After passing the order, learned Ex.Officio Justice of Peace becomes functus officio and he cannot recall his earlier order at the time of its implementation.
WP: 5109-20
MST ROBINA KHATOON VS
ASJ ETC
PLJ 2024 Lahore 476
سیکشن 22-اے اور 22-بی--آئین پاکستان، 1973، آرٹیکل 199-- سابقہ منصبِ انصاف (ایکس آفیشیو جسٹس آف پیس)-- نیم عدالتی نوعیت-- یہ کارروائی ایگزیکٹو، انتظامی یا وزارتی نہیں تھی بلکہ نیم عدالتی نوعیت کی تھی-- درخواست گزار نے سابقہ منصبِ انصاف سے سیکشن 22-اے اور 22-بی، ضابطہ فوجداری کے تحت درخواست دائر کی تاکہ متعلقہ ایس ایچ او کو نجی مدعا علیہان کے خلاف ایف آئی آر درج کرنے کی ہدایت جاری کی جائے، جنہوں نے اس کی بیٹی کو زہر دیا تھا-- متعلقہ فریقین کو سننے کے بعد، ایس ایچ او کو درخواست گزار کا بیان ریکارڈ کرنے کی ہدایت جاری کی-- حکم کو ہائی کورٹ میں مجوزہ ملزمان میں سے ایک نے رٹ پٹیشن میں چیلنج کیا-- جسے واپس لیے جانے پر خارج کر دیا گیا-- درخواست گزار نے دوبارہ حکم پر عمل درآمد کے لیے respondent نمبر 1 سے رجوع کیا، انہوں نے حکم کے نفاذ کے سلسلے میں درخواست گزار کی استدعا کو مسترد کرتے ہوئے مذکورہ درخواست کو زیرِ اعتراض حکم کے ذریعے نمٹا دیا-- پاکستان میں سابقہ منصبِ انصاف محض انتظامی اور وزارتی نوعیت کے حامل ہوتے ہیں-- ریسپانڈنٹ نمبر 1 نے حکم جاری کر کے معاملے میں اپنی آخری کوشش کی اور اب گیند ان کے کورٹ میں نہیں تھی کیونکہ وہ سیکشن 22-اے ضابطہ فوجداری کے تحت درخواست پر حتمی فیصلہ کرنے کے بعد "فنکٹَس آفیشیو" ہو گئے تھے-- ریسپانڈنٹ نمبر 1 اپنے پہلے حکم پر نظرثانی نہیں کر سکتے تھے جب تک کہ متعلقہ قانون یا قواعد ایسی نظرثانی کی اجازت نہ دیں-- ریسپانڈنٹ نمبر 1 کی طرف سے اختیار کردہ عمل موجودہ قانون سے مطابقت نہیں رکھتا جو ازخود نوٹس نظرثانی اور اپنے پہلے حکم پر نظر ثانی کے مترادف ہے، جو قانون کی نظر میں جائز نہیں تھا-- ایک بار جب کوئی اتھارٹی نیم عدالتی اختیارات کا استعمال کرتے ہوئے حتمی فیصلہ لیتی ہے، تو وہ اپنے فیصلے پر نظرثانی نہیں کر سکتی-- ریسپانڈنٹ نمبر 1 نے زیرِ اعتراض حکم میں معاملے کے خصوصی میرٹ کو چھوتے ہوئے نتائج دینے میں ہچکچاہٹ محسوس نہیں کی، جس کے نتیجے میں عدالتی نظام پر مایوسی اور عدم اعتماد پھیل گیا، جو کسی بھی قیمت پر قابل تعریف اور برداشت نہیں تھا-- پٹیشن منظور کی جاتی ہے۔
Ss. 22-A & 22-B--Constitution of Pakistan, 1973, Art. 199--Ex-Officio Justice of Peace--Quasi-judicial in nature--These proceeding were not executive, administrative or ministerial but were quasi-judicial in nature--Petitioner approached Ex-Officio Justice of Peace by filing petition under section 22-A and 22-B, Cr.P.C for issuance of direction to concerned SHO to lodge FIR against private respondents they had administered poison to her daughter--After hearing respective parties, issued direction to SHO to record statement of petitioner--Order was assailed before High Court by one of proposed accused persons in W.P. Dismissed as having been withdrawn--Petitioner again approached Respondent No.1 for implementation of order he disposed of said application vide impugned order declining prayer of petitioner in respect of implementation of order--Ex-Officio Justice of Peace in Pakistan are merely administrative and ministerial in nature and character--Respondent No.1 played his final shot in matter by passing order and now ball was not in his court as he became “functus officio” in that case after finally deciding petition under section 22-A of Cr.P.C--The Respondent No.1 could not review his earlier order unless relevant statute or rules permit such review--The practice adopted by Respondent No.1 was alien to existing law which amounts to suo-moto review and revision of his earlier order, which was not permissible in eye of law--Once an authority exercising quasi-judicial powers, takes a final decision, it cannot review its decision--The Respondent No.1 did not hesitate to give findings touching exclusive merits of case in impugned order, passing of which resulted into spread of disappointment and disbelieve on judicial system, which was neither appreciable nor tolerated at any cost--Petition accepted.
[Pp. 478, 480, 482, 483, 484] A, B, C, F, G, H & K
2023 SCMR 1919 ref.
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 22-A & 22-B--Ex-Officio Justice of Peace--Nature of proceedings--Justice of Peace was not a Court and his functions were executive, administrative or ministerial. [P. 480] D
PLD 2014 SC 753 ref.
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 22-A & 22-B--Ex-Officio Justice of Peace--Nature of proceedings--Functions of an Ex-Officio Justice of Peace, as described in clauses (i), (ii) and (iii) of subsection (6) of Section 22-A, Cr.P.C are quasi-judicial as he entertains applications, examines the record, hears the parties, passes orders and issues directions with due application of mind. [P. 481] E
PLD 2005 Lah.470; PLD 2016 SC 581
Words and Pharasis--
----Functus officio--Meanings--The term “functus officio” literally denotes ‘of no further official authority or legal effect’ or ‘having performed his office’, and is used in context of an officer who is no longer in office or has fulfilled its purpose. [P. 483] I
Ramanatha Aiyar’s Advance Law Lexicon, 3rd addition,
Vol. 2 Pages 1946-47 ref.
Words and Pharasis--
----Functus officio--Meanings--“Having fulfilled function, discharged office, or accomplished purpose, and therefore, of no further force or authority”. [P. 483] J
Black’s Law Dictionary, Sixth Edition Page 673 ref.
Ch. Muhammad Sajid, Advocate Petitioner.
Syed M. Hanfia Abbas, Advocate Respondents.
Mr. Iftikhar Ibrahim Qureshi, Assistant Advocate General.
Date of hearing: 20.11.2023.
Judgment
This petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973[1] is voiced against the order dated 19.03.2020,[2] whereby the learned Ex-Officio Justice of Peace, Alipur,[3] disposed of the petition filed by the petitioner for implementation of his earlier order dated 30.01.2020 for recording of statement of petitioner.
2. The chronological order of event of this case is that the petitioner approached the Ex-Officio Justice of Peace/Sessions Judge, by filing petition under Sections 22-A and 22-B, Cr.P.C. for issuance of direction to the concerned SHO to lodge FIR against the private respondents on the allegations that they had administered poison to her daughter Mst. Shama Arooj. Whereupon, after receipt of police report, which verified the occurrence and report of Punjab Forensic Science Agency, Lahore[4] affirmative to allegations, Respondent No. 1 after hearing the respective parties, issued direction to Station House Officer to record the statement of the petitioner and proceed further strictly in accordance with law. However, the said order was assailed before this Court by one of the proposed accused persons namely Luqman Khan in W.P No. 1587/2020, yet same was dismissed as having been withdrawn vide order dated 12.03.2020. Subsequently, when the petitioner again approached the learned Respondent No. 1 for the implementation of order dated 30.01.2020, he disposed of the said application vide impugned order declining the prayer of petitioner in respect of implementation of order.
3. Learned counsel for the petitioner inter-alia argued that the impugned order passed by Respondent No. 1 is illegal, unlawful and contrary to law and facts; that the proposed accused persons out of grudge on refusal to their proposal for the hand of Mst. Shama Arooj, have committed the occurrence of murdering of Mst. Shama Arooj by administering her poison; that this fact has also been admitted by the Police and verified by the report of PFSA and that once the learned Respondent No. 1 had passed the direction for registration of case against the proposed accused, then thereafter, the learned Respondent No. 1 had no legal backing to himself withdraw the said order and pass an order ultra-vires and against the spirit of his earlier order. Finally prayed for acceptance of instance petition.
4. While, on the other hand, contradicting the contentions of learned counsel for the petitioner, learned Assistant Advocate General duly assisted by learned counsel for the proposed accused/respondents vehemently resisted this petition on the ground that the allegations levelled by the petitioner have been negated by the report of PFSA, hence, there remained no substance in the petition; that at the time of passing of earlier order by the learned Respondent No. 1, report of PFSA was not available, therefore, the order was passed whereas at present, the report of PFSA has been received which speaks in conflict with the allegations levelled by the petitioner and that order of learned Respondent No. 1 is based on true perspective of law and does not warrant interference by this Court.
5. Heard and perused the record.
6. From the matrix of the instant lis, following important legal question requires answer:-
“Whether an Ex.Officio Justice of Peace can pass a subsequent superseding order in conflict and in derogation with his earlier order passed by him in the same case?”
Before commenting on the above said question, it would be appropriate to have a bird’s eye view upon the legal status and nature of functions of an Ex.Officio Justice of Peace. In this respect, exhaustive discussion has been made by this Court as well as by the august Supreme Court of Pakistan. However, summarily, it is being discussed here in this judgment as follows:-
6.A. The question arises firstly whether Ex-Officio Justice of Peace while exercising his powers under Section 22(6) of the Code of Criminal Procedure, 1898 acts as a Court or not? Firstly, this question was taken up by a Full Bench of this Court (comprising three Members Bench) in the case reported as “Khizar Hayat and others v. Inspector-General of Police (Punjab), Lahore and others”[5] and it was held as under:-
“That surely is not the case in Pakistan where no statute confers any judicial power upon a Justice of the Peace or an Ex-Officio Justice of the Peace. We can, therefore, safely hold that functions to be performed by a Justice of the Peace or an Ex-Officio Justice of the Peace in Pakistan are merely administrative and ministerial in nature and character. We feel fortified in so holding by the provisions of Section 6, Cr.P.C. which categorizes the classes of Criminal Courts and Magistrates in Pakistan and a Justice of the Peace or an Ex-Officio Justice of the Peace is not included in any such class of Courts or Magistrates. Apart from that Sections 28 and 29, Cr.P.C. specify as to which Courts are to try which offences and in those Sections too a Justice of the Peace or an Ex-Officio Justice of the Peace does not figure at all.”
Later on, this question was also brought before the Hon’ble Supreme Court of Pakistan and a Full Bench (comprising three Members Bench) of the Hon’ble Supreme Court of Pakistan in the case reported as “Muhammad Ali v. Additional I.G., Faisalabad and others”[6] held that Justice of Peace was not a Court and his functions were executive, administrative or ministerial.
6-B. Subsequently, in another case, a larger Bench comprising five Judges of the Supreme Court of Pakistan in a case reported as “Younas Abbas and others v. Additional Sessions Judge, Chakwal and others”[7] did not agree with the ratio of the Khizar Hayat and Muhammad Ali’s cases (supra) to the extent of the nature of the functions of the Ex-Officio Justice of Peace and held that these are not executive, administrative or ministerial but are quasi-judicial in nature. The relevant portion of the judgment is as under:
“The functions, the Ex-Officio Justice of Peace performs, are not executive, administrative or ministerial inasmuch as he does not carry out, manage or deal with things mechanically. His functions as described in clauses (i), (ii) and (iii) of subsection (6) of Section 22-A, Cr.P.C., are quasi-judicial as he entertains applications, examined the record, hears the parties, passes orders and issues directions with due application of mind. Every lis before him demands discretion and judgment. Functions so performed cannot be termed as executive, administrative or ministerial on any account. We thus don’t agree with the ratio of the judgments rendered in the cases of Khizar Hayat and others v. Inspector General of Police (Punjab), Lahore and others (PLD 2005 Lah. 470) and Muhammad Ali v. Additional I.G. (PLD 2015 SC 753) inasmuch as it holds that the functions performed by the Ex-officio Justice of Peace are executive, administrative or ministerial.”
(Emphasis added)
7. It has been settled by now that functions of an Ex.officio Justice of Peace, as described in clauses (i), (ii) and (iii) of subsection (6) of Section 22-A, Cr.P.C., are quasi-judicial as he entertains applications, examines the record, hears the parties, passes orders and issues directions with due application of mind.
8. In the case in hand, as has been discussed in latter paragraph of this judgment, the petitioner Mst.Rubina Khatoon, having refusal of Police in respect of registration of case, in her credit, knocked the door of learned Respondent No. 1, by filing petition under Section 22-A of Cr.P.C. While, entertaining the said petition, learned Respondent No. 1, requisitioned the report/comments from the District Complaint Officer, Muzaffargarh and after receipt of said report and report of PFSA, passed the order dated 30.01.2020 issuing direction to SHO to record the statement of petitioner. Relevant paragraphs of the said order are hereby reproduced for ready reference:-
“5. The Police in his report, verified the occurrence.
6. Keeping in view the nature of allegation, and police report, coupled with Post mortem report of deceased and report of PFSA, the petitioner is directed to appear before the SHO concerned who is directed to record the statement of the petitioner and proceed further strictly in accordance with law. With these directions, the petition in hand is disposed. File be consigned to the record room.”
(Emphasis added)
At the cast of repetition, when the petitioner appeared before the learned Respondent No. 1 for the implementation of above order, he refrained from doing so rather passed the impugned order. For better evaluation of the case while putting both the orders in juxtaposition, it is in the fitness of things, to reproduce the material portions/ paragraphs of impugned order dated 19.03.2020, which is hereby reproduced hereunder:
“4. The police report was called from the SHO who reported that after the direction for registration of case issued by this Court, an application was sent to the PFSA for procuring the cause of death, wherein it has been reported that the medicine mentioned in PFSA report are of therapeutic usage and for treatment purpose and not causing death of person in that scenario. The alleged deceased also remain admit in the Nishtar Hospital Multan. It is also reported that the petitioner and respondent are real sister and brother and there is dispute of inheritance between them.
8. In view of above situation, I feel that no useful purpose would be served by issuing any direction to the police functionaries especially when it has been opined by the Medical Officer that the medicine mentioned in PFSA report are of therapeutic usage and for treatment purpose not causing death of person in that scenario. If the petitioner is not satisfied with the report of local police, he may avail alternate remedy if so advised and desired resultantly, this petition stands disposed of. File be consigned to the record room after due completion.”
(Emphasis added)
9. It is crystal clear from the above reproduced material portion of order dated 30.01.2020 and impugned order dated 19.03.2020 that the learned Respondent No. 1 played his final shot in the matter by passing order dated 30.01.2020 and now the ball was not in his Court as he became “functus officio” in this case after finally deciding the petition under Section 22-A of Cr.P.C. of the petitioner. The learned Respondent No. 1 could not review his earlier order unless the relevant statute or rules permit such review. At present, there exists no provision in the, Cr.P.C., which enables and empowers an Ex.Officio Justice of Peace to review or revise its own order once he has passed the same in a case and has attained finality, particularly when in respect of that order of Ex.officio Justice of Peace, no adverse finding or order of this Court is in field. Yet, surprisingly, when, after withdrawal of petition of one of the proposed accused persons from this Court on 12.03.2020, the petitioner Mst. Rubina Khatoon again approached the learned Respondent No. 1 for getting the order dated 30.01.2020 implemented, the learned Respondent No. 1 disposed of the petition without any direction vide impugned order dated 19.03.2020 in above reproduced terms. It is noted with grave concern that the learned Respondent No. 1 was not obliged to pedestal the process qua again requisitioning of Police report on the factual aspect of the case, reappraise the matter and while relying upon the subsequently requisitioned report, to pass impugned order dated 19.03.2020 in conflict with his earlier order dated 30.01.2020. The practice adopted by the learned Respondent No. 1 is alien to existing law which amounts to suo-moto review and revision of his earlier order, which was not permissible in the eye of law.
10. It is true that once an Authority exercising quasi-judicial powers, takes a final decision, it cannot review its decision. But, the question is as to at what stage, an Authority becomes “functus officio” with respect to an order passed by him. P. Ramanatha Aiyar’s Advance Law Lexicon[8] gives the following illustrative definition of the term ‘functus officio’:
“Thus a Judge, when he has decided a question brought before him, is functus officio, and cannot review his own decision.”
The term “functus officio” literally denotes ‘of no further official authority or legal effect’ or ‘having performed his office’, and is used in the context of an officer who is no longer in office or has fulfilled its purpose. This doctrine has an extensive and pervasive application to both the judicial and quasi-judicial authorities and if such doctrine is considered insignificant, it will lead to disorder, therefore, this should be given credence to bring in decisiveness and certitude to legal proceedings. Reliance is placed on recently passed judgment by the Hon’ble Supreme Court of Pakistan in case titled as “Jameel Qadir and another v. Government of Balochistan, Local Government, Rural Development and Agrovilles Department, Quetta through Secretary and others”.[9]
11. Furthermore, Black’s Law Dictionary[10] gives meaning of “functus officio” as follows:
“Having fulfilled the function, discharged the office, or accomplished the purpose, and therefore, of no further force or authority”.
Similarly, Ulpian described the doctrine of “functus officio” as follows:
[Once] a judge has articulated his judgment, he immediately ceases to be the judge … [He] no longer has the capacity to correct the judgment because, for better or for worse, he will have discharged his duty once and for all.[11]
The meaning of “functus officio” is well understood. In subsequent edition, Black’s Law Dictionary[12] defined it as under:
“functus officio … (Of an officer or official body) without further authority or legal competence because the duties and functions of the original commission have been fully accomplished.”
12. From the piths and marrows of the case as has been discussed above, it is emphatically clear that at the time of passing of impugned order, learned Respondent No. 1 had become “functus officio” and that the petitioner did not approach for reappraisal of his earlier order dated 30.01.2020 rather she beseeched for getting it complied with but what to say about getting the same complied with or about its implementation, learned Respondent No. 1 flipped the
page over resulting into loss of fruit already in the bucket of
petitioner and once again she came at stage one for getting a case FIR registered against the proposed accused persons. This overall scenario is nothing but a situation full of dismay as the petitioner has been made a ping pong ball bouncing here and there in search of justice. The learned Respondent No. 1 did not hesitate to give findings touching the exclusive merits of the case in the impugned order, the passing of which resulted into spread of disappointment and disbelieve on the judicial system, which is neither appreciable nor tolerated at any cost.
13. For the foregoing reasons, instant petition is accepted and impugned order dated 19.03.2020 passed by learned Ex.Officio Justice of Peace, Alipur is hereby set aside and declared to be of no legal effect. The petitioner shall approach the concerned SHO, who is directed to record her statement and proceed strictly in accordance with law.
14. Before parting with the judgment, I feel it necessary to mention here that discussion in this judgment has been constrained only to the extent of exercise of powers of learned Respondent No. 1 and shall not in any way prejudice the proceedings of police, which, of course, shall be carried in accordance with law.
(Y.A.) Petition accepted
[1]. The Constitution.
[2]. Impugned order.
[3]. Learned Respondent No. 1.
[4]. PFSA.
[5]. (PLD 2005 Lah. 470).
[6]. (PLD 2014 SC 753).
[7]. (PLD 2016 SC 581).
[8]. 3rd Edition, Vol.2 Pages 1946-47.
[9]. 2023 SCMR 1919.
[10]. Sixth Edition Page 673.
[11]. De Ville Judicial Review of Administrative Law in South Africa (2005) 77.
[12]. 7th ed., 1999, pg. 682.
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