In a recent judgment, the Peshawar High Court ruled that powers of a judicial officer acting as “Justice of Peace” under the Code of Criminal Procedure (CrPC) are not unbridled rather these are structured with prescribed parameters and limits.

The bench of Justice Abdul Shakoor and Justice Sahibzada Asadullah ruled that there were no two opinions that the powers conferred on the ex-officio Justice of Peace were not judicial rather these were ministerial, and while dealing with applications under section 22-A (6) of the CrPC he could issue directions to the concerned police officials for observance of all legal and requisite formalities, but he could not step into the shoes of the investigating agency, which was independent in all respects.

The bench made these observations while dismissing a writ petition titled “Qutab Khan and another versus District Police Officer, Dera Ismail Khan”, on Oct 7, 2020.

The district and sessions judges (DSJs) and additional district and sessions judges (ADSJs) have been exercising ex-officio 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.

In the instant case, local police had signalled a car to stop at a picket in DI Khan, but the driver had driven away. The police had chased the said car and found it stuck in mud with no driver nearby.

The investigating officer had found a wallet containing an ID card of one Mohammad Ibrahim, a resident of Lakki Marwat, whereas another card of the petitioner, Qutab Khan, was lying on the dashboard.

During search of the car the police recovered 48 kilogrammes of charas and 12.5kgs of opium after which an FIR was registered on June 5, 2016, under section 9-C of the Control of Narcotics Substance Act at Dera Town police station. Later, both the petitioners, Qutab Khan and Mohammad Ibrahim, were arrested and charged in the case.

The case took an interesting turn after around two years of the occurrence when another person (respondent No 6) appeared before the investigating officer in 2018, requesting he should be included as accused in the case.

The said person also approached a judicial magistrate that his statement should be recorded under section 164 of the CrPC, but the magistrate declined his request on Feb 10, 2018.

The said person told the police that he was accompanying the two arrested accused persons (petitioners) to Azad Kashmir and had stolen their car when they were sleeping in their room. He claimed that after stealing the car he went to Bannu where a drug trafficker put the seized drug in the said car.

The present petitioners then approached the court of ex-officio Justice of Peace requesting that the said person should be included as accused in the case. However, the Justice of Peace dismissed their plea on March 15, 2018, following which they approached the PHC requesting to set aside the order of Justice of Peace and to include the said person as accused in the case and also to direct the police to produce him before a magistrate for recording his confessional statement.

In the detailed judgment authored by Justice Sahibzada Asadullah it is observed that it was surprising that for a long time, the petitioners did not disclose that it was another person (respondent No 6) who had taken away their car.

“Though an effort was made to convince the Court to direct the concerned police officials to declare the respondent No 6 as accused, as it was he who claimed the contraband, but the learned Justice of Peace fully conscious of his powers and jurisdiction, did not agree to the request of the petitioners for issuing a direction to the investigating officer/prosecution agency to array him as accused, by extending benefit to the petitioners,” the court observed.

The bench observed that a Justice of Peace or an ex-officio Justice of 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 Peace or ex-officio Justice of Peace possessing only administrative and ministerial powers should be twice shy of such direct interference,” the bench ruled.

The court ruled: “The law is settled that an Ex-officio Justice of Peace while exercising his powers cannot step into the shoes of the investigating agency though he can issue direction in respect of the matters provided under Criminal Procedure Code, but not more than that.”

“The prerogative to declare a person as an accused or otherwise, lies with the prosecution agency and a proper mechanism has been chalked out for the purpose. It has never been the intent and spirit of the section to bestow unbridled powers upon the ex-officio Justice of Peace, if so, the results would be drastic and chaotic.”

The powers of Justice of Peace 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 the CrPC.

Sub-section 6 states: “An ex-officio Justice of 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.

Published in Dawn, October 26th, 2020