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Petitioner: KHIZER HAYAT and others VS Respondent: INSPECTOR GENERAL OF POLICE (PUNJAB) JUDGMENT
Court Name: Lahore High Court Judge(s): Asif Saeed Khan Khosa, Sh. Abdul Rashid, Ch. Iftikhar Hussain Title:KHIZER HAYAT and others vs INSPECTOR GENERAL OF POLICE (PUNJAB)
JUDGMENT
Reported As: PLJ 2005 Lahore 1571 Result: Petitions accepted Judgment 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 are 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 are 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
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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, PPC 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 hand, 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. 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 early 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
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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 by the learned Additional Sessions judgment, 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 kind of "direction" 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 22A(6), Cr.P.C.? (f) Whether the orders passed by different ex-officio Justice 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
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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 Butter worth, London, UK):
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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 peaco conservators within their countries and constables within their townships or hundreds. There were also persons elected by the general body of freeholders of each country to act as peace conservators for the country. 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 countries 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 countries, and to inflict punishment reasonably according to [law and reasons, 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 soever 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 Country Palatine of Lancaster, where the right of appointment is vested in the Sovereign in right of the Duchy. This right, which has thus 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 justice, 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.---"
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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 riot 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 arid 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 appoined. The Justices of the Peace Act, 1968 abolished ex officio justice 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 supersed was (q.v.); (3) by accession to the office of sheriff during the year of shrievaltry. 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 on special commission under the great
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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.P.'s 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.P.'s 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…
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