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Petitioner: Muhammad Usman VS Respondent: Additional Sessions Judge, Rawalpindi and 3 others
Court Name: Lahore High Court Judge(s): Mirza Viqas Rauf, Raheel Kamran Title: Muhammad Usman vs Additional Sessions Judge, Rawalpindi and 3 others Case No.: Writ Petition No.2594 of 2021 Date of Judgment:2021-12-08 Reported As: 2022 YLR 1131 Result: Petition dismissed
JUDGMENT
JUDGMENT MIRZA VIQAS RAUF, J. This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter to be referred as "Constitution") is arising out of an order dated 26th August, 2021, whereby learned Additional Sessions Judge/Ex-Officio Justice of the Peace, Rawalpindi proceeded to pass an order on a petition under sections 22-A and 22-B of the Code of Criminal Procedure, 1898 (hereinafter to be referred as "Code ") moved by respondent No.2 (hereinafter to be referred as "respondent") directing the Station House Officer (hereinafter to be referred as "SHO") Police Station New Town, Rawalpindi to record the version of the "respondent" under section 154 of "Code" and to act in accordance with law. 2. The petitioner is a Sub-Inspector in police department against whom the "respondent" moved a petition under sections 22-A and 22-B of "Code" complaining that he has committed excess of power against the "respondent", which was beyond his authority and attracts offence under Article 155(c) of the Police Order, 2002 (hereinafter to be referred as "Order"). 3. This petition was admitted for regular hearing vide order dated 30th August, 2021 by one of us '(Mirza Rauf J.) while sitting as Single Bench mainly on the ground that offence under Article 155(c) of "Order" is not cognizable and as such learned Ex-Officio Justice of the Peace was not competent to pass a direction to the police to register a case. On 21st September, 2021 after hearing learned counsel for the parties as well as learned Law Officer and going through the judgments cited at bar by both the sides in order to determine the nature of offence embodied in Article 155(c) of "Order", the matter was referred to the Hon'ble Chief Justice for constitution of a larger Bench as there were conflicting views to this effect. Resultantly this petition was placed before us by the orders of the Hon'ble Chief Justice on 11 th October, 2021 and we proceeded to appoint Messrs Tanvir Iqbal and
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Ch. Imran Hassan Ali, Advocates as amid curiae and also issued notice to the learned Advocate General, Punjab in terms of Order XXVIIA of the Code of Civil Procedure (V of 1908) (hereinafter to be referred as "C.P.C."). The pivotal question which requires our determination is thus relatable to the nature of offence defined in Article 155(c) of "Order", as to whether said offence is "cognizable" or "non-cognizable"? 4. In the first instance Mr. Tanvir Iqbal, Advocate/amicus curiae while opening his submissions contended that cognizable offences are of two types one cognizable by police and other cognizable by court. He added that "Order" categorizes two types of offences one in Chapter XVI and the other in Chapter XVII, however, the offences prescribed in Chapter XVI are minor offences and are subject to summary trial whereas offences contained in Chapter XVII are not summary triable. It is submitted by learned amicus curiae that it is nowhere mentioned in the "Order" that offence under Article 155 is cognizable or otherwise. He added that in terms of Article 153 of "Order" offences falling under Articles 148 to 152 have been made cognizable notwithstanding anything contained in the Code. Learned counsel argued that in order to determine the nature of offence under Article 155 of "Order" we have to thus advert to Schedule II of the "Code" relating to offences against other laws. It is contended with vehemence that offence under Article 155 of "Order" is cognizable. It is further contended that in terms of Order XXVIIA of "C.P.C." the court is only obliged to issue a notice to the learned Attorney General for Pakistan or the learned Advocate General of the Province as the case may be which would be sufficient to serve the purpose of provision of law. In support of his submissions, learned amicus curiae has relied upon Muhammad Shafi v. S.H.O. and others (2012 YLR 828), Shahid Hussain and another v. Additional Sessions Judge, Taunsa Sharif Distt. D.G. Khan and others (2011 YLR 294), Khuda Bakhsh v. Additional Sessions Judge, D.G. Khan and 3 others (2010 YLR 2622) and Senator Asif Ali Zardari v. The State (2000 MLD 921). 5. Ch. Imran Hassan Ali, Advocate (amicus curiae) after taking us to the respective laws of the other offences submitted that Article 155 of "Order" comprises of two parts and if both are read together there remains no ambiguity that by virtue of applicability of the "Code" to the "Order", offence under Article 155 is cognizable. He added that word "report" used in the Article 155(2) of "Order" is of significance importance which is akin to the word "report" used in section 173 of "Code". Learned amicus curiae further contended that every provision in the "Order" is independent. While addressing the scope of Order XXVIIA of "C.P.C." learned amicus curiae has referred the judgment in the case of Maha Seedmen Association and others v. Union of India, Ministry of Agriculture, through its Secretary (2018 3 AIR Born R 628). In order to formulate his contentions, learned counsel relied upon Egon Zehnder Ltd. v. Tillman (2019 SCMR 1837), Sindh High Court Bar Association through its Secretary and another v. Federation of Pakistan through Secretary, Ministry of Law and Justice, Islamabad and others (PLD 2009 Supreme Court 879), Malik Shaukat Ali Dogar and 12 others v. Ghulam Qasim Khan Khakwani and others (PLD 1994 Supreme Court 281), Muhammad Abbas v. The State (PLD 1981 Supreme Court 642), Zulfiqar v. Additional Sessions Judge/Ex-Officio Justice of Peace, Lahore and 2 others (2021 PCr.LJ 1779), Haji Rehman SHO and 3 others v. Provincial Police Officer, Government of Khyber Pakhtunkhwa, Peshawar and 5 others (2012 PCr.LJ 1526), Masood Ahmad Javed v. The State and 5 others (2006 MLD 855), Naseem Akhtar Khan v. District and Sessions Judge PLD 2005 Karachi 285 and Shabbir Ahmad v. The State PLD 1981 Lahore 599. 6. After having heard learned amici curiae at considerable length we have also heard Mr. Basharat Ullah Khan, Advocate, learned counsel for the petitioner, who while placing reliance on Muhammad Ameen and others v. The State and others (2019 PCr.LJ 1172), Asghar Ali v. The State and another (2012 YLR 18) and Haji Muhammad Qasim, etc. v. 1. Muhammad Jahangir Khan 2. The State (2007 YLR 3209) submitted that offence under Article 155 of "Order" is non-cognizable
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and the learned Ex-Office Justice of Peace has no power to direct the "SHO" to proceed in terms of section 154 of "Code". 7. On the other hand, learned counsel for "respondent" while adding submissions to the amici curiae submitted that offence under Article 155 of "Order" provides the punishment upto three years. He added that in terms of Schedule II of "Code" offence is thus cognizable. Learned counsel further submitted that in terms of Article 4(c) of "Order" it is obligatory upon the Police Officer to ensure that the rights and privileges, under the law, of a person taken in custody, shall be protected. Reliance is placed on Industrial Development Bank of Pakistan and others v. Mian Asim Fareed and others (2006 CLD 625), Muhammad Bashir v. Station House Officer, Okara Cantt and others (PLD 2007 Supreme Court 539),Zulfiqar v. Additional Sessions Judge/Ex-Officio Justice of Peace, Lahore and 2 others (2021 PCr.LJ 1779), Peer Bakhsh v. S.H.O. and others (KLR 2015 Criminal Cases 211) and Muhammad Javed Tariq v. Station House Officer Police Station Fareed Town Sahiwal and 2 others (PLJ 2014 Lahore 161). 8. Since a notice in terms of Order XXVIIA of "C.P.C." was issued to the learned Advocate General, Punjab, so in pursuance thereof, Mr. Ahmed Awais has also entered appearance. Learned Advocate General submitted the appointment of Advocate General for a Province is to be made in terms of Article 140 of "Constitution". He added while making reference to clause 1.6 of the Law Department Manual, 1938 that duties of Advocate General are defined therein whereas under clauses 1.18(10) and 1.18(11) the Advocate General can assign any criminal or civil work during the vacations to an Additional Advocate General or an Assistant Advocate General as the Advocate General may deem fit, who can also perform functions and duties as may be assigned to him, and in the performance of such functions and duties, he shall be subject to the general supervision and control of the Advocate General and the Government. Learned Advocate General while summing up of this issue maintains that it would be sufficient compliance of the notice under Order XXVIIA of "C.P.C." if an Assistant Advocate General or Additional Advocate General in terms thereof appears on behalf of Advocate General. Learned Advocate General while drawing our attention to Sections 4(f) and 4(n) of "Code" submitted that none of these provisions have been taken into consideration in the judgments rendered on the subject. It is lastly contended by learned Advocate General that from the plenary language of Article 153 of "Order" it can be assumed that offence under Article 155(c) of "Order" is non-cognizable. 9. Heard. Record perused. 10. Though the main question which requires our consideration is relatable to the nature of offence under Article 155 of "Order" for the determination of which we have also issued a notice to the learned Advocate General, Punjab in terms of Order XXVIIA of "C.P.C." but a subsidiary question has also arisen therefrom that as to whether it would be sufficient compliance of Order XXVIIA of "C.P.C." if instead of Advocate General some other Law Officer entered appearance on his behalf. We thus before adverting to the matter in issue would ponder upon the latter question in the first instance. For ready reference and convenience Order XXVIIA of "C.P.C." is reproduced below:-- "1. Notice to the Advocate-General.--In any suit in which it appears to the Court that any substantial question as to the interpretation of constitutional law is involved, the Court shall not proceed to determine the question until after notice has been given to the Attorney-General for Pakistan if the question of law concerns the Central Government and to the Advocate-General of the Province if the question of law concerns a Provincial Government." 11. We are mindful of the fact that Order XXVIIA was initially not part of "C.P.C." which was inserted through the Code of Civil Procedure (Amendment) Act, 1942 (XXIII of 1942). It is apparent from the bare perusal of Rule 1 ibid that in any suit in which it appears to the Court that any substantial question as to the interpretation of constitutional law is involved, the Court shall give a notice to the Attorney General for Pakistan if the question of law concerns the Federal Government and to the
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Advocate-General of the Province if such question concerns a Provincial Government, before proceeding to determine such question involved in the suit. We are cognizant of the fact that proceedings in the constitutional petition are undoubtedly to be regulated by "C.P.C.", as nearly as possible. Order XXVIIA ibid is thus mutates mutandis applicable to the constitutional proceedings. 12. It is trite law that notice in terms of Order XXVIIA of "C.P.C." is mandatory and non-compliance to the provision would render the judgment nullity in the eye of law. The question which emerges is, however, that as to "whether it would be sufficient compliance of notice under Rule 1 if instead of Advocate General some Additional Advocate General or Assistant Advocate General on behalf of Advocate General appears?" 13. There is no cavil to the fact that appointment of Advocate General of a Province is to be made under Article 140 of "Constitution". According to Article 140 of "Constitution", the Governor of each Province shall appoint a person, being a person qualified to be appointed as Judge of the High Court, to be the Advocate-General for the Province. There remains thus no doubt that as per constitutional requirement only such person can be appointed as an Advocate General who qualified to be appointed as Judge of the High Court. 14. The historical background of the office of Advocate General is that for the purpose of management of the legal affairs of the United Punjab Province, under paragraph 1.5 of the Punjab Law Department Manual, 1938 (hereinafter to be referred as "Manual"). Under the Government of India Act, 1935, the Governor of the Province was empowered to appoint the Advocate General in its discretion, however, after the independence, the situation became different. Under Article 140 of "Constitution" and earlier Constitutions, the Advocate General is appointed by the Governor on the advice of the Chief Minister as contemplated under Article 105 of "Constitution". 15. Chapter 1 of "Manual" deals with the management and opinion work whereas duties of Advocate General are prescribed in clause 1.6 which reads as under :- "1.6. His duties are as follows: (a) The Advocate General will advise on any case relating to the initiation of criminal proceedings by the Crown or executive action by the Punjab Government under the law and on any other legal matter that may be referred to him by the Punjab Government or the Law Secretary. It will also be his duty to advise upon any matter on which his advice is required by the Governor, acting in his discretion. (For further details see Chapter 2 following). (b) He will represent the Crown or will arrange for the representation of the Crown, at all stages in all criminal cases in the High Court, and in quasi-criminal matters such as cases under the press law, cases of habeas corpus and extradition cases. The Punjab Government may direct that owing to the special importance of the case, the Advocate General shall himself represent the Crown. (c) He will appear or arrange for the appearance of counsel, in the following civil cases: (i) Cases in the High Court to which the Punjab Government is a party, or cases relating to the affairs of the Punjab Government to which the Secretary of State is a party. (ii) Cases in the High Court to which officers serving under the Punjab Government are parties and which the Punjab Government has decided to conduct on behalf of such officers. (iii) Cases in the High Court in which either the Punjab Government or such officers are directly interested, but in which Government considers itself to be sufficiently interested to render it advisable to conduct the case on behalf of some third person. (iv) Appeals from the cases referred to above. (d) He will personally appear, when so required, before the High Court in references from subordinate courts to which the Punjab Government is a party or which can otherwise be heard.' (e) He will appear himself or arrange for the conduct of civil cases of the nature described above in the other civil courts of Lahore.
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(f) He will also be expected to appear in any civil or criminal case outside Lahore when specially desired to do so by the Punjab Government or by the Law Secretary. (g) He will attend the Legislative Assembly when required to do so by Government. 16. Paragraph 1.18 of "Manual" deals with the appointment of Additional Advocate General and Assistant Advocate General. Initially in terms of said paragraph, appointment of Assistant to the Advocate General was provided. The nomenclature was, however, changed and Assistant to the Advocate General was substituted with Assistant Advocate General. In addition to the above, vacancy for Additional Advocate General was also created. Both are required to perform their functions under the control of the Advocate General. The Punjab Government Service (Conduct) Rules, 1966 were also made applicable to them. This Court in the case of M. Ashraf Khan, Advocate Supreme Court of Pakistan v. Secretary Law, Parliamentary Affairs and Human Rights, Government of The Punjab, Lahore and 19 others (PLD 2008 Lahore 312), while dealing with a similar issue held that the office of the Assistant Advocate General is an office of profit having monetary benefits from the public exchequer. On the basis of a judgment of the Hon'ble Apex Court it was, however, observed that office of the Advocate General is different in the eye of law than the office of Assistant of Advocate General. The appointment of the Advocate General is a constitutional appointment whereas appointment of an Assistant Advocate General is made under the statues/rules which also apply to the office of Additional Advocate General as well. 17. We have noticed that the judgment referred by learned amicus curiae in the case of Maha Seedmen Association etc. v. Union of India, Ministry of Agriculture, through its Secretary (2018 3. AIR Born R 628) has mainly founded on paragraph No.1.18 of "Manual". Learned High Court of Bombay at Nagpur in the case of Maha Seedmen Association etc. supra has though held that the Attorney General or the Advocate General, as the case may be, upon receipt of such notice can exercise such right and avail the opportunity by appearing either personally or through the Additional or Assistant Government Pleader or a special counsel be appointed for that purpose but we are constrained to observe that such is not a true interpretation of the law on the subject. 18. In order to get the true import and object of Order XXVIIA of "C.P.C." we can seek guidance from Federation of Pakistan through Secretary, Ministry of Law, Justice and Parliamentary Affairs, Islamabad and others v. Aftab Ahmad Khan Sherpao and others (PLD 1992 Supreme Court 723). The relevant extract from the same is reproduced below:- "13. Order XXVIIA was introduced in the Code of Civil Procedure by Act No. XXIII of 1942, Code of Civil Procedure (Amendment) Act, 1942. It after necessary adaptations reads as hereunder: - " ( 1) Notice to the Advocate-General.---In any suit in which it appears to the Court that any substantial question as to the interpretation of Constitutional law is involved, the Court shall not proceed to determine the question until after notice has been given to the Attorney-General for Pakistan if the question of law concerns the Federal Government and to the Advocate-General of the Province if the question of law concerns a Provincial Government. (2) Court may add Government as party.---The Court may at any stage of the proceedings order that the Federal Government or a Provincial Government shall be added as a defendant in any suit involving any substantial question as to the, interpretation of Constitutional law if the Attorney- General for Pakistan or the Advocate-General of the Province as the case may be, whether upon receipt of notice under rule 1, or otherwise, applies for such addition and the Court is satisfied that such addition is necessary or desirable for the satisfactory determination of the question of law involved. (3) Costs when Government added as party.---Where under rule 2 Government is added as a defendant in a suit, the Attorney-General, the Advocate-General or the Government shall not be entitled to or liable for costs in the Court which ordered the addition unless the Court having regard to all the circumstances of the case for any special reason otherwise orders.
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(4) Application of order to appeals.--In the application of this Order to appeals the word "defendant" shall be held to include a respondent and the word "suit" an appeal." 14. The necessity for its introduction arose because while deciding the case United Provinces v. Mt. Atiqa Begum and others AIR 1941 Federal Court 16, the learned Chief Justice of the Federal Court had made the following observations:-- "Since the new Constitution Act, however, the position with regard to the competence of Indian Legislatures, whether the Central Legislature or the Legislatures of the Provinces, is completely changed; and the cases which have already come before this Court during its brief history show the difficulty and complexity of the disputes in which questions of legislative competence are involved. I think that it would be a matter of great regret to this Court if in any such case it had not the assistance of the Advocate-General of the Province concerned, and this point was not overlooked when the rules of the Court were drafted; See Federal Court Rules, 0.36. But in the absence of such an express rule in the Code, it is necessary to decide, first, whether the Advocate- General was rightly empowered to intervene as a party on the record, and, secondly whether in the particular circumstances of the present case he has an independent right of appeal." 15. The effect of Rule 1, Order XXVIIA of C.P.C. was examined in the case of Heman Sandal v. State of Bombay AIR 1951 Bombay 121. In that case the Provincial Government was already a party to the proceedings. The question was whether the requirement of the Rule had to be literally satisfied by separately giving a notice to the Advocate-General concerned and the question was formulated in the following words:- "There is no doubt that this petition involves the determination of a substantial question of law as to the interpretation of the Constitution and Rule 1, Order XXVII-A makes it mandatory for the Court to give notice to the Advocate-General if the question of law concerns the State and to the Attorney- General if it concerns the Union Government. As the rule stands, it is clear and explicit and as I said before mandatory and it makes it incumbent upon the Ct. in every suit where such a question arises to give notice to the Advocate-General or the Attorney-General as the case may be. What is urged before us is that R.2 makes it clear that the object of the Legislature in providing R.1 was that the Advocate-General or the Attorney-General should have notice only in cases where the State was not a party, the contention being that it is the State that should have notice and not the Advocate-General or the Attorney-General as such, and that the reason for giving the notice to the Advocate-General or the Attorney General was that they represented respectively the State and the Union Government and therefore, it is contended that it would be futile and useless to give notice to the Attorney-General or the Advocate-General when the Union Government or the State were already parties to the suit or proceedings." It was answered by the Court as hereunder: "It is also known that the Advocate-General is the leader of the Bar. He not only represents the State, but he also represents the Bar. A question may also arise where there may be a conflict between the rights and privileges of the members of the Bar and the rights of the State and in such cases it would be very desirable not only to have the State before the Ct. but also the Advocate- General in his capacity as Advocate-General, and therefore we do not see any reason why we should read in R.1 that the Advocate-General or the Attorney General has to be given notice merely as the mouthpiece of the respective Governments. They have independent rights and independent functions to discharge and as I said before, an occasion may arise when the presence of either one or the other may be necessary irrespective of whether the State or the Union is a party to that litigation ..........It may be that in majority of cases the matter may be academic and not of much importance, but we accede to the argument of the Advocate-General that we should not put any limitation upon R.1 when the Legislature did not choose to do so. We, therefore hold that in every
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case which involves a question referred to in R.1 notice must be given by the Ct. to the Advocate- General or the Attorney-General as the case may be." 16. In the case of Inayatullah and others v. MA. Khan and others PLD 1961 (W.P.) Lahore 536, in proceedings which were not of civil suit but under the West Pakistan Waqf Properties Ordinance of 1959, Order XXVIIA of the Code of Civil Procedure was interpreted as hereunder: "It is true that as worded, the rule relied upon by the learned Advocate-General would appear to apply to suits only but if the provisions of section 141 of the Code of Civil Procedure are kept in view it becomes clear that Order XXVIIA of the Code was as fully applicable to the proceedings before Mr. S.M. Tirmizey as it would have been if the point with regard to the validity of the Ordinance had .been taken up in a suit. It follows therefore, that the learned District Judge had given his decision that the Ordinance was ultra vires the Governor of West Pakistan without complying with the provisions of law, because the question of the validity of an enactment is covered by subsection (1) of section 205 of the…
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