears to be false and fabricated, he may be legally justified in turning down the request for registration of a case. PLJ 2012 Cr.C.(Quetta) 581.



Z- ORDER, CONTRARY TO THE POLICE REPORT.

a)- Ex-officio Justice of Peace, if not agreeing with the report furnished by the Police, can pass an order contrary to it. 2007 PCrL.J 1935.



b)- The Ex officio Justice of the Peace can refuse registration of case only if police report discloses no justifiable reason for registration of a case. 2006 P.Cr.L.J. 1775.



AA- DIRECTION, WITHOUT REPORT OF THE POLICE.

a)- If Additional Sessions Judge directs SHO to probe into the matter, to holding preliminary inquiry and report within a week, he should wait for such report. Disposal of the application without waiting for the report is not proper. 2005 YLR 1610.



BB- DELEGATION OF AUTHORITY TO SHO.

a)- The Justice of the Peace can direct SHO to look into the matter and then decide as to whether a cognizable offence is made out or not. PLD 2009 Lah.232.



b)- He is not supposed to delegate his authority to SHO in slipshod manner and leave the controversy to the judgment of SHO to decide as to what was in accordance with law. 2008 YLR 2406.



c)- Direction given to the SHO by Ex-officio Justice of Peace to initiate proceeding against petitioner under section 182, PPC is beyond the purview of section 22-A, Cr.P.C, and in excess of jurisdiction conferred upon him under the law. PLD 2007 Lah 53.



CC- NO HEARING OF THE ACCUSED

a)- Justice of Peace while deciding the case under sections 22-A and 22-B, Cr.P.C, is not required to issue notice to person against whom registration of a case is required but is required to summons the concerned Police Officer so that a direction could be issued to him to register a case. 2011 P.Cr. L.J. 913.

b)- The basic provision provides no hearing of the accused before passing order under section 22-A, Cr.P.C while exercising constitutional jurisdiction in such a case, Court is not obliged to hear the accused. PLD 2000 Lah 208, 2004 P.Cr.L.J.1214.



c)- At the time of first information report, accused persons named in the complaint, have no right of hearing. 2002 P.Cr.L.J 9.



DD- DIRECTION, FOR SECOND FIR

a)- Where the claim or version of an accused is reported by him before the police, under the law the police is required to bring same on record and then to preceded therewith in accordance with law. If such right is denied by the Police/Investigating Officer, the remedy available under S. 22-A Cr.P.C. cannot be jeopardized merely because previously FIR has been recorded and has been investigated. PLD 2009 Lah 8.



b)- Second FIR, in circumstances was permissible under the law. Justice of Peace committed no illegality by issuing the direction for the registration of the FIR on the statement of daughter of the deceased. 2011 YLR 883.



EE- DIRECTION, IN NON-COGNIZABLE OFFENCES.

a)- No bar exists on issuance of directions by the Justice of the Peace to register a case in non-cognizable offence. 2012 P.Cr.L.J 981.



b)- Though no order for registration of case can be passed but Justice of Peace should direct SHO concern to received application for registration of case to enter the same in the Roznamcha and thereafter under section 155(2), Cr.P.C. apply to the Magistrate seeking permission to investigate the matter and proceed strictly in accordance with law. 2008 P.Cr.L.J. 1358.



FF- JURISDICTION/POWERS TO ISSUE DIRECTIONS UNDER SECTION 22-A(6)(ii) Cr.P.C.

a- Power conferred on ex officio justice of peace under Sections 22-A and 22-B, Cr.P.C. deal with issues relating to non-registration of FIR, transfer of investigation under article 18(6) of the Police order, 2002 and neglect, failure or excess committed by a Police Authority. 2011 YLR 2141.

b- An Ex-officio Justice of the Peace in Pakistan (i-e Sessions Judge and nominated Additional Sessions Judge in the relevant District 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. PLD 2005 LHR 470, 2005 P.Cr.L.J 487.

c- Sessions Judge is empowered to issue as ex-officio justice of peace appropriate directions to police authorities on a complaint regarding (i) non-registration of criminal case; (ii) transfer of investigation from one police station to other (iii) to take notice of neglect, failure or excess committed by police authority to relation in its functions and duties. NLR 2004 Crl (Lah) 351.



GG- SATISFACTION OF COURT BEFORE ISSUANCE OF DIRECTION.

a- Under section 22-A (6)(ii), Cr.P.C if ex officio justice of peace receives complaint regarding the transfer of investigate from one police officer to another, in such case he has to satisfy himself whether it is justifiable to transfer the investigation or otherwise for that he may hold inquiry but it should be kept in mind that inquiry should not take a longer period as the police are required to submit the challan within the period of 15 days after registration of the FIR. In case he is satisfied, he has to issue a proper direction to the Superintendent of Police (Investigation) under Article 18(3) of Police Order, 2002 who is competent to transfer the investigation under Article 18(6) of the Police Order…………………. No other role is required to be performed by the ex officio justice of peace. PLD 2009 Kar 14.



HH- CANNOT SUGGEST A PARTICULAR PROCEDURE

a- Justice of the Peace cannot suggest the procedure or give direction to do a certain act as any such direction to suggest a particular procedure of investigation is departure from provision of law. 2011 YLR 2141.



JJ- INTERFERENCE WITH THE INVESTIGATION

a)- Police has got a statutory right to investigate the cognizable offence and such statutory right cannot be interfered by the courts. 2000 P.Cr.L.J 43.



b)- Investigation is the legal duty of the police or other authorized agencies cannot be delegated to any private person or body. 2004 YLR 500.



c)- Only an officer in charge of police station has jurisdiction to investigate a cognizable offence. PLD 1997 SC 408.



d)- Judiciary cannot interfere with the investigation of a police officer as held by the privy council as back as in 1945 in Nazir Ahmed…Vs…The State (AIR 1945 P.C.18), and affirmed by Supreme Court of Pakistan in Shehnaz Begum’s case (PLD 1971 SC 677) and in the case of Brg. Imtiaz…Vs…The State (1994 SCMR 2142).



e)- There is no justification with Justice of Peace to forward request for change of investigation to local police in of statutory provision of Police Order 2002. It is permissible for Justice of Peace to activate process of change of investigation in terms of Article 18(6), Police Order, 2002 particular when written complaint before concerned quarters not disposed of on its merits. 2008 P.Cr.L.J.1374.



f)- Sessions Judge is not empowered under section 22-A(6), Cr.P.C. to direct the Investigating Agency to submit challan under a specific provision of law. NLR 2004 Crl (Lah) 351.



g)- The Ex officio justice of peace is not supposed to indulge in inquiries / investigation instead he should direct the I.O. to conduct investigation in accordance with law. Court cannot interfere in the process of collection of evidence under Sections 156 and 157, Cr.P.C. by police. Justice of peace cannot suggest the procedure or given direction to do a certain act as any such direction to suggest a particular procedure of investigation is departure from provision of law. 2011 YLR 2141.



h)- If in their capacity as ex-officio Justice 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 officer may militate against the constitutional mandate of separation of the judiciary from the Executive enshrined in the Article 173(3) of the Constitution of the Islamic Republic of Pakistan.PLD 2005 Lah 470.



j)- Even the superior Courts of Pakistan having constitutional, legal, supervisory and inherent judicial jurisdiction have consistently and consciously refrained from directly interfering with the investigation of a criminal case by the police and, therefore, it is but obvious that Justice of the Peace possessing only administrative and ministerial powers should twice shy of such direct interference. PLD 2005 Lah 470.



k)- 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. PLD 2005 Lah 470.



l)- Conduct and manner of investigation normally is not to be securitized under constitutional jurisdiction which may amount to interference in police investigation as the same cannot be substituted by court. PLD 2009 SC 102.



m)- The Justice of the Peace cannot stop investigation except for want of jurisdiction. 2008 YLR 2271.



n)- Justice of Peace cannot make an observation with regard to the nature of offence or direct addition or deletion of a penal provision as some exclusive as same exclusively fell within the domain of I.O. before the challan is submitted. 2008 YLR 2017, 2007 PCr.L.J 124, 2006 YLR 2772.



p)- No investigation can be carried out in a criminal case and relevant FIR cannot be cancelled by a Magistrate or by any other judicial or executive officer after submission of challan before trial court and after taking cognizance of case by trial court. 2005 MLD 908.



q)- Judiciary should not interfere with the police in matters which are within their domain and into which the law imposes upon them the duty of inquiry Functions of the judiciary and the police are complementary not overlapping and the combination of individual liberty with due observation of law and order is only to be obtained by leaving each to exercise its own functions………..investigation stage is outside the purview of court. PLD 1996 Lah 598.



r)- It is by the Supreme Court in Muhammad Nisa Cheema case (PLD 2007 SC 31) that when investigation has reached in trial court and the trial commenced, changing of investigation in the matter thereafter is an exercise unsustainable in law. PLD 2010 Lah 224.



s)- The Guilt or innocence, collection of evidence, recording of the statement and recovery of weapon of offence and all other matters (medical examination of accused) relating to investigation of case are within the powers and authority of police, which should not be interfered with except in exceptional cases. Police should be given free hand to investigate the case with its own wisdom. 2004 YLR 2291.



t)- Actions of the investigating agencies are out of the purview of the courts. PLD 1965 SC 27, PLD 1976 SC 271.



u)- There are no powers with the court to quash an investigation. PLD 1993 SC 399.



v)- Provision of S.22-A, Cr.P.C, cannot override the specific provisions contained in Chapter LXIII Cr.P.C., which squarely and fully regulate the process as to whom articles were to be given in custody and in what condition. Such authority, judicial in nature has been exclusively conferred upon the Magistrate. 2010 P.Cr.L.J. 45.





KK- JURISDICTION/POWERS TO ISSUE DIRECTIONS UNDER SECTION 22-A(6)(iii) Cr.P.C.

a- An Ex-officio Justice of the Peace in Pakistan (i-e Sessions Judge and nominated Additional Sessions Judge in the relevant District 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. PLD 2005 LHR 470, 2005 P.Cr.L.J 487.

b- Special provisions of S. 22-A(6)(iii), Cr.P.C. explicitly providers that Sessions Judge acting as Ex-officio justice of the peace can always issue appropriate direction to the police authorities on a complaint regarding none-registration of criminal case or negligence or failure by police authorities in relation to its functions. PLD 2005 Kar 285.

c- Special powers of Justice of Peace having been conferred upon Session’s Judge and Additional Sessions Judge under section 25, Cr.P.C. They have vested with some executive powers which are given under section 22-A(6), Cr.P.C regarding neglect, failure of excess committed by a Police authority in relation to its functions and duties. The Justice of Peace can issue and appropriate direction, if he notices illegality or excess of authority. PLD 2009 Lah. 69.

d- Power conferred on ex officio justice of peace under Sections 22-A and 22-B, Cr.P.C. deal with issues relating to non-registration of FIR, transfer of investigation under article 18(6) of the Police order, 2002 and neglect, failure or excess committed by a Police Authority. 2011 YLR 2141.



e- Special provisions of S. 22-A(6)(iii), Cr.P.C. explicitly providers that Sessions Judge acting as Ex-officio justice of the peace can always issue appropriate direction to the police authorities on a complaint regarding none-registration of criminal case or negligence or failure by police authorities in relation to its functions. PLD 2005 Kar 285.



f- It has been noticed with grave concern the Ex-officio Justice of the Peace in many cases frequently issue directions to the superior officers of the police seized of the investigation of a case to take departmental disciplinary action against him/them. Such powers have not been expressly conferred upon the Ex-officio Justice of the Peace, therefore, they shall refrain from issuing such orders because it would result into penalty/penal consequences. 2011 P.Cr.L.J 45.



LL- INTERFERE IN THE AFFAIRS OF JUDICIARY

a)- Executives are not supposed to interfere in the affairs of judiciary any manner. PLD 2008 SC 522.

b)- Provisions of Section 22-A & 22-B, Cr.P.C. are not meant to interfere in the judicial functions of the Courts if after investigation the challan is submitted and cognizance is taken by the Court of competent jurisdiction. 2005 YLR 3127.

c)- The powers exercise by ex officio Justice Peace u/s 22-A, Cr.P.C. are neither additional nor has super imposing effect on the power of the executive and judicial authorities which have been expressly conferred upon those authorities regulating particular subject matter. In the capacity of administration officer it can over see and check the atrocities committed by the police and to direct them to abide by the law and not to disregard it, but to a very limited extent. 2010 P.Cr.L.J. 45, PLD 1971 S.C.677; 1994 SCMR 2142.

d)- Court would proceed to determine the guilt or innocence of the accused on the basis of evidence produced before it. 2012 P.Cr. L.J. 245.



e)- Court only has the right to hold a person innocent or guilty. 1998 P.Cr.L.J 1804.



MM- COMPLIANCE OF THE DIRECTION OF THE JUSTICE OF THE PEACE.

a- Explicit order/direction, passed by Justice of the Peace, must have been compiled with in letter of and spirit, when said order was not set aside by any court of law or the operation thereof had been stayed. 2012 P.Cr.L.J 180.





NN- POWERS OF THE JOP, ARE ADMINISTRATIVE AND MINISTERIAL.

a- Sessions Judge /Additional Sessions Judges while performing their duties as Ex officio Justice of Peace would perform their duties on administrative site. 2010 YLR 1598.



b- Registration of criminal case, transfer of investigation and issuance of restrain order not to cause harassment etc, are essentially administrative functions. PLD 2002 Lah 619.

c- 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. PLD 2005 Lah 470.



d- Justice of the Peace is saddled with the administrative duty to redress the grievances of complainant aggrieved by refusal of police officer to register their reports. 2011 P.Cr.L.J. 268.



e- Powers are neither supervisory nor judicial, but are administrative and ministerial in nature. PLD 2005 Kar 621.





PP- POWERS OF THE JOP, ARE LIMITED

a- Powers of Justice of Peace are very limited which have been given to aid assist and authorize the criminal jurisdiction system. PLD 2005 Kar 621.



b- The powers exercise by ex officio Justice Peace u/s 22-A, Cr.P.C. are neither additional nor has super imposing effect on the power of the executive and judicial authorities which have been expressly conferred upon those authorities regulating particular subject matter. In the capacity of administration officer he can over see and check the atrocities committed by the police and to direct them to abide by the law and not to disregard it, but to a very limited extent. 2010 P.Cr.L.J. 45.



c- Powers of an Justice of the Peace under section 22-A(6), Cr.P.C could therefore, not be equated with the constitutional jurisdiction vesting in a High Court. PLD 2007 SC 539.





9- POWERS OF THE JOP, CANNOT BE EXERCISED MECHANICALLY

A- Jurisdiction under Ss. 22-A and 22-B Cr.P.C, cannot be exercised mechanically by the ex officio justice of peace by directing registration of FIR. 2011 P.Cr.L.J 438, PLD 2010 S.C. 691.

ALTERNATIVE REMEDY

C- Application under Sections 22-A and 22-B was dismissed by justice of peace and the order was maintain by single Judge of the High Court in exercise of its constitutional jurisdiction. Appellant had adequate alternative remedy by filing a private complaint in respect of allegations being leveled against respondent. ICA dismissed. 2011 P.Cr.L.J. 3906.



D- Any order passed by Justice of Peace is subject to scrutiny on judicial side by Superior Court of Pakistan, therefore, administrative legal forum is required to disposed an application under sections 22-A and 22-B Cr.P.C, by means of speaking and well reasons order in the light of available material without holding trial or mini trial of the controversy. 2008 YLR 2301.





10- DIRECTION CANNOT BE ISSUED FOR ADDITION OR DELETION OF OFFENCES.

A- No powers had been vested in the Justice of the Peace to pass order for insertion of appropriate/specific sections of law in the FIR. 2012 P.Cr.L.J 873.



B- Under the provisions of section 9(7) of the Punjab Criminal Prosecution Service Act, 2006, deletion or insertion of any offence falls within the exclusive domain of the District Prosecutor. Question whether the District Prosecutor had rightly deleted section would be seen by the trial Court at the time of framing the charge, such fact cannot be challenged either under section 22-A, 22-B Cr.P.C., or in constitution jurisdiction of High Court. PLD 2008 Lah 135.



C- Under the provisions of section 10(2)(a) of the Punjab Criminal Prosecution Service Act, 2006, the Prosecutor General, appointed under section 6 of Punjab Criminal Prosecution Service Act, 2006 can also add or delete any offence.



D- Justice of Peace cannot make an observation with regard to the nature of offence or direct addition or deletion of a penal provision as some exclusive as same exclusively fell within the domain of I.O. before the challan is submitted. 2008 YLR 2017, 2007 P.Cr.L.J 124, 2006 YLR 2772.



E- No power s had been vested in the Justice of the Peace to pass order for insertion of appropriate/specific sections of law in the FIR. 2012 P.Cr.L.J 873.



11- IMPOSING FINE BY THE JUSTICE OF THE PEACE.

A- Direction given to the SHO by Ex-officio Justice of Peace to initiate proceeding against petitioner under section 182, PPC is beyond the purview of section 22-A, Cr.P.C, and in excess of jurisdiction conferred upon him under the law. PLD 2007 Lah 53.



B- Sessions Court was neither justified nor empowered to impose fine/costs upon the petitioner while rejecting the petition filed under section 22-A Cr.P.C. PLD 2005 Kar. 638.



C- Secessions Judge, in circumstances, is not competent to direct initiation of proceedings against petitioner under section 182, PPC. 2004 P.Cr.L.J.256.



12- DIRECTIONS REGARDING CANCELLATION OF FIR OR HOLDING DEPARTMENTAL INQUIRIES.

A- Prayer by respondent before Sessions Judge regarding cancellation of FIR after holding an inquiry in that respect could not be granted by Sessions Judge acting in his capacity as ex-officio Justice of the peace. Other prayer of respondent regarding holding of a departmental inquiry against petitioner/complainant also could not be granted by ex-officio Justice of the Peace because that was a matter which was already being taken by departmental hierarchy. 2005 MLD 908.



B- The quashing or cancellation of the cross-version shall be subject to the same legal and factual limitations as are relevant for the quashing of the formal FIR. The Criminal Procedure Code has laid down exhaustive procedure for the registration and investigating of the cases as well as their trial after submission of the challan before the Court. They should not be allowed to be hampered against the procedure laid down in that behalf. PLD 2009 Lah 8.





13- RIGHTS OF THE PARTIES.

Justice of Peace is not supposed to decide the rights of the parties. He is not supposed to pass judicial judgment. 2011 P.Cr.L.J.913.



14- JUDICIAL JUDGMENT.

A- Justice of Peace is not supposed to decide the rights of the parties he is not supposed to pass judicial judgment. 2011 P.Cr. L.J. 913.



B- Where Justice of the Peace while disposing of the application under section 22-A Cr.P.C. had discussed and touched the merits of the case in detail, which was not required as the same would definitely prejudice the proceedings before the trial court, such observations of the Justice of the Peace were ordered by the High Court to be expunged. High Court directed that in the interest of justice, the trial of the case should be conducted by another Trial Court. 2012 P.Cr. L.J. 383.



C- Justice of the Peace being not a court had no authority or jurisdiction to offer special oath on the asking of the parties. 2012 P.Cr. L.J. 776.

D- An ex-officio Justice of the Peace cannot arrogate to himself the powers of redressing the actual grievance itself. PLD 2005 Lah 470.

E- Restoration of possession and registration of criminal case cannot be sought on one and the same application court below did not fulfill the formalities required under Section 22-A, Cr.P.C and under the illegal disposition Act, 2005 and passed order without Framing the charge or holding inquiry. 2011 YLR 861.



F- The Justice of the Peace could issue orders for registration of a case on an application under Sections 22-A & 22-B, Cr.P.C. against the respondent but could not direct the police to interfere in the possession of the property. PLD 2006 Lah 460.



15- SURETY BOND FROM BOTH THE PARTIES.

Justice of the Peace on the basis of an allegation leveled by the complainant in an application under section 22-A Cr.P.C. without considering the requirements as mandate under section 107 and 151, Cr.P.C directed the SHO to proceed against the parties, therefore, impugned order to the extent of direction to the SHO for obtaining surety bond from both the parties and taking preventive measures under section 107 and 151 Cr.P.C was set aside. 2012 P.Cr.L.J 1082.



16- FALSE COMPLAINANT

If the complainant is found to have lodged a false report, a case can be registered against him under section 182 P.P.C, or any other action could be initiated against him according to law. Section 154, Cr.P.C, secures the inherent right of hearing of a citizen and it bestows a sacred duty upon State machinery established in every police to register the cognizable grievance of citizen. PLD 2008 Pesh. 53.



17- POWERS TO ALTER OR RECTIFY THE ORDER PASSED U/S 22-A, Cr.P.C.

A- High Court has got inherent powers to alter or rectify its order if any ambiguity had been created therein or any point which should have been thoroughly considered at the time of passing the order on the Revision. Sessions Court was neither justified nor empowered to impose fine/costs upon the petitioner while rejecting the petition filed under section 22-A Cr.P.C. While maintaining its order, recalled and altered the same to the extent that imposition of fine by the Sessions Court was not justified and such part of its order was set aside. PLD 2005 Kar. 638.



B- Functions and directions of the Ex-officio Justice of the Peace being not of judicial nature but being administrative and ministerial in nature, could neither be challenged under Sections 435/439, Cr.P.C nor under Article 199 of the Constitution and the same could be challenged only under S. 561-A, Cr.P.C. PLD 2005 kar.621.



C- Any order passed by Justice of Peace is subject to scrutiny on judicial side by Superior Court of Pakistan, therefore, administrative legal forum is required to disposed an application under sections 22-A and 22-B Cr.P.C, by means of speaking and well reasons order in the light of available material without holding trial or mini trial of the controversy. 2008 YLR 2301.



18- ALTERNATE ADEQUATE REMEDY WITH THE AGGRIEVED PARTY.

A- Application under Sections 22-A and 22-B was dismissed by justice of peace and the order was maintain by single Judge of the High Court in exercise of its constitutional jurisdiction. Appellant had adequate alternative remedy by filing a private complaint in respect of allegations being leveled against respondent. ICA dismissed. 2011 P.Cr.L.J. 3906.



B- Private complaint is an alternative and efficacious remedy and Magistrate seized of the complaint can inquire the matter himself or might direct an inquiry to be conducted by Justice of the Peace or by a police officer. 2011 P.Cr.L.J. 1870.



C- SHO not supporting registration of case. If such in report can be falsified, it would be appropriate for him to file a private complaint before Court of competent jurisdiction instead of running after police who was not prepared to accept his contention. Only a Court of competent jurisdiction, after recording convincing evidence of petitioner, could issue summons against respondents and if found them guilty, could punish them in accordance with law. 2005 P.Cr.L.J.1579, 2005 P.Cr.L.J.997.



C- If the police were not favorably inclined towards the petitioner/complainant on account of any interest in the accused persons, they were likely to spoil her case in the first few Zimnies which they were bound to record after registration of the case. Issuing a direction for registration of case, in such circumstances, would not serve any useful purpose and the insistence of the petitioner (complainant) to get a criminal case registered would be quite unrealistic. According to the dictates of remedy by filing a private complaint directly before the Magistrate would be more effective and appropriate. 2005 P.Cr.L.J.1517.



D- Petitioner wanted to set forth a version regarding the manner in which the incident took place which was in fact supplementation and amplification of the version recorded earlier. The petitioner might file a private complaint under section 200 Cr.P.C, which is one of the modes of taking cognizance of an offence by Magistrate. 2011 P.Cr.L.J.1870.



E- Appellant having alternate remedy by way of filling a private complaint. PLD 2007 SC 539, 2011 P.Cr.L.J 396.



F- 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 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. The impression entertained by 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 affected from him is nothing but erroneous and fallacious. PLD 2005 Lah 470.



19- RESULT/OUT COME OF THE AMENDMENT IN Cr.P.C.

A- 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. PLD 2007 SC 539.



B- In many cases, the Justice of the peace conveniently ignored the allotted sphere of their jurisdiction conferred upon them by under the three clauses of subsection (6) of section 22-A, Cr.P.C. and indulge in deep interference into the police inquiry / investigation as well as jurisdiction conferred upon it by different provisions of Cr.P.C. Criminal justice system had been divided into three phases viz, investigation phase followed by inquiry phase and the final stage related to the trial phase. For all the three phases, different authorities like police, Illaqa Magistrate and Sessions Court had been constitute and established by the law; and their respective authorities/powers had been clearly defined; and a line of demarcation in between the three phases had been drawn with much clarity. Object and intent of the legislature behind scheme was that all the three authorities would not interfere into the allotted field of jurisdiction of one another. PLD 2007 SC 539, 2010 P.Cr.L.J.45.



C- If in their capacity as ex-officio Justice 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 officer may militate against the constitutional mandate of separation of the judiciary from the Executive enshrined in the Article 173(3) of the Constitution of the Islamic Republic of Pakistan.PLD 2005 Lah 470.



D- The learned Sessions Judges/Additional Sessions Judges have been conferred powers under section 22-A and 22-B, Cr.P.C to lessen the burden of High Court but apparently, it seems it has increased. The purpose of empowering Sessions Judges is being stultified and baulked. 2005 P.Cr.L.J 607.



20- BASIC PRINCIPAL OF CRIMINAL JUSTICE SYSTEM

A- Entire criminal justice system revolves around the basic principal that no offence should go unchecked and no offender should go unpunished. PLD 2005 Kar 621.





21- QUASI JUDICAIL POWERS

A- According to a recent judgment dated 12-02-2016, passed by the August Supreme Court, the orders passed by the Ex-Officio Justice of peace are quasi judicial in nature and cannot be termed as executive, administrative, or ministrial.

22 SEPARATION OF POWERS

A- Criminal Justice System has been divided into three phase’s viz, investigation phase followed by inquiry phases and the final stage related to the prior phase. Object and intent of the legislature behind such scheme is that all the three authorities would not interfere into the allotted field of jurisdiction of one another. Justice of peace under no circumstances would interfere with such matter and be left to the authorities both executive and judicial constituted hereunder. 2011 P.Cr.L.J 45.

B- Executives are not supposed to interfere in the affairs of judiciary any manner. PLD 2008 SC 522.