2022 P Cr. L J 461[Lahore]Before Muhammad Shan Gul, JSAFDAR HAYAT---PetitionerVersusEX-OFFICIO JUSTICE OF PEACE and 3 others---RespondentsWrit Petition No. 46741 of 2021, decided on 19th July, 2021.
(a) Criminal Procedure Code (V of 1898)---
----Ss. 22-A & 22-B--- Penal Code (XLV of 1860), S. 376---Constitution of Pakistan, Art. 199---Constitutional petition---Rape, allegation of---Police report, non-reliance of---Judicial review---Scope---Petitioner was proposed accused against whom Ex-Officio Justice of Peace allowed complaint filed by respondent---Plea raised by petitioner was that Ex-Officio Justice of Peace without considering report filed by police had directed Station House Officer to register criminal case against him---Validity---Allegation of rape was not a run of the mill or routine allegation that could be easily brushed aside without much ado---When a woman reared her head and had stated that she was raped, then she had to be provided certain safeguards by law enforcement agencies---Writ was for enforcement of a statute, for prohibition of some activity or action prohibited or not permitted by statute or for having some activity or exercise beyond the mandate of statute to be declared of no legal effect---In all such three scenarios pivot was a statute because judicial review was primarily aimed at securing and safeguarding provisions of law as contained in statute---All that Ex-Officio Justice of Peace had to see, even in his quasi-judicial role was whether statute was followed and respected, upheld on the way, rule of law through medium of judicial review like procedure---Proactive role of police in indulging in any precedent inquiry or prior investigation and in doing so going beyond requirement of statute was neither desirable nor could be countenanced statutorily---Police report had to remain confined to its minimalist agenda---High Court declined to interfere in order passed by Ex-Officio Justice of Peace as the same was very well reasoned, distinguishing somewhat police report as also holding that application before police report did reveal commission of a cognizable offence---High Court did not find any illegality in the order passed by Ex-Officio Justice of Peace--- Constitutional petition was dismissed in circumstances.
Salman Akram Raja and another v. Government of Punjab through Chief Secretary and others 2013 SCMR 203; Mst. Bhaitan v. The State and 3 others PLD 2005 Kar. 621; Wazir Ali v. Province of Sindh through Home Secretary, Home Department Karachi and 3 others 2018 YLR 1374; Muhammad Bashir v. Station House Officer Okara Cantt. and others PLD 2007 SC 539; Mst. Haseena v. Station House Officer Police Station Kotdiji and another 2015 PCr.LJ 790; Madawa through President v. Inspector-General of Police, Punjab and 15 others PLD 2013 Lah. 442; Mst. Shehnaz alias Asma Rani and another v. The State 2010 PCr.LJ 231; Mst. Sana Daud v. Station House Officer and 3 others 2011 YLR 1549; Sahib Khatoon v. Station House Officer Police Station, Garhi Khairo and 2 others 2013 PCr.LJ 749; Ghulam Fareed v. Station House Officer, Police Station Sangi and another 2013 PCr.LJ 117; Younas Abbas and others v. Additional Sessions Judge, Chakwal and others PLD 2016 SC 581; Salma Bibi v. RPO and others 2011 YLR 2685; Baba Sufi Muhammad Iqbal v. Justice of Peace/Additional Sessions Judge, Samundri, District Faisalabad and another 2020 MLD 1; Malik Sohail Aslam v. Superintendent of Police (Operation), Lahore and 3 others 2017 YLR 1548 and Khursheed Bibi v. S.P., D.I. Khan and 8 others 2009 MLD 1076 rel.
(b) Criminal Procedure Code (V of 1898)---
----S. 154---Words "shall" and "information"---Connotation---Word "shall" carries mandatory connotation used and is clearly indicative of intent of the Legislature---There is no subjective or even objective discretion left to police officer by S. 154, Cr.P.C.---Strict statutory prescription makes provision of S. 154, Cr.P.C. a self-executory mechanism---Term "information" appearing in S. 154, Cr.P.C. is not qualified or conditioned upon any prefixed terms such as reasonable, credible, believable, truthful etc.
(c) Interpretation of statutes---
----Literal rule---Effect---Such rule of interpretation is nearly biblical when it comes to interpreting a statute---Other rules i.e. purposive, teleological or mischief rule can only be resorted to when no intelligible result can be arrived at from a literal reading.
(d) Criminal Procedure Code (V of 1898)---
----S. 154---First Information Report, registration of---Pre-conditions---Condition that is sine qua non for recording an FIR under S. 154, Cr.P.C. is that there must be information and that information must disclose commission of cognizable offence---Provision of S. 154, Cr.P.C. is mandatory and concerned officer is duty bound to register an FIR on the basis of information disclosing commission of a cognizable offence.
Saeed Ahmad v. Naseer Ahmad PLD 2000 Lah. 208 and M. Anwar, Barrister-at-Law v. The Station House Officer, Civil Lines, Police Station, Lahore and another PLD 1972 Lah. 493 rel.
(e) Criminal Procedure Code (V of 1898)---
----Ss. 22-A, 22-B & 154---Criminal case, registration of---Scope---There seems to be some tension between jurisprudence developed under Ss. 22-A & 22-B, Cr.P.C. and that emanating out of interpretation of S. 154, Cr.P.C.---While provision of S. 154, Cr.P.C. is a straitjacket provision and does not allow for any extraneous factors but for the ones enumerated in such provision of law to be taken into account---Jurisprudence developed under Ss. 22-A & 22-B, Cr.P.C. takes the matter ahead and allows an Ex-Officio Justice of Peace to summon a report and rely on it and if not then to distinguish it---Ex-Officio Justice of Peace by default does not only allow police to touch merits of the case by way of a preliminary fact finding exercise but also give a carte blanche to police to factor in attendant factors such as previous enmity, previous record, previous litigation between complainant and proposed accused, credibility, trustworthiness of complainant and similar nuances and for the same to be taken into account.
Khizer Hayat's case PLD 2005 Lah. 470 and Younas Abbas and others v. Additional Sessions Judge, Chakwal and others PLD 2016 SC 581 rel.
M. Mehmood Chaudhry for Petitioner.
Barrister Syed Ali Nouman, Assistant Advocate General for Respondents.
Date of hearing: 19th July, 2021.
JUDGMENT
MUHAMMAD SHAN GUL, J.---Through this judgment the titled constitutional petition is sought to be decided.
2. The petitioner has challenged order dated 15.7.2021 passed by an Ex-Officio Justice of Peace whereby an application filed by respondent No.4 Rehana Bibi for registration of a criminal case on account of an allegation of rape was allowed and the Station House Officer concerned was directed to register a criminal case under section 154, Cr.P.C. on the basis of the application submitted by respondent No.4.
3. The counsel for the petitioner, at the outset, submits that the order passed by an Ex-Officio Justice of Peace is illegal because the same is diametrically opposed to the comments-cum-report filed by the District Complaint Officer, Khushab and, therefore, since the Ex-Officio Justice of Peace was bound by such report he ought not to have passed an order absolutely opposed to the comments-cum-report so submitted by the District Complaint Officer.
4. Notice was issued to the Assistant Advocate General who has been heard at length as well. This case is, therefore, being disposed of as a regular case.
5. The order passed by an Ex-Officio Justice of Peace has been perused and the order has been found to be quite well-reasoned, in accord with the mandate of section 154, Cr.P.C. and, therefore, in line with law. The Ex-Officio Justice of Peace has quite rightly declared the police report as perfunctory and not worthy of reliance since the report besides being lopsided is also fantastic, and in fact fantabulous, inasmuch as it is full of bald presumptions sans any factual foundation.
6. The report seems to be a figment of imagination of a very fertile mind. The remarks in the report about the petitioner being 58 years old and a former Nazim who could not have possibly indulged in raping a woman is indeed bizarre, presumptuous and devoid of any logic. This bald statement has no legs to stand on because the same lacks any foundational basis and is actually a subjective opinion of the District Complaint Officer. Moreover, the report indulges in full length investigation and comments on the merits of the case without demur. The police report, as is evident, results out of the cardinal illegality of holding a full length preliminary inquiry before registration of a crime report and has, therefore, rightly not been countenanced. The allegation of rape is not a run of the mill or routine allegation that can be easily brushed aside without much ado. When a woman rears her head and states that she has been raped then she has to be provided certain safeguards by the law enforcement agencies in terms of the law laid down by the Hon'ble Supreme Court of Pakistan in "Salman Akram Raja and another v. Government of Punjab through Chief Secretary and others" (2013 SCMR 203).
7. The pivotal point in the present matter, therefore, pertains to the comments-cum-report filed by a District Complaint Officer/police in answer to a petition under sections 22-A and 22-B, Cr.P.C. before an Ex-Officio Justice of Peace. The initial and original reason for encouraging and perpetuating such reports was to see whether the persons who knocked at the doors of an Ex-Officio Justices of Peace had approached the police hierarchy in the first instance before making their way to an Ex-Officio Justice of Peace and whether if the applications preferred by such persons revealed commission of cognizable offences then why the inaction and whether such inaction was an omission? While such reports ought to have been confined only to the relaying of such information and only this information, instead, a trend has surfaced (like the present case) whereby before registration of a criminal case the police opines and comments on the merits of the case, undertakes a full length inquiry and, therefore, investigates the case before registering it. This was, evidently, never the intention behind bestowing such quasi-judicial powers on Ex-Officio Justices of Peace and this is the subject of the present judgment.
8. The moment a Superintendent of Police, Complaint Cell allows for the merits of the application before the police to be taken up by way of inquiry or investigation, he arrogates to himself the statutory discretion actually envisaged to be exercised by an Ex-Officio Justice of Peace. The police report, in the event that it discusses the merits of the application by reference to extraneous factors that may or may not have a bearing on the credibility, truthfulness or veracity of the information contained in the application, has the effect of fettering the statutory discretion meant to be so exercised by an Ex-Officio Justice of Peace, saddles him with a fait accompli since it is incumbent on an Ex-Officio Justice of Peace to rely on these reports and has to distinguish the same if he wants to deviate and adopt a different course. This results in abdication of statutory discretion which is offensive to any administrative law regime. While the above trend is certainly not in line with the jurisprudence on the subject, the collateral damage resulting out of this irregular yet rampant practice takes the above exercise into the domain of illegality, pure and simple! Section 154, Cr.P.C. does not admit or allow any prior inquiry or precedent investigation before registration of an FIR.
9. In order to address the arguments raised by the counsel for the petitioner, it is necessary to first understand the terminology employed in section 154, Cr.P.C.:-
"154. Information in cognizable cases.---Every information relating to the commission of a cognizable offence if given orally to an officer-in-charge of a police station, shall be reduced to writing by him or under his direction and be read over to the informant: and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the [Provincial Government] may prescribe in this behalf."
10. It is clear from a reading of section 154, Cr.P.C. that the word 'shall' which carries a mandatory connotation has been used and is clearly indicative of the intent of the legislature. There is no subjective or even objective discretion left to the police officer by this section. The strict statutory prescription makes this provision a self-executory mechanism. Furthermore, the term 'information' appearing in section 154, Cr.P.C. is not qualified or conditioned upon any prefixed terms such as reasonable, credible, believable, truthful etc. It is evident that an SHO has no discretion or authority whatsoever to ascertain the veracity of such information before deciding to act upon it. It is also evident that what is required and necessary is only that the information given to the police must disclose commission of a cognizable offence. The intent of the legislature is unequivocally clear in this respect and mere information relating to commission of a cognizable offence is sufficient to register an FIR. Furthermore, when the statutory provision in question, Section 154, Cr.P.C., is clear and unambiguous it would be legally impermissible to allow the police to read the term 'preliminary inquiry' or 'prior hearing' into the provision before registering an FIR. It may be mentioned in this connection that the literal rule of interpretation is nearly biblical when it comes to interpreting a statute. The other rules i.e. purposive, teleological or mischief rule can only be resorted to when no intelligible result can be arrived at from a literal reading.
11. Consequently, the condition that is sine qua non for recording an FIR under section 154, Cr.P.C. is that there must be information and that information must disclose commission of a cognizable offence. The provision is mandatory and the concerned officer is duty bound to register an FIR on the basis of information disclosing the commission of a cognizable offence. The plain words appearing in section 154, Cr.P.C. of the Code have to be given their literal meaning. In "M. Anwar, Barrister-at-Law v. The Station House Officer, Civil Lines, Police Station, Lahore and another" (PLD 1972 Lahore 493) it has been held as follows:-
"If there is an information relating to the commission of a cognizable offence, it falls under section 154 of the Code of Criminal Procedure, and a police officer is under a statutory obligation to enter it in the prescribed register. The condition precedent is simply two-fold; first, it must be an information and secondly, it must relate to a cognizable offence on the face of it and not merely in the light of subsequent events. A police officer is bound to receive a complaint when it is preferred to him or where the commission of an offence is reported to him orally, he is bound to take down the complaint. If he does not incorporate in the register a complaint so made, he fails to perform a statutory duty as a public servant and, therefore, renders himself to be dealt with by his superior officers for neglect of duty. Thus, it does not depend on the sweet will of a police officer who may or may not record it."
12. A Division Bench judgment of the Lahore High Court in the case reported as "Saeed Ahmad v. Naseer Ahmad" (PLD 2000 Lahore 208) holds to the same effect and approves the earlier judgment in the case of "M. Anwar, Barrister-at-Law v. The Station House Officer, Civil Lines, Police Station, Lahore and another" (PLD 1972 Lahore 493).
13. The context in which the word 'shall' appears in section 154, Cr.P.C., the object and purpose in which it has been so used and the ensuing consequence clearly show that the word 'shall' has only been used in the mandatory sense. The mandate of section 154, Cr.P.C. reveals that at the stage of registration, on the basis of information disclosing commission of a cognizable offence, the police officer concerned cannot initiate an inquiry as to whether the information brought in by the first informant is reliable or genuine or otherwise and refuse to register a case on the basis that the information is not credible. The reliability, genuineness, credibility, reasonableness, veracity nee any opinion pertaining to the information so received has never remained a relevant precedent fact for registering a case under section 154, Cr.P.C.
14. At this point, a brief history of section 154, Cr.P.C. as it appears in the Criminal Procedure Code may be relevant. Before Criminal Procedure Code, 1898 was brought into force, the provisions about registration of a case and the ensuing investigation were not as chronologically listed or arranged as these are now. When the present Criminal Procedure Code, 1898 was brought into force, it brought with it a significant change with respect to placement of section 154 in the statute book. It was consciously located prior to section 156, the provision empowering police to investigate a cognizable offence. It is crystal, therefore, that the objective of such placement of a provision was clear and it was to ensure that the recording of FIR should be the starting point of investigation by the police and not the other way around.
15. Even the jurisprudence developed under sections 22-A and 22-B, Cr.P.C. clearly reveals that the report, containing the comments of the police (authorized originally by means of judicial prescription in PLD 2005 Lahore 470, Khizer Hayat's case) is not to be ordered as a matter of course and should only be called for if considered essential. Furthermore, precedent cases on the issue also highlight the fact that such a report containing comments of the police can only be with reference to two queries: whether the aggrieved person has approached the police hierarchy with an application that discloses the commission of a cognizable offence and if the answer is in the affirmative then why was an FIR not registered?
16. The Sindh High Court in "Mst. Bhaitan v. The State and 3 others" (PLD 2005 Karachi 621) has held that an Ex-Officio Justice of Peace only has to satisfy itself about two things (i) disclosure of cognizable offence (ii) non-registration of FIR. A Police Officer, if issued notice can only contend (i) he was not approached, or (ii) no cognizable offence is disclosed from the application. No other inquiry is allowed.
"If the Ex-officio JP receives a complaint regarding non-registration of a criminal case by a police officer then under the said Provision he has simply to examine and to satisfy himself on two points, through the material placed before him or through the affidavit, firstly that a prima facie complaint of non-registration of FIR, is made out and secondly from the facts narrated to him by the complainant orally or in writing constitute commission of a cognizable offence. If he is satisfied on these two points then he can simply refer the complainant by means of any mode preferably through a written letter forwarding the complaint to concerned police officer with direction to register the FIR. For that purpose, the Ex-officio JP is not required to hold any detailed inquiry to ascertain whether the information supplied to him by the complainant is true or false because it is the function of a police officer to investigate the case to find out the truth or otherwise of the information and who committed the offence after registration of the case. This is not difficult the Ex-officio JP who is a senior judicial officer to form an opinion from the facts narrated to him by the complainant orally or in writing whether or not a cognizable offence has been made out. For that purpose he is not required to issue notice to any body or to accused or to police officer. He has to form his own independent opinion from the facts narrated to him. It is pertinent to mention here that when such information whether oral or in writing is received by a police officer then at that time no notice is required to be given to the accused party but he immediately after hearing the oral or examining written information forms his opinion as to whether or not a cognizable offence has been committed. When a police officer can immediately form such opinion then I fail to understand as to why a Senior Judicial Officer cannot form such opinion immediately, therefore there is no need for holding any inquiry or issue notice to accused person of police officer or calling the witnesses for forming opinion as to whether or not information received by him discloses a cognizable offence.
The second important condition for exercising such powers is that Ex-officio JP should be satisfied that FIR concerning cognizable offence has not been registered by the police officer. This fact can also be verified through various modes, firstly believing the statement of complainant or affidavit filed in support of such allegation and secondly by calling comments from the concerned police officer. Before that, Ex-officio JP should keep an important fact in view while examining such matter that the matter should not unnecessary be lingered on or delayed. As in the present cases, the orders were passed after few months of making the complaints and that too after considering the merits and demerits of the information and holding detailed inquiries. It is pointed out to the Ex-officio JP that immediate lodging of the FIR is the essence of criminal justice system and would help the police to collect the required evidence. It is well-settled principle of law that promptly lodged FIR eliminates the false story and false involvement of the accused whereas delayed FIR coupled with enmity casts serious doubt upon the story and D involvement of the accused. Further if any delay is made then possibility of disappearance, destroying or concealing the evidence cannot be ruled out therefore the Ex-Officio JP, if finds necessary and imminent that without conducting any enquiry he cannot pass such order then he can conduct inquiry in a summary manner by keeping in view that any delay might cause disappearance of evidence. In any case he should immediately pass orders on the application so that the police officer should conduct himself in accordance with section 154, Cr.P.C to register the FIR if a cognizable offence is committed and then start the investigation which is meant for collection of evidence as provided under section 4(1)(L), Cr.P.C."
17. In "Wazir Ali v. Province of Sindh through Home Secretary, Home Department Karachi and 3 others" (2018 YLR 1374) a complaint of kidnapping of applicant's son was filed. An Ex-Officio Justice of Peace sought police report which stated that applicant's son in fact had criminal record and was absconding. An Ex-Officio Justice of Peace ordered registration of FIR. The Sindh High Court relied upon "Muhammad Bashir v. Station House Officer Okara Cantt. and others" (PLD 2007 SC 539) and upheld the order of Ex-Officio Justice of Peace, thus dispensing with any conclusion asserted by the police since the same was part of investigation which could not be conducted prior to registration of FIR in case of a cognizable offence.
"9. It is alleged by Mst. Ameer Zadi that the proposed accused have taken away her son Allahdad and now have caused his disappearance. By alleging so, she sought for direction against the police to record her FIR. As per record, SHO Police Station Gharibabad in his report has stated that son of the complainant is having criminal record and is absconding. Under these circumstances, learned Ex-Officio Justice of Peace, Mirpurkhas has passed the impugned order directing the SHO Police Station Gharibabad to record the statement of Mst. Ameer Zadi and if cognizable offence is made out then case be registered and after registration of FIR and during investigation if the allegations found to be false then she could be prosecuted in accordance with law. While passing this order we are supported by the case of Muhammad Bashir v. Station House Officer Okara Cantt. and others (PLD 2007 Supreme Court 539)."
18. In "Mst. Haseena v. Station House Officer Police Station Kotdiji and another" (2015 PCr.LJ 790) the applicant alleged murder of her son. An Ex-Officio Justice of Peace dismissed her petition against non-registration of FIR by police on the basis of the police report which mentioned criminal record of the deceased and that he was killed in a police encounter. The Sindh High Court set aside the order and held that an Ex-Officio Justice of Peace should have limited itself to the contents of application and not relied upon the police report.
"6. Upon perusal of the same it becomes crystal clear that the learned Additional Sessions Judge/Ex-officio Justice of Peace, Khairpur has mainly relied upon the statement made by the police with regard to the notorious criminal record of the petitioner's son and has not passed a speaking order. The course adopted by the learned Justice of Peace is patently against the norms and settled principles of law, therefore, I fully agree with the arguments extended by the learned counsel for the petitioner that the provisions as contemplated by section 22-A(6), Cr.P.C. have not been complied with by learned Justice of Peace while passing the impugned order. .. In the Application under section 22-A, Cr.P.C. before Justice of Peace, the applicant has raised a specific allegation against the proposed accused that they had committed murder of the son of the petitioner, the learned Justice of Peace instead of dealing with main and basic question in the impugned order that as to whether the information disclosed before him by the applicant did or not did not constitute a cognizable offence, and whether concerned Station House Officer malafidely refused to register her complaint despite her request, has dismissed the application under section 22-A, Cr.P.C. filed by the petitioner before the Ex-officio Justice of Peace without assigning any reasons whatsoever for doing so. The learned Justice of Peace has mainly relied upon the Report dated 31-7-2014 filed by the SHO Police Station Kotdiji wherein the said SHO has stated that the son of the petitioner was involved in a number of criminal cases and that he was killed in an encounter with the Police party while committing a crime. On the basis of such report, the learned Justice of Peace found no substance in the application under sections 22-A and 22-B, of the Code of Criminal Procedure, 1898 filed by the present petitioner before him for registration of a criminal case against the proposed accused. In my view the learned Justice of Peace has erred seriously in law by acting upon the report submitted by the SHO Kotdiji and decided/dismissed the application of the petitioner before him on the basis of the said report and not on the basis of the incident narrated and allegations categorically made by the petitioner in the application."
19. In "Madawa through President v. Inspector-General of Police, Punjab and 15 others" (PLD 2013 Lahore 442), the Inspector General of Police using his powers under Police Order, 2002 had issued instructions that prior to filing of FIR under section 489-F, P.P.C. dishonesty of the accused and verification of signatures have to be examined. This Court rejected the premise holding that such exercise would mean probing into the allegations on the basis of evidence and since Cr.P.C. read with Police Rules, 1934 does not allow investigation to be undertaken prior to registering an FIR, hence, the instructions of Inspector General of Police could not be followed, the same being contradictory to both Cr.P.C. and Police Rules, 1934.
"2. it emerges that there is no dispute on the duty of a police officer to register an FIR under section 154 of Cr.P.C. where a complaint discloses the commission of a cognizable offence. In the context of an offence under section 489-F, P.P.C. two of the pre-requisite documents noted in the instructions, namely, dishonour slip and a notice under section 30 of the Negotiable Instruments Act, 1881 are valid demands by a police officer before registering a case under section 489-F of P.P.C. However, the third pre-condition, namely, establishment of dishonesty, obligation and genuiness of signatures of the drawer-accused are matters that require probe and evidence. A police officer does not have authority to carry out an inquiry prior to registration of a case as held by the Hon'ble Supreme Court in Muhammad Bashir v. Station House Officer and others (PLD 2007 SC 539) and as reflected in Chapter 34, Rule 1 of the Police Rules, 1934 read with section 154, Cr.P.C. Consequently, the three elements noted in the impugned instructions cannot prevent registration of FIR."
This judgment fortifies the mandate of section 154, Cr.P.C. read with Rule 24.1 of Police Rules, 1934 i.e. only the complaint has to be looked into by means of a short inquiry to ascertain if the information provided discloses commission of a cognizable offence. No step which could be viewed as an attempt to ascertain the veracity or otherwise of the allegation (investigation) can be undertaken prior to lodging an FIR.
20. In "Mst. Shehnaz alias Asma Rani and another v. The State" (2010 PCr.LJ 231), it has been held as under:-
"23. It is, therefore, clear that registration of crime report precedes initiation of investigation. In other words registration of first information report is a condition precedent to the launching of the investigation. Such a measure would rule out the possibility of deliberation, consultation and enquiry before furnishing the information. The element of delay in lodging the crime report is treated with caution because there is a tendency to involve innocent people during the interval. The longer the intermission the greater are the chances of false implication. Investigation that follows the registration of a crime report has more value than the investigation which precedes registration of FIR."
21. In "Mst. Sana Daud v. Station House Officer and 3 others" (2011 YLR 1549), it has been held:-
"3. Notwithstanding the comments of SHO, Police Station Mughalpura, Lahore, the law on the point is very clear as the police cannot embark upon an inquiry in order to verify the truthfulness or otherwise of the allegations levelled in a complaint, which is submitted to the SHO for taking necessary proceedings under section 154, Cr.P.C. The information laid before the SHO is only in respect of the commission of a cognizable offence and not the actual commission of the cognizable offence. It seems that SHO has started the investigation prior to the registration of the FIR. as provided under section 154, Cr.P.C. which is not permitted."
22. In "Sahib Khatoon v. Station House Officer Police Station, Garhi Khairo and 2 others" (2013 PCr.LJ 749), it has been held as under:-
"I have carefully perused the Petition and examined all the relevant provisions of law regulating the subject; it is the duty of the SHO to record the statement of the petitioner in case cognizable offence is made out, in terms of 154, Cr.P.C. but SHO has failed to perform his statutory duty. Before recording the FIR, SHO was not supposed to hold enquiry as to the correctness or otherwise of the information received by him for the purpose of being reduced in writing as FIR SHO had no authority under the law to refuse to record the FIR where information conveyed, disclosed the commission of cognizable offence."
23. In "Ghulam Fareed v. Station House Officer, Police Station Sangi and another" (2013 PCr.LJ 117), the complainant alleged that he had purchased a property from the accused and had paid the entire sale consideration but despite this the accused refused to hand over the property. Accused while armed with weapons went to the complainant and threatened to kill him if he continued with his demand for the said property. A Station House Officer refused to register FIR for the incident because of which the complainant approached the Ex-Officio Justice of Peace, who on the basis of the police report refused to give directions for registration of FIR and observed that dispute was a civil dispute which had arisen out of an agreement to sell, therefore, same should be taken to the civil court. Not only did the Sindh High Court disapprove the inquiry prior to FIR but also held that when it is obvious that application discloses commission of cognizable offence, there is no need to seek comments from Station House Officer. Relevant para is as under:-
"9. Regarding the comments/report called by the Justice of Peace from the concerned Station House Officer, it may be observed that there is no provision in any law, including sections 154 and 155 of Cr.P.C., which authorizes an Officer Incharge of a Police Station to hold any enquiry to assess the correctness or falsity of the information received by him before complying with the mandatory requirement of reducing the information into writing irrespective of the fact whether such an information was true or not. It is important to note that the correctness or falsity of accusations levelled against someone/accused can be decided only by a competent court of law and not by a police officer or even by an Ex-Officio Justice of Peace. It must also be kept in mind that an Ex-Officio Justice of Peace/District and Sessions Judge is the higher forum than all the courts subordinate to him, including the trial Court, with respect to certain offences and an appellate and revisional forum in other matters. Being the higher and appellate forum, an Ex-Officio Justice of Peace/District and Sessions Judge has the power and jurisdiction to declare whether any offence had been committed or not and whether the accusations were false or not. On the basis of only a police report and without examination of evidence by the competent court of law, if it is held by the higher/appellate forum that no offence had been committed or that the accusations were false, as has been done in the instant case, it would tantamount to violating due process of law and mandatory requirements of trial of a criminal case. Thus, in my humble opinion calling comments or report by the Justice of Peace from the concerned Station House Officer is not necessary for deciding an application wherein it is alleged that a cognizable offence had been committed and the same was not registered by the concerned Station House Officer despite applicant's complaint. This view expressed by me finds support from plain reading of the language of section 22-A(1), Cr.P.C. wherein it is specifically mentioned that a Justice of Peace shall have all the powers of a police officer referred to in section 54, Cr.P.C. and those of an Officer Incharge of a police station referred to in section 55, Cr.P.C. I have observed in a number of cases that instead of exercising his powers and jurisdiction under section 22-A, Cr.P.C., the Justice of Peace unnecessarily refers the matter to the concerned Station House Officer for comments/report and then decides the fate of the application pending before him on the basis of such report instead of performing his statutory duty by determining as to whether any cognizable offence has been made out or not from the facts narrated to him by the applicant and whether the complaint has been registered or not by the concerned Station House Officer."
24. The Hon'ble Supreme Court of Pakistan in "Younas Abbas and others v. Additional Sessions Judge, Chakwal and others" (PLD 2016 SC 581) has directed that an Ex-Officio Justice of Peace before deciding upon the application under section 22-A(6) of Cr.P.C. must satisfy itself that the petitioner, before approaching Ex-Officio Justice of Peace has, after refusal of lodgment of FIR by Station House Officer, approached and complained to the police officials higher in rank than the concerned Station House Officer.
"The ex-officio Justice of the Peace, before issuance of a direction on a complaint for the non-registration of a criminal case under section 22-A(6)(i), Cr.P.C must satisfy himself that sufficient material was available on the record, such as application to the concerned SHO for registration of the criminal case and on his refusal or reluctance, complaint to the higher police officers i.e. DPO, RPO etc., to show that the aggrieved person, before invoking the powers of Ex-officio Justice of the Peace, had recourse to the high ups in the police hierarchy."
The aforesaid judgment, in no way, bestows either the police or an Ex-Officio Justice of Peace with any power to do anything over and above that provided in Cr.P.C. or Police Rules, 1934. It merely prescribes that an administrative complaint has to be made before approaching an Ex-Officio Justice of Peace i.e. forums have to be necessarily approached within the executive before the matter is agitated before an Ex-Officio Justice of Peace.
25. The judgment does not broaden the powers of such administrative heads to do anything more than that allowed by the Cr.P.C. or Police Rules, 2002. Hence, the mandate of this judgment of Hon'ble Supreme Court of Pakistan was to remind the police hierarchy of their duties as Administrative Heads and requiring the complainants to approach such heads first for the enforcement of duties under the law; nothing more nothing less.
26. In "Salma Bibi v. RPO and others" (2011 YLR 2685), an Ex-Officio Justice of Peace, upon an application alleging non-registration of FIR by a Station House Officer, directed RPO to conduct an inquiry and if the averments of application of the complainant turn out to be correct, then to proceed under section 154, Cr.P.C. This Court set aside the order of Ex-Officio Justice of Peace (following Bashir's Landmark case PLD 2007 SC 539) since it allowed investigation prior to registration of FIR. Relevant para is as under:-
"7. We are fortified in our view by a landmark judgment of the august Supreme Court of Pakistan in the case of Muhammad Bashir v. Station House Officer Okara Cantt. and others (PLD 2007 SC 539) while dealing a similar question held as under:-
"No authority vested with an officer Incharge of a Police Station or with anyone else to refuse to record FIR where the information conveyed discloses the commission of a cognizable offence. No authority vested in Incharge of a Police Station or with anyone else to hold any inquiry into the correctness or otherwise of the information which was conveyed to SHO for the purpose of recording FIR."
27. Hence, prima facie, there seems to be some tension between the jurisprudence developed under sections 22-A and 22-B, Cr.P.C. and that emanating out of the interpretation of section 154 Cr.P.C. While section 154, Cr.P.C. is a straitjacket provision and does not allow for any extraneous factors but for the ones enumerated in such provision of law to be taken into account, the jurisprudence developed under sections 22-A and 22-B, Cr.P.C., arguably, takes the matter ahead and allows an Ex-Officio Justice of Peace to summon a report and rely on it and if not then to distinguish it. On the way, an Ex-Officio Justice of Peace, by default, does not only allow the police to touch the merits of the case by way of a preliminary fact finding exercise but also gives a carte blanche to the police to factor in attendant factors such as previous enmity, previous record, previous litigation between the complainant and the proposed accused, credibility, trustworthiness of the complaint and similar nuances and for the same to be taken into account. This inherent tension can only be resolved if the actual and original reason for allowing a police report to be called in the matter and the purpose for which such report is summoned is kept in mind and the limits on the original idea emanating in the now famous judgment "Khizer Hayat and others v. Inspector-General of Police (Punjab), Lahore and others" (PLD 2005 Lahore 470) and as modified by a Larger Bench of Hon'ble Supreme Court of Pakistan in the case of "Younas Abbas and others v. Additional Sessions Judge, Chakwal and others" (PLD 2016 SC 581) are followed and respected.
28. Therefore, a police report containing comments of the police, summoned by an Ex-Officio Justice of Peace, shall only not offend the governing law as also the jurisprudence developed on the basis thereof if it contains comments with reference to only two aspects and nothing beyond. Of course, the first being whether the aggrieved person has approached the police hierarchy on the administrative side and satisfied the avenues available to him before seeking resort to the facility provided by sections 22-A and 22-B, Cr.P.C. The second being as to why in the presence of an application revealing the alleged commission of a cognizable offence a criminal case has not been registered. The first question is generally easily answered because the proof of the pudding lies in its eating. And if there is evidence forthcoming of an aggrieved person having approached the police hierarchy or equally of not having done so, the police report can easily attend to and answer such a question with no strings attached and hence in respect of this question or query there is no apparent problem. However, the same cannot be said about the second query sought to be answered in the report containing comments of the police. It is here, at this point, that the police generally digresses from its virtual obligation and indulges in a massive surgical operation of the merits of the case, it is here that the police gets the chance to maneuver details, take sides, discuss and analyze the pros and cons of the application presented to it, bring into the frame the antecedents, previous history, enmity inter se contesting parties, opine on the credibility, truthfulness and accuracy of the information contained in the application before it ---- all such things that it should not be doing ---- and encumber, on the way, an Ex-Officio Justice of Peace with a certainty that can only be dislodged by the Justice of Peace if he gives strong reasons for disagreeing with the contents of the report.
29. What is fundamentally wrong with this approach of the police is that it amounts to clearly putting the cart before the horse i.e. it allows the police the facility, place and room as also the latitude to inquire and investigate into, and discuss and opine on, the merits of the application. This even when section 154, Cr.P.C. permits for no such prior exercise or precedent activity. This even when section 156, Cr.P.C. follows section 154, Cr.P.C. and not the other way around. The governing law and scheme envisaged by such statutory prescription is, therefore, being doubly breached and violated with impunity.
30. This was never the intent behind insertion of sections 22-A and 22-B, Cr.P.C. Neither does the judgment reported as "Khizer Hayat and others v. Inspector-General of Police (Punjab), Lahore and others" (PLD 2005 Lahore 470) confer the police with such a mantle. Rather the scope of police comments is very limited and narrow. In "Younas Abbas and others v. Additional Sessions Judge, Chakwal and others" (PLD 2016 SC 581), while the portion of the Full Bench judgment of this Court reported as "Khizer Hayat and others v. Inspector-General of Police (Punjab), Lahore and others" (PLD 2005 Lahore 470) holding the powers exercisable by an Ex-Officio Justice of Peace as administrative and ministerial was over-ruled, the other portion of the Full Bench judgment dealing with various nuances and facets of the institutional arrangement offered by sections 22-A and 22-B, Cr.P.C. was kept intact. This partial overruling occurs when a new precedent trumps only part of an older precedent. The partial overruling is partial because it displaces only some of precedents' applications, leaving other governed by the precedent. A Court that engages in partial overruling negates some of the precedents applications in favour of a more legally correct view of an underlying source of law. The fact that the case of "Khizer Hayat and others v. Inspector-General of Police (Punjab), Lahore and others" (PLD 2005 Lahore 470) has only been partially overruled by the case of "Younas Abbas and others v. Additional Sessions Judge, Chakwal and others" (PLD 2016 SC 581) has been recognized in the judgment reported as "Baba Sufi Muhammad Iqbal v. Justice of Peace/Additional Sessions Judge, Samundri, District Faisalabad and another" (2020 MLD 1). In fact, the Hon'ble Supreme Court of Pakistan in (Younas Abbas case PLD 2016 SC 581) went a step further and equated the powers exercised by Ex-Officio Justices of Peace with those exercised in writ jurisdiction.
31. Now, a writ lies for the enforcement of a statute, for the prohibition of some activity or action prohibited or not permitted by statute or for having some activity or exercise beyond the mandate of the statute to be declared of no legal effect. In all three scenarios, the pivot is a statute. Naturally, because judicial review is primarily aimed at securing and safeguarding provisions of law as contained in a statute. Therefore, all that an Ex-Officio Justice of Peace has to see, even in his quasi-judicial role, is whether the statute has been followed and respected, upholding on the way, rule of law through the medium of a judicial review like procedure. Therefore, the proactive role of the police in indulging in any precedent inquiry or prior investigation and in doing so going beyond the requirement of the statute is neither desirable nor can be countenanced statutorily. The police report has to, therefore, remain confined to its minimalist agenda photographically captured in "Mst. Bhaitan v. The State and 3 others" (PLD 2005 Karachi 621). Anything beyond will not sit well with trite jurisprudence.
32. As has been aptly noted in a Division Bench judgment of this Court reported as "Malik Sohail Aslam v. Superintendent of Police (Operation), Lahore and 3 others" (2017 YLR 1548), "no authority vested with the police to hold an inquiry into correctness or otherwise of the information conveyed to the Station House Officer for the purposes of recording of an FIR. Any FIR registered after such an exercise i.e. determination of the truth or falsity of the information conveyed to the police would get hit by the provisions of section 162, Cr.P.C." Likewise, in "Khursheed Bibi v. S.P., D.I. Khan and 8 others" (2009 MLD 1076), a Division Bench of the Peshawar High Court has held, "the police should keep in mind that scrutiny of allegations is done after registration of the case. Assessment of allegations prior to registration of an FIR is a pre-judgment which is not justified in view of the mandate of section 154, Cr.P.C.
33. Coming back to the matter in issue before this Court, the Ex-Officio Justice of Peace has passed a very well-reasoned order, distinguishing somewhat the police report as also holding that the application before the police did reveal the commission of a cognizable offence. No illegality has been found in the order under challenge and, therefore, the present petition is dismissed.
MH/S-73/L Petition dismissed.
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