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Official Citation: 2024 LHC 3636
Court / Jurisdiction: Lahore High Court
Year of Decision: 2024
Decision Date: 2024-03-06
Parties: Zubaida Qureshi vs Ex-officio Justice of Peace and others
Ruling Summary: This decision was rendered by the Lahore High Court on 2024-03-06, officially reported as 2024 LHC 3636. In this matter between Zubaida Qureshi and Ex-officio Justice of Peace and others, 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 2024LHC3636
Court Name: Lahore High Court Judge(s): Tariq Saleem Sheikh Title: Zubaida Qureshi vs Ex-officio Justice of Peace and others Case No.: Writ Petition No.1359/2024 Date of Judgment:2024-03-06 Reported As: 2024 LHC 3636 Result: Petition Accepted
JUDGMENT
JUDGMENT Tariq Saleem Sheikh, J.- The Petitioner filed an application under section 22-A Cr.P.C. before the Ex-officio Justice of Peace, Ahmadpur East, seeking an order directing the SHO of Police Station City Ahmadpur East to register an FIR against Respondents No. 5 to 11. She stated that Respondent No. 5 (Dr. Hassan Mehmood) had previously lodged a false FIR (No. 377/2023) under section 363 PPC at Police Station City Khanpur, District Rahimyar Khan, accusing her sons of abducting his children, Muhammad Subhan Hassan and Muhammad Shoban Hassan. The Petitioner further alleged that on 09.04.2023, around 9:30 a.m., Respondents No. 5 to 9, along with Respondents No. 10 and 11 and numerous other police officials, forcibly entered the house of her son, Muhammad Usman, and arrested him and his family members, including Muhammad Haseeb, Junaid, and Raheel, and also seized household items. She immediately went to Police Station City Khanpur to report the incident, but no one listened to her as the SHO (Respondent No. 10) was involved. According to her, Respondent No.10 released all the detenues after six hours. 2. On 10.04.2023, around midnight, Respondents No. 5 to 11 and their associates returned to Usman's house in police and private vehicles, arrested Usman, Haseeb, Junaid, and Raheel again, and took them away. The Petitioner stated that recognizing the gravity of the situation, she and her witnesses, including her other son, followed the accused in their private cars. At approximately 2:00 a.m., when they reached an area within the remit of Police Station Kot Sabzal, the accused stopped. Respondent No. 11 and other policemen dragged the handcuffed Usman, Haseeb, Junaid, and Raheel out of the police vehicle and began beating them. After some time, they removed their handcuffs and ordered them to leave the scene. As soon as the men started running, Respondent
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No.11 retrieved a gun from his vehicle, and Respondent No.12 pulled out a pistol from his holster. Both started firing at them along with other police officials. As a result, all four men were killed. The Petitioner approached Respondents No. 2 to 4 to register an FIR against the accused, but they refused. 3. According to the report of the S.P./District Complaint Officer, Bahawalpur, on 07.04.2023, Respondent No.5 registered FIR No. 377/2023 under section 363 PPC at Police Station City Khanpur, District Rahimyar Khan, regarding the abduction of his children, Muhammad Subhan Hassan and Muhammad Shoban Hassan, against unknown persons. Subsequently, the offence under section 364-A PPC was added. The investigation revealed that Muhammad Usman (the Petitioner's deceased son), Muhammad Junaid, Muhammad Haseeb, Muhammad Raheel, Sami Ullah, Abdul Saim, Irum Bibi, Noreen Bibi, and Alishba Bibi were involved in the abduction. On 10.04.2023, Irum Bibi, Noreen Bibi, Alishba Bibi, Sami Ullah, and Abdul Saim were arrested, interrogated, and later sent to the District Jail Rahimyar Khan on judicial remand. On 11.04.2023, the Investigating Officer searched for Muhammad Usman, Muhammad Junaid, Muhammad Haseeb, and Muhammad Raheel and discovered that they had been killed by gunfire from their co-accused in the area of Police Station Ahmadpur Lama, District Rahimyar Khan. Consequently, FIR No. 205/2023 was registered at Police Station Ahmadpur Lama under sections 302/324/353/186/148/149 PPC and section 13(2)(a)(b) of the Punjab Arms Ordinance, 1965. The S.P./District Complaint Officer reported that no such incident as alleged by the Petitioner had occurred, and there was no police encounter in the district. Furthermore, the Petitioner lacked reliable evidence to support her claims. The DPO, Bahawalpur, filed a report on the same lines in this Court during the hearing of this petition. 4. The Ex-officio Justice of Peace dismissed the Petitioner's application by order dated 17.01.2024. He noted that the alleged incident occurred on 10.04.2023, while the Petitioner filed the application under section 22-A Cr.P.C. on 25.07.2023, i.e., after two months and 15 days. The Ex-officio Justice of Peace found no satisfactory explanation for this delay. He was also satisfied with the report of the S.P./District Complaint Officer and saw no reason to disregard it. 5. Through this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (the "Constitution"), the Petitioner has assailed the aforementioned order dated 17.01.2024 of the Ex-officio Justice of Peace before this Court. 6. The Petitioner's counsel, Syed Zeeshan Haider, Advocate, argues that Respondents No. 5 to 11 brutally murdered four innocent persons, which necessitates a thorough investigation to ensure justice for the families of the deceased. He states that the Petitioner submitted a written complaint to the SHO Police Station City Ahmadpur East regarding the incident on 11.4.2023, but he did not attend to it. Then, on 15.4.2023, she lodged a complaint with the S.P./District Complaint Officer, Bahawalpur, and on 20.4.2023, with the District Police Officer, Bahawalpur, but they also did not take any action. Therefore, on 25.7.2023, she filed an application under section 22-A Cr.P.C. before the Ex-officio Justice of Peace. The counsel asserts that the Petitioner diligently pursued her remedies and that there was no delay on her part. He relies on Rafique Bibi v. Muhammad Sharif and others (2006 SCMR 512) to contend that the impact of delayed FIR cannot be determined at this stage as it is for the trial court to assess its effect. 7. Mr. Haider argues that Parliament enacted the Torture and Custodial Death (Prevention and Punishment) Act No. XXVIII of 2022 (the "Act of 2022") to protect people against all acts of torture committed by public officials during custody. He asserts that this new legislation covers the Petitioner's case, so she is entitled to have an FIR filed against Respondents No. 5 to 11. When confronted with the fact that FIR No.205/2023 dated 10.04.2023 has already been registered for the same incident and that the Supreme Court's ruling in Sughran Bibi v. The State (PLD 2018 SC 595) prohibits the registration of a second FIR, Mr. Haider contends that the Act of 2022 introduces a new legal remedy that creates an exception to this rule.
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8. This case involves the interpretation of Act of 2022. Therefore, by order dated 1.3.2024, this Court issued notices under Order XXVII-A CPC to the Attorney General for Pakistan and the Advocate General Punjab. 9. Mr. Tahir Mehmood Mufti, Deputy Attorney General, argues that the Act of 2022 applies specifically to instances when a public official (or an individual acting in an official capacity) perpetrates the stipulated offence while a person is in custody. Thus, "custody" is a prerequisite for the Act's applicability. In the present case, there is no evidence that Usman and his companions were in police custody at the relevant time. Hence, the Petitioner's request for registration of FIR under the Act of 2022 deserves a short shrift. Additionally, Mr. Mufti points out that the registration of a second FIR is impermissible after the Supreme Court's ruling in Sughran Bibi's case. 10. Rai Mazhar Hussain Kharal, Assistant Advocate General Punjab, has supported the Deputy Attorney General's viewpoint and the impugned order, agreeing with the reasoning of the Ex-officio Justice of Peace. 11. Advocate Nazir Hussain Aslam, the counsel for Respondents No.7 to 9, has also adopted the Deputy Attorney General's arguments. Opinion 12. The United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) of 1984 requires Member States to take effective measures to prevent torture in any territory under their jurisdiction. It also forbids Member States from expelling, returning, or extraditing individuals to another country where there are substantial grounds for believing that they would be in danger of being subjected to torture.[1] Pakistan ratified CAT on June 23, 2010, marking a significant commitment to international human rights standards. This ratification obligated Pakistan to take measures to prevent and punish acts of torture within its borders. Therefore, it has enacted the Torture and Custodial Death (Prevention and Punishment) Act, 2022. 13. Before considering the contentions of the learned counsel and examining the issues raised in this petition, it is necessary to understand the scheme of the Act of 2022 and look at some of the provisions relevant to our present purposes. 14. Article 14(1) of Pakistan's Constitution (1973) guarantees the right to dignity, while Article 14(2) explicitly prohibits the use of torture to extract evidence. The Act of 2022 defines torture and establishes a comprehensive framework to protect individuals from it during custody by any public official or other person acting in his official capacity. Section 3(1) of the Act renders inadmissible any statement, information, or confession obtained through torture or cruel, inhuman, or degrading treatment by a public official in any proceedings against the person making it. Section 3(2) stipulates that a public official who knowingly uses such information faces imprisonment for up to one year, a fine of up to one hundred thousand rupees, or both. However, under section 3(3), the aforementioned information, statement, or confession is admissible as evidence against the person accused of committing the offence of torture. 15. The Act of 2022 primarily focuses on the following three offences: (a) torture (section 8), (b) custodial death (section 9), and (c) custodial rape (section 10). Section 11 provides punishment for filing false and malicious complaints. Section 16 of the Act of 2022 stipulates that the provisions of the Act will take precedence over any other conflicting laws currently in force. However, section 15 clarifies that the Act does not affect any civil remedies available under existing laws. 16. The Act of 2022 grants exclusive jurisdiction to the Federal Investigation Agency (FIA)[2] for investigating complaints against public officials accused of offences under the Act, but it must do so under the supervision of the National Commission for Human Rights (the "HR Commission"). This arrangement ensures that investigations are fair, impartial, and free from conflicts of interest. By involving an independent oversight body, the Act aims to safeguard the integrity of the
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investigation process, thereby maintaining public trust and upholding justice. If an agency involved in the dispute were responsible for the investigation, the credibility of the process could be compromised, which would be detrimental to both public interest and the pursuit of justice. 17. The Act of 2022 deviates from the standard procedures outlined by the Code of Criminal Procedure 1898 (hereinafter referred to as the "Code" or "Cr.P.C.") typically followed by police authorities for investigating offences. A combined reading of clauses (c) and (d) of section 2(1) indicates that the Act establishes a special procedure for initiating proceedings. Any person or their representative with reliable information about the commission of an offence under this Act may file a complaint with the FIA. The said complaint may be oral or in writing. Additionally, section 5(2) stipulates that if, at any time - including during the grant of physical remand under the Code - the Magistrate has reasonable grounds to believe that an offence under this Act has been committed or if a complaint of torture in custody is lodged, he shall order a medical examination. If the results of such examination reveal the infliction of torture, the Magistrate shall notify the FIA to investigate the offence. 18. Section 5(3) of the Act of 2022 stipulates that the FIA, while investigating offences under the Act, shall have the same powers and follow the same procedures as prescribed in the Federal Investigation Agency Act 1974 (the "FIA Act") and the Rules made thereunder. According to Bennion, it is common for drafters to incorporate existing statutory provisions by reference instead of repeating them in full when drafting new legislation. This technique conserves space and brings in the established case law and interpretations related to the earlier provisions. Additionally, it benefits the legislative process by shortening the Bill and limiting the scope for debate.[3] This practice aligns with the legal maxim verba relata hoc maxime operantur per referentiam ut in eis inesse videntur, which means that words referred to in an instrument have the same effect as if they were inserted in the referring document. 19. There are two primary types of referential legislation: (i) simple reference and (ii) incorporation by reference.[4] Simple reference involves the new law merely citing or mentioning provisions of an existing law, as mentioned in section 28(1) of the General Clauses Act 1897. On the other hand, in incorporation by reference, the new law makes the existing law an integral part of itself, as if the provisions of the old law were directly included in the new text. The earlier law's provisions are not copied verbatim but are treated as if they were written into the new law. This method fictionally embeds the referenced provisions within the new legislation.[5] 20. Courts frequently face the issue of determining whether a reference to earlier legislation in a new law is merely a citation or an incorporation. Its resolution hinges on the language used in the new law.[6] Insofar as section 5(3) of the Act of 2022 is concerned, its language is explicit and unambiguous. It incorporates the specified provisions of the FIA Act and the Federal Investigation Agency (Inquiries and Investigation) Rules 2002 (the "Investigation Rules") into the Act of 2022. 21. A detailed examination of the Investigation Rules reveals that they were primarily designed for anti-corruption investigations involving various categories of government servants. Ideally, new Rules should have been framed to achieve the objectives of the Act of 2022 effectively. Since this has not been done, this Court must discern the legislative intent and interpret the Act of 2022, the FIA Act, and the Investigation Rules in a harmonious manner. 22. Section 5 of the FIA Act and the Investigation Rules use two terms, "inquiry" and "investigation", without providing specific definitions. While these terms are commonly considered interchangeable, they carry distinct meanings in the legal context. The Black's Law Dictionary defines "inquiry" as "(a) a question someone asks to elicit information; (b) the act or process of posing questions to elicit information."[7] On the other hand, it describes "investigation" as "the activity of trying to find out the truth about something, such as a crime, accident, or historical issue; esp., either an authoritative inquiry into certain facts, as by a legislative committee, or a systematic
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examination of some intellectual problem or empirical question, as by mathematical treatment or use of the scientific method."[8] According to the Oxford Advanced Learner's Dictionary, "inquiry" signifies "a solicitation for information", while "investigate" denotes "the comprehensive exploration and scrutiny of all facts surrounding a particular event, such as a crime or an accident, with the objective of ascertaining the truth."[9] The Code defines the two terms in section 4(1) as follows: (k) "Inquiry".- "Inquiry" includes every inquiry other than a trial conducted under this Code by a Magistrate or Court. (l) "Investigation".- "Investigation" includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorized by a Magistrate in this behalf. 23. Legal precedents also acknowledge the distinction between inquiry and investigation. In Muhammad Bilal Nawaz v. Director General, Federal Investigation Agency, and others (2024 LHC 3288), this Court held: "In summary, `inquiry' and `investigation' are distinct processes within legal proceedings, each serving specific purposes. An inquiry refers to a preliminary examination or fact-finding process conducted by a designated authority or agency to gather information regarding a particular matter. It aims to assess the situation and determine whether further legal action is warranted. Inquiries vary in scope and formality, ranging from informal discussions to formal hearings. On the other hand, an investigation involves a detailed examination of a specific matter or allegation to gather evidence and determine its truth or validity. Investigations are conducted by law enforcement agencies or authorized entities to collect evidence, identify suspects, and gather information for legal proceedings. Although both procedures entail scrutinizing facts and evidence, inquiries are preliminary, primarily focusing on information gathering. In contrast, investigations are more thorough and structured, geared explicitly towards accumulating evidence to support legal action."[10] 24. Albeit the FIA Act and the Investigation Rules envisage an inquiry before an investigation, section 5(1) of the Act of 2022 deliberately uses the term "investigation," thus setting aside the requirement for an inquiry as outlined in the aforementioned instruments. This interpretation is further supported by the fact that the term "investigation" is used multiple times in the Act of 2022, while the word "inquiry" has nowhere been mentioned. It is well established that mistakes or absurdities cannot be attributed to the legislature when interpreting a statute or discerning legislative intent.[11] Generally, when interpreting statutes, it is assumed that the legislature chooses its words carefully. Therefore, if a word or phrase is included, it is not considered redundant; similarly, if a word or phrase is omitted, such omission is not deemed inconsequential. A change in language implies a change in intent.[12] It is also well settled that the legislature is presumed to be mindful of existing laws, and thus, the expression of legislative will should not be ignored lightly.[13] As a result, under the Act of 2022, the FIA does not hold an inquiry before initiating a formal investigation. Instead, it investigates the complaint directly under the oversight of the HR Commission. 25. Let's now examine some of the key provisions of the Investigation Rules that are pertinent to our current discussion. Rule 3 states that, subject to Rules 4 and 5, the FIA may initiate an inquiry or investigation on its own initiative or upon receiving a complaint or information, whether oral or written. Once an inquiry or investigation is registered, it must be conducted discreetly to avoid undue publicity and prevent unnecessary damage to the reputation of any public servant involved. Rule 4 stipulates that the Deputy Director or a higher-ranking officer must verify the identity of the complainant and the genuineness of the complaint, but no action will be taken on anonymous or pseudonymous complaints. According to Rule 5(1), an inquiry against a public servant can only be initiated with prior permission from the designated authority, determined by the public servant's
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pay scale. Rule 5(2) requires prior permission from the designated authority before registering a criminal case. However, Rule 5(3) provides an exception: if a public servant is apprehended in a trap arranged by the FIA under the supervision of a First Class Magistrate, prior approval to register a criminal case is not necessary. In such instances, a report must be submitted to the concerned authorities within twenty-four hours. Rule 5(4) states that if the competent authority decides not to initiate an inquiry or register a case upon receiving a complaint, it must record the reasons for its decision. Rule 6 mandates that the registration of a case and the subsequent arrest of a public servant be reported to the Head of the Department of the accused within twenty-four hours. Rule 7(1) stipulates that the Secretary, Ministry of Interior, Government of Pakistan, and the Director- General FIA may suo motu or otherwise call for the record of any case or inquiry pending with the Agency for examination and give such directions as may be necessary for the speedy, fair, and just disposal of the case. Rule 7(2) states that a Director may suo motu or otherwise call for the record of any case or inquiry to satisfy himself as to the correctness or propriety of a decision taken by a Deputy Director under these Rules and may pass such orders as he deems fit. Rule 8(1) empowers the designated authority to drop a case and recommend departmental proceedings against the accused public official. Rule 10 provides that upon completion of an investigation, a case found fit for prosecution for which sanction is required under section 197 Cr.P.C., or section 6(5) of the Pakistan Criminal Law Amendment Act 1958 (XL of 1958), or the rules made thereunder, shall be submitted by the FIA to the Federal Government for sanction of prosecution along with the full facts of the case, the opinion of the Legal Officer, and the statement of allegations. Rule 10 also contains certain provisions that must be followed in respect of officers in BPS-19 and above. 26. The requirement under Rule 5(2) of the Investigation Rules, which mandates obtaining prior permission from the designated authority before registering a criminal case against an accused public official, may be justified as a measure to protect officials from harassment, even though section 11 of the Act of 2022, penalizes the filing of false and malicious complaints. However, Rule 8(1), which allows the designated authority to drop a case and instead recommend departmental proceedings, is inconsistent with the objectives of the Act of 2022 and, therefore, cannot be enforced. It must be read down[14] to state that the competent authority may initiate departmental proceedings against the accused public official in addition to criminal proceedings under the Act of 2022. 27. It is well-established that criminal prosecution and departmental proceedings serve different purposes. The objective of a criminal trial is to punish the accused for their crimes. In contrast, departmental proceedings aim to investigate misconduct to maintain discipline, decorum, and departmental efficiency, thereby preserving public confidence in the institution. Even if a criminal court acquits the accused, it does not preclude an employer from exercising disciplinary powers under the applicable service rules and regulations.[15] 28. Given the above, it is ordered that Rule 8(1) of the Investigation Rules shall be read down as specified. 29. It is important to note that the designated authority cannot arbitrarily refuse permission to register a criminal case against a public official. Rule 5(4) makes it mandatory to record reasons. The decision is subject to judicial review. 30. In summary, proceedings under the Act of 2022 can be initiated based on a complaint by anyone with reliable information about an offence, their representative, or at the Magistrate s instance as per section 5(2). The FIA follows procedures outlined in the FIA Act and the Investigation Rules. The Investigation Rules require an inquiry before a formal investigation, but the Act of 2022 mandates that the FIA conduct a direct investigation into the complaint under the oversight of the HR Commission. If the FIA determines that the accused public official committed the alleged offences, Rules 5 to 7 and 10 of the Investigation Rules apply. The
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designated authority may also recommend departmental proceedings against him. Section 16 of the Act of 2022 states that the Act overrides other laws, requiring the FIA to adhere to this specific procedure in all cases. Resultantly, even though the offences of torture, custodial death and custodial rape are cognizable, section 154 Cr.P.C. is rendered inapplicable. Individuals have a statutory right to file a complaint with the FIA regarding these offences but, subject to judicial review, the registration of an FIR is governed by the provisions of the FIA Act and the Investigation Rules. 31. Section 13 of the Act of 2022 provides timelines for investigation, trial, and appeal. Section 13(1) mandates that the investigation of offences under the Act be completed within thirty days from the date of submission of the complaint. Section 13(2) stipulates that if the investigation of an offence under this Act is not completed within thirty…
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