Supreme court about 22A crpc
The main point discussed by the Supreme Court in Criminal Petition No.99-K/2018 revolves around the limited role of the Justice of Peace in scrutinizing cases under Section 22-A of the Code of Criminal Procedure. The court emphasized that the Justice of Peace's duty is primarily to ascertain whether a cognizable case is made out, rather than delving into the merits of the case or assuming roles beyond the prescribed jurisdiction. This underscores the importance of adhering to procedural law and avoiding undue interference in the investigative process.
فوجداری پٹیشن نمبر 99-K/2018 میں سپریم کورٹ کی طرف سے زیر بحث اہم نکتہ ضابطہ فوجداری کے سیکشن 22-A کے تحت مقدمات کی جانچ پڑتال میں جسٹس آف پیس کے محدود کردار کے گرد گھومتا ہے۔ عدالت نے اس بات پر زور دیا کہ جسٹس آف پیس کا فرض بنیادی طور پر اس بات کا پتہ لگانا ہے کہ آیا کوئی قابل سماعت کیس بنایا گیا ہے، بجائے اس کے کہ کیس کی خوبیوں کا جائزہ لیا جائے یا مقررہ دائرہ اختیار سے باہر کردار ادا کیا جائے۔ یہ طریقہ کار کے قانون پر عمل کرنے اور تفتیشی عمل میں بے جا مداخلت سے بچنے کی اہمیت کو واضح کرتا ہے۔
IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
Present:
Mr. Justice Muhammad Ali Mazhar
Mr. Justice Irfan Saadat Khan
Criminal Petition No.99-K/2018
Against the order dated 20.7.2018 passed by High
Court of Sindh, Karachi, Skkur Bench in Crl. M.A
Nos.S-531/2016, 81, 29, 63 & 61/2017
Syed Qamber Ali Shah
…Petitioner(s)
Versus
Province of Sindh and others
…Respondent(s)
For the Petitioner(s):
Mrs. Abida Parveen Channar, AOR a/w
Petitioner In person
Syed Salman (alleged abductee)
For official Respondents:
For Respondents 4,5 & 8:
Mr. Hakim Ali Shah, Addl. AG
Mr. Sagheer Abbasi, Addl AG
Mr. Saleem Akhtar, Addl. PG
Mr. K. A. Wahab, AOR
Dr. Sumair Noor, SSP Ghotki
Mr. Mushtaq Abbasi, AIG Legal
SIP Zaheer Hussain, SHO Police Station
Ghotki
Malik Naeem Iqbal, ASC
Date of Hearing:
02.04.2024
Judgment
Muhammad Ali Mazhar, J.- This Criminal Petition is directed against the
consolidated Order dated 20.07.2018, whereby the High Court of Sindh,
Karachi, set aside the order passed by the Justice of Peace/IInd Additional
& District and Sessions Judge, Ghotki, in Criminal Misc. Application
No.1290 of 2015 which is the subject matter of the present Criminal
Petition for leave to appeal.
2. The anthology of facts are that Salman Shah, brother of the petitioner,
was allegedly abducted. According to the petitioner, the concerned Station
House Officer (S.H.O.) was allegedly involved, therefore, the petitioner
approached S.S.P., Ghotki, for lodging the FIR and finally, he filed an
Application No.1290 of 2015 under Section 22-A of the Code of Criminal
Procedure, 1898 (Cr.P.C) in the Court of IInd Additional District &
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Sessions Judge Ghotki/Justice of Peace. On 06.10.2015, the application
was allowed and the S.H.O., Police Station ‘A’ Section, Ghotki, was
directed to record the statement of the petitioner and, if any cognizable
offence is made out, then register the FIR with the rider that the proposed
accused should not be arrested without collection of tangible evidence. In
order to further safeguard the interest of the accused persons, the Justice
of Peace ordered that if, during the investigation, the FIR is found to be
false, the police will be at liberty to initiate action against the complainant
(petitioner) as required under Section 182, Cr.P.C. Before the
implementation of the order, the proposed accused, namely, Haji Khan,
and three others filed Criminal Misc.Application No.S-61/2017 in the High
Court of Sindh, Sukkur Bench, and vide order dated 01.06.2018, the
Criminal Misc. Application was allowed and the impugned order of the
Justice of Peace dated 06.10.2015, passed in Cr. Misc. Application
No.1290/2015, was set aside with the observation that if the complainant
(petitioner) is aggrieved, he can file a private complaint in accordance with
the law. On the last date of hearing dated 28.12.2023, it was informed by
the petitioner that his brother Syed Salman Shah has been recovered,
thus the Court directed him to appear in person. While being present in
the Court, he raised the same allegations of his kidnapping against the
alleged accused persons.
3. The petitioner in person argued that the remedy under Section 22-A,
Cr.P.C, was more effective than filing of direct complaint. He further
contended that ample material and evidence is available which shows a
prima facie case, hence the learned Trial Court rightly passed the order
but the learned High Court set aside the order without any lawful
justification and also touched the merits of the case which caused serious
prejudice to the petitioner’s case.
4. The learned counsel for respondent No.4, 5 & 8, while supporting the
impugned order, argued that the order passed by the learned Justice of
Peace was contrary to the law and he failed to examine the documents
regarding dispute over the plot but ordered the S.H.O to record the
statement of the petitioner. He also raised some allegations against the
petitioner that he is a land-grabber and several FIRs have been lodged
against him and he, on the behest of a rival political group, tried to involve
the alleged accused with mala fide intention and ulterior motive in order
to damage the image of the alleged accused. The learned counsel showed
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us a summary order dated 27.10.2023, passed in FIR No. 46 of 2020,
lodged at Police Station, Adilpur, under Section 324, 353 and 368 of the
Pakistan Penal Code, 1860 (P.P.C.). The summary order shows that the
abductee Salman Shah (Syed Suleman Shah) S/O Shahnawaz Shah
(brother of the petitioner) was abducted on 01.07.2015 and recovered on
24.06.2020 but paragraph No.3 of the same order shows that the
statement of the abductee was recorded under Section 164, Cr.P.C., and
he reiterated the allegations of his kidnapping and also nominated further
accused persons.
5. The learned Additional Advocate General argued that neither was there
any case of kidnapping nor was the brother of the petitioner kidnapped by
the proposed accused persons. He also relied on the report of the
investigation which was carried out in FIR No.46/2020 (State vs. Gaman
and others) lodged at P.S. Adilpur, to show some nexus with the present
complaint of the petitioner but it is a ground reality that the petitioner was
not provided any opportunity to record his own statement in terms of his
grievance lodged to the Justice of Peace against the alleged kidnapping of
his brother.
6. Heard the arguments. Under section 22-A, Cr.P.C, it is not the function
of the Justice of Peace to punctiliously or assiduously scrutinize the case
or to render any findings on merits but he has to ensure whether, from
the facts narrated in the application, any cognizable case is made out or
not; and if yes, then he can obviously issue directions that the statement
of the complainant be recorded under Section 154. Such powers of the
Justice of Peace are limited to aid and assist in the administration of the
criminal justice system. He has no right to assume the role of an
investigating agency or a prosecutor but has been conferred with a
role of vigilance to redress the grievance of those complainants who
have been refused by the police officials to register their reports. If the
Justice of Peace will assume and undertake a full-fledged investigation
and enquiry before the registration of FIR, then every person will have
to first approach the Justice of Peace for scrutiny of his complaint and
only after clearance, his FIR will be registered, which is beyond the
comprehension, prudence, and intention of the legislature. Minute
examination of a case and conducting a fact-finding exercise is not
included in the functions of a Justice of Peace but he is saddled with a
sense of duty to redress the grievance of the complainant who is
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aggrieved by refusal of a Police Officer to register his report. The
offences have been categorized by the Cr.P.C. into two classes i.e.,
cognizable and non-cognizable. Section 154 of the Cr.P.C. lays down a
procedure for conveying information to an S.H.O. with respect to the
commission of a cognizable offence, while the provisions of Section 155
(1) of the Cr.P.C. articulates the procedure vis-à-vis a non-cognizable
offence. Both the provisions are replicated as under:
Section154 Cr.P.C.
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
officer in such form as the Provincial Government may prescribe in
this behalf.
Section 155 Cr.P.C.
Information in non-cognizable cases. (1) When information is
given to an officer in charge of a police-station of the commission
within the limits of such station of a non-cognizable offence, he
shall enter in a book to be kept as aforesaid the substance of such
information and refer the informant to the Magistrate.
Investigation into non-cognizable cases. (2) No police-officer
shall investigate a non-cognizable case without the order of a
Magistrate of first or second class having power to try such case or
send the same for trial to the Court of Session.
(3) Any police-officer receiving such order may exercise the same
powers in respect of the investigation (except the power to arrest
without warrant) as an officer in charge of a police-station may
exercise in a cognizable case.
7. At whatever time, an Officer Incharge of a Police Station receives
some information about the commission of an offence, he is expected
first to find out whether the offence disclosed fell into the category of
cognizable offences or non-cognizable offences. There is no provision in
any law, including Section 154 or 155 of the Cr.P.C., which authorizes
an Officer Incharge of a Police Station to hold any enquiry to assess
the correctness or falsity of the information before complying with the
command of the said provisions. He is obligated to reduce the same
into writing, notwithstanding the fact whether such information is true
or otherwise. The condition precedent for recording an FIR is that it
should convey the information of an offence and that too a cognizable one.
The remedy of filing a direct complaint cannot measure or match up to the
Criminal Petition No.99-K/2018
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mechanism provided under section 154, Cr.P.C., in which the Officer
Incharge of a Police Station is duty bound to record the statement and
register the FIR if a cognizable offence is made out. If in each and every
case it is presumed or assumed that instead of insisting or emphasizing
the lodgment of an FIR, the party may file a direct complaint, then the
purpose of recording an FIR, as envisaged under section 154, Cr.P.C., will
become redundant and futile and it would be very easy for the police to
refuse the registration of an FIR with the advice to file direct complaint.
However, in some exceptional circumstances, the alternate remedy in the
shape of direct complaint may be availed but not in every case. The
statutory duty casts upon the officer of a police station to enter
information regarding the cognizable offence first and then the
investigation comes later in order to gather evidence and other relevant
material to prosecute the identified culprits. No doubt, an Investigating
Officer plays a crucial role in the administration of the criminal
justice system and the constituent of investigation report and its
worth keeps hold of plenteous value and repercussions on the
outcome of any criminal case, but tainted investigations can become an
acute obstacle in the administration of justice. In the case of Sughra Bibi
vs. State [PLD 2018 SC 595], it was held that during the
investigation, the Investigating Officer is obliged to investigate the
matter from all possible angles while keeping in view all the versions
of the incident brought to his notice and as required by Rule 25.2(3) of
the Police Rules, 1934. It is the duty of an Investigating Officer to
find out the truth of the matter under investigation. His object shall
be to discover the actual facts of the case and to arrest the real
offender or offenders. He shall not commit himself prematurely to any
view of the facts for or against any person. Whereas in the case of
Babubhai v. State of Gujrat and others [(2010) 12 SCC 254], the
Supreme Court of India held that investigation must be fair,
transparent and judicious as it is the minimum requirement of the
rule of law.
8. Investigative activities serve a multitude of purposes, therefore, it is also
a duty of the Officer Incharge of Police Stations to ensure that the
Investigating Officer follows the provisions of law conscientiously, without
any breach, conducting an impartial and honest investigation with the
sole aim of bringing the truth to light, which is the foundational pathway
for the prosecution’s case. In case of declining the registration of FIR or
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recording the statement, the aggrieved person obviously has a right to
approach under Section 22-A, Cr.P.C. and file any such application, and
the Justice of Peace is obligated to examine it and, after hearing the
parties, pass an appropriate order.
9. We have examined the impugned order of the High Court and, in
paragraph 6 & 7, several observations are made as a fact-finding forum
which directly affected the merits of the case. It seems to us that the
learned High Court had assumed the role of an investigator and passed
certain observations to declare the case false which is beyond the purview
of the jurisdiction of the High Court under Section 561-A, Cr.P.C. It is
well-known that the inherent jurisdiction conferred under Section 561-
A, Cr.P.C., cannot be deemed to be an alternative jurisdiction or
additional jurisdiction and cannot be exploited to disrupt or impede the
procedural law on the basis of presumptive findings or hypertechnicalities, but it is meant to protect and safeguard the interest of
justice to redress grievances of aggrieved persons for which no other
procedure or remedy is provided in the Cr.P.C. Despite everything, the
ends of justice inescapably denote justice as administered and dispensed
with by the courts but not justice in an abstract and intangible notion. In
the case of Ghulam Muhammad vs. Muzammal Khan [PLD 1967 SC 317],
this Court had occasion to point out that the power given by section 561-
A, Cr.P.C., can certainly not be so utilized as to interrupt or divert the
ordinary course of criminal procedure as laid down in the procedural
statute. The matter only relates to the simple implementation of the order
passed by the Justice of Peace which was only confined to the recording of
the statement of the complainant before the S.H.O. but what we have
perceived is that the matter was dragged unnecessarily for the last many
years and the order passed in October 2015 is at a standstill and
unimplemented.
10. The mere registration of FIR does not insinuate the conviction but as a
rider, it is clearly provided under Section 169 of the Cr.P.C. that if upon
an investigation, it appears to the officer incharge of the police-station, or
to the police-officer making the investigation that there is no sufficient
evidence or reasonable ground or suspicion to justify the forwarding of the
accused to a Magistrate, such officer shall, if such person is in custody,
release him on his executing a bond, with or without sureties, as such
officer may direct, to appear, if and when so required, before a Magistrate
Criminal Petition No.99-K/2018
7
empowered to take cognizance of the offence on a police-report and to try
the accused or send him for trial. While Section 173 Cr.P.C inter alia
provides that as soon as the investigation is completed, the officer
incharge of the police station shall, through the Public Prosecutor, forward
to a Magistrate empowered to take cognizance of the offence on a policereport, in the form prescribed by the Provincial Government, setting forth
the names of the parties, the nature of the information and the names of
the persons who appear to be acquainted with the circumstances of the
case, and stating whether the accused (if arrested) has been forwarded in
custody or has been released on his bond, and, if so, whether with or
without sureties, and communicate, in such manner as may be prescribed
by the Provincial Government. Furthermore, in the present context of the
case where the respondents allegedly claim that no case was made out
and the Justice of Peace exceeded his jurisdiction, it would be pertinent to
point out the genre of the “A”, “B” and “C” Class Reports under Section
173, Cr.P.C. The Police Report under “A” class indicates that the FIR is
true but the accused persons are untraced, or there is no clue whatsoever
about the culprits or property, or the accused is known but there is no
evidence to justify his being sent up to the Magistrate for Trial, while
report under “B” class denotes that the FIR is maliciously false or frivolous
and no case is made out against the accused persons, whereas the report
under “C” class refers to when the criminal case was filed due to mistake
of fact or if offence complained about is of a civil nature. Had the
opportunity been afforded to the Investigating Officer to carry out
investigation according to the statement of the petitioner, he could
perform his duties to ascertain whether any prima facie case is made out,
and obviously if no case was made out then the Investigating Officer could
file the report in the Court in the relevant Class. Being fully cognizant to
such law and procedure, the learned Justice of Peace, while allowing
application under Section 22-A, Cr.P.C, directed the S.H.O. Police Station
‘A’ Section, Ghotki, to record the statement of the petitioner and if a
cognizable offence is made out, then register the FIR with the rider that
the proposed accused should not be arrested without collection of tangible
evidence and if during investigation, the FIR is found to be false, the police
will be at liberty to initiate action against the complainant (petitioner) as
required under Section 182 Cr.P.C.
11. In the case of Muhammad Bashir v. Station House Officer, Okara
Cantt (PLD 2007 SC 539), this Court held that no authority vested with
Criminal Petition No.99-K/2018
8
an Officer Incharge of a Police Station or with anyone else to refuse to
record an FIR where the information conveyed disclosed the commission
of a cognizable offence. No authority vested with an Officer Incharge of a
Police Station or with anyone else to hold any inquiry into the correctness
or otherwise of the information which was conveyed to the S.H.O. for the
purposes of recording of an FIR. Check against lodging of false FIRs was
not refusal to record such FIRs but punishment of such informants under
section 182, P.P.C. etc., which should be, if enforced, a deterrent against
the misuse of the provisions of section 154, Cr.P.C. While in the case of
Brig. (Retd.) Imtiaz Ahmad vs. Government of Pakistan [1994 SCMR
2142], this Court held that the starting point of the examination of the
legal questions canvassed by the petitioner's counsel must be the
important fact that the stage at which the petitioner thought it proper to
invoke the High Court's jurisdiction under Article 199 of the Constitution
was the stage of registration of criminal cases against him. The effect of
the registration of a case is to set in motion an investigation by the police
in accordance with law. The Court also referred to the case of Norwest
Holst Ltd. v. Department of Trade and others [(1978) 3 All ER 280 at
290], which laid down that "In every investigation...there are...by and
large three different phases. First of all, the administrative phase; next,
the judicial phase; and, finally, the executive phase when the orders of the
Court or the Tribunal are, if necessary, executed or promulgated. Quite
plainly fairness to the suspect... demands that he should be given a
chance of stating his case before the final period: the execution... Equally
fairness demands that the suspect shall be given a chance of putting his
side of the case before the judicial inquiry is over...But on the other side,
and the other side are entitled to fairness just as the suspect is, fairness
to the inquirer demands that during the administrative period he should
be able to investigate without having at every stage to inquire from the
suspect what his side of the matter may be. Of course, it may be difficult
to find out the particular point at which the administrative phase ends
and the judicial phase begins". The judgment also quoted a passage from
Lord Reid's speech in Wiseman vs. Borneman [(1971) AC 297, at 308)],
that "Every public officer who has to decide whether to prosecute or
raise proceedings ought first to decide whether there is a prima facie case,
but no one supposes that justice requires that he should first seek the
comments of the accused or the defendant on the material before him. So,
there is nothing inherently unjust in reaching such a decision in the
absence of the other party." Whereas in the case of Younas Abbas vs.
Criminal Petition No.99-K/2018
9
Additional Sessions Judge, Chakwal [PLD 2016 Supreme Court 581], a
five-member bench of this Court held that the functions performed by
the Justice of Peace being quasi-judicial in nature cannot be termed
as executive, administrative or ministerial; that such functions being
complementary to those of the police do not amount to interference
in the investigative domain of the latter and thus cannot be held to
be violative of the judgments of this Court rendered in the cases of
Muhammad Bashir vs . Station House Officer, Okara Cantt. (supra) and
Brig. (Retd.) Imtiaz Ahmad vs. Government of Pakistan (supra).
12. As a result of the above discussion this Criminal Petition is converted
into an appeal and is allowed. As a consequence thereof, the impugned
order passed by the High Court on 01.06.2018 is set aside as far as it
relates to the order passed by the Justice of Peace/IInd Additional &
District and Sessions Judge, Ghotki, on 06.10.2015 in Cr. Misc.
Application No.1290/2015 with the directions to the S.H.O., Police Station
‘A’ Section, Ghotki, to implement the abovementioned order of the Justice
of Peace and act strictly in accordance with law.
Judge
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