PLJ 2022 Lahore 846 (DB)
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 22-A, 22-B & 154--Police Order, (10 of 2002), Art. 155(c)--Direction to petitioner for recording of version of respondent--Petitioner was employee in police department--Excess of powers--Cognizable offence--Order of justice of peace was challenged by petitioner--Determination of nature of offence--Question whether offence defined in Article 155(c) of Police Order is "cognizable" or "non-cognizable"--Right from creation of country criminal justice system is suffering multiple notable deficiencies--Main cause of such deficiencies is incompetency and lack of proper training of police in matter of investigation of a case and arrest of accused--One cannot also lose sight of reality in shape of inefficiency, maladministration and abuse of power by police in this regard--Offence under Article 155 of “Order” is cognizable--We thus feel no cavil to approve view formed to this effect by Benches of High Court as well as Division Benches of Peshawar High Court and Sindh High Court--Ex-Office Justice of Peace was justified to direct “SHO” concerned to record version of “respondent” in terms of Section 154 of “Code” and to act in accordance with law.
[Pp. 869 & 878] D, K & L
Police Order, 2002 (10 of 2002)--
----Art. 4(c)--Obligation of police officer--It is obligatory upon Police Officer to ensure that rights and privileges, under law, of a person taken in custody, shall be protected. [P. 851] A
Civil Procedure Code, 1908 (V of 1908)--
----O.XXVII-A--Personal appearance--In terms of notice under Order XXVIIA of “CPC” personal appearance of Attorney General for Pakistan if question of law concerns Federal Government and Advocate General of Province if question of law concerns a Provincial Government as case may be, is necessary. [P. 865] B
Police Order, 2002 (10 of 2002)--
----Art. 154--Penalty for misconduct of police officer--Penal clause deals with various mischiefs committed by a police officer amounting to misconduct--It provides a punishment of imprisonment which may extend to three years alongwith fine.
[P. 866] C
Criminal Procedure Code, 1898 (V of 1898)--
----S. 22-A--Powers to ex-officer justice of peace--On account of gravity and seriousness of issue Section 22-A was also added to “Code” through Gazette of Punjab Part I, dated 30th October, 1985, whereby certain powers were vested to Ex-Officio Justice of Peace.
[P. 869] E
Police Order, 2002 (10 of 2002)--
----Arts. 148, 154 & 152, Chaps. XVI & XVII--Cognizable--No cognizable--Various offences and punishments are defined and categorized in two separate chapters i.e. Chapter XVI and XVII--Chapter XVI deals with offences committed by private person. All offences in said chapter are providing minor penalties and triable in a summary manner in terms of Article 154 of “Order”--Though offences under Articles 148 to 152 are providing minor punishments and in ordinary course they can easily be termed as non-cognizable in light of Section 4(n) read with Schedule II relating to offences against other laws of “Code” but said offences, despite being minor in nature, were made cognizable by virtue of Article 153 of “Order”. [P. 874] F
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 4 & 4(f)--"Cognizable"--"Non-cognizable"--Term “cognizable” or “non- cognizable” are nowhere defined in “Order”--Section 4(f) of “Code” however defines term “cognizable” whereas sub-section (n) of Section 4 provides definition of “non-cognizable” offence.
[P. 875] G
Police Order, 2002 (10 of 2002)--
----Art. 155(2)--Report of authorized officer-- In terms of sub-Article (2) of Article 155 of “Order” prosecution under said Article shall require a report in writing by an officer authorized in this behalf under rules to be made by Government--We are inclined to observe that registration of first information report and prosecution of offence are altogether distinct and different phenomena. [P. 875] H
Word & Phrases--
----Prosecution-- Black’s Law Dictionary Tenth Edition provides definition of “Prosecution” as “1. The commencement and carrying out of any action or scheme <the prosecution of a long, bloody war>. 2. A criminal proceeding in which an accused person is tried <the conspiracy trial involved prosecution of seven defendants>. – Also termed criminal prosecution.” [P. 875] I
Word & Phrases--
----Prosecution--Term “prosecution” is completely different phenomenon as compared to investigation or registration of a case.
[P. 876] J
Mr. Basharat Ullah Khan, Advocate for Petitioner.
M/s. Ahmed Awais, Advocate General Punjab, Mujeeb-ur-Rehman Kiani, Additional Advocate General and Qaiser Abbas Shah, Assistant Advocate General for Punjab for Respondents No. 1, 3 and 4.
Mr. Sohail Ikram, Advocate for Respondent No. 2.
M/s. Tanveer Iqbal and Ch. Imran Hassan Ali, Advocates for Amici Curiae.
Date of hearing: 8.12.2021.
PLJ 2022 Lahore 846 (DB)
[Rawalpindi Bench, Rawalpindi]
Present: Mirza Viqas Rauf and Raheel Kamran, JJ.
versus
Learned ADDITIONAL SESSIONS JUDGE, RAWALPINDI and 3 others--Respondents
W.P. No. 2594 of 2021, decided on 8.12.2021.
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 & 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 & 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 Viqas 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 11th October, 2021 and we proceeded to appoint M/s Tanvir Iqbal and Ch. Imran Hassan Ali, Advocates as amici 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 “CPC”). 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 “CPC” 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 versus S.H.O. and others (2012 YLR 828), Shahid Hussain and another versus Additional Sessions Judge, Taunsa Sharif Distt. D.G. Khan and others (2011 YLR 294), Khuda Bakhsh versus Additional Sessions Judge, D.G. Khan and 3 others (2010 YLR 2622) and Senator Asif Ali Zardari versus 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 “CPC” learned amicus curiae has referred the judgment in the case of Maha Seedmen Association etc. versus Union of India, Ministry of Agriculture, through its Secretary (2018) 3 AIR Bom R 628). In order to formulate his contentions, learned counsel relied upon Egon Zehnder Ltd. versus Tillman (2019 SCMR 1837), Sindh High Court Bar Association through its Secretary and another versus 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 versus Ghulam Qasim Khan Khakwani and others (PLD 1994 Supreme Court 281), Muhammad Abbas versus The State (PLD 1981 Supreme Court 642), Zulfiqar versus Additional Sessions Judge/Ex-Officio Justice of Peace, Lahore and 2 others (2021 P.Cr.LJ 1779), Haji Rehman SHO and 3 others versus Provincial Police Officer, Government of Khyber Pakhtunkhwa, Peshawar and 5 others (2012 PCr.LJ 1526), Masood Ahmad Javed versus The State and 5 others (2006 MLD 855), Naseem Akhtar Khan versus District and Sessions Judge (PLD 2005 Karachi 285) and Shabbir Ahmad versus The State (PLD 1981 Lahore 599).
6. After having heard learned amicu 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 versus The State and others (2019 PCr.LJ 1172), Asghar Ali versus The State and another (2012 YLR 18) and Haji Muhammad Qasim, etc. versus 1. Muhammad Jahangir Khan 2. The State (NLR 2008 Criminal 42) submitted that offence under Article 155 of “Order” is non-cognizable 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 versus Mian Asim Fareed and others (2006 CLD 625), Muhammad Bashir versus Station House Officer, Okara Cantt. and others (PLD 2007 Supreme Court 539), Zulfiqar versus Additional Sessions Judge/Ex-Officio Justice of Peace, Lahore and 2 others (2021 P.Cr.LJ 1779), Peer Bakhsh versus SHO, etc. (KLR 2015 Criminal Cases 211) and Muhammad Javed Tariq versus 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 “CPC” 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) & 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 “CPC” 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 “CPC” but a subsidiary question has also arisen therefrom that as to whether it would be sufficient compliance of Order XXVIIA of “CPC” 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 “CPC” 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 “CPC” 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 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 “CPC”, as nearly as possible. Order XXVIIA ibid is thus mutatis mutandis applicable to the constitutional proceedings.
12. It is trite law that notice in terms of Order XXVIIA of “CPC” 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.
(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 versus 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. versus Union of India, Ministry of Agriculture, through its Secretary (2018) 3 AIR Bom 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 “CPC” we can seek guidance from Federation of Pakistan through Secretary, Ministry of Law, Justice and Parliamentary Affairs, Islamabad and others versus 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.
(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 XVII-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 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 sub-section (1) of Section 205 of the Government of India Act, 1935, and Order XXVIIA, Rule 2 of the Code of Civil Procedure was applicable. Had it not been for the fact that it is not necessary to decide whether the decision of the learned District Judge was correct or otherwise, it is by no means unlikely that the decision of the learned District Judge would have been vacated or at least subjected to criticism for the reason that the learned Judge had not followed a mandatory provision of law."
17. In the case of Haider Automobiles Ltd. v. Pakistan PLD 1967 Lahore 882, the applicability of Order XXVIIA, Rule 1 of the Code of Civil Procedure, came up in proceedings other than civil suit i.e., Writ Petition, and the Court held as hereunder:
"Under Rule 1 the Advocate-General of the Province or the Attorney General of Pakistan has a right to intervene without impleading the Provincial or the Central Government as a party. Thereby, the Government does not become a party to the case. It is only under Rule 2 that the Government is to be added as a party, if necessary. Order XXVIIA was inserted by the Civil Procedure (Amendment) Act, XXIII of 1942 as, a result of the invaluable opinion expressed by Gwyer, C.J. in United Province v. Mst. Atiqa Begum and others AIR 1941 FC 16 which brings out this distinction.
30. This would mean that the decision of the Full Bench of this Court in the matter relating to Syed Akhlaque Hussain and others was not binding on the Central Government of Pakistan who was not a party before the High Court."
18. The Rules of Interpretation of Statutes, also point in the same direction. Rule 1 of Order XXVIIA of the Code of Civil Procedure prohibits the Court from determining the specified questions without notice to the Attorney-General or the Advocate-General, as the case may be. Crawford in Statutory Construction has made the following comments with regard to such language in the statute in para. 263:
"Prohibitive or negative words can rarely, if ever, be directory, or, as it had been aptly stated, there is but one way to obey the command "thou shall not", and that is to completely refrain from doing the forbidden act. And this is so, even though the statute provides no penalty for disobedience. Accordingly, negative prohibitory and exclusive words or terms are indicative of the legislative intent that the Statute is to be mandatory, .........”
19. In the case of Lachmi Narain etc. v. Union of India and others AIR 1976 SC 714, this rule of interpretation was recognized in the following words:
"If the legislative intent is expressed clearly and strongly in imperative words, such as the use of `must' instead of 'shall', that will itself be sufficient to hold the provision to be mandatory, and it will not be necessary to pursue the enquiry further. If the provision is couched in prohibitive or negative language, it can rarely be directory, the use of pre- emptory language in a negative form is per se indicative of the intent that the provision is to be mandatory."
20. The result of the above discussion of the law and the principles governing its interpretation is that the provision of Rule 1 of Order XXVIIA of E the Code of Civil Procedure is found to be mandatory and its non-compliance renders the proceedings defective.
21. It is of some interest to note observations in books and decided cases with regard to expressions like "nullity", "void", "voidable" and the "lack of jurisdiction". In 'jurisdiction and illegality', Amnon Rubinstein, at page 220 makes the following observations:
"It is now established that, even in certiorari cases total absence of evidence does not go to jurisdiction, and it seems that by the same reasoning, all procedural errors should similarly be regarded as not jurisdictional. The case-law, however, affords the usual spectacle of anarchy upon which order can hardly be superimposed."
The same author at page 50 observes as hereunder:
"However, the general rule is that where the decision is a nullity, an appeal is somewhat useless as despite any decision on appeal, such a decision can be successfully attacked in collateral proceedings. Some dicta go even further in maintaining that where the decision appealed from is a nullity, an appeal cannot lie at all. Indeed, if the nullity theory is carried to its logical conclusions, some difficulties must arise with regard to appellate jurisdictions. Appellate Courts or tribunals are generally empowered to review `decisions' (or whatever other term which is applicable) of lower instances. If the 'decision' is null, it may be argued that the Court has no jurisdiction to review it:'
As regards the want of hearing in proceedings where a party is required to be heard, the author observes at Pages 220 to 222 as hereunder:
"The duty to give a hearing to the person concerned is decreed by natural justice, and its breach amounts to a grave defect in the proceedings. But does this defect go to jurisdiction? It has already been seen that breach of another tenet of natural justice, the rule against bias, is not jurisdictional and does not render the proceedings void. As in the case of bias, breach of the audi alteram partem rule is re-dressible by supervisory remedies, i.e. upon certiorari and mandamus, and for this purpose the defect is classified, as is to be expected, as jurisdictional. However, breach of the audi alteram partem rule has also been held to be actionable and is sometimes considered a jurisdictional defect which nullifies the proceedings………It is, therefore, submitted that breach of the audi alteram partem rule does not go to jurisdiction and does not nullify the proceedings. This submission can actually be supported by some of the cases which held this breach of duty to be actionable. Even where such actions did succeed, the Courts have not necessarily rested their judgment on the nullity of the disputed proceedings."
22. In this background of conflicting views, this Court in the case of Messrs Conforce Ltd. v. Syed Ali Shah etc. PLD 1977 SC 599, expressed its opinion as hereunder:
"In view of the frequency with which gross negligence is sought to be condoned on the plea that the impugned order was void or without jurisdiction, we would observe that a void order or an order without jurisdiction is only a type of an illegal order passed by a Court and the fact that it has been passed and that it may, therefore, create rights cannot be altered by describing it as void or without jurisdiction. And, further, the expressions void orders and orders without jurisdiction are overworked expressions. No doubt they are relevant in some contexts but as suggested by Lord Reid in Anisminic Ltd. v. Foreign Compensation Commission and others (1969) 2 AC 147. It would be better to use these expressions in the narrow and original sense of the lack of competence of the Court or the Tribunal `to enter on the enquiry in question'."
23. This matter was pointedly and specifically dealt with by this Court in the case of Mst. Rehmat Bibi 1986 SCMR 962, as hereunder:
"We find that in the High Court the learned Judge has placed reliance on a number of precedent cases, including Allah Dino v. Faqir Muhammad and another PLD 1969 SC 582, for the proposition that if an impugned order has been passed without hearing and notice to a party whose presence is otherwise necessary before the authorities concerned, then the order will be a nullity in the eye of law, and no question of limitation would arise. Mr. Abdur Rashid was not in a position to controvert this proposition of law by reference to any authority or pronouncement of this Court or even of the High Court. It would appear, therefore, that the Courts below were justified in deciding the question of limitation in favour of the respondent. The affidavit filed in this Court is an afterthought."
24. In Redifussion (Hong Kong) Ltd. v. Attorney-General of Hong Kong and another 1970 A.C. 1136, the Privy Council laid down the law in the following words:
"A properly constituted Court may lack jurisdiction on four grounds: (1) Because a condition precedent to its entering upon the inquiry has not been fulfilled, e.g., a requirement such as existed in some British Colonies that notice be given to the Government before starting an action against it. (2) Because of the status of one of the parties to the action, e.g., an action brought against a foreign sovereign or arnhassador who has not consented to the jurisdiction or an action brought by an alien enemy. (3) Because of the subject-matter of the dispute in respect of which the relief is sought, e.g., a dispute involving the title to foreign land. (4) Becuase of the nature of the relief sought, e.g., dissolution of marriage before the Matrimonial Causes Act, 1857, or an injunction against the Crown.
Lack of jurisdiction may be due to a combination of two or more of these grounds, e.g., an injunction against the Crown is a combination of grounds (2) and (4). Where the reason of public policy for excluding the jurisdiction of the Court is the protection of a particular class of persons a defendant who belongs to that class can, by waiving his immunity, confer jurisdiction on the Court; but, with this exception, no agreement between the parties can give to the Court jurisdiction which it would otherwise lack."
25. In the case of Mansab Ali v. Amir and 3 others PLD 1971 SC 124, this Court laid down the law as hereunder:
"If it was a necessary condition for the proper exercise of jurisdiction by the Commissioner under section 3 of the Criminal Law (Amendment) Act to give notice to the respondents, before referring the question of the guilt on innocence to the Tribunal, then failure to comply with this requirement rendered the order of reference illegal and void.
It is an elementary principle that if a mandatory condition for the exercise of the jurisdiction by a Court, tribunal or authority is not fulfilled, then the entire proceedings which follow become illegal and suffer from want of jurisdiction. Any order passed in continuation of these proceedings in appeal or revision equally suffer from illegality and are without jurisdiction. The learned Advocate-General fully supported this view and asked for dismissal of the appeal."
26. The upshot of the above discussion is that the impugned judgment of the High Court is a nullity on account of non-observance of mandatory requirement of Order XXVIIA, Rule 1 of the Civil Procedure Code……….."
In furtherance to the above we cannot lost sight of the principles laid down by the Hon’ble Apex Court in the case of Federal Public Service Commission and others versus Syed Muhammad Afaq and others (PLD 2002 Supreme Court 167) wherein while outlining the scope of Order XXVIIA of “CPC” the Hon’ble Supreme Court of Pakistan held as under:
"4. During hearing of the above cases, it transpired that notice was not given to the Attorney-General for Pakistan as required under Order XXVII-A, Rule 1 of the Civil Procedure Code, 1908 in any of these cases by the respective High Courts. Clearly, failure of the respective High Courts to give effect to the mandatory provisions of Order XXVII-A, Rule 1, C.P.C. has vitiated the impugned judgments, in that, the cases involved interpretation of Constitutional provisions. It is not controverted by any of the learned counsel for the parties that the controversy raised before the High Courts as to the vires of Rule 6(a)(iii) of the Rules had been examined in the absence of the Attorney-General for Pakistan. The material placed on record does not show that any notice was issued to him.
5. When faced with this, Mr. Abdur Rahim Kazi, learned Advocate Supreme Court appearing on behalf of respondents in Civil Petitions Nos. 1778 and 1779 contended that there was substantial compliance of Order XXVII-A, Rule 1, C.P.C., inasmuch as, full hearing was afforded to the Federal Government, which was represented by the Deputy Attorney-General.
6. We are afraid, the mere hearing of the Deputy Attorney-General arid affording full opportunity to the Federal Government or the Federal Public Service Commission does not constitute substantial compliance of the mandatory provisions of Order XXVII-A, Rule 1, C.P.C. which provide in unequivocal terms 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 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". Refer Federation of Pakistan v. Aftab Ahmed Khan Sherpao PLD 1992 SC 723. Here, as stated above, no notice was given to the Attorney-General for Pakistan, therefore, the impugned judgments stand vitiated on this ground alone."
Reference to this effect can also be made to Superintendent Central Jail, Adyala, Rawalpindi versus Hammad Abbasi (PLD 2013 Supreme Court 223) and Haji Ghulam Ahmad Bilour versus Muhammad Khurshid Khan and 2 others (1997 MLD 3079).
19. After having an overview of the relevant provisions of law and the principles laid therein we entertain no doubt in our mind that in terms of notice under Order XXVIIA of “CPC” the personal appearance of the Attorney General for Pakistan if the question of law concerns the Federal Government and the Advocate General of the Province if the question of law concerns a Provincial Government as the case may be, is necessary.
20. Adverting to the pivotal question relating to the nature of Article 155 of “Order”, we have noticed that in pursuance of the proclamation of emergency of the fourteenth day of October, 1999, and the Provisional Constitution Order No.1 of 1999, and in exercise of all powers enabling him in that behalf, the Chief Executive of the Islamic Republic of Pakistan was pleased to make and promulgate the “Order” which was published in official gazette of Pakistan on 14th August, 2002 in order to reconstruct and redefine the role of police. By virtue of Article 185 of the “Order” the Police Act, 1861 was repealed. Leaving unnecessary details apart there are two chapters in the “Order” which deal with the offences and punishments. Chapter XVI is relatable to offences and punishments qua private persons whereas Chapter XVII corresponds to offences by and punishments for police officers. From the cursory glance of both these chapters it is evident that former is relatable to petty offences committed by the private persons which have been made summarily triable by virtue of Article 154 whereas latter exclusively caters the offences committed by the police officers and it starts from Article 155, which reads as under:-
"155. Penalty for certain types of misconduct by police officers.--(1) Any police officer who--
(a) makes for obtaining release from service as police officer, a false statement or a statement which is misleading in material particulars or uses a false document for the purpose;
(b) is guilty of cowardice, or being a police officer of junior rank, resigns his office or withdraws himself from duties without permission;
(c) is guilty of any willful breach or neglect of any provision of law or of any rule or regulation or any order which he is bound to observe or obey;
(d) is guilty of any violation of duty;
(e) is found in a state of intoxication, while on duty;
(f) malingers or feigns or voluntarily causes hurt to himself with the intention to render himself unfit for duty;
(g) is grossly insubordinate to his superior officer or uses criminal force against a superior officer; or
(h) engages himself or participates in any demonstration, procession or strike or resorts to or in any way abets any form of strike or coercion or physical duress to force any authority to concede anything,
shall, on conviction, for every such offence be punished with imprisonment for a term which may extend to three years and with fine.
(2) Prosecution under this Article shall require a report on writing by an officer authorized in this behalf under the rules to be made by the Government."
The above referred penal clause deals with the various mischiefs committed by a police officer amounting to misconduct. It provides a punishment of imprisonment which may extend to three years alongwith fine.
21. In order to resolve the core issue we have gone through the judgments cited at bar by both the sides as well as learned amici curiae. In this regard we would first like to take up the judgments referred in support of the petitioner. We have noticed that in the case of Asghar Ali versus The State and another (2012 YLR 18) learned Single Bench of this Court while dealing with pre-arrest bail application wherein the accused sought bail for an offence under Article 155(c) of “Order” in a case registered against him at Police Station Bhowana District Chiniot on the instance of “SHO” has declared Article 155(c) of “Order” as non-cognizable while taking into consideration Sections 4(f) & 4(n) of “Code” and Schedule II appended with the same relating to offences against other laws. In the case of Khuda Bakhsh versus Additional Sessions Judge, D.G. Khan and 3 others (2010 YLR 2622) learned Single Bench of this Court again declared the offence under Article 155(c) of “Order” as non-cognizable while relying upon the case of Muhammad Zubair Malik versus S.H.O. and 5 others (2008 PCr.LJ 1358).
22. In the case of Muhammad Zubair Malik supra learned Ex-Officio Justice of the Peace, Ferozewala proceeded to dismiss the petition under Sections 22-A & 22-B of “Code” seeking a direction to the “SHO” to register a case on the ground that offence under Section 467 of the Pakistan Penal Code, 1860 (hereinafter to be referred as “PPC”) is non-cognizable offence. The matter when came up before learned Single Bench of this Court in a constitutional petition it was allowed with the following observations:-
"4. Section 155, Cr.P.C. provides that when an application is received by the Incharge of the police station as to the commission of non-cognizable offence, he should make entries in a book (Roznamcha) maintained for the purpose and without any investigation, shall refer the matter to the Magistrate for orders and after obtaining appropriate orders from him, he shall proceed in accordance with sub-section (3) of Section 155, Cr.P.C. In the instant case the application was submitted to the S.H.O., copy of the same was also submitted to D.P.O. of the District but no action was taken. Finally application under Sections 22-A and 22-B, Cr.P.C. was moved seeking direction in the name of concerned S.H.O. to take appropriate action in accordance with law. The learned Additional Sessions Judge dismissed the application simply on the ground that no order for registration of case can be passed by him with regard an offence, which is non-cognizable. The learned Additional Sessions Judge has failed to apply his judicial mind to the legal proposition. Obviously no order for registration of case could be passed but he should have directed the S.H.O. concerned to receive the application, entertain the same in the Roznamcha and thereafter under sub-section (2) of Section 155, Cr.P.C. apply to the Magistrate seeking permission to investigate the matter and proceed strictly in accordance under sub-section (3) of Section 155, Cr.P.C. Resultantly, this petition is allowed and impugned order, dated 14-4-2007 is set aside. The S.H.O. concerned is directed to make entry in the Roznamcha Waqiati of the police station, if the application is submitted by the petitioner and shall apply to the Magistrate concerned seeking permission to investigate in the matter and thereafter shall proceed strictly in accordance with law."
The above view was also reiterated in the case of Shahid Hussain and another versus Additional Sessions Judge, Taunsa Sharif Distt. D.G. Khan and others (2011 YLR 294). It appears from the facts of the said case that a complaint titled “Nazar Hussain versus Nazar Hussain etc.” was pending in the court of learned Additional Sessions Judge where Zulfiqar Ali, Assistant Sub-Inspector (ASI) appeared before the court and his statement was recorded. Warrants of arrest against the two court witnesses were issued and the case was adjourned. “SHO” Police Station Vohava District Dera Ghazi Khan was directed to execute the warrants through Sub-Inspector of Police. He was further directed that in case of non-execution of the warrant “SHO” shall appear in person but on the said date Shahid Hussain (petitioner) appeared before the court and reported in writing that the warrant of arrest in question earlier was entrusted to Bashir Ahmad, Assistant Sub-Inspector (ASI) for execution but he has been transferred and left the charge and today early in the morning, this warrant was given to Moharar of the police station but the same could not be executed. The learned Additional Sessions Judge felt that this was a case of conscious omission on the part of the said “SHO”. Consequently it was directed that first information report (hereinafter to be referred as “FIR”) under Articles 155(c) & 155(d) of “Order” may be registered against the delinquents. In the light of above facts, learned Single Bench while placing reliance on the case of Muhammad Zubair Malik supra accepted the constitutional petition. The above view was again adopted in the case of Muhammad Shafi versus S.H.O. and others (2012 YLR 828) whereby while exercising constitutional jurisdiction “FIR” registered under Article 155(c) of “Order” was quashed on the ground that offence is non-cognizable.
23. Contrary to this, lately in the case of Zulfiqar versus Additional Sessions Judge/Ex-Officio Justice of Peace, Lahore and 2 others (2021 P.Cr.LJ 1779) learned Single Bench of this Court while dealing with the question ruled that offence under Article 155 of “Order” is cognizable. Same was the view in the case of Tariq Aziz versus Mst. Kalsoom Bibi and others (2012 PCr.LJ 891) as well as in the case of Muhammad Javed Tariq versus Station House Officer Police Station Fareed Town Sahiwal and 2 others (PLJ 2014 Lahore 161). Similarly one of the learned Single Benches of Peshawar High Court in the case of Andaz Khan versus Salma Gul and 2 others (2019 MLD 7) upheld the order of learned Ex-Officio Justice of the Peace holding that the offence under Article 156 of “Order” is cognizable. In furtherance thereof, in the case of Haji Rehman SHO and 3 others versus Provincial Police Officer, Government of Khyber Pakhtunkhwa, Peshawar and 5 others (2012 PCr.LJ 1526) learned Division Bench of Peshawar High Court declared the offence under Article 155 of “Order” as cognizable. Same view was adopted by learned Division Bench of Sindh High Court in the case reported as Naseem Akhtar Khan versus District and Sessions Judge (PLD 2005 Karachi 285). Furthermore in the cases of Haji Muhammad Qasim, etc. versus 1. Muhammad Jahangir Khan 2. The State (NLR 2008 Criminal 42) and Muhammad Ameen and others versus The State and others (2019 PCr.LJ 1172) a private complaint was filed against the police officer under Article 155(c) of “Order” which was held not competent in presence of bar under sub-article (2) of Article 155.
24. After having a detailed survey of the case law referred hereinabove, we are inclined to observe that right from the creation of the country criminal justice system is suffering multiple notable deficiencies. The main cause of such deficiencies is the incompetency and lack of proper training of the police in the matter of investigation of a case and arrest of accused. One cannot also lose sight of reality in the shape of inefficiency, maladministration and abuse of power by the police in this regard. In the above background the “Order” was promulgated with the following preamble:
WHEREAS the police has an obligation and duty to function according to the Constitution, law, and democratic aspirations of the people;
AND WHEREAS such functioning of the police requires it to be professional, service-oriented, and accountable to the people;
AND WHEREAS it is expedient to redefine the police role, its duties and responsibilities;
AND WHEREAS it is necessary to reconstruct the police for efficient prevention and detection of crime, and maintenance of public order;
AND WHEREAS the Chief Executive is satisfied that circumstances exist which render it necessary to take immediate action;
NOW, THEREFORE, in pursuance of the Proclamation of Emergency of the fourteenth day of October, 1999, and the Provisional Constitution Order No.1 of 1999, and in exercise of all powers enabling him in that behalf, the Chief Executive of the Islamic Republic of Pakistan is pleased to make and promulgate the following Order:-"
25. On account of gravity and seriousness of the issue Section 22-A was also added to the “Code” through Gazette of Punjab Part I, dated 30th October, 1985, whereby certain powers were vested to learned Ex-Officio Justice of the Peace. On account of continuous complaints with regard to non-registration of criminal cases, defective investigation, neglect, failure or excess committed by policemen in relation to their functions and duties, sub-section (6) was added through Ordinance No.CXXXI of 2002 dated 21st November, 2002, which reads as under:
"22-A. Powers of Justice of the Peace. (1) -----------------------
(2) --------------------------------------------------------------------------------------
(3) --------------------------------------------------------------------------------------
(a) ---------------------------------------------------------------------------------
(b) ---------------------------------------------------------------------------------
(4) --------------------------------------------------------------------------------------
(5) --------------------------------------------------------------------------------------
(a) ---------------------------------------------------------------------------------
(b) ---------------------------------------------------------------------------------
(c) ----------------------------------------------------------------------------------
(6) An ex-officio justice of the Peace may issue appropriate directions to the police authorities concerned on a complaint regarding.
(i) non-registration of criminal case;
(ii) transfer of investigation from one police officer to another; and
(iii) neglect, failure or excess committed by a police authority in relation to its functions and duties."
26. While pondering upon the issue we cannot ignore the concern of Hon’ble Apex Court expressed in the case of Haider Ali and another versus DPO Chakwal and others (2015 SCMR 1724), whereby on account of high degree of political and administrative apathy which has translated into the failing criminal justice system, the Hon’ble Supreme Court of Pakistan issued following directions:
"9. In some of our earlier orders, we have noted the high degree of political and administrative apathy which has translated into the failing criminal justice system before us. It must be emphasized that the failure to address individual grievances of citizens causes frustration amongst them which, in turn, may lead to lawlessness. It also needs to be emphasized that a functioning criminal justice system is directly linked to the enforcement and realization of various fundamental rights of citizens such as Articles 9, 10, 10A and 14. We can no longer stand idle as the nation suffers. It is therefore directed as under:--
(i) A universal access number (UAN) and website should be provided to the general public for filing of complaints. The said website should be developed and be operational within three months from the date of this order. Till such time that the website has been launched, the provisions of Section 154, Cr.P.C. should be strictly adhered to and action should be taken against any police official who fails to abide by the said provision.
(ii) Serious notice should be taken of frivolous, false or vexatious complaints and where applicable cases should be registered under Sections 182 and 211 of the Pakistan Penal Code.
(iii) The principles laid out in Muhammad Bashir's case (PLD 2007 SC 539) should be strictly followed and no person should be arrested unless there is sufficient evidence available with the police to support such arrest. Where a person is unjustly deprived of his liberty, compensation will be required to be paid to him or her by the delinquent police officer. The affected person may approach the civil courts for appropriate remedy in this regard.
(iv) Adequate provision should be made for the training of police officers and the development of specialized Investigation Officers and facilities. In addition adequate funds should be made available to police stations and for investigation activities. The respective Provincial and Federal heads of police shall submit a report in court within three months from the date of this order which details the steps taken in this regard and the relevant police funds and personnel dedicated towards investigation activities, training of police personal, and development of forensic facilities.
(v) No police officer is to be transferred in breach of the principles laid out by this Court in the Anita Turab case (PLD 2013 SC 195). The respective Provincial and Federal heads of police shall submit a report in Court within one month from the date of this order which specifies the names and details of all police officers above BPS-17 who have been transferred or made OSD over the past three years and also provide reasons for the same.
(vi) Guidelines/SOPs should be developed to foster coordination between the prosecution and the police. The Attorney General and the respective Advocates General of each province shall submit the said guidelines/SOPs in court within three months from the date of this order.
(vii) Adequate funds should be dedicated towards the training and development of public prosecutors. The Attorney General and the respective Prosecutors General of each province shall submit in Court within three months from the date of this order details of (i) hiring requirements and compensation packages of public prosecutors; and (ii) accountability mechanisms and review systems of public prosecutors.
(viii) The Attorney General and the respective Advocates General shall submit a report in court within one month from the date of this order on the steps being taken to provide witness protection in their relevant jurisdiction and the funds dedicated for this purpose.
(ix) The respective bar councils may take appropriate action against lawyers who deliberately seek adjournments with a view to delay trial. Respective district judges are also directed to impose costs on such lawyers and hear criminal cases involving the liberty of persons on a day to day basis to the extent possible.
(x) Respective heads of police of the Federation and the Provinces shall submit a report within one month of the date of this order which details the relevant police complaints and accountability mechanisms in place and the actions taken under such mechanism against delinquent police officials. This information shall also be made publicly accessible in English as well as Urdu on their respective websites. The Attorney General and respective Advocates General shall submit a report detailing compliance in this respect within one month from the date of this order.
(xi) Police budgets (disaggregated by district and local police stations, functions, human resource allocation and a statement of their utilization), police plans and annual performance reports shall be made publicly accessible on the respective Federal and Provincial police websites and submitted in Court within one month of the date of this order. The Attorney General and respective Advocates General shall submit a report detailing compliance in this respect within one month from the date of this order.
(xii) The Attorney General and the respective Advocates General of the Provinces of Sindh and Balochistan should submit in Court within one month from the date of this order reports which examine the constitutionality of the policing regime established by the Police Act, 1861, currently in force in Sindh and the Balochistan Police Act, 2011 currently in force in Balochistan. This report should inter alia state whether these policing statutes allow the constitution and organization of a politically independent police force which is consistent with the protection of the fundamental rights of citizens.
(xiii) The Federal and Provincial Ombudsmen should submit in Court within three months from the date of this order, good-administration standards for police stations and should also submit a report which outlines the measures being taken to curb maladministration in police stations.
(xiv) Provincial Information Commissioners should notify transparency standards relating to police services and functions and submit these standards in Court within three months from the date of this order.
(xv) The Law and Justice Commission of Pakistan shall prepare a consolidated report based on the various reports received by the Court till date and the proposals submitted by Khawaja Haris, learned Senior Advocate Supreme Court, detailing the relevant amendments which are required in legislation to improve the criminal justice system. The said report shall be submitted in court within three months from the date of this order. Copies of the said report shall also be sent to the National and Provincial Assemblies."
27. In the above backdrop when we dilate upon the nature of offence under Article 155 of “Order” we feel no doubt in our mind that said provision was included to deal with the misdeeds of the police officers sternly. The offence under Article 155 of “Order” thus provided a punishment of imprisonment for a term which may extend to three years and with fine.
28. The argument that since Article 153 of “Order” categorically defined the offences falling under Articles 148 to 152 as cognizable, so no other offences in the “Order” including offence under Article 155(c) can be termed as such, suffice to observe that various offences and punishments are defined and categorized in two separate chapters i.e. Chapter XVI and XVII. Chapter XVI deals with the offences committed by the private person. All the offences in the said chapter are providing minor penalties and triable in a summary manner in the terms of Article 154 of “Order”. Though the offences under Articles 148 to 152 are providing minor punishments and in ordinary course they can easily be termed as non-cognizable in the light of Section 4(n) read with Schedule II relating to offences against other laws of the “Code” but said offences, despite being minor in nature, were made cognizable by virtue of Article 153 of “Order”. We must reiterate that Article 153 as well as offences under Articles 148 to 152 of “Order” are the part of Chapter XVI. Article 153 of “Order” was thus only relatable and restricted to the offences under Chapter XVI.
29. It is trite law that when on a particular point of law or fact if a special statute is silent then the provisions of general law would prevail. The provisions of “Code” are admittedly not ousted by any of the provision of the “Order” so in this eventuality in order to determine the nature of offence under Article 155, we will have to advert to the “Code”. Reference in this respect can be made to Senator Asif Ali Zardari versus The State (2000 MLD 921).
30. As already observed that the term “cognizable” or “non- cognizable” are nowhere defined in the “Order”. Section 4(f) of the “Code” however defines the term “cognizable” whereas sub-section (n) of Section 4 provides the definition of “non-cognizable” offence, which read as under:
"(f) "Cognizable offence"; "Cognizable case". “Cognizable offence” means an offence for, and “cognizable case” means a case in which a police officer, may, in accordance with the second schedule or under any law for the time being in force, arrest without warrant”
(n) "Non-cognizable offence"—"Non-cognizable case". “Non-cognizable offence” means an offence for, and “non- cognizable case” means a case in, which a police officer, may not arrest without warrant"
In terms of Schedule II of the “Code” relating to the offences against other laws any offence which is punishable with imprisonment of three years and upwards but not exceeding seven years becomes cognizable as the offender can be arrested without warrant.
31. The next question which arises in this context is that in terms of sub-Article (2) of Article 155 of “Order” the prosecution under the said Article shall require a report in writing by an officer authorized in this behalf under the rules to be made by the Government. We are inclined to observe that registration of the first information report and prosecution of offence are altogether distinct and different phenomena. The term “prosecution” is nowhere defined either in the “Order or the “Code”. We are thus constrained to seek guidance from the ordinary dictionary meaning. Black’s Law Dictionary Tenth Edition provides the definition of “Prosecution” as “1. The commencement and carrying out of any action or scheme <the prosecution of a long, bloody war>. 2. A criminal proceeding in which an accused person is tried <the conspiracy trial involved the prosecution of seven defendants>. – Also termed criminal prosecution.”
Random House Websters’s unabridged dictionary Second Edition portrays the meaning of “Prosecution” as noted below:
"1. Law. a. the institution and carrying on of legal proceedings against a person. b. the body of officials by whom such proceedings are instituted and carried on. 2. The following up of something undertaken or begun, usually to its completion."
From the above definition of the “prosecution” we can safely infer that term “prosecution” is completely different phenomenon as compared to investigation or registration of a case. Our this view is fortified from the judgment in the case of Sakhawat Hussain Shah versus The State and 3 others (2006 PCr.LJ 1564). The relevant extract from the same is reproduced below:
"The learned counsel for the petitioner as well as the learned Additional Advocate-General Punjab were directed to address this Court as to what is definition of "prosecution" as the whole case of the petitioner hinges upon the definition of "prosecution". They were also asked to give their opinions whether prosecution includes registration of F.I.R. because the learned counsel for the petitioner has sought quashment of the F.I.R. on the ground mentioned above. Today, the learned counsel was asked to substantiate his arguments with some case-law or legal literature, he expressed his inability to find out any case law. Both the learned counsel for the petitioner as well as the learned Additional Advocate-General, Punjab were suggested some case-law by me and the case was kept in waiting but none of them have appeared.
The Honourable Supreme Court of Pakistan construed the expression "prosecution" in several cases. For example his Lordship Shafi-ur-Rehman, J. expressed himself in the following words:
"On the extended meaning of word "prosecution" all the steps taken by the Court after filing of a police report or on a complaint with the object of holding the trial would amount to prosecution of the accused. (Muhammad Abbas v. The State PLD 1981 SC 642)."
In another judgment considering the meaning of word "Prosecution" in context of Article 13 of the Constitution of Pakistan, his Lordship, Naseem Hassan Shah, J. referred to some well-known sources of law and also considered extended and limited meanings, in different contexts of "prosecution". For advantage of all, the relevant para. is reproduced as under:
"The important word in Article 13 is "prosecution". According to Corpus Juris Secundum the term "prosecution" has differed meanings when used in different relations and it is regarded as a word of limited or extended signification according to the intention of the law maker or the person using it. In its broadest sense the term would embrace all proceeding in the course of justice or even elsewhere for the protection or enforcement of a right of the punishment of a wrong, whether of a public or private character. In a more limited sense the term includes the act of conducting or waging a proceeding to Court; the following up or carrying on of an action of suit already commenced until the remedy be attained; the institution and carrying on of a suit in a Court of law or equity to obtain some right or to redress and punish some wrong. It includes commencing, conducting and carrying a suit to a conclusion in a Court of justice. It is in this limited sense that the word "prosecution" appears to have been used in Article 13 of the Constitution, significantly, the marginal heading indicates that this Article is a protection against double punishment, which tends to show that it is only where the prosecution has finally concluded and ended either in acquittal or conviction that a fresh prosecution for the same offence would be barred. Stroud's Judicial Dictionary explains that term "prosecution" amongst others in the following manner:
"The "prosecution" of an action ends with the final judgment therein (Hurne v. Druyff, LR 8 Ex.214)."
The word "Prosecute" is derived from a Latin word and signifies not only "to follow but "to follow intensively" without intermission; thus, to follow or pursue with a view to reach, execute or accomplish." (Syed Alamdar Hussain Shah v. Abdul Baseer Qureshi and 2 others PLD 1978 SC 121)."
From the above it is clear that the word "prosecution" in context of Article 155(2) means institution and continuance of a criminal proceedings after framing of a formal charge before a competent Court and pursuing the said proceedings until final judgment of acquittal or conviction."
Guidance in this respect can also be sought from Industrial Development Bank Of Pakistan and others versus Mian Asim Fareed and others (2006 SCMR 483) and Muhammad Abbas versus The State (PLD 1981 Supreme Court 642). Reliance in this respect can be placed on Peer Bakhsh versus SHO, etc. (KLR 2015 Criminal Cases 211) and Masood Ahmad Javed versus The State and 5 others (2006 MLD 855).
32. It is a cardinal principle of law that while interpreting a statute no other meaning can be derived except those mentioned in the statue itself and any import in this respect would be alien to the object and scheme of the statute. In the case of Khizer Hayat and others versus Inspector-General of Police (Punjab), Lahore and others (PLD 2005 Lahore 470) learned Full Bench of this Court also recorded certain observations wherein though only a passing reference was made to the proposition in hand but same was very pertinent and relevant to the subject. The relevant extract from the same is reproduced below:-
"(xv) …………… upon a complaint received by him regarding non-compliance of his earlier direction an ax-officio Justice of the Peace can issue a direction to the relevant police authority to register a criminal case against the delinquent police officer under Article 155(c) of the Police Order, 2002 ………"
33. The above referred survey of law and threadbare discussion thus leads us to an irresistible conclusion that offence under Article 155 of “Order” is cognizable. We thus feel no cavil to approve the view formed to this effect by learned Benches of this Court as well as learned Division Benches of Peshawar High Court and Sindh High Court in the cases referred hereinabove. As a sequel of above, we are inclined to observe that learned Ex-Office Justice of the Peace was justified to direct “SHO” concerned to record version of “respondent” in terms of Section 154 of “Code” and to act in accordance with law. Resultantly this constitutional petition fails and is dismissed with no order as to costs.
(Y.A.) Petition dismissed
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