P L D 2014 Supreme Court 753
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. was declared to be unlawful and it was observed as follows:
"In their Lordships' opinion however, the more serious aspect of the case is to be found in the resultant interference by the Court with the duties of the police. Just as it is essential that every one accused of a crime should have free access to a Court of justice so that he may be duly acquitted if found not guilty of the offence with which he is charged, so it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes upon them the duty of enquiry. In India as has been shown there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities, and it would, as their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court. The functions of the judiciary and the police are complementary not overlapping and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always, of course, subject to the right of the Court to intervene in an appropriate case when moved under S. 491, Criminal P.C., to give directions in the nature of habeas corpus. In such a case as the present, however, the Court's functions begin when a charge is preferred before it and not until then. It has sometimes been thought that S. 561-A has given increased powers to the Court which it did not possess before that section was enacted. But this is not so. The section gives no new powers, it only provides that those which the Court already inherently possess shall be preserved and is inserted, as their Lordships think, lest it should be considered that the only powers possessed by the Court are those expressly conferred by the Criminal Procedure Code, and that no inherent power had survived the passing of that Act. No doubt, if no cognizable offences is disclosed, and still more if no offence of any kind is disclosed, the police would have no authority to undertake an investigation and for this reason Newsam, J. may well have decided rightly in AIR 1938 Mad. 129. But that is not this case.
In the present case the police have under Ss. 154 and 156, Criminal P.C., a statutory right to investigate a cognizable offence without requiring the sanction of the Court, and to that extent the case resembles 44 Cal. 535 in which as the High Court has pointed out their Lordships Board expressed the view that to dismiss an application on the ground that it would be an abuse of the powers of the Court might be to act on treacherous grounds. Of course, in the present case as in the petition brought by Mr.Gauba no prosecution is possible unless the necessary sanction under S. 197, Criminal P.C, has first been obtained. But that stage like the stage at which the Court may legitimately intervene has not, in their Lordships' opinion, yet been reached. The question so far is one of investigation, not prosecution. In accordance with their view, their Lordships will humbly advise His Majesty that the appeal should be allowed the decree and order of the High Court quashed and the investigation permitted to proceed."
3. While dilating upon the same subject this Court had made the following observations in the case of Shahnaz Begum v. The Hon'ble Judges of the High Court of Sind and Balochistan and another (PLD 1971 SC 677) leaving no room for any ambiguity that the provisions of section 561-A, Cr.P.C. have relevance only to judicial proceedings and actions and not to any executive or administrative action or function:
"If an investigation is launched mala fide or is clearly beyond the jurisdiction of the investigating agencies concerned then it may be possible for the action of the investigating agencies to be corrected by a proper proceeding either under Article 98 of the Constitution of 1962 or under the provisions of section 491 of the Criminal Procedure Code, if the applicant is in the latter case in detention, but not by invoking the inherent power under section 561-A of the Criminal Procedure Code.
If this be the position with regard to the quashing of an investigation we have no manner of doubt that section 561-A of the Cr.P.C. does not give any power to transfer an investigation as claimed by the learned Advocate-General of Sindh. Section 561-A of the Criminal Procedure Code runs as follows:--
"561-A. Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."
It will be observed that the power given thereby can be invoked to give effect to any order under the Code to prevent an abuse of the process of any Court or otherwise to secure the ends of justice. The ends of justice necessarily means justice as administered by the Courts and not justice in the abstract sense or justice administered by agencies other than Courts. The words "otherwise to secure the ends of justice", have to be read along with the earlier objects mentioned in this section and must have some co-relation with them and it is in this sense that this Court in the case of M. S. Khawaja v. The State (PLD 1965 SC 287) opined that the ends of justice to secure which the inherent power may be invoked "have reference to the purposes which the judicial process is intended to secure, and it is difficult to include actions of investigating agencies within the scope of judicial process". (underlining has been supplied for emphasis)
An identical view of the matter was subsequently taken by this Court in the case of Nazir Ahmed and others v. Muhammad Shafi and another (PLD 1980 SC 6).
4. In view of the legal position discussed above we have entertained no manner of doubt that the order passed by the ex-officio Justice of the Peace under section 22-A(6), Cr.P.C. and impugned by the petitioner before the Lahore High Court, Lahore was an executive/administrative order and that the petitioner's petition filed under section 561-A, Cr.P.C. before the Lahore High Court, Lahore assailing the said order passed by the ex-officio Justice of the Peace was not competent or maintainable. Apart from that while seized of a petition filed under section 561-A, Cr.P.C. the Lahore High Court, Lahore had no jurisdiction to interfere in the investigation of a criminal case, as held in the precedent cases mentioned above. It has not been denied before us that during the pendency or hearing of that petition the petitioner had never applied before the Lahore High Court, Lahore or had requested the learned Judge-in-Chamber of that Court seeking conversion of the petitioner's petition filed under section 561-A, Cr.P.C. into a writ petition under Article 199 of the Constitution or its treatment as a writ petition without a formal conversion and, thus, the defect in competence and maintainability of the petitioner's petition filed under section 561-A, Cr.P.C. remained uncured and fatal to the petition.
5. As observed above, the petitioner's petition filed before the Lahore High Court, Lahore under section 561-A, Cr.P.C. was neither competent nor maintainable and, thus, dismissal of the said petition by the Lahore High Court, Lahore cannot be assailed by the petitioner before this Court. This petition is, therefore, dismissed and leave to appeal is refused.
MWA/M-39/S Petition dismissed
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. was declared to be unlawful and it was observed as follows:
"In their Lordships' opinion however, the more serious aspect of the case is to be found in the resultant interference by the Court with the duties of the police. Just as it is essential that every one accused of a crime should have free access to a Court of justice so that he may be duly acquitted if found not guilty of the offence with which he is charged, so it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes upon them the duty of enquiry. In India as has been shown there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities, and it would, as their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court. The functions of the judiciary and the police are complementary not overlapping and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always, of course, subject to the right of the Court to intervene in an appropriate case when moved under S. 491, Criminal P.C., to give directions in the nature of habeas corpus. In such a case as the present, however, the Court's functions begin when a charge is preferred before it and not until then. It has sometimes been thought that S. 561-A has given increased powers to the Court which it did not possess before that section was enacted. But this is not so. The section gives no new powers, it only provides that those which the Court already inherently possess shall be preserved and is inserted, as their Lordships think, lest it should be considered that the only powers possessed by the Court are those expressly conferred by the Criminal Procedure Code, and that no inherent power had survived the passing of that Act. No doubt, if no cognizable offences is disclosed, and still more if no offence of any kind is disclosed, the police would have no authority to undertake an investigation and for this reason Newsam, J. may well have decided rightly in AIR 1938 Mad. 129. But that is not this case.
In the present case the police have under Ss. 154 and 156, Criminal P.C., a statutory right to investigate a cognizable offence without requiring the sanction of the Court, and to that extent the case resembles 44 Cal. 535 in which as the High Court has pointed out their Lordships Board expressed the view that to dismiss an application on the ground that it would be an abuse of the powers of the Court might be to act on treacherous grounds. Of course, in the present case as in the petition brought by Mr.Gauba no prosecution is possible unless the necessary sanction under S. 197, Criminal P.C, has first been obtained. But that stage like the stage at which the Court may legitimately intervene has not, in their Lordships' opinion, yet been reached. The question so far is one of investigation, not prosecution. In accordance with their view, their Lordships will humbly advise His Majesty that the appeal should be allowed the decree and order of the High Court quashed and the investigation permitted to proceed."
3. While dilating upon the same subject this Court had made the following observations in the case of Shahnaz Begum v. The Hon'ble Judges of the High Court of Sind and Balochistan and another (PLD 1971 SC 677) leaving no room for any ambiguity that the provisions of section 561-A, Cr.P.C. have relevance only to judicial proceedings and actions and not to any executive or administrative action or function:
"If an investigation is launched mala fide or is clearly beyond the jurisdiction of the investigating agencies concerned then it may be possible for the action of the investigating agencies to be corrected by a proper proceeding either under Article 98 of the Constitution of 1962 or under the provisions of section 491 of the Criminal Procedure Code, if the applicant is in the latter case in detention, but not by invoking the inherent power under section 561-A of the Criminal Procedure Code.
If this be the position with regard to the quashing of an investigation we have no manner of doubt that section 561-A of the Cr.P.C. does not give any power to transfer an investigation as claimed by the learned Advocate-General of Sindh. Section 561-A of the Criminal Procedure Code runs as follows:--
"561-A. Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."
It will be observed that the power given thereby can be invoked to give effect to any order under the Code to prevent an abuse of the process of any Court or otherwise to secure the ends of justice. The ends of justice necessarily means justice as administered by the Courts and not justice in the abstract sense or justice administered by agencies other than Courts. The words "otherwise to secure the ends of justice", have to be read along with the earlier objects mentioned in this section and must have some co-relation with them and it is in this sense that this Court in the case of M. S. Khawaja v. The State (PLD 1965 SC 287) opined that the ends of justice to secure which the inherent power may be invoked "have reference to the purposes which the judicial process is intended to secure, and it is difficult to include actions of investigating agencies within the scope of judicial process". (underlining has been supplied for emphasis)
An identical view of the matter was subsequently taken by this Court in the case of Nazir Ahmed and others v. Muhammad Shafi and another (PLD 1980 SC 6).
4. In view of the legal position discussed above we have entertained no manner of doubt that the order passed by the ex-officio Justice of the Peace under section 22-A(6), Cr.P.C. and impugned by the petitioner before the Lahore High Court, Lahore was an executive/administrative order and that the petitioner's petition filed under section 561-A, Cr.P.C. before the Lahore High Court, Lahore assailing the said order passed by the ex-officio Justice of the Peace was not competent or maintainable. Apart from that while seized of a petition filed under section 561-A, Cr.P.C. the Lahore High Court, Lahore had no jurisdiction to interfere in the investigation of a criminal case, as held in the precedent cases mentioned above. It has not been denied before us that during the pendency or hearing of that petition the petitioner had never applied before the Lahore High Court, Lahore or had requested the learned Judge-in-Chamber of that Court seeking conversion of the petitioner's petition filed under section 561-A, Cr.P.C. into a writ petition under Article 199 of the Constitution or its treatment as a writ petition without a formal conversion and, thus, the defect in competence and maintainability of the petitioner's petition filed under section 561-A, Cr.P.C. remained uncured and fatal to the petition.
5. As observed above, the petitioner's petition filed before the Lahore High Court, Lahore under section 561-A, Cr.P.C. was neither competent nor maintainable and, thus, dismissal of the said petition by the Lahore High Court, Lahore cannot be assailed by the petitioner before this Court. This petition is, therefore, dismissed and leave to appeal is refused.
MWA/M-39/S Petition dismissed
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