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PLD 2014 Supreme Court 753 Present

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PLD 2014 Supreme Court 753 Present P L D 2014 Supreme Court 753 Present: Mian Saqib Nisar, sif Saeed Khan Khosa and Sh. Azmat Saeed, JJ MUHAMMAD ALI---Petitioner Versus ADDITIONAL I.G., FAISALABAD nd others---Respondents Criminal Petition No.478-L of 2014, decided on 16th July, 2014. (Against the order dated 27-3-2014 passed by the Lahore High Court, Lahore in Criminal Miscellaneous No.2404-M of 21009) (a) Criminal Procedure Code (V of 1898)--- ----Ss. 22-A(6) & 561-A---Order passed by Justice of Peace under S.22-A(6), Cr.P.C. impugned before the High Court by way of a petition under S.561-A, Cr.P.C.---Competency /Maintainability---Order passed by the ex officio Justice of the Peace under S.22-A(6), Cr.P.C. was an executive/administrative order---Petition filed before the High Court under S.561-A, Cr.P.C. impugning such order of Justice of Peace was not competent or maintainable---Provisions of S.561-A, Cr.P.C. had relevance only to judicial proceedings and actions and not to any executive or administrative action or function---Jurisdiction of High Court under S. 561-A, Cr.P.C. could be exercised only in respect of orders or proceedings of a court---Phrovisions of S.561-A, Cr.P.C. had no application vis-à-vis executive or administrative orders or proceedings of any non-judicial forum or authority. Khizer Hayat and others v. Inspector-General of Police (Punjab), Lahore and others PLD 2005 Lah. 470; Emperor v. Khwaja Nazir Ahmed AIR (32) 1945 PC 18; Shahnaz Begum v. The Hon'ble Judges of the High Court of Sindh and Balochistan and another PLD 1971 SC 677 and Nazir Ahmed and others v. Muhammad Shafi and another PLD 1980 SC 6 ref. (b) Criminal Procedure Code (V of 1898)--- ----Ss. 156 & 561-A---Investigation of a criminal case---Interference by the High Court---High Court while seized of a petition filed under S.561-A, Cr.P.C. had no jurisdiction to interfere in the investigation of criminal case. (c) Criminal Procedure Code (V of 1898)--- ----S. 561-A---Inherent power of High Court under S.561-A, Cr.P.C.---Scope---Provisions of S.561-A, Cr.P.C. had relevance only to judicial proceedings and actions and not to any executive or administrative action or function---Jurisdiction of High Court under S.561-A, Cr.P.C. could be exercised only in respect of orders or proceedings of a court---Provisions of S.561-A, Cr.P.C. had no application vis-a-vis executive or administrative orders or proceedings of any non-judicial forum or authority. Shahnaz Begum v. The Hon'ble Judges of the High Court of Sindh and Balochistan and another PLD 1971 SC 677 ref. Ch. Sultan Ahmed Irshad, Advocate Supreme Court for Petitioner. Mazhar Sher Awan, Addl. Prosecutor-General, Punjab for the State. Nemo for the Remaining Respondents. Date of hearing: 16th July, 2014. ORDER ASIF SAEED KHAN KHOSA, J.---The petitioner is the complainant of and respondents Nos. 2, 3 and 6 are the accused persons in case F.I.R. No. 106 registered at Police Station Khurrianwala, District Faisalabad on 7-2-2007 in respect of offences under sections 337-A(i), 337-D, 337-U, 337-L(2) and 34, P.P.C. which case had been registered in respect of causing of injuries by the accused party to the petitioner's brother namely Shahmand Ali on 5-2-2007. After having received treatment from a hospital in respect of the injuries sustained by him the injured victim namely Shahmand Ali was discharged from the hospital and after about one and half years of the incident in issue he died on 29-9-2008. After the death of his brother the petitioner applied before the Judicial Magistrate 1st Class, Jaranwala, District Faisalabad in his capacity as the Area Magistrate seeking issuance of an appropriate direction to the local police to add section 302, P.P.C. to the F.I.R. already lodged by the petitioner but the application submitted by the petitioner in that regard was dismissed by the Area Magistrate on 6-1-2009. Thereafter the petitioner filed a petition under section 22-A(6), Cr.P.C. before the ex- officio Justice of the Peace seeking issuance of a similar direction to the local police for addition of section 302, P.P.C. to the F.I.R. lodged by the petitioner but that petition filed by the petitioner was dismissed by the learned Additional Sessions Judge, Jaranwala, District Faisalabad in his capacity as an ex-officio Justice of the Peace on 6-8-2009. The said order passed by the learned Additional Sessions Judge, Jaranwala, District Faisalabad in his capacity as an ex-officio Justice of the Peace was assailed by the petitioner before the Lahore High Court, Lahore through Criminal Miscellaneous No.2404-M of 2009 filed under section 561-A, Cr.P.C. but that petition was also dismissed vide order dated 27-3-2014 passed by a learned Judge-in-Chamber of the Lahore High Court, Lahore. Hence, the present petition before this Court. 2. At the outset we required the learned counsel for the petitioner to explain as to how the petitioner's petition filed under section 561-A, Cr.P.C. was competent and maintainable before the Lahore High Court, Lahore against the impugned order passed by an ex-officio Justice of the Peace under section 22-A(6), Cr.P.C. or for seeking issuance of a direction to the police investigating a criminal case but he has not been able to satisfy us in that regard. We have observed that even the learned Judge-in-Chamber of the Lahore High Court, Lahore had entertained and decided the petitioner's petition under section 561-A, Cr.P.C. without appreciating that the said petition was not competent and maintainable. A Full Bench of the Lahore High Court, Lahore had declared in the case of Khizer Hayat and others v. Inspector-General of Police (Punjab), Lahore and others (PLD 2005 Lahore 470) that an ex-officio Justice of the Peace holds an office and performs a job which is not judicial in nature and the functions performed by him under section 22-A(6), Cr.P.C. are nothing but executive, administrative or ministerial in character. Speaking for the Full Bench one of us (Asif Saeed Khan Khosa, J.) in his capacity as a Judge of that Court had observed in that case as follows: "Adverting now to question number (b) framed by us as to whether in Pakistan a Justice of the Peace or an ex-officio Justice of the Peace exercises judicial powers or his functions are merely administrative and ministerial in nature and character we have already observed above in our discussion in respect of question number (a) that the powers and duties of a Justice of the Peace or an ex-officio Justice of the Peace in Pakistan as provided in sections 22-A and 22-B, Cr.P.C. do not involve any jurisdiction which can be termed as judicial in nature or character. In this context the role of a Justice of the Peace or an ex-officio Justice of the Peace in Pakistan is sharply different from that now enjoyed by their counterparts in the United Kingdom and the United State of America where some judicial role regarding summary trial of petty civil and criminal cases has been conferred upon the Justices of the Peace through legislative intervention. That surely is not the case in Pakistan where no statute confers any judicial power upon a Justice of the Peace or an ex-officio Justice of the Peace. 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. In the case of Pir Abdul Qayyum Shah v. S.H.O. and 4 others (2005 PCr.LJ 357) a learned Judge-in- Chamber of this Court has already held that a revision petition is not competent against an order passed by an ex-officio Justice of the Peace under section 22-A(6), Cr.P.C. because the jurisdiction conferred under the said provision of law is administrative in nature and not judicial and, thus, not amenable to revisional jurisdiction of this Court." The law is quite settled by now that the jurisdiction of a High Court under section 561-A, Cr.P.C. can be exercised only in respect of orders or proceedings of a court and that the provisions of section 561-A, Cr.P.C. have no application vis-à-vis executive or administrative orders or proceedings of any non-judicial forum or authority. In the case of Emperor v. Khwaja Nazir Ahmed (AIR (32) 1945 Privy Council 18) interference by a High Court in the matter of investigation of a criminal case by the police by invoking the provisions of section 561-A, Cr.P.C.
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