MUHAMMAD ASLAM HAYAT vs ADDITIONAL SESSIONS JUDGE_JUSTICE OF PEACE, LAHORE and 2 others

' MISS AALIA NEELUM, J.---Through the instant petition under Article 199 of the Constitution of Islamic Republic of Pakistan 1973, the petitioner has prayed for setting aside the impugned order dated 2- 5-2013, whereby the learned Additional Sessions Judge Lahore, in his capacity as Ex-Officio Justice of Peace directed the investigating officer to collect the mobile data and conduct the investigation fairly, honestly and conclude the same on merits.

2. The facts, in brief, are that the petitioner is complainant of case F.I.R. No,102 dated 1-2-2013 registered under section 302/34, P.P.C. At Police Station Nawab Town, Lahore against one Ihtesham Shahzad Butt who is son of respondent No,3. Respondent No,3 filed application under section 22-A, 22-B, Cr.P.C. Before the Ex-Officio Justice of Peace/ASJ, seeking direction to the police to record defence version of his son and to take data of mobile phone of the deceased, complainant as well as of the witnesses of above said case F.I.R. No,102 of 2013 registered at Police Station Nawab Town, Lahore and place the same on record by seizing the same. The learned Ex-Officio Justice of Peace/ASJ disposed of the said application vide order dated 2-5-2013 with the direction to the Investigating Officer of the above said case to collect the mobile data and conduct the investigation fairly, honestly and conclude the same on merits.

3. Feeling aggrieved of the above said order, the petitioner/complainant filed the instant Constitutional petition by stating that the impugned order is against the law and facts of the case; that the learned Ex-Officio Justice of Peace/ASJ has passed the impugned order in a hasty manner and without hearing the petitioner in this matter and as such the petitioner has been condemned unheard which is against the norms of justice; that the learned Ex-Officio Justice of Peace/ASJ had no authority under law to direct investigating officer to collect specific evidence and order has been passed without applying the judicial mind, hence the same is liable to be set aside.

4. Learned law officer assisted by learned counsel for respondent No,3 has opposed this petition by contending that there is no illegality in the impugned order, which is in accordance with law, therefore, petition is liable to be dismissed.

5. I have heard learned counsel for the parties and have gone through the impugned order as well as petition under sections 22-A and 22-B, Cr. P.0 . Filed by respondent No,3.

6. It may be pointed out that the Ex-Officio Justice of Peace is not a court and it does not possess any Judicial Powers and in capacity of Ex-Officio Justice of Peace he has vested with some executive powers which are given in section 22-A(6), Cr.P.C., which is reproduced as under:-- 22-A(6) Powers of Justice of the Peace: An ex-officio Justice of the Peace may issue appropriate directions to the police authorities on a complaint regarding.

(i) non-registration of criminal case;

(ii) transfer of investigation from one police officer to another; and

(iii) neglect, failure or excess committed by a police authority in relation to its functions and duties.

7. Here in this case a direction was issued to the Investigating Officer to collect mobile Data. The Investigating Officer of the case, may of his own or, if any application moved by the accused or plea raised by him during investigation under the normal practice, can collect said Data. In case of failure of investigating officer to collect such data, the accused can seek transfer of investigation from one police officer to another within the scope of Article 18(6) of Police Order, 2002.

' Article 18 (6) of the Police Order, 2002 specifies the only manner in which investigation of a criminal case can be changed. There is no other law authorizing or empowering any other police officer or authority to change the investigation of a criminal case. Any change or transfer of investigation of a criminal case by any officer or authority other than those mentioned in Article 18(6) of the Police Order, 2002 is to be void and a nullity.

8. The Ex-Officio Justice of Peace being not a judicial Officer, while exercising his administrative powers can at most direct the Investigating Officer concerned to proceed and conduct the investigating in accordance with law. Reliance has been placed on the case reported as Khizar Hayat and others v. Inspector General of Police (Punjab) Lahore (PLD 2005 Lahore 470) wherein it has been observed as under:- "That a Justice of the Peace in Pakistan performs functions which are administrative and ministerial in nature and not judicial in character. Even the superior courts of Pakistan having Constitutional, legal, supervisory and inherent jurisdiction have consistently and consciously refrained from directly interfering with investigation of a criminal case by the police and, therefore, it is but obvious that Justice of the Peace or Ex-Officio Justices of the Peace possessing only administrative and ministerial powers should be twice shy of such direct interference."

9. Under section 156, Cr.P.C. An officer Incharge of Investigation has statutory right to investigate the circumstances of an alleged offences and such statutory right cannot be interfered with by Ex- Officio Justice of Peace. The accused-Ehtesham Shehzad was on pre-arrest bail when above referred application was moved by his father-respondent No,3 and accused-Ehtesham Shehzad himself had not moved any application to the investigating officer to collect mobile data of complainant as well as of witnesses and deceased. Instead of taking above-referred steps, the respondent No,3 filed Ex-Officio Justice of Peace, in the circumstances, was not justified to issue direction to the investigating officer to collect mobile data. He can only direct the Investigating Officer to do the needful in accordance with law and not to issue certain direction in this respect.

Ex-Officio Justice of Peace could not interfere in the investigating or advice to collect evidence to the investigating officer, sections 156 and 157, Cr.P.C. Permits Police Officers only to investigate a case, while remaining within the ambit of "investigation" as defined in section 4(1)(1), Cr.P.C. The Police Officer is duty bound to investigate the matter, honestly, fairly and justly, so that the truth could be brought to surface.

10. By passing impugned order, Ex-Officio Justice of Peace had travelled beyond his jurisdiction under section 22-A, Cr.P.C. While giving direction to the investigating officer to collect mobile data, I accept this petition, set aside the impugned order being illegal, without jurisdiction and without lawful authority and consequently dismiss the application filed by Shahzad Zafer Butt respondent No,3.