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Official Citation: 2005 PLD 621
Court / Jurisdiction: Sindh High Court
Year of Decision: 2005
Decision Date: 2005-08-04
Parties: Mst. BHAITAN vs THE STATE and 3 others
This judicial decision was delivered by the Sindh High Court on 2005-08-04. The matter involves proceedings between Mst. BHAITAN and THE STATE and 3 others, officially reported as 2005 PLD 621. The court reviewed applicable Pakistani statutes, procedural requirements, and governing case-law authorities. The full text below contains the complete facts, arguments, and legal reasoning rendered by the honorable bench.
Case cited as PLD 2005 Karachi 621
Court Name: Sindh High Court Judge(s): Rehmat Hussain Jaffery Title: Mst. BHAITAN vs THE STATE and 3 others Case No.:Criminal Revision Applications Nos.S-3 and 73; Criminal Miscellaneou's
Applications Nos. 67 and 82 and Constitutional Petition No,S-179 of 2005 Date of Judgment:2005-08-04 Reported As: PLD 2005 Karachi 621 Result: Order accordingly Judgment ORDER RAHMAT HUSSAIN JAFFERI, J.---This order will dispose of Criminal Revision Applications Nos. 3, 73/05, Criminal Miscellaneous Applications. Nos. 67/05, 82/05 and Constitution Petition No,S-179/05 as common questions of facts and law are involved. In all the above matters except Criminal Miscellaneous Application No,82/05 the applicants moved applications under sections 22-A and 22-B, Cr.P.0 before the Justice of Peace and Sessions Judges (hereinafter referred to as Ex-officio JP) of their respective Districts complaining that the police had refused to register the F.I.R therefore, direction might be issued to them to register the F.I.R. In Criminal Miscellaneous Application No,82/05 the applicant challenged the order dated 17-6- 2005 passed by Ex-officio JP directing the police to register the in which the allegation of commission of offence was leveled against the applicant. He complained that without hearing him, the Ex-officio JP had passed the, order therefore, the same may be declared as illegal. In each case Ex-officio JP held detail enquiry consumed few months in doing so and then passed a detail order, which spread in few pages. In nutshell in all the matters the powers and duties of Ex-officio JP are required to be determined. Before I discuss the relevant provisions of Code of Criminal Procedure, it is pointed out that the phrase Justice of Peace has been defined in Black's Law Dictionary as under:- Justice of the Peace.--A Judicial Magistrate (of English origin) of inferior rank, having (usually) jurisdiction limited to that prescribed by statute in civil matters (e.g performance of marriages) and jurisdiction over minor criminal offences,- committing more serious crimes to higher Courts.
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Trend in most States has been to abolish office and Courts of Justice of the peace, transferring their powers and functions to other Courts; e.g. Municipal or District Courts. See Justice's Courts." In Chambers Dictionary the same phrase has been defined as under:- Justice of the Peace.- a person commissioned to perform certain minor judicial and other functions within a specified locality. In 'England and Wales (but not in Scotland) called a Magistrate." Thus the concept of JP was derived from Britain by the framers of Code of Criminal Procedure 1898 because at that time the Britishers were ruling the country. A separate sub-chapter-E has been inserted in Chapter-II of Part-II of Code of Criminal Procedure with heading of JP having 4 sections from Sections 22 to 25. In the beginning Governor General in Council was made the appointing authority to appoint JP for territory outside the presidency town and those to be appointed for presidency town. In respect of the former, originally, covenanted civil servants, other British subjects and latter. Only European Britisher subjects could be appointed as JP. In respect of the latter any person resident in British Indian and not being the subject of a foreign State could be appointed a JP. The distinction continues to exist till the year 1923. When by Act XII of 1923 it was abolished by the repeal of section 23 of Code of Criminal Procedure and amendment was also made in section 22 empowering the Local Government to appoint any person resident within British Indian and not being resident of a foreign State to be a JP in any area subject to its administration. In the year 1973 the Provincial Government was empowered to appoint JP in place of Local Government and such amendment was made in section 22. It will be noticed that originally no power and duties were codified in Code of Criminal Procedure. JP was to exercise the powers as prescribed by various local. Special laws and also by the terms of his appointment. It was presumed that JP can exercise powers vested in Royal Charter of 1726. For the first time JPs were appointed in India under the said Charter. However, the power of JP had never been placed on clear footing, therefore, the JP could exercise further powers as conferred upon them by Act of Parliament or other competent Authority. After the creation of Pakistan the position remained the same but in the year 1972 through Law Reforms Ordinance, 1972 the powers and duties of JP were codified in the shape of inserting sections 22-A and 22-B in Code of Criminal Procedure. Under the said provisions, the JP has been given certain powers to exercise and duties to perform. The word power has been defined in Black's Law Dictionary as under:- "Power.--The right, ability, authority, or faculty of doing something. Authority to do any act which the grantor might himself lawfully perform" In the same Dictionary the word duty has been defined as under:-- "Duty.--A human action which is exactly conformable to the laws which require us to obey them. Legal or moral obligation. An obligation that one has by law or contract. Obligation to conform to legal standard of reasonable conduct in light of apparent risk." The meaning of powers and duties has been given so as to understand the further discussion on the said subject, as section 22-A deals the powers of JP and section 22-B deals with the duties of JP. Section 22-A reads as under:--- "Section 22-A. Powers of Justices of the Peace.--(1) A Justice of the Peace for any local area shall, for the purpose of making an arrest have within such area all the powers of the Police Officer referred to in section 54 and of an officer in charge of a police station referred to in section 55. (2) A Justice of the Peace making an arrest in exercise of any powers under subsection (1) shall, forthwith, take or cause to be taken the person arrested before the officer in charge of the nearest police station and furnish such officer with a report as to the circumstances of the arrest and such officer shall thereupon re-arrest the person.
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(3) A Justice of the Peace for any local area shall have powers, within such area, to call upon any member of the police force on duty to aid him-- (a) in taking or preventing the escape of any person who has participated in the commission of any cognizable offence or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists of his having so participated; and (b) in the prevention of crime in general and, in particular, in the prevention of a breach of the peace or a disturbance of the public tranquillity. (4) Where a member of the police force on duty has been called upon to render aid under subsection (3), such call shall be deemed to have been made by a competent authority. (5) A Justice of the Peace for any local area may, in accordance with such rules as my be made by the Provincial Government:- (a) issue a certificate as to the identity of any person residing within such area; or (b) verify any document brought before him by any such person. Or (c) attest any such document required by or under any law for the time being in force to be attested by a Magistrate, and until the contrary is proved, any certificate so issued shall be presumed to be correct and any document so verified shall be deemed to be duly verified, and any document so attested shall be deemed to have been as fully attested as if he had been a Magistrate. (6) An ex-officio Justice of the Peace may issue appropriate directions to the police authorities concerned on a complaint regarding non-registration of criminal case; (i) transfer of investigation from one police officer to another; and (ii) neglect, failure or excess committed by a police authority in relation to its functions and duties. Under subsection (1), JP has been given powers to make arrest within the meaning of sections 54 and 55, Cr.P.C. And his powers has been made equivalent to that of a police office or an Officer In charge of a Police Sstation. Generally, every citizen is empowered to arrest a person as under section 46, Cr.P.C. Apart from the police officer other persons including private persons have been empowered to arrest a person. The distinction between the arrest made by a police officer and any private person is that the private person has been given power to arrest a person if a person commits a non-bailable cognizable offence in his view, then only a private person can arrest a person otherwise he has no power to do so. In the case of police officer, he can arrest any person under the circumstances mentioned in section 54, Cr.P.C., the above distinction between the powers of arrest made by a private person and police officer has been given by the Honourable Supreme Court in the case of State v. Muhammad Akbar (PLD 1963 SC 432). Thus before the enactment of section 22-A even JP under the general provision of section 46, was empowered to arrest a person on the conditions mentioned above. After the insertion of subsection (1), to section 22-A, the JP has been given same powers of arrest as that of a Police Officer referred to in section 54, and an Officer In charge of Police Station as referred to in section 55. The powers of JP have been restricted only to make the :arrest and forthwith produce the arrested person before the In charge of nearest Police Station with a report showing, the circumstances of such arrest and then the police officer is required to re-arrest the said person, as provided under subsection (2) of section 22-A. Thus it is clear that JP is not required to keep the arrested person with himself for any longer period than the period he is required to spend in taking the arrested person before the first nearest police station. The second power given to JP is provided under subsection (3) under which the JP has been given powers to call upon any member of police force on duty to aid him in taking or preventing the escape of any person who has participated in the commission of any cognizable offence or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists of his having so participated and secondly in the prevention of
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crime in general and, in particular, in the prevention of a breach of the peace or a disturbance of public tranquility. Under subsection (4) it has been made incumbent upon the Police Officer on duty if called upon by the JP to render aid under subsection (3), to, obey his call or order as the same is deemed to have been made by a Competent Authority. Under Article 4(m) of the Police Order, 2002 all the police officers are required to obey the lawful orders of competent authority and disobedience of which has been made punishable under Article 155(1)(c)(d) of the said order. The third power given to the JP is to issue a certificate as to the identity of any person residing within his notified local area or verifying any document brought before him by any such person or attest any such document required by or under any law for the time being in force to be attested by a Magistrate, after such attestation the document is required to be presumed to be correct and shall be deemed to be duly verified, and any document so attested shall be deemed to have been fully attested as if it had been attested by a Magistrate, until contrary is proved. The above three powers of JP are exercisable by all the JPs either appointed under sections 22 or 25 (Ex-officio JP). It will be noticed that on 21-11-2002 by Ordinance (CXXXI of 2002) additional powers have been given to Ex-officio JP only, by inserting subsection (6) in section 22-A. Under these powers, the Ex-officio JP, on receipt of complaint of (1) non-registration of criminal case, (2) transfer of investigation from one police officer to another police officer and (3) in case of neglect, failure or excess committed by the police authority in relations to its function and duties, has been authorized to issue appropriate directions to the police authorities concerned. In the matters in hand, the additional powers of Ex-officio JP are under discussion. It will be noticed that in respect of above mentioned three General Powers of JP, he is not required to do anything beyond the powers given to him firstly after arresting of a person he has to produce such person nearest Police Station with a report showing the circumstances of his arrest secondly by calling a police officer on duty to aid him in the matters mentioned in subsection (3) and thirdly he is required to issue some certificates, verify and attest some documents. Thus the powers of JP are very limited. Those powers appear to have been given to aid and assist the authorize of criminal jurisdiction system. They are neither supervisory nor judicial but they are administrative and ministerial in nature. Keeping in view the Scheme of powers of JP, the powers of Ex-officio JP provided under subsection (6) are to be examined, under Clause-1 of subsection (6) if the Ex-officio JP receives a complaint regarding non-registration of a criminal case by a police officer then under the said Provision he has simply to examine and to satisfy himself on two points, through the material placed before him or through the affidavit, firstly that a prima facie complaint of non-registration of F.I.R., is made out and secondly from the facts narrated to him by the complainant orally or in writing constitute a commission of a cognizable offence. If he is satisfied on these two points then he can simply refer the complainant by means of any mode-preferably through a written letter forwarding the complaint to concerned police officer with direction to register the F.I.R. For that purpose, the Ex- officio JP is not required to hold any detail inquiry to ascertain whether the information supplied to him by the complainant is true or false because it is the function of a police officer to investigate the case to find out the truth or otherwise of the information and who committed the offence after registration of the case. There should no difficult with the Ex-officio JP who is a senior judicial officer to form an opinion from the facts narrated to him by the complainant orally or in writing whether or not a cognizable offence has been made out. For that purpose he is not required to issue notice to anybody or to accused or to police officer. He has to form his own independent opinion from the facts narrated to him. It is pertinent to mention here that when such information whether oral or in writing is received by a police officer then at that time no notice is required to be given to the accused party but he immediately after hearing the oral or examining written information forms his opinion as to whether or not a cognizable offence has been committed. When a police officer
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can immediately form such opinion then I fail to understand as to why a Senior Judicial Officer cannot form such opinion immediately, therefore there is no need for holding any inquiry or issue notice to accused person or police officer or calling the witnesses for forming opinion as to whether or not information received by him discloses a cognizable offence. It is now well-settled that an Officer In charge of Police Station is required and bound to register F.I.R: under section 154, Cr.P.0 he has no power to refuse to register the same if from the information a cognizable offence is made out. It is immaterial whether the information is false or correct but the condition precedent for recording the F.I.R in section, 154, Cr.P.0 book is that information must disclose an offence and that too a cognizable one. After registration of the F.I.R then the investigation starts to ascertain whether the information is true or false and who committed the offence. If the information is false then the police officer is empowered to register such case against the complainant under the relevant provisions of P.P.C. If the information discloses an offence which is not a cognizable by the police then also he is required and bound under section 155, Cr.P.C, to record it in a station diary and refer the informant to the Magistrate In both the cases of cognizable or non-cognizable offence. The officer in charge of the Police Station cannot refuse to enter the information in section 154, Cr.P.0 book or station diary of the Police Station as the case may be except on one condition only that from the information no offence at all is made out. On no other ground he can refuse to enter the information in relevant books. As such Ex-officio JP is not required to enter into any inquiry to ascertain whether the information which is required to be supplied to the police is true or incorrect. It has been observed by me while sitting at various Benches and examining the orders of various Ex-officio JPs that they inter into detail inquiries by consuming several months for such purpose and to determine as to whether information is true or false by considering the merits and demerits of the information. Such inquiries are not warranted by la* and the same shall be stopped immediately. The second important condition for exercising such powers is that Ex-officio JP should be satisfied that F.I.R concerning cognizable offence has not been registered by the police officer. This fact can also be verified through various modes, firstly believing the statement of complainant or affidavit filed in support of such allegation and secondly by calling comments from the concerned police officer. Before that, Ex-officio JP should keep an important fact in view while examining such matter that the matter should not unnecessary be lingered on or delayed. As in the present cases, the orders were passed after few months of making the complaints and that too after considering the merits and ' demerits of the information and holding detail inquiries. It is pointed out to the Ex- officio JP that immediate lodging of the F.LR is the essence of Criminal justice system and would help the police to collect the required evidence. It is well-settled principle of law that promptly lodged F.I.R. Eliminates the false story and false involvement of the accused whereas delayed F.I.R coupled with enmity casts serious doubt upon the story and D involvement of the accused. Further if any delay is made then possibility of disappearance, destroying or concealing the evidence cannot be ruled out therefore the Ex-Officio JP, if finds necessary and imminent that without conduction any enquiry he cannot pass such order then he can conduct inquiry in a summery manner by keeping in view that any delay might cause disappearance of evidence. In any case 'he should immediately pass orders on the application so that the police officer should conduct himself in accordance with section 154, Cr.P.0 to register the F.I.R if a cognizable offence is committed and then start the investigation which is meant for collection of evidence as provided under section 4(1)(L), Cr.P.C. It is further pointed out that if a notice is issued to the concerned police officer inquiring the circumstances of non-registration of the F.I.R, the police officer may come forward with a plea firstly that the complainant did not approach him or secondly that from the information no cognizable offence was made out. Only on the second ground, he can refuse to register the F.I.R.
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But if, the Ex-officio JP from the information or facts narrated to him forms opinion that the information discloses a cognizable offence then he has to forward the complainant to the Police Officer for registration of F.I.R. If the Police Officer takes the first ground, then also there is no harm in forwarding the complainant to the Police with direction to register the F.I.R on his (complainant) arrival at the Police Station. Furthermore the complaint itself is sufficient proof of non-registration of F.I.R. If the police officer had not refused to register the F.I.R, then what was the necessity for the complainant to approach the Ex-officio JP. Thus by issuing notice to the Police Officer it will again delay the registration of F.I.R and the possibility of disappearance of the evidence cannot be ruled out. However, it is for the JP to decide after keeping in view the facts and circumstances of each case. Nevertheless it should be ensured that no unnecessary delay should be caused. The basic principle of criminal justice system is that no offence should go unchecked and no offender should go unpunished. The entire criminal justice system revolves around this principle, therefore the Ex-officio JP is required to pass immediate orders on the application of complaint of non-registration of F.I.R., by adopting summery procedure on his satisfaction firstly that a cognizable offence appears to have been committed and secondly from the material produced before him the F.I.R has not been registered: It is pointed out that Ex-officio JPs are not only required to exercise their powers during their office hours but they are JPs for twenty-four hours. They may exercise their powers anywhere at any time within their territorial jurisdiction. Suppose, if a Ex-officio JP is present in his house or travelling by foot or by any vehicle at any time of hour and he receives a complaint of non-registration of F.I.R., on the way from a person who is in serious injured condition, or from a person who is very recently robbed of his vehicle etc. From the information he forms opinion that facts discloses a cognizable offence and police has not registered the F.I.R then he in a summary manner is required to forward the complaint to police station with direction to the police to register the F.I.R. If he indulges in any inquiry then the valuable piece of evidence might be lost that will ultimately benefit the accused therefore a direction in a summary manner is required to be issued by him. It will be noticed that these powers of Ex-officio JP are equated with the powers of Magistrate under section 156(3), Cr.P.C. The Magistrate while exercising such powers is required, in a summery manner to direct the police to register the. F.I.R., by passing an order of one or two lines. Such small orders of Magistrates passed under section 156(3), Cr.P.C., were approved by the Superior Courts and even by Supreme Court of Pakistan. Such orders have been reproduced in a case of Muhammad Ali v. S.H.0 of Police Station Aziz Bhatti reported in 2002 YLR 550. The Ex-officio JP can take benefit of such orders passed by Magistrates which have been approved by the Superior Courts including Supreme Court of Pakistan instead of passing lengthy orders of few pages to save precious time of the Court. The officer In charge of Police Station, after receipt of direction from the Ex-officio JP, still does not register the F.I.R., then he must send such information to Ex-officio JP with his reasons for noncompliance of the direction. If the Ex-officio JP finds that such grounds are not legal then it shall be dealt with appropriately in accordance with modes mentioned in the order under the heading of 'Remedies'. As regards the exercise of powers under clause (2) of subsection (6) if Ex-officio JP receives complaint regarding the transfer of investigation 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 a period of 15 days after registration of the F.I.R. As such inquiry with regard to such allegation should also be of a summery nature and be completed without loss of time If the Ex-officio JP forms an opinion that the complaint received by him justifies the transfer of investigation then he has not been given powersto transfer the
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investigation from one police officer to any other police officer by himself but he has to issue a proper direction to the Superintendent of Police (Investigation) (Article 18(3) of Police Order 2002) who is competent to transfer the investigation under Article 18(6) of the Police Order, through his report forming such opinion. On receipt of such report, the S.P (investigation) is required to give due weight to such report and then pass appropriate- order as per law. No other role is required to be performed by the Ex-officio JP because the. Investigation G conducted by a police officer cannot be into fered with in any form or mode. Even Judiciary cannot interfere with the investigation of a police officer as held in the case of Khawaja Nazir Ahmed v. The State (AIR 1945 PC-18), Shahnaz Begum v. The State (PLD…
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