PLJ 2022 Lahore 87
Criminal Procedure Code, 1898 (V of 1898)--
----S. 22-A--Respondent has moved an application under Section 22-A of the Code of Criminal Procedure, 1908 for registration of case.
[P. 89] A
Criminal Procedure Code, 1898 (V of 1898)--
----S. 526--Through this petition under Section 526, Cr.P.C. the Petitioner seeks its transfer to some other Ex-officio Justice of Peace in the District. [P. 89] B
Criminal Procedure Code, 1898 (V of 1898)--
----S. 526(1)--Power of High Court--A bare perusal of the provision evinces that it empowers the High Court to transfer cases pending before the criminal Courts only. [P. 90] C
Criminal Procedure Code, 1898 (V of 1898)--
----S. 6--Clases of Criminal Courts--Section 6, Cr.P.C. stipulates that in addition to the High Court and the Courts constituted under different laws for the time being in force, there shall be two classes of criminal Courts in Pakistan, namely, the Courts of Sessions and the Courts of Magistrates. [P. 94] D
Criminal Procedure Code, 1898 (V of 1898)--
----S. 22--Power of Provincial Government-- Empowers the Provincial Government to appoint one or more Justices of Peace for a local area and Sections 22-A and 22-B describe their powers and duties respectively. Section 25 stipulates that by virtue of their respective offices, the Sessions Judges and on nomination by them, the Additional Sessions Judges, are Justices of Peace for the entire district of the province in which they are serving. [P. 95] E
Role of Justice of Peace--
----In Pakistan the role of the Justices of Peace is historically restricted to conservation of peace primarily by rendering assistance to the police. [P. 95] F
Ref. PLD 2005 Lahore 470.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 22-A(6)(i)(ii)(iii)--Functions of Ex-officio Justice of Peace--Hon’ble Supreme Court dissented with the latter part of the holding in Khizar Hayat and held that the functions of the Ex-officio Justice of Peace described in clauses (i), (ii) and (iii) of Section 22-A(6), Cr.P.C. are quasi-judicial. [P. 96] G
PLD 2016 SC 581.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 207--Ex-officio Justice of Peace is not a Court within the meaning of Section 20, PPC read with Section 4(2), Cr.P.C. As Section 526, Cr.P.C. empowers the High Court to transfer cases pending before the criminal Courts only, this petition is not maintainable and dismissed in limine. [P. 96] H
Mr. Arsalan Yousaf, Advocate for Petitioner.
Mr. Muhammad Mustafa Chaudhry, Deputy Prosecutor General, on Court’s call.
Date of hearing: 11.10.2021.
PLJ 2022 Lahore 87
Present: Tariq Saleem Sheikh, J.
ABID HUSSAIN--Petitioner
versus
ADDITIONAL SESSIONS JUDGE etc.--Respondents
Transfer Appln. No. 62606 of 2021, decided on 11.10.2021.
Order
Respondent No. 5 has moved an application under Section 22-A of the Code of Criminal Procedure, 1908 (hereinafter referred to as the “Code” or alternatively as “Cr.P.C.”), before the Ex-officio Justice of Peace, Sillanwali, seeking direction to the Respondent SHO for registration of FIR against the Petitioner and others. Through this petition under Section 526, Cr.P.C. the Petitioner seeks its transfer to some other Ex-officio Justice of Peace in the District.
2. The learned Deputy Prosecutor General, who has appeared on the Court’s call, has raised an objection regarding maintainability of this petition. The law is well settled that the Court should decide that issue before taking any other steps in the proceedings.
3. Section 526(1), Cr.P.C. is relevant for our present purpose which is reproduced hereunder for ready reference:
526. High Court may transfer cases or itself try it.--(1) Whenever it is made to appear to the High Court–
(a) that a fair and impartial inquiry or trial cannot be had in any Criminal Court subordinate thereto, or
(b) that some question of law of unusual difficulty is likely to arise, or
(c) that a view of the place in or near which any offence has been committed may be required for the satisfactory inquiry into or trial of the same, or
(d) that an order under this section will tend to the general convenience of the parties or witnesses, or
(e) that such an order is expedient for the ends of justice, or is required by any provision of this Code; it may order--
(i) that any offence be inquired into or tried by any Court not empowered under Sections 177 to 184 (both inclusive), but in other respects competent to inquire into or try such offence;
(ii) that any particular case or appeal, or class of cases or appeals, be transferred from a Criminal Court subordinate to its authority to any other such Criminal Court of equal or superior jurisdiction;
(iii) that any particular case or appeal be transferred to and tried before itself; or
(iv) that an accused person be sent for trial to itself or to a Court of Session.
4. A bare perusal of the above provision evinces that it empowers the High Court to transfer cases pending before the criminal Courts only.
5. Halsbury’s Laws of England states that “originally the term ‘Court’ meant, among other things, the Sovereign’s palace … In the legal context it has acquired the meaning of the place where justice is administered and, further, has come to mean the persons who exercise judicial functions under authority derived either directly or indirectly from the Sovereign.”[1] Ballentine’s Law Dictionary explicates that Court is an “organ of the government consisting of one person or of several persons called upon and authorized to administer justice. Three elements are essential for the conception of Court which include: (1) time when judicial functions may be exercised; (2) a place for the exercise of judicial functions; and (3) a person or persons exercising judicial functions.”[2]
6. In Brajnandan Sinha v. Jyoti Narain (AIR 1956 SC 66) the Supreme Court of India held that unless a person or body of persons can pronounce an authoritative and binding judgment he or they cannot be reckoned as a Court. It also reiterated the principles laid down in Cooper v. Wilson[3] which were adopted in some earlier cases.[4] Cooper had said:
“A true judicial decision presupposes an existing dispute between two or more parties, and then involves four requisites: (1) The presentation (not necessarily orally) of their case by the parties to the dispute; (2) if the dispute between them is a question of fact, the ascertainment of the fact by means of evidence adduced by the parties to the dispute and often with the assistance of argument by or on behalf of the parties on the evidence; (3) if the dispute between them is a question of law, the submission of legal arguments by the parties; and (4) a decision which disposes of the whole matter by a finding upon the facts in dispute and an application of the law of the land to the facts so found, including where required a ruling upon any disputed question of law.”
7. In Muhammad Saeed and 4 others v. Election Petitions Tribunal, West Pakistan and others [PLD 1957 SC (Pak) 91] the Hon’ble Supreme Court of Pakistan laid down the following criteria for determining whether a particular forum is a Court:
(1) to be a Court, the person or persons constituting such Court, must be entrusted with judicial functions, i.e., of deciding litigated questions according to law;
(2) such person or persons must derive the power of so deciding questions, from the State, and therefore will be exercising the judicial powers of the State; and
(3) the appointment of the person or persons constituting a Court should be by the Government; these persons should receive payment for their services exclusively out of the Government funds and they should not be liable to removal by any authority other than the Government.
8. The case Bahadur and another v. The State and another (PLD 1985 SC 62) is also instructive. The august Supreme Court ruled that pendency of lis, duty to hear the parties and pronouncement of definitive judgment are essential attributes of Court. Relevant excerpt is reproduced below:
“Though a magistrate in cancelling a registered criminal case is required to act judicially in that he has to act fairly, justly and honestly, a duty common to the exercise of all State power, there is no lis before him, there is no duty to hear the parties, there is no decision given, no finality or irrevocability attaching to the order. The party is left free to institute a complaint on the same facts, and the same magistrate does not even after passing such an order render himself functus officio. On the contrary, he is quite competent to entertain and deal with such a complaint on material presented to him. These peculiarities establish beyond any doubt that in so concurring with a report submitted under Section 173, Cr.P.C. he does not function as a criminal Court. For that reason his order is not amenable to revisional jurisdiction under Sections 435 to 439, Cr.P.C.”
9. In Shafaatullah Qureshi v. Federation of Pakistan (PLD 2001 SC 142) the apex Court approvingly cited the following passage from the decision of the Balochistan High Court delivered in Mir Rehman Khan and another v. Sardar Asadullah Khan and 14 others (PLD 1983 Quetta 52):
“The question for determination as to which forum is a Court and which is not a Court, is mainly dependent on the manner and method in which proceedings are regulated before it. This process naturally embraces the procedural laws, which bind it in its functions and determine its course of action. The evidence being the deciding factor in all kinds of disputes, it is also pertinent to see whether such form follows the Evidence Act or not. It may be mentioned here that the Evidence Act, by virtue of the definition describes such forums as ‘Court’ which follow its tenets. But it is only relevant for the purpose of the Evidence Act. Ordinarily the decision of a dispute by an arbitrator and a conciliatory body etc. may be termed as decision by a Court but that is not so because such forums are not bound by any law with regard to procedure and evidence, as such, they only settle the dispute but do not administer justice according to law, and are not, therefore, Courts. Hence, the Courts are such organs of the State which follow legally prescribed scientific methodology as to procedure and evidence in arriving at just and fair conclusions.”
10. In Allah Dino Khan Bhayo v. Election Commission of Pakistan and others (PLD 2020 SC 591) the august Supreme Court held that “the determination of a dispute relating to a right or liability, the recording of evidence, including the right of cross-examination, a hearing of the arguments of the parties and a reasoned judgment are essential attributes of a Court of law (ref: Tariq Transport Co., Lahore v. Sargodha Bhera Bus Service (PLD 1958 SC (Pak) 437) and Mollah Ejahar Ali v. Government of East Pakistan (PLD 1970 SC 173).”
11. The above discussion clearly shows that the fundamental characteristic of the Court is the exercise of judicial power. In The Shell Company of Australia v. Federal Commissioner of Taxation (Australia), (1930) All ER 670, Lord Sankey L.C. in the Privy Council said:
“… What is judicial power? Their Lordships are of opinion that one of the best definitions is that given by Griffith C.J. in Huddart, Parker & Co. v. Moorehead, where he says: ‘I am of opinion that the words ‘judicial power’ as used in Section 71 of the Constitution mean the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property. The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action.’ ”
12. In The Queen v. Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd., (1970) 123 CLR 361, the High Court of Australia described the concept of judicial power as under:
“[J]udicial power involves, as a general rule, a decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation, so that an exercise of the power creates a new charter by reference to which that question is in future to be decided as between those persons or classes of persons. In other words, the process to be followed must generally be an inquiry concerning the law as it is and the facts as they are, followed by an application of the law as determined to the facts as determined; and the end to be reached must be an act which, so long as it stands, entitles and obliges the persons between whom it intervenes, to observance of the rights and obligations that the application of law to facts has shown to exist.”
13. Halsbury’s Laws of England states that “many bodies are not Courts, although they have to decide questions, and in so doing, have to act judicially in the sense that the proceedings must be conducted with fairness and impartiality.”[5] In The Shell Company of Australia v. Federal Commissioner of Taxation (Australia), (1930) All ER 670, it was held that there are tribunals with many of the “trappings of a Court” which are not Courts in the strict sense. Lord Sankey said:
“(1) A tribunal is not necessarily a Court in this strict sense because it gives a final decision; (2) Nor because it hears witnesses on oath; (3) Nor because two or more contending parties appear before it between whom it has to decide; (4) Nor because it gives decisions which affect the rights of subject; (5) Nor because there is an appeal to a Court; (6) Nor because it is a body to which a matter is referred by another body … An administrative tribunal may act judicially, but still remain an administrative tribunal as distinguished from a Court, strictly so call. Mere externals do not make a direction to an administrative officer by an adhoc tribunal an exercise by a Court of judicial power.”
14. In view of the foregoing, in order to determine whether a particular forum is a Court, it is necessary to consider the powers, functions and duties performed by it.[6]
15. Having discussed the concept of “Court”, let us now take up the case on hand. Section 6, Cr.P.C. stipulates that in addition to the High Court and the Courts constituted under different laws for the time being in force, there shall be two classes of criminal Courts in Pakistan, namely, the Courts of Sessions and the Courts of Magistrates. The latter have three classes. It is, however, important to note that the Code defines the expression “judicial proceeding” only in Section 4(1)(m) and states that it includes any proceeding in the course of which evidence as or may legally be taken on oath. The definitions of “Judge” and “Court of Justice” in Sections 19 and 20 of the Pakistan Penal Code, 1860, are incorporated in it by reference through Section 4(2), Cr.P.C. They are reproduced below:
19. “Judge”. The word “Judge” does not only denote every person who is officially designated as a Judge, but also every person--
who is empowered by law to give, in any legal proceeding, civil or criminal, a definitive judgment, or a judgment which, if not appealed against, would be definitive, or a judgment which, if confirmed by some other authority, would be definitive, or
who is one of a body of persons, which body of persons is empowered by law to give such a judgment.
20. “Court of Justice”. The words “Court of Justice” denote a Judge who is empowered by law to act judicially alone, or a body of Judges which is empowered by law to act judicially as a body, when such Judge or body of Judges is acting judicially.
16. The terms “Judge” and “Court” are often used interchangeably but the distinction between them is subtle. A Judge is an individual while the Court is the seat of justice as an institution.[7] “Generally speaking, a Judge is properly identified with the Court in relation to something done in exercise of the jurisdiction of the Court. His personality otherwise remains distinct from the Court. As an individual he remains subject to the laws of the land like the rest of the citizenry, except when expressly exempted.”[8] The Code’s definition of the term “Court” is in consonance with the principles discussed above. In particular, it emphasises that the pronouncement of a definitive judgment is the sine qua non of a Court – a judgment which is delivered by the presiding officer acting judicially.
17. Section 22, Cr.P.C. empowers the Provincial Government to appoint one or more Justices of Peace for a local area and Sections 22-A and 22-B describe their powers and duties respectively. Section 25 stipulates that by virtue of their respective offices, the Sessions Judges and on nomination by them, the Additional Sessions Judges, are Justices of Peace for the entire district of the province in which they are serving. The proceedings under Sections 22-A & 22-B before the Sessions Judge or the Additional Sessions Judge do not become judicial merely because they are judges and exercise judicial power in other matters. As adumbrated, one must look at the nature of the duty or work in which the officer concerned is engaged. In order that it may be judicial proceeding, he must act in a judicial capacity.
18. In Pakistan the role of the Justices of Peace is historically restricted to conservation of peace primarily by rendering assistance to the police. When the Ex-officio Justices of Peace were appointed some additional powers were conferred on them inter alia in respect of entertaining complaints and issuance of directions to the concerned police authorities regarding registration of criminal cases and transfer of investigation of criminal cases. In Khizar Hayat and others v. Inspector-General of Police (Punjab), Lahore and others (PLD 2005 Lahore 470) this Court examined the scope of the powers and duties of the Justices of Peace and observed:
“The powers and duties of a Justice of the Peace or an Ex-officio Justice of the Peace in Pakistan as provided in Sections 22-A and 22-B, Cr.P.C. do not involve any jurisdiction which can be termed as judicial in nature or character. In this context the role of a Justice of the Peace or an Ex-officio Justice of the Peace in Pakistan is sharply different from that now enjoyed by their counterparts in the United Kingdom and the United States of America where some judicial role regarding summary trial of petty civil and criminal cases has been conferred upon the Justices of the Peace through legislative intervention. That surely is not the case in Pakistan where no statute confers any judicial power upon a Justice of the Peace or an Ex-officio Justice of the Peace. Functions to be performed by a Justice of the Peace or an Ex-officio Justice of the Peace in Pakistan are merely administrative and ministerial in nature and character.”[9]
19. In Younas Abbas and others v. Additional Sessions Judge, Chakwal and others (PLD 2016 SC 581) the Hon’ble Supreme Court dissented with the latter part of the holding in Khizar Hayat and held that the functions of the Ex-officio Justice of Peace described in clauses (i), (ii) and (iii) of Section 22-A(6), Cr.P.C. are quasi-judicial. Relevant excerpt is reproduced below:
“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 the subject-matter of controversy nor have they ever been caviled at by anybody. Controversy emerged with the insertion of sub-section (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-officio Justices of Peace. The functions, the Ex-officio 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., Faisalabad and others (PLD 2014 SC 753) inasmuch as it holds that the functions performed by the Ex-officio Justice of Peace are executive, administrative or ministerial.”
20. In view of the foregoing, the Ex-officio Justice of Peace is not a Court within the meaning of Section 20, PPC read with Section 4(2), Cr.P.C. As Section 526, Cr.P.C. empowers the High Court to transfer cases pending before the criminal Courts only, this petition is not maintainable and dismissed in limine.
(K.Q.B.) Petition dismissed
[1]. 1 Halsbury’s Laws of England, Fifth Edition, Vol. 24, p. 326.
[2]. Ballentine’s Law Dictionary, Third Edition, p. 281.
[3]. Cooper v. Wilson, (1937) 2 KB 309.
[4]. The Bharat Bank Ltd., Delhi v. The Employees of the Bharat Bank Ltd., Delhi and another (AIR 1950 SC 188); and Maqbool Hussain v. State of Bombay (AIR 1953 SC 325).
[5]. Halsbury’s Laws of England, Fifth Edition, Vol. 24, p. 327.
[6]. The United Engineering Workers Union v. K.W. Devanayagam, (1967) 2 All ER 367.
[7]. Abrar Hassan v. Government of Pakistan and another (PLD 1976 SC 315).
[8]. ibid.
[9]. Also see: Muhammad Ali v. Additional I. G., Faisalabad and others (PLD 2014 SC 753) which endorsed the view that the Ex-officio Justice of Peace performs administrative functions.
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