A recent decision of the National Judicial (Policy Making) Committee (NJPMC) to restrict powers of judicial officers while acting as “Justice of Peace” under the Code of Criminal Procedure (CrPC) has triggered a controversy as bar councils have expressed reservations about this move and even threatened to observe strike if the decision was not revoked.

The decision by the NJPMC was taken in its meeting chaired by Supreme Court Chief Justice Asif Saeed Khosa on March 11. The meeting was attended by chief justices of the five high courts and senior puisne judge of Supreme Court Justice Gulzar Ahmed.

The district and sessions judges (DSJs) and additional district and sessions judges (ADSJs) have been exercising the powers of “Justice of Peace” under section 22-A (6) and 25 CrPC since an amendment was made in the law in 2002. Under the said provision, these judicial officers are empowered to order registration of an FIR over a complaint if the concerned police officer declined to register the same. They can also order transfer of investigation of a case from one police officer to another.

The NJPMC made the decision after examining the data collected from across the country and the redressal mechanisms available with an aggrieved person under the Police Reforms.

According to a press release of the committee, Chief Justice Asif Saeed Khosa, who is its chairman, stated that currently courts of the sessions judges and additional sessions judges, under the Code of Criminal Procedure, 1898, are burdened with cases related to giving directions to the police authorities for registration of case.

He stated that the said jurisdiction was tantamount to involvement of judiciary in executive functions and was in collision with the principle of separation of powers. The committee was informed that from Jan 1, 2017, to Feb 28, 2019, a total of 614,307 cases under section 22-A/22-B CrPC were filed in the district judiciary throughout the country, while during the same period 47,029 cases under the said provisions were filed in the high courts.

The committee resolved that since a Police Complaint Redressal Mechanism, as per recommendations of the Police Reforms Committee, had been operationalised at the district level all over Pakistan, which is headed by SP (superintendent of police) complaints, therefore, applications under section 22 A CrPC may not be entertained by the courts unless accompanied by decision of the relevant district SP complaints.

The secretary NJPMC briefed the committee that from January 2019 till date a total of 25,426 complaints had been disposed of by the Complaint Redressal Centres of Police Department. The move by NJPMC has drawn criticism from the lawyers’ representative bodies. Pakistan Bar Council vice-chairman Syed Amjad Shah on March 15 demanded reversal of the decision of the NJPMC and restoration within three days of the previous practice as to entertain petition under section 22-A and 22-B of the CrPC failing which the legal fraternity would chalk out its future course of action which may lead to strikes.

A press release states that Mr Amjad Shah after having consulted with other representatives of Islamabad and provincial bar councils has criticised the decision of NJPMC. He states that after this decision aggrieved persons would have to appear before the SP as petitions under section 22-A and 22-B would not be entertained directly by the judges and thus powers of police are further expanded, which will open another avenue of malpractice and corruption at the hands of police.

These powers were assigned to the DSJs and ADSJs through the Code of Criminal Procedure (Third Amendment) Ordinance, 2002, which was promulgated on Nov 15, 2002. Through that amendment sub-section 6 was included in section 22-A of CrPC.

Sub-section 6 states: “An ex-officio justice of the peace may issue appropriate directions to the police authorities concerned on a complaint regarding – (i) Non-registration of a 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.

Similarly, section 25 CrPC was substituted. The new section 25 states: “Ex-officio justices of the peace – by virtue of their respective offices, the sessions judges and on nomination by them, the additional sessions judges, are justices of peace within and for whole of the district of the province in which they are serving.” From time to time different judgments were delivered by the superior courts regarding exercising powers by judges under the said sections 22-A (6) and 25.

The most important judgment was delivered by a larger bench of the Supreme Court in 2016, which is reported as Younas Abbass and others versus additional sessions judge, Chakwal, and others (PLD 2016 SC 581). The bench comprising then chief justice Anwar Zaheer Jamali, Justice Mian Saqib Nisar, Justice Ejaz Afzal Khan, Justice Mushir Alam and Justice Manzoor Ahmad Malik had decided scores of appeals originated out of judgments of the high courts as well as some petitions. While the judgment was authored by Justice Ejaz Afzal, a separate note was also added by Justice Manzoor Ahmad Malik.

The bench had ruled that 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, CrPC, are quasi-judicial as he entertains applications, examines the record, hears the parties, passes orders and issues directions with due application of mind.”

The bench had ruled: “Functions so performed cannot be termed as executive, administrative or ministerial on any account.” The court had also turned down plea of some of the petitioners requesting to declare the said sections in conflict with the Constitution.

A bench of Peshawar High Court comprising Justice Ikramullah Khan and Justice Ishtiaq Ibrahim in a writ petition titled “Syed Abdul Hameed versus Mian Izhar Ahmad” in Jan 2019 has also discussed the issue of redressal mechanism available within the police department, which can be approached in case of non-registration of FIR.

In the judgment, authored by Justice Ishtiaq Ibrahim, it is ruled that the parties without approaching the hierarchy provided under the police department for the redressal of their grievances against the SHO for non-registration of FIR, directly approach the Court of Justice of Peace, which is also not in consonance with law on the subject.

The bench had ruled that first the relevant hierarchy i.e. DPO, RPO, CCPO, etc are to be approached for redressal of the grievances against the concerned SHO, and when their application for registration of FIR is not considered by the concerned police hierarchy, then they have to approach the Justice of Peace.

Published in Dawn, March 18th, 2019