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Official Citation: 2024 PCRLJ 756
Court / Jurisdiction: Lahore High Court
Year of Decision: 2022
Decision Date: 2022-06-17
Parties: Humair Yousaf vs Station House Officer etc
Ruling Summary: This decision was rendered by the Lahore High Court on 2022-06-17, officially reported as 2024 PCRLJ 756. In this matter between Humair Yousaf and Station House Officer etc, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2024 PCRLJ 756
Court Name: Lahore High Court Judge(s): N/A Title: Humair Yousaf vs Station House Officer etc Case No.: Writ Petition No. 46941 of 2021 Date of Judgment:2022-06-17 Reported As: 2022 LHC 6110, 2024 PCRLJ 756 Result: Petition Accepted
JUDGMENT
JUDGMENT Tariq Saleem Sheikh, J. This petition under Article 199 of the Constitution of Islamic Republic of Pakistan , 1973 (the "Constitution"), is directed against order dated 15.7.2021 passed by the Ex-of ficio Justice of Peace, Lahore. The facts 2. On 8.7.2021 Respondent No.3 [Hayat Kimya Pakistan (Private) Limited] moved an application under section 22- A of the Code of Criminal Procedure, 1898 (hereinafter referred to as "Cr.P.C." or the "Code"), before Respondent No.4 (Ex-of ficio Justice of Peace) stating that it had appointed Apex Distribution and Marketing Services (Private) Limited (hereinafter referred to as "Apex") as it's non-exclusive distributor for the sale and distribution of its products in terms of Agreement dated 15.5.2019. In due course of business a sum of Rs.15.00 million became outstanding against Apex whereupon the Petitioner (Humair Yousaf) and Mrs. Tabassum Yousaf delivered three cheques (Cheque Nos. 97479699, 1688258316 and CA0053594927) for Rs.5.00 million each to Respondent No.3 to liquidate its liability but they were dishonoured on presentation. The application did not mention the precise date of those cheques. Respondent No.3 contended that the Petitioner and Mrs. Tabassum Yousaf had dishonestly given it bad cheques and thus committed a cognizable offence for which they were liable to be prosecuted. Accordingly , it prayed for a direction to the Respondent SHO for registration of a criminal case against them. Respondent No.4 accepted that application vide Order dated 15.7.2021 (the "Impugned Order"). Hence, this petition. 3. It is pertinent to point out that Cheque No. 97479699 was drawn on the Petitio ner's personal account with the Summit Bank Limited while Cheque Nos. CA0053594927 and 1688258316 were drawn on Apex' s two corporate accounts maintained with Faysal Bank Limited and MCB Bank Limited respectively and issued under the hand of Mrs. Tabassum Yousaf. The submissions
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4. The counsel for the Petitioner , Kh. Haris Ahmad, Advocate, contended that the Impugned Order was illegal and without jurisdiction for two reasons. First, the law laid down by the Hon'ble Supreme Court of Pakistan in Younas Abbas and others v. Additional Sessions Judge, Chakwal, and others (PLD 2016 SC 581) and this Court in Abid Ali alias Imran and another v. City Police Officer, Faisalabad, and 6 others (PLD 2021 Lahore 274) mandates that where the Officer In-charge of a police station refuses to register FIR the aggrieved person must approach his superior officers in the hierarchy before making an application under section 22-A(6) Cr.P.C. to the Ex-of ficio Justice of Peace ("JOP"). In the present case Respondent No.3 moved Respondent No.4 directly so that application was not competent. Secondly , on 8.7.2021 when the application of Respondent No.3 came up for hearing before Respondent No.4 for the first time he directed Respondents No.1 & 2 (the police officials) to file their report/comments and simultaneously ordered service of the "proposed accused" for the next date of hearing. On 15.7.2021 Respondent No.4 proceeded to pass the Impugned Order although neither the Petitioner (and co- accused Tabassum Yousaf) was served nor the police had submitted the requisite report. In these circumstances, Mr. Ahmad contended, Respondent No.4 could not decide the matter . 5. Mr. Ahmad assailed the Impugned Order on merits also on numerous grounds. His first contention was that Cheque Nos. 97479699, 1688258316 and CA0053594927 were given to Respondent No.3 on different dates as security in terms of Distribution Agreem ent dated 15.5.2019. Section 489-F PPC was inapplicable to security cheques. Secondly , Respondent No.3 had procured the Impugned Order through fraud, forgery and misrepresentation. He submitted that Respondent No.3 deliberately concealed the date of receipt of the cheques in its application before Respondent No.4 and attempted to suggest that they were issued on the date mentioned on them, i.e. 4.5.2021. It was not so. According to the learned counsel, there was documentary evidence that they were delivered to Respondent No.3 on different occasions and were undated as they were not meant for encashment. On 23.6.2021 Respondent No.3 presented the cheques although it was fully aware of the fact that a dispute in respect thereof had arisen and Apex had served a notice for arbitration upon it and instructed the bankers to stop payment against two of the said instruments. Cheque No. CA0053594927 related to an account which was closed on 25.1.2020 so such instruction was not required for it. Mr. Ahmad contended that Respondent No.3 had no authority to fill up the date on the cheques because no liability had accrued against Apex. Thirdly , "dishonest intention" was the foundational element of section 489-F PPC but there was nothing on record to suggest that the Petitioner and Mrs. Tabassum Yousaf harboured such intention when they handed over the said cheques to Respondent No.3. Lastly , the dispute between the parties was of civil nature and they had filed cross suits which were pending. The application moved by Respondent No.3 under section 22-A(6) Cr.P.C. was mala fide as it wanted to mount pressure on the Petitioner by implicating him in a criminal case. 6. Mr. Tariq Kamal Qazi, Advocate, who represented Respondent No.3, controve rted the above contentions. He contended that the Impugned Order was lawful and did not suffer from any jurisdictional defect. As regards the Younas Abbas case, he submitted that it was being grossly misread and misconstrued. Even a learned Single Judge of this Court misunderstood it in Abid Ali alias Imran and another v. City Police Officer, Faisalabad, and 6 others (PLD 2021 Lahore 274). According to him, there was nothing in Younas Abbas case to suggest that it was mandatory for the aggrieved party to approach senior police officials against the inaction of the Officer In-charge of a police station before moving the JOP under section 22-A Cr.P.C. Mr. Qazi furthe r contended that the Impugned Order could not be quashed on the groun d that Respondent No.4 did not await the police report because it was a mere irregularity . Similarly , the fact that he did not hear the Petitioner and co-accused Mrs. Tabassum Yousaf was of no legal consequence as Dawood Abdul Ghafoor v. Justice of Peace and others (2021 PCr.LJ 1527) unequivocally held that he had no such obligation. 7. Mr. Qazi next contended that the cheques were not issued by way of security as the Petitioner suggested. They represented the primary payment obligation of Apex. The said company was its distributor and the cheques represented the price of goods which it had purchased from Respondent No.3 for further sale to the end users. Mr. Qazi vehemently denied the allegations of fraud, forgery and misrepresentation levelled against Respondent No.3. He explained that when a person delivers a duly signed inchoate instrument to another person the latter is
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competent to fill up the amount and the date under section 20 of the Negotiable Instruments Act, 1881. The counsel pointed out that it was not the Petitioner 's case that Respondent No.3 did not supply the goods to Apex. 8. Mr. Qazi submitted that the purpose of section 22-A Cr.P.C. was to ensure immediate registration of FIR and it was a bulwark against interference in the administration of criminal justice by the influential. He argued that the offence under section 489-F PPC is complete when the cheque is dishonoured and the bank issues a memo confirming that fact. In such a situation the JOP should forthwith issue a direction for registration of criminal case and allow the law to take its own course. The parties have an opportunity to prove their respective claims during the investigation. The JOP cannot assum e the role of the police and conduct any inquiry himself. The Petitioner would have the same opportunity and the issues which he has raised in response to the complaint of Respondent No.3 would be considered at the right time. Mr. Qazi lastly contended that recorda tion of FIR could not be blocked merely because civil litigation was pending. A party could avail civil and criminal remedies simultaneously . Opinion 9. The Code classifies criminal offences into two categories for certain purpose s, namely cognizable and non- cognizable offences. Sections 154 and 155(1) Cr.P.C. separately prescribe the procedure for dealing with them. Section 154 is relevant for our present purpose which is reproduced below: 154. Information in cognizable cases.- Every information relating to the commission of a cognizable offence if given orally to an officer in-charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant, and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such of ficer in such form as the Provincial Government may prescribe in this behalf. Provided that ... Provided further that ... 10. This Court considered section 154 Cr.P.C. in M. Anwar Barrister-at-Law v. The Station House Officer, Civil Lines Police Station, Lahore, and another ( PLD 1972 Lahore 493 ) and explicated: "If there is an information relating to the commission of a cognizable offence, it falls under section 154 of the Code of Criminal Procedure and a police officer is under a statutory obligation to enter it in the prescribed register . The condition precedent is simply two-fold: first, it must be an information and, secondly , it must relate to a cognizable offence on the face of it and not merely in the light of subsequent events. A police officer is bound to receive a complaint when it is preferred to him, or where the commission of an offence is reported to him orally , he is bound to take down the complaint. If he does not incorporate in the register a complaint so made, he fails to perform a statutory duty as a public servant and, therefore, renders himself to be dealt with by his superior officers for neglect of duty . Thus, it does not depend on the sweet will of a police of ficer who may or may not record it." The above statement of law was reaffirmed by a Divisional Bench of this Court in Saeed Ahmad and others v. Naseer Ahmad and others ( PLD 2000 Lahore 208 ). 11. The expression "First Information Report" (FIR) does not appear in the Code. It is, in fact, the name given to the "information" mentioned in section 154 Cr.P.C. by Chapter XXIV of the Police Rules of 1934. In Muhammad Bashir v. Station House Officer, Okara Cantt. and others (PLD 2007 SC 539) the Hon'ble Supreme Court of Pakistan elucidated the law relating to FIR as follows: "(a) No authority vests with an Officer In-charge of a police station or with anyone else to refuse to record a FIR where the information conveyed discloses the commission of a cognizable of fence; (b) No authority vests with an Officer In-charge of a police station or with anyone else to hold any inquiry into the correctness or otherwise of the information which is conveyed to the SHO for the purposes of recording of an FIR; (c) Any FIR registered after such an exercise, i.e. determination of the truth or falsity of the information conveyed to the SHO, would be hit by the provisions of section 162 Cr .P.C.; (d) Existence of a FIR is not a condition precedent for holding of an investigation nor is the same a prerequisite for the arrest of a person concerned with the commission of a cognizable of fence; (e) The recording of an FIR does not mean that the SHO or the police officer deputed by him is obliged to investigate the case or to go through the whole length of investigation of the case mentioned therein or that any
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accused person nominated therein must be arrested; and (f) The check against lodging of false FIRs is not refusal to record such FIRs but punishment of such informants under s.182 PPC etc. which should be, if enforced, a deterrent against misuse of the provisions of s.154 Cr .P.C." 12. There is a general complaint that the police do not register FIR when the commission of a cognizable offence is reported to them although it is their statutory obligation under section 154 Cr.P.C. In the past the people used to file petitions under Article 199 of the Constitution in the High Court for an order in the nature of mandamus against their inaction/refusal. The High Court would consider every case on its own facts and then either issued the writ or dismissed the petition as it deemed appropriate. The High Court' s burden increased with the passage of time so the need for legal reform arose. 13. In the Indo-Pak sub-continent the original role of the Justices of Peace under the Code was primarily to assist the police in maintaining peace and, in the event of infraction of law, to help them. However , their role was subsequently enlarged and made more comprehensive through various amendments in the Code. On 21.11.2002, the Criminal Procedure (Third Amendment) Ordinance, 2002 (Federal Ordinance No. CXXXI of 2002) added sub- section (6) in section 22-A Cr.P.C. and conferred additional powers on the Ex-of ficio Justices of Peace. The said provision reads as under: (6) An Ex-of ficio Justice of Peace may issue appropriate directions to the police authorities concerned on a complaint regarding: (i) non-registration of criminal case; (ii) transfer of investigation from one police of ficer to another; and (iii) neglect, failure or excess committed by a police authority in relation to its functions and duties. Section 25 Cr .P.C. defines Ex-of ficio Justice of Peace as follows: 25. Ex-officio Justice of the Peace.- By virtue of their respective offices, the Sessions Judges and on nomination by them, the Additional sessions Judges , are Justices of the Peace within and for whole of the District of the Province in which they are serving. 14. Clause (i) of section 22-A(6) Cr.P.C. created a new forum where an aggrie ved person could seek remedy against the Officer In-charge of a police station who refused registration of FIR but a huge controversy arose as to how the JOP should exercise that power or, to put it in another way, what was the nature of functions that he performed. Initially the preponderant view was that the JOP' s functions were ministerial but in Younas Abbas and others v. Additional Sessions Judge, Chakwal, and others (PLD 2016 SC 581) a larger Bench of the Hon'ble Supreme Court ruled that they were quasi-judicial. The relevant excerpt is reproduced below: "11. The duties, the Justice of Peace performs, are executive, administrative, preventive and ministerial as is evident from sub-sections (1), (2), (3), (4) and (5) of sections 22-A and 22-B of the Cr.P.C. Such duties have not been a subject-matter of controversy nor have they ever been caviled at by anybody . Controversy emerged with the insertion of subsection (6) in section 22-A and section 25 of the Cr.P.C. when the Sessions Judges and on nomination by them the Additional Sessions Judges became the Ex-of ficio Justices of Peace. The functions, the Ex-of ficio Justice of Peace performs, are not executive, administrative or ministerial inasmuch as he does not carry out, manage or deal with things mechanically . His functions as described in Clauses (i), (ii) and (iii) of sub-section (6) of section 22-A Cr.P.C. are quasi-judicial as he entertains applications, examines the record, hears the parties, passes orders and issues directions with due application of mind. Every lis before him demands discretion and judgment. Functions so performed cannot be termed as executive, administrative or ministerial on any account. We thus don't agree with the ratio of the judgments rendered in the cases of Khizar Hayat and others v. Inspector General of Police (Punjab), Lahore and others (PLD 2005 Lahore 470) and Muhammad Ali v. Additional I.G. (PLD 2015 SC 753) inasmuch as it holds (sic) that the functions performed by the Ex-of ficio Justice of Peace are executive, administrative or ministerial." 15. Article 189 of the Constitution ordains that the decisions of the Hon'ble Supreme Court, to the extent that they decide a question of law or enunciate a principle of law, are binding on all courts in Pakistan. And, under the law of precedents if there is a conflict in the judgments of the Supreme Court, the one delivered by larger Bench prevails. Hence, the reported cases on section 22-A(6) Cr.P.C. must be classified as pre-and post-Y ounas Abbas judgment .1 2 3 4
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All the previous cases (which we have in plenty) stand overruled that hold that the jurisdiction of the JOP is limited to the examination of the complaint/information laid before him and should right away direct the Officer In-charge of police station to register FIR if it discloses commission of a cognizable offence. Muhammad Bashir 's case, which I have referred above, also falls in this bucket and consequently stands overruled to this extent. Similarly , the Full Bench decision of this Court in Khizer Hayat and others v. Inspector-General of Police (Punjab), Lahore and others (PLD 2005 Lahore 470), which is one of the most important cases relating to section 22-A(6) Cr.P.C. as it examines every possible aspect thereof, also stands overruled by Younas Abbas case insofar as it says that the powers of the JOP are ministerial. However , its remaining part is still good law . 16. It is important to understand the significance of the holding in Younas Abbas case. Generally speaking, an authority is described as quasi-judicial when it has some trappings or attributes of a court though not all of them. According to Wade and Forsyth, "a quasi-judicial function is an administrative function which the law requires to be exercised in some respects as if it were judicial." In Dr. Zahid Javed v. Dr. Tahir Riaz Chaudhary and others (PLD 2016 SC 637) the Hon'ble Supreme Court of Pakistan held: "The word 'quasi' is defined 'as if', 'as though', 'as it were', 'in a manner ', 'in a certain sense or degree', 'seeming', 'seemingly', 'analogous to' and it may mean 'resemblance'. The quasi-judicial power is a duty conferred by words or by implication on an officer to look into facts and to act on them in the exercise of discretion, and it lies in the judgment and discretion of an officer other than a judicial officer. A 'quasi-judicial power ' is one imposed on an officer or an authority involving the exercise of discretion, judicial in its nature, in connection with, and as incidental to, the administration of matters assigned or entrusted to such officer or authority . A 'quasi-judicial act' is usually not one of a judicial tribunal, but of a public authority or officer, which is presumably the product or result of investigation, consideration, and human judgment, based on evidentiary facts of some sort in a matter within the discretionary power of such authority or officer. A quasi-judicial power is not necessarily judicial, but one in the discharge of which there is an element of judgment and discretion; more specifically , a power conferred or imposed on an officer or an authority involving the exercise of discretion, and as incidental to the administration of matters assigned or entrusted to such officer or authority ." The Hon'ble Supreme Court' s declaration that the JOP exercises quasi-judicial functions under section 22-A(6) Cr.P.C. clears up that this provision is not only independent of section 154 Cr.P.C. but radically different from it. The powers of the JOP are discretionary . He is not bound to issue a direction for registr ation of FIR in every case that is brought to him. On the other hand, section 154 Cr.P.C. is couched in mandatory terms and the obligation of the Officer In-charge of a police station to record FIR is absolute where the alleged of fence is cognizable. 17. Interestingly , although there was a controversy regarding the precise nature of the JOP' s functions, as mentioned above, the courts always held that the powers under section 22-A(6 ) Cr.P.C. were discretionary . In Khizer Hayat' s case the learned Full Bench of this Court said: "The use of the word 'may' in section 22-A(6) Cr.P.C. clearly shows that the jurisdiction of an Ex-of ficio Justice of the Peace in that regard is discretionary in nature, and understandably so. It is unfortunate that concepts and notions of truth and justice are becoming more and more subjective in our society and the machinery of criminal law with its coercive process is increasingly being utilized by motivated persons or parties for achieving objectives which are self-serving. Thus, there is a pressing need on the part of the Ex-of ficio Justices of the Peace to exercise caution and restraint before issuing a direction regarding registration of a criminal case ... We may also add that in an appropriate case, depending upon the circumstances thereof, an Ex-of ficio Justice of the Peace may refuse to issue a direction regarding registration of a criminal case and ,may dismiss the complaint under section 22-A(6) Cr.P.C. reminding the complaining person of his alternate statutory remedies under sections 156(3) and 190 Cr.P.C." 18. The next question is how the JOP should decide the applications under section 22-A(6) Cr.P.C. In Namit Sharma v. Union of India, [2013] 13 SCR 1, the Supreme Court of India observed that a quasi-judicial act requires that "a decision is to be given not arbitrarily or in mere discretion of the authority but according to the facts and circumstances of the case as determined upon an inquiry held by the authority after giving an opportunity to the affected parties of being heard or wherever necessary of leading evidence in support of their contention." Mr. Ahmad submits that before Younas Abbas case it was the courts' consistent view that the "proposed accused" does5
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not have the right to be heard by the JOP when he considers an application seeking registration of a case. However , Younas Abbas has changed the situation. The use of the words "examines the record, hears the parties" by the Supreme Court in paragraph 11 of the judgment contemplates hearing the proposed accused and going beyond the contents of the application for registration of case to determine whether sufficient incriminating material exists to justify the direction. 19. Audi alteram partem (Latin phrase meaning "listen to the other side") is one of the basic principles of natural justice - the other being nemo judex in causa sua (Latin for "no one should be a judge in his own cause"). The said principle postulates that no person shall be judged without a fair hearing. It is meant to give each party an opportunity to espond to the case set up by the other side. In Commissioner of Income Tax, East Pakistan v. Fazlur Rahman (PLD 1964 SC 410) the Hon'ble Supreme Court held that "the right to be heard is not confined to the proceedings which are judicial in form." In The University of Dacca through its Vice Chancellor v. Zakir Ahmad (PLD 1965 SC 90) it said that "in all proceedings by whomsoever held, whether judicial or administrative, the principles of natural justice have to be observed if the proceedings might result in consequences affecting the person or property or other right of the parties concerned. This rule applies even though there may be no positive words in the statute or legal document whereby the power is vested to take such proceedings, for, in such cases this requirement is to be implied into it as the minimum requirement of fairness." In Anisa Rehman v. PIAC and another (1994 SCMR 2232 ) the august Supreme Court ruled that there is "judicial consensus" that the maxim audi alteram partem is applicable to all judicial and non-judicial proceedings and that it shall be read into every statute if the right of hearing has not been expressly provided in it. However , in Abdul Haque Indhar and others v. Province of Sindh and 3 others (2000 SCMR 907) the Court held that this principle has some exceptions and one of them is that the person concerned must show that he has a vested right to defend the action. Subsequently , in Justice Khurshid Anwar Bhinder and others v. Federation of Pakistan and another (PLD 2010 SC 483) a larger Bench of the Supreme Court enumerated various other exceptions to the above rule. In High Flying Solar Development Pakistan Ltd. and others v. National Electric Power Regulatory Authority and others (2016 CLC 1805 ) the Islamabad High Court held that "the principles of natural justice are flexibl e and not rigid. The determination of the application of these principles…
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