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Petitioner: PERVAIZ RASHEED and others VS Respondent: EX-OFFICIO JUSTICE OF PEACE and others
Court Name: Lahore High Court Judge(s): Mehmood Maqbool Bajwa Title: PERVAIZ RASHEED and others vs EX-OFFICIO JUSTICE OF PEACE and others Case No.: Cr.A. No,406-P of 2014 Date of Judgment:2014-08-26 Reported As: 2016 YLR 1441 Result: Petitions dismissed
Judgment ORDER MEHMOOD MAQBOOL BAJWA, J.---Writ Petition No, 22661 of 2014 titled "Pervaiz Rasheed and others v. Ex-Officio Justice of Peace and others" and Writ Petition No, 22890 of 2014 titled "Khawaja Muhammad Asif v. Ex-Officio Justice of Peace and others" were dismissed by means of short order dated 26th of August, 2014 which is reproduced below for ready reference:-- ' For the reasons to be recorded later, Writ Petition No,22661 of 2014, titled "Pervaiz Rasheed and others v. Ex-Officio Justice of Peace and others" and Writ Petition No,22890 of 2014 titled "Khawja Muhammad Asif v. Ex-Officio Justice of Peace and others" having no force on legal as well as factual premises are dismissed. 2. For reasons to be recorded later, it is held as follow:-- 3. Prayer for constitution of Larger Bench to determine the legality and binding force of Section 22- A (6) of The Code of Criminal Procedure, 1898, (V of 1898) in view of admission of Writ Petitions Nos.21812 and 12310 of 2014 for regular hearing, issuance of injunctive order regarding suspension of proceedings before Ex-officio Justice of Peace and order made by Ex-officio Justice of Peace, issuance of notices to the Federation of Pakistan and ' Government of Punjab through learned Attorney General for Pakistan and learned Advocate General, Punjab cannot be acceded to. 4. Leave granting order made on 11th of March, 2014 by the Apex Court and issuance of notices to learned Attorney General for Pakistan and Advocate Generals of the four provinces in terms of Order XXVII-A of The Code of Civil Procedure, 1908, (Act V of 1908) in Civil Appeal No,1491 of 2013, whereby vires of Section 22-A of The Code of Criminal Procedure, 1898, (Hereinafter called Act V of 1898) was challenged by itself would not be sufficient to suspend the proceedings in both the writ petitions while issuing injunctive order suspending the operation of impugned order in view of
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settled proposition of law that "Leave granting order or leave refusing order" is not a judgment. Reliance is placed upon "University of Health Sciences and others v. Mumtaz Ahmad and another" (2010 SCMR 767) 5. Hearing of accused is not necessary by Ex-officio Justice of Peace prior to making any order while deciding the petition under Section 22-A(6) of The Act V of 1898. Reliance is placed upon "Saeed Ahmad and others v. Naseer Ahmad and others" (PLD 2000 Lahore 208), "Sanaullah v S.H.O., Police Station Civil Lines Gujrat and 3 others" (PLD 2003 Lahore 228), and "Khizer Hayat and others v. Inspector-General of Police (Punjab), Lahore and others" (PLD 2005 Lahore 470). 6. Purpose and object of recording FIR is to set the criminal law in motion and to obtain first hand information of occurrence in order to exclude possibility of fabrication of story or consultation or deliberation and to safeguard the accused of such like happenings. Reference may be made to "Mushtaq Hussain and another v. The State" (2011 SCMR 45). Thus the registration of FIR against the petitioners shall not prove their guilt till decision by Court of competent jurisdiction. It cannot be used as a substantive piece of evidence against any accused unless proved in accordance with law. 7. Inquiry as to correctness or otherwise of allegations is not required to be made prior to registration of FIR though degree of care and caution is required while proceedings under Section 22-A(6) of The Act V of 1898. Reliance is placed upon "Muhammad Bashir v. Station House Officer, Okara Cantt. And others" (PLD 2007 SC 539), "Sanaullah v S.H.O. Police Station Civil Lines, Gujrat and 3 others" (PLD 2003 Lahore 228). It is the job of the investigation officer to collect evidence in order to reach conclusion regarding veracity or falsity of allegations referred to in the Crime-Report. 8. Arrest of a suspect or an accused is not necessary during the course of investigation and the general impression in this regard is mis-conceived because a person named in the FIR is not to be arrested straightaway upon registration of FIR or as a matter of course unless there is sufficient incriminating evidence regarding culpability of accused. The arrest of accused is to be deferred till the availability of incriminating evidence in order to satisfy the investigation officer regarding correctness of allegations leveled by the complainant against person named in the crime-Report. (See: "Khizer Hayat and others v. Inspector- General of Police (Punjab), Lahore and others" (PLD 2005 Lahore 470). 2. The reasons for the above reproduced short order are as follows:-- 3. The petitioners, who are Federal Ministers and Minister of State, through present writ petitions, have challenged the legality and validity of order dated 16th of August, 2014 passed by a learned Additional Sessions Judge, Lahore, exercising the authority of Ex-Officio Justice of Peace whereby the application made by respondent No, 3 for registration of case against the petitioners as well as others was allowed. 4. Facts in brief resulting in filing of present writ petitions and as disclosed are that on 17th of June, 2014, the District Administration of Lahore with the help of police made an attempt to remove the stated encroachments/illegal barriers on public roads around Minhaj-ul-Quran Academy and its Secretariat in Model Town, Lahore, resulting in clash between police and workers of Pakistan Awami Tehreek (hereinafter called "PAT"). According to the petitioners, due to clash, 10- civilians died while 103-persons including 28-policemen sustained injuries. ' Crime report bearing No, 510 of 2014 was registered at Police Station Faisal Town, Lahore, under Sections 302, 324, 353, 186, 148, 149, 290, 291, 427, 506-B, 109 of The Pakistan Penal Code, 1860 (Act No, XLV of 1860) (hereinafter called "Act No, XLV of 1860") read with Sections 13 and 13-B of The Arms Ordinance (Act XX of 1965) and Section 7 of The Anti-Terrorism Act, 1997 (XXVII of 1997) on the statement of Rizwan Qadir Hashmi, Station House Officer, Police Station Faisal Town, Lahore. 5. According to the facts stated in the petitions, investigation was conducted by the Incharge (Investigation), Police Station Faisal Town, Lahore, with the assistance of five Inspectors of police
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under the supervision of S.P. (Investigation), Model Town, Lahore. ' On 19th of June, 2014, respondent No, 3 in both the writ petitions who is Director (Administration), Minhaj-ul-Quran International, made an application to the local police for registration of case putting his own version with reference to occurrence regarding which case FIR No, 510 of 2014 was already registered. In the said application, not only the petitioners but also the Prime Minister of Pakistan and Chief Minister of Punjab were nominated with the allegation of abetment. ' The Ex-Officio Justice of Peace after hearing the State allowed the application through order dated 16th of August, 2014, assailed by the petitioners, nominated accused in the application submitted by respondent No, 3. 6. Learned counsel for the petitioners in both the writ petitions, at the very outset, while questioning the legality and binding force of the impugned order submitted that Section 22-A of The Code under which application was made before the Ex-Officio Justice of Peace is no more a valid piece of legislation as Ordinance CXXXI of 2002 through which said provision was introduced has lapsed. Submitted that in the circumstances, Ex-Officio Justice of Peace has no jurisdiction to issue direction to police for registration of case. ' Making prayer for constitution of larger Bench, it was submitted that Writ Petitions Nos. 21812 of 2014 and 12310 of 2014 assailing the legality of said provision of law have been admitted for regular hearing by this Court in which injunctive orders have been issued suspending the proceedings before Ex-Officio Justice of Peace and order made by the said authority respectively. Placing reliance upon the dictum laid down in "The Province of East Pakistan v. Dr. Azizul Islam" (PLD 1963 Supreme Court 296) and "Multiline Associates v. Ardeshir Cowasjee and 2 others" (PLD 1995 Supreme Court 423), it was argued that this Bench cannot form opinion contrary to that formulated. ' Referring to the orders placed on record, it was submitted that notices have been issued to the learned Attorney General for Pakistan and the learned Advocate General, Punjab, under Order XXVII-A of The Code of Civil Procedure, 1908 (Act V of 1908) (hereinafter called "The Act V of 1908"). 7. Learned counsel for the petitioners in Writ Petition No 22661 of 2014 while making reference to the leave granting order made on 11th of March, 2014 by the Apex Court, issuance of notices to the learned Attorney General for Pakistan and the learned Advocate Generals of four provinces of Pakistan in terms of Order XXVII-A of The Act V of 1908 in Civil Appeal No, 1491 of 2013 maintained that vires of Section 22-A of The Code of Criminal Procedure, 1898 (v. Of 1898) (hereinafter called "The Code") has been challenged in which notices have been issued and as such, proceedings in the petitions are required to be suspended. ' Continuing the arguments, learned counsel in both the writ petitions submitted that the Ex-Officio Justice of Peace while passing impugned order acted in a mechanical ,way which is against the mandate of Rule of law expounded by this Court in the case of "Khizer Hayat and others v. Inspector-General of Police (Punjab), Lahore and others" (PLD 2005 Lahore 470). Referring to para- 16 of the judgment, it was argued that the Ex-Officio Justice of Peace though called report from the local police but .Did not examine the same and passed the order impugned blindfold issuing direction for registration of criminal case, Submitted that application made by respondent No, 3 was Motivated with extraneous consideration and malice-in fact in order to get premium having hostility against the petitioners and other political personalities named in the First Information Report. Further submitted that the Ex-Officio Justice of Peace should have specifically given its opinion regarding the reports submitted by local police and 'HT' prior to issuing direction for registration of case. ' Referring to the interim orders of the Ex-Officio Justice of Peace, it was submitted that local police as well as Joint Investigation Team (hereinafter called "JIT") submitted reports wherein it was clearly stated that time and again, respondent No, 3 was called upon to associate himself in the
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investigation as the application made by him was also transmitted to 'JIT' but respondent No, 3 despite verbal requests and orders in writing did not appear before 'JIT' which admittedly was an independent body comprising officers of I.S.I. And I.B. As well. Further submitted that order impugned is against the mandate' of Section 22-A(6) of The Code as the report of 'JIT' was not appreciated. ' Again making reference to para-16 of the judgment delivered in the case of "Khizer Hayat", it was submitted that since local police did not endorse the allegations levelled in the application submitted by respondent No, 3, therefore, the best course for respondent No, 3 was to file a private complaint which aspect was also not taken into consideration by the Ex- Officio Justice of Peace while allowing the application and as such, order assailed has been made against the mandate of Rule of law referred to. 8. Both the learned counsel for the petitioners while referring to the provisions of Section 22-A(6) of The Code submitted that the word- "may" has been used in the provision of law referred to and as such, it was not obligatory upon the Ex-Officio Justice of Peace to issue direction to the local police for registration of case. Reference was made to the dictum laid down in the case of "Khizer Hayat" (PLD 2005 Lahore 470). Argued that in view of use of expression "May" , discretion vested in the Ex- Officio Justice of Peace was not properly exercised. ' Again focusing attention to the provisions of section 22-A of the Code, it was submitted that expression "appropriate" has been used in the said provision which has not been defined in the statute but added that an appropriate direction does not mean direction for registration of criminal case. Argued that in view of use of expression "appropriate", application should have been dismissed with the direction to respondent No, 3 being complainant to file a private complaint in which eventuality the said respondent was in a position to have control of proceedings. 9. Learned counsel for the petitioner in Writ Petition No, 22890 of 2014 also making reference to the provision of law under discussion submitted that the Ex-Officio Justice of Peace while passing impugned order exceeded from the jurisdiction vested in him while according to learned counsel for the petitioners in Writ Petition No, 22661. Of 2014, passage of order assailed is result of failure on the part of Ex-Officio Justice of Peace to exercise jurisdiction properly. ' Making comparison of the provisions of Section 22-A (6) of The Code and Article '199 of The Constitution of Islamic Republic of Pakistan, 1973 (hereinafter called "The Constitution"), learned counsel for the petitioner in Writ Petition No, 22890 of 2014 submitted that order assailed was made beyond the scope of authority and jurisdiction vested in the Ex-Officio Justice of Peace under Section 22-A(6) of The Code and it appears that the Ex-Officio Justice of Peace assumed jurisdiction under Article 199 of ' The Constitution and as such, the order got no legal sanctity and is liable to be set aside on this score alone. ' Continuing the arguments, learned counsel for the petitioners in both the writ petitions while making reference to the dictum laid down in "Muhammad Bashir v. 'Station House Officer, Okara Cantt and others" (PLD 2007 Supreme Court 539) maintained that though the Apex Court held that in case of information regarding commission of a conginzable offence, local police is bound to proceed under Section 154 of The Code but it is not an absolute rule. While relying upon the dictum laid down in "Rai Ashraf and others v. Muhammad Saleem Bhatti and others" (PLD 2010 Supreme Court 691), it was submitted that the Apex Court while taking into consideration the ground realities and tendency of false implication of innocent persons held that in each and every case; issuance of direction for registration of case is not the intention of law and party approaching the authority (Ex-Officio Justice of Peace) can be advised to file private complaint. Submitted that order assailed is against the mandate of law referred to.
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10. Making reference to the status of petitioners, it was argued that all the petitioners are respectable citizens holding important posts being Federal Ministers and Minister for State and story was coined by respondent No, 3 in order to injure their reputation and the Ex-Officio Justice of Peace did not take this aspect into consideration which is against the mandate of Article 4 of The Constitution. ' Further submitted that the Ex-Officio Justice of Peace was neither competent nor authorized to make an order for registration of second FIR because neither there was any occasion nor justification for registration of second FIR. Submitted that when application made by respondent No, 3 was sent to 'JIT' in order to probe into the veracity of the allegations, respondent No, 3 did not cooperate with the said Investigation Team with obvious purpose and object. ' Making reference to the dictum laid down in "Ch. Muhammad Aslam v. C.P.O. Rawalpindi and others" (2011 PCr.LJ 1870), it was submitted that since respondent No, 3 wanted to set up a different version regarding manner in which incident took place but almost under the same provisions of law and as such, no distinct offence was disclosed for registration of second FIR. Further argued that in fact, it is elaboration and amplification of version recorded earlier through crime report No, 510 of 2014, therefore, the order impugned is legally not sustainable as it offends the Ratio expounded in the Report referred to. 11. Making comparison of the provisions of Sections 22-A(6) and 154 of The Code, learned counsel representing the petitioner in Writ Petition No, 22890 of 2014 submitted that though there is a compulsion for the Station House Officer to get a criminal case registered in case of information relating to commission of a cognizable offence but no such duty has been cast upon the Ex-Officio Justice of Peace to issue direction for registration of case keeping in view the provisions of Section 22-A(6) of The Code. ' Further submitted that order of Ex-Officio Justice of Peace is violative of not only Section 154 but also Section 22-A(6) of The Code and as such, in the opinion of learned counsel for the petitioners in both the writ petitions, matter requires fresh decision and with this background, prayer was made to remand the matter to the Ex-Officio Justice of Peace to pass fresh order keeping in view the mandate of law referred to and facts of the case. 12. Learned counsel for the petitioner in Writ Petition No,22890 of 2014 while making reference to the date of application made by respondent No,3 for registration of case submitted that occurrence took place on the midnight of 16th and 17th of June, 2614 but respondent No, 3 made an application to the local police on 19th of June, 2014. Delay in approaching the local police while making application was heavily canvassed and it was argued that delay by itself is sufficient to demonstrate malice on the part of respondent No, 3 which also suggests deliberation and consultation which aspect should have been kept in view by the Ex-Officio Justice of Peace. 13. Referring to the version contained in FIR No, 510 of 2014 which was registered on the complaint of Rizwan Qadir Hashmi, Inspector/S.H.O. Police Station Faisal Town, Lahore, it was submitted that order made by the Ex-Officio Justice of Peace for registration of second FIR is legally not sustainable because the information supplied through the application by respondent No, 3 cannot be said to be first information as on the strength of complaint submitted by the Station House Officer, Police Station Faisal Town, Lahore, law was already set in motion after registration of case at the instance of said Inspector. ' Further stated that subsequent application by no stretch of imagination suggests distinct offence and as such, the ' order regarding registration of FIR which would be second could not have been made. 14. Referring to the order, impugned, it was further submitted on behalf of petitioners that though the Ex- Officio Justice of Peace made reference to certain case law with reference to registration of
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second FIR but did not discuss the Rule of law enunciated in the Reports referred to except case of "Wajid All Khan Durani and others v. Government of Sindh and others" (2001 SCMR 1556). 15. Learned counsel for the petitioner in Writ Petition No, 22890 of 2014 while making reference to the provisions of Section 22-A(6) of The Code which were introduced by Ordinance CXXXI of 2002 submitted that Rule of law enunciated in the case of "Wajid Ali Durani" (supra) could not have been acted upon in view of insertion of the said provision authorizing the Ex- Officio Justice of Peace to make an appropriate direction in case of non-registration of criminal case. ' Again adverting to clause (i) of subsection '6' of Section 22-A of The Code, it was submitted that said provision clearly envisages that the Ex-Officio Justice of Peace can exercise his authority if case has not been registered ealier. ' Referring to the registration of case FIR No, 510 of 2014, attempt was made to argue that since case was already registered regarding same occurrence, therefore, it cannot be said by any stretch of imagination that local police was responsible for non-registration of criminal case in order to cover the case under clause (i). 16. Pleading rule of consistency and parity, learned counsel for the petitioners further submitted that it is a matter of common knowledge that aggrieved persons used to approach the Ex-Officio Justice of Peace as well as this Court and orders are made in routine including suspension and rescission of orders and as such, case of the petitioners should be treated as a case of an ordinary litigant. ' Seeking help from the dictum laid down in "Ishaq Lashari, Inspector v. The State" (PLD 2009 Karachi 14), it was submitted that the Ex-Officio Justice of Peace was not authorized to issue direction to the police for registration of case and at the most, direction could have been issued to proceed in accordance with law. ' Further submitted that in case order impugned is not set aside, it will cause irreparable loss to the petitioners being respectable citizens enjoying status of Federal Ministers and Minister for the State and they have to face agony of associating themselves in the investigation who also apprehend their arrest and then to face trial for an indefinite period. ' Highlighting the cumulative effect, it was submitted that in the circumstances, order impugned is perverse, arbitrary and against the mandate of law also offending the well-settled proposition of law expounded in the "precedents" referred to and relied upon and as such is liable to be set aside. 17. Exercising the right of rebuttal, learned counsel for respondent No, 3 submitted that case FIR No, 510 of 2014 was registered in order to prejudice case of the complainant. Submitted that 14-persons were done to death and 109-persons sustained injuries which was a brutal act on the part of police officers/officials acting under the command of petitioners and otheRs, Further submitted that registration of FIR No, 510 of 2014 by itself was not sufficient to decline the relief because in the said crime report,, facts were distorted and as such, respondent No, 3 who made an application to the local police after refusal on the part of respondent No, 2 to register the case approached the 'Ex- Officio Justice of Peace highlighting the facts finding support from the material appended with the application. Submitted that there is no embargo upon registration of second FIR. Further submitted that another FIR No, 511 of 2014 was also registered against one Gullu Butt in order to cause prejudice to the case of complainant regarding same occurrence. Submitted that if second FIR (No, 511 of 2014) can be lodged at the instance of police regarding same occurrence, why third crime report cannot be registered on the application of complainant highlighting the facts finding support from the documentary evidence. ' Referring to the Rule of law expounded in "Wajid Ali Khan Durani and others v. Government of Sindh and others" (2001 SCMR 1556), "Sabin Bibi v. Station House Officer and others" (PLD 2007 Lahore 370), "Muhammad Azam v. Inspector-General of Police, Islamabad and 2 others" (PLD 2008 Lahore 103), "Afzal Khan v. A.S.J., Sheikhupura and 7 others" (2011 YLR 963), "Zulfigar Ali v. The Justice of
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Peace/Sessions Judge and 7 others" (2012 PCr.LJ 138) and "For Arrest of Accused of Murder of Her Daughter Waheeda" (2014 SCMR 83), it was submitted that since different version was put by the complainant regarding the occurrence which is not amplification of allegations contained in the crime report bearing No, 510 of 2014, therefore, learned Ex-Officio Justice of Peace rightly issued direction for registration of case. 18. Learned counsel for respondent No, 3 further submitted that veracity or falsity of allegations are not required to be dealt with while proceeding under Section 154 of The Code. It was further submitted that petitioners after registration of case can join the investigation and during the course, if they are proved innocent, it will be well within the right of Investigating Officer to make request to the Area Magistrate for discharge of petitioneRs, Submitted that keeping in view the facts and circumstances of the case, involvement of petitioners being abettor cannot be ruled out. 19. Replying the argument canvassed by learned counsel for the petitioners, it was submitted that respondent No, 3 being complainant was not obliged to furnish evidence against the petitioners in detail because said process shall start after registration of FIR. Submitted that if the complainant fails to produce 'evidence regarding culpability of the petitioners, premium can be given to them by getting them discharged during the course of investigation. 20. Responding to the…
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