Case law on Procedure of investigation
PLJ 2010
Present: Shahid Hameed Dar, J.
AMJAD RIAZ--Petitioner
versus
ADDITIONAL SESSIONS JUDGE/EX-OFFICIO JUSTICE OF PEACE,
W.P. No. 5745 of 2010, decided on 9.6.2010.
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 156 & 157--Domain of Investigation officer--Incharge of Investigation did not require any permission to investigate the circumstances of the case from the judiciary--It is the domain of I.O. to collect the evidence in a criminal case u/Ss. 156 & 157, Cr.P.C. and the Courts could not interfere with it by suggesting the mode, means, procedure or result of such investigation. [P. ] A
Police Order, 2002 (22 of 2002)--
----S. 18(6) & Scope--Criminal Procedure Code, (V of 1898)--Ss. 22-A & 22-B--Powers of Ex-officio Justice of Peace--Power u/Ss. 22-A & 22-B, Cr.P.C. conferred upon the Ex-officio Justice of Peace mainly relate to issues, non registration of a criminal case, transfer of investigation from one Police Officer to an other within scope of S. 18(6) Police Order, 2002 and the neglect/failure or excess committed by a police authority in relation to its functions and duties. [P. ] B
Criminal Procedure Code, 1898 (V of 1898)--
----S. 22-A(6)--Jurisdiction of Ex-officio Justice of Peace--A Justice of Peace can direct the police to do the needful in accordance with law but not to suggest the procedure or give direction to do a certain act. [P. ] C
PLD 2005 Lah. 470, rel.
Constitution of
----Art. 199--Criminal Procedure Code, (V of 1890)--Ss. 22-A & 22-B--Constitutional Petition--Independent of investigation which cannot be approved of--Principles of dispensation of criminal justice--Proceedings being under taken by Ex-officio Justice of peace was challenged--Abduction of 8 years child--Without causing recovery of abductee, accused was sent to judicial lock-up--Petition u/Ss. 22-A, & 22-B, Cr.P.C. for redressal of grievance qua dishonest investigation of the case and non-recovery of abducted son, which was disposed of without any substantial relief to the petitioner--Validity--Proceedings being conducted by Ex-officio Justice of Peace, independent of investigation of the case, which cannot be approved of--Accused instead of joining the investigation, were absconding and their relative, through an application u/S. 22A/22-B, Cr.P.C. had planned to side line the investigation of the case and thereby, win an opinion qua the truthfulness or otherwise, of the allegation--Accused pondered over the proposition of approaching respondent to seek a relief of their choice but the law was not on their side--Held: Ex-officio Justice of Peace could only pass direction to investigation officer to conduct the investigation honestly and even handedly by hearing both the sides, collect the evidence and prepare a report u/S. 173, Cr.P.C. containing a gist of investigation--Rost done by Ex-officio justice of peace cannot be approved of nor it can be held as legal or warranted by law--Proceedings pending before Ex-officio Justice of Peace on an application u/S. 22-A & 22-B, Cr.P.C. were quashed being illegal, unwarranted by law and ab inito void--Petition was allowed. [P. ] D & F
----S. 182--Charges alleged by informant were false--Proceedings against informant--Authority of investigation officer to decide taking action u/S. 1872, PPC if he comes to conclusion on conducting the investigation that the charges alleged by informant were false--In such situation, the initiation of proceedings against the informant shall be synonymous with the outcome of the investigation. [P. ] E
Ch. Muhammad Lehrasib Khan Gondal, Advocate for Petitioner.
Mr. Iftikhar Hassan, Advocate for Respondents.
Mr. Aamir Jalil Siddiqui, AAG for Respondent No. 6.
Mr. Ashiq Hussain, SI.
Date of hearing: 1.6.2010.
Order
Through this Constitutional Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner seeks indulgence of this Court as he feels aggrieved of the proceedings being undertaken by the learned Addl: Sessions Judge, Sialkot/Ex-Officio Justice of Peace, Respondent No. 1, on a petition moved by one Rehman Basheer, Respondent No. 6 under section 22-A/22-B Cr.P.C, who happens to be a nephew of accused Mehmood Ahmad (Respondent No. 7) of case FIR No. 669 of 2009 dated 29.11.2009, registered under section 364-A PPC, at P.S Hajipura, Sialkot, on the complaint of Amjad Riaz (petitioner) regarding abduction of his son Bilal, aged 8 years.
2. The brief facts, leading to the filing of the instant petition are that Amjad Riaz petitioner alleged in his FIR No. 669 of 2009 supra that his son Bilal had been abducted at gunpoint by accused Mehmood Ahmad etc. at 5:15 p.m. on 29.11.2009; the local police arrested only one accused Mehmood Ahmad, Respondent No. 7 but without causing recovery of the abductee, he was sent to the judicial lockup; his co-accused are still at large; the petitioner filed a petition under Sections 22-A/22-B Cr.P.C before the learned Ex-Officio Justice of Peace, Sialkot for redressal of his grievance qua dishonest investigation of his case and non recovery of his abducted son, which was disposed of on 11.01.2010 without any substantial relief to the petitioner; one Rehman Basheer, Respondent No. 6, who is nephew of Respondents No. 7 and 8 filed a petition under Section 22-A/22-B Cr.P.C against the petitioner and Respondents No. 3 to 5 for. registration of a criminal case against them in the backdrop of above said FIR, before the learned Ex-Officio Justice of Peace, Sialkot, who sought a report from the SHO and also ordered for personal appearance of the Principal of Punjab School Sialkot Booth, where the alleged abductee was a student; the police submitted its report and also got recorded the statement of the Principal; the learned Justice of Peace being dissatisfied with the report/comments of the SHO, referred the matter to DPO, Sialkot, Respondent No. 3 for another report, which was made available but the learned Ex-Officio Justice of Peace did not feel satisfied and he again called for the Principal of the said school for recording fresh statement before him; the attendance record of the Punjab School was taken into possession by the Justice of Peace and thereafter referred the matter for further probe to RPO, Gujranwala, Respondent No. 2; on one hand the police did not effect the recovery of the abducted son of the petitioner and on the other hand the learned Ex-Officio Justice of Peace embarked upon conducting parallel inquiry into the matter by referring the matter to different police officers and the Principal of the Public School; the inquiry being conducted by the learned Ex-Officio Justice of Peace Sialkot caused anxiety and annoyance to the petitioner, hence, the instant petition.
3. Learned counsel for the petitioner contends that the impugned proceedings being conducted by the learned Ex-Officio Justice of Peace were violative of the powers conferred upon him under Sections 22-A/22-B Cr.P.C where-under a Justice of Peace could direct the police official/Investigating Officer to do the needful in accordance with law but he could not suggest the procedure or to give a direction to do or not to do a certain act; the Justice of Peace is not a judicial officer and he, at the most, can direct the SHO concerned to proceed and conduct the investigation in accordance with law; the proceedings being conducted by the Respondent No. 1 are not only directory but also the way, method, procedure and the result is being suggested by the Ex-Officio Justice of Peace which is in sheer disregard to the settled principles of dispensation of criminal justice; the police has already filed an incomplete report under Section 173 Cr.P.C before the trial Court and the learned Judicial Magistrate, being seized of the matter, had taken cognizance and summoned the accused to face the trial; under Section 156 Cr.P.C, an officer in charge of investigation had the statutory right to conduct investigation of a cognizable offence and such investigation could not be interfered with by the judiciary, what to talk about the powers of the Justice of Peace under Sections 22-A/22-B Cr.P.C, the anxiety on the part of Respondent No. 1 is uncalled for and by way of the partisan proceedings under Sections 22-A/22-B Cr.P.C, the investigation of the case got conducted by the petitioner was being interfered with, sans any justification, authority and approval of law; through the impugned proceedings, the Respondent No. 1 was adamant to fabricate false evidence in favour of Respondents No. 7 to 10 etc. who are the accused of FIR No. 669/09 supra; the Ex-Officio Justice of Peace, Respondent No. 1 has not only assumed the role of an Investigating Officer but has also changed the inquiry of the aforesaid application of Respondent No. 6 at lightening pace from the first I.O to the DPO and then to the RPO which amounts to making a mockery of law; the abducted son of the petitioner is yet to be recovered due to indolent behaviour of the Investigating Officer and on the other hand the Respondent No. 1 through the impugned proceedings has encouraged them to be as apathetic to the petitioner as they can; the learned Ex-Officio Justice of Peace may be estopped to conduct impugned inquiry/investigation and let the police do its duty under Section 156 Cr.P.C; the impugned proceedings may be declared illegal, unwarranted by law and ab-initio void.
4. On the other hand learned Assistant Advocate General assisted by learned counsel for Respondent No. 6 submits that the petitioner has filed the instant petition malafidely and maliciously so as to camouflage his baseless and concocted version, contained in FIR No. 669/09 supra; the petitioner is a habitual offender and a conspirator by temperament who has not even spared his minor son aged 8 years and has used him as a tool against all ethical norms to lodge a false case against the Respondents No. 7 to 10; the application under Sections 22-A/22-B Cr.P.C moved by Respondent No. 6 before the learned Ex-Officio Justice of Peace is based upon true facts whereby a criminal case is required to be registered against the petitioner as he had lodged a false case against the relatives of Respondent No. 6 qua the abduction of his son who was regularly, attending his classes at above said Punjab School even after the registration of the said criminal case; the inquiry being conducted by Respondent No. 1 was the need of the hour and the anxiety shown by. him was natural and called for due to obnoxious conduct of the petitioner; the proceedings pending before the Respondent No. 1 were legal and justified which had no bearing upon the proceedings of the trial being conducted by the learned Judicial Magistrate; the instant petition may be dismissed, being devoid of merit.
5. I have heard learned counsel for the parties and have perused the entire relevant record.
6. The petitioner is the complainant of the above said criminal which has been got lodged by him against Respondents No. 7 to 10 with the allegation that they had abducted his minor son Bilal Ahmad at gun point on 29.11.2009 and the people present at the spot including the complainant could not save the innocent child except watching the seen helplessly. According to the FIR the accused had committed the occurrence in the perspective of previous enmity between the parties. This case is pending investigation with, Malik Ashraf ASI, Respondent No. 5 who has virtually done nothing except causing the arrest of Mehmood Ahmad accused, Respondent No. 7 and dispatching him to the judicial lockup without the recovery of the abductee. He has submitted an incomplete challan under Section 173 Cr.P.C before the learned Judicial Magistrate for trial of the accused. The other accused are still at large. At this stage, Respondent No. 6, a relative of accused Mehmood Ahmad and Muhammad Haneef, Respondents No. 6 & 7 moved an application Under Sections 22-A/22-B Cr.P.C requesting therein that case FIR No. 669/09 supra had been lodged by Amjad Riaz (petitioner) with a concocted version as his allegedly abducted son had been attending his classes at the Punjab School Sialkot Booth regularly even after the registration of said FIR, so a criminal case be registered against him. Such an application perse, is not maintainable for the reason that it required an action by the Ex-Officio Justice of Peace which is directly relatable to the outcome of the investigation of the above said FIR. The contention of Rehman Basheer, Respondent No. 6, as contained in his application, may be the version of the accused Mehmood Ahmad etc. during the course of investigation yet it could not be entertained and considered by the Respondent No. 1 for holding/directing inquiries one after the other. The Ex-Officio Justice of Peace could have disposed of the petition with the direction to the petitioner and the accused of the above said case to join the investigation and raise the plea of their choice before the Investigation Officer but he instead, indulged himself in a series of inquiries/investigations, as mentioned hereinbefore, which is uncalled for and unwarranted by law. A direction could have been passed by the Justice of Peace to the Police Officer, connected with the investigation of the said FIR to do the needful in accordance with law and even for that matter an officer in charge of investigation did not require any permission to investigate the circumstances of the said case from the judiciary, what to talk about an order in this regard, by the Justice of Peace under Sections 22-A/22-B Cr.P.C. It is the domain of the Investigating Officer to collect the evidence in a criminal case under Section 156, 157 Cr.P.C and the Courts could not interfere with it by suggesting the mode, procedure or the result of such investigation. The powers under Sections 22-A/22-B Cr.P.C conferred upon the Ex-Officio Justice of Peace mainly relate to the issues, non registration of a criminal case, transfer of investigation from one police officer to an other within the scope of section 18(6) Police Order 2002, and the neglect/failure or excess committed by a police authority in relation to its functions and duties. The full bench of this Court in a case reported as "Khizer Hayat and others Vs. Inspector General of Police (Punjab), Lahore and others" (PLD 2005, Lahore, page 470) has taken care of the aforesaid area of jurisdiction of the Ex-Officio Justice of Peace under Section 22-A(6) Cr.P.C. As per the full bench judgment, a Justice of Peace can direct the police to do the needful in accordance with law but not to suggest the • procedure or give direction, as mentioned above, to do a certain act. Any such direction given, during the investigation of a criminal case, is a plain departure from the settled provisions of law.
7. In another case "Muhammad Habib Vs. Addl: Sessions Judge/Justice of Peace, Jampur, District Rajanpur and two others" (PLD 2009
"An Ex-Officio Justice of Peace i.e Sessions Judge and nominated Addl: Sessions Judge in the District/Sessions Divisions, has the powers to issued appropriate directions to the police authorities concerned on a complaint regarding non-registration of criminal case, transfer of investigation from one police official to another and for neglect, failure or excess committed by a police authority in relation to its functions and duties. At the cost of repetition it is noteworthy that justice of Peace or Ex-Officio Justice of Peace is not a Court as envisaged under Section 22(6) of the Cr.P.C or the relevant provisions of the C.P.C. The available record does not show as to how and with what authority the learned Addl: Sessions Judge Jampur, entertained the request of Mst. Subhal Mai, respondent as Ex-Officio Justice of Peace, particularly when it is manifest from a bare perusal of sections 22-A and 22-B, Cr.P.C that the controversy between Mst. Subhal Mai respondent and Examiner Muhammad Habib, petitioner does not fall within the legally defined domain of Justice of Peace of Ex-Officio Justice of Peace."
8. I find that through the impugned proceedings being conducted by the learned Ex-Officio Justice of Peace,
9. The nutshell of the above discussion is that the Ex-Officio Justice of Peace, Respondent No. 6 could only pass a direction to the Investigating Officer of case FIR No. 669/09 supra to conduct the investigation honestly and evenhandedly, by hearing both the sides, collect the evidence and prepare a report under Section 173 Cr.P.C containing a gist of investigation. Rest done by the Respondent No. 1, as discussed above, cannot be approved of nor it can be held as legal or warranted by law. The instant petition is allowed within the meaning that the proceedings pending before the learned Ex-Officio Justice of Peace, Respondent No. 1 on an application under Sections 22-A/22-B Cr.P.C, moved by Respondent No. 6,. are hereby quashed being illegal, unwarranted by law and ab-initio void. The Respondent No. 6 and the Respondents-Accused No. 7 to 10, however, shall be at liberty to advance any plea of their choice, before the Investigating Officer who presently; conducts the investigation of above said criminal case. Disposed of.
(R.A.) Petition allowed.
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