Journal

2016 PCrLJ 1096

Court
PESHAWAR HIGH COURT

Date
2016-01-13

Appeal No.
WRIT PETITION NO. 170-M OF 2015,

Judge
BEFORE MUHAMMAD DAUD KHAN AND HAIDER ALI KHAN

Parties
FARMAN ULLAH AND 5 OTHERS—PETITIONERS VERSUS THE STATE THROUGH ADDITIONAL
ADVOCATE GENERAL PESHAWAR AND 4 OTHERS (RESPONDENTS)

Lawyers
AKHTAR MUNIR KHAN FOR PETITIONERS. SABIR SHAH, A. A. G. FOR THE STATE.

Statutes
CRIMINAL PROCEDURE CODE (V OF 1898) -SS. 22-A 154 AND 227 KHYBER PAKHTUNKHWA
PROSECUTION SERVICE (CONSTITUTION FUNCTIONS AND POWERS) ACT (I OF 2005) -S. 7 PENAL CODE
(XLV OF 1860) -SS. 279 354 186 147 AND 149

Judgment

HAIDER ALI KHAN, J.—Through this single judgment we intend to dispose of the instant writ petition as well as the
connected W.P. No.

591-M/2015 as a common question of law is involved in both these petitions,

2. Through this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioners
Farman Ullah and five others seek the following relief.

“On acceptance of this writ petition, this Hon’ble Court may graciously be pleased to declare the impugned order dated
27.2.2015 passed by the learned Additional Sessions Judge/Izafi Zilla Qazi-II, Swat as wrong, illegal arbitrary, void ab
initio, ultra vires, against the principles of Sharia, natural justice, without lawful authority, without jurisdiction and
unconstitutional, consequently the same my please be set aside by dismissing the application under section 22-A, Cr.P.C.
made by the Respondent No.3, Muhammad Yousaf. Any other relief/remedy which is just, appropriate and efficacious
may also be awarded in favour of the petitioners though not specifically been prayed for in the instant writ petition”.
Similar is the prayer of the petitioner Imran in the connected writ petition wherein he has prayed for setting aside the
order dated 06.11.2015 passed by the learned Additional Sessions Judge-VI/Justice of Peace, Swat.

3. Brief facts of the case in hand are that a criminal case vide FIR No. 284 dated 09.9.2014 under sections 186, 147,
149, 279, P.P.C. was registered against the petitioners at Police Station Malam Jaba, District Swat at the behest of
complainant Sarbali Khan Head Constable No.

1082 (Respondent No.3). After completion of the investigation, challan was submitted in the Court of learned Judicial
Magistrate-II, Swat who framed formal c&arge against the petitioners. Later on, Respondent No.4, who was allegedly
assaulted by the petitioners in the occurrence, moved an application under section 22-A, Cr.P.C. before the learned
Sessions Judge, Swat for insertion of section 353, P.P.C. in the FIR. The application was entrusted to the learned
Additional Sessions Judge-II, Swat for hearing who, while exercising powers under section 22-A, Cr.P.C., allowed the
application of the Respondent No.3 vide the impugned order dated 27.2.2015 and directed the S.H.O Police Station
Malam Jaba (Respondent No.l) to insert section 353, P.P.C. in the FIR. The relevant para of the impugned order is
reproduced herein below for convenience sake.

“Thus it is a case of neglect on the part of SHO concerned in relation to the performance of his functions and discharge
of duties ordained under Cr.P.C. specially its section 154. SHO is now under statutory obligation to rectify the wrong so
committed by him in the discharge of his official functions and performance of duties by inserting section 353 of P.P.C.
into FIR already chalked out. He shall accordingly do the needful forthwith.”

4. According to the facts of the connected writ . petition, complainant Mst. Kausar lodged FIR No. 614 under Sections
354, P.P.C. at Police Station Rahim Abad, Swat, against the petitioner Imran. Later on she filed an application before
the learned Justice of Peace under section 22-A(6), Cr.P.C for addition of sections 354-A/342/ 506/34, P.P.C. in the FIR.
The application was allowed by the learned Justice of Peace vide order dated 06.11.2015 the relevant portion is
reproduced herein below:
Being aggrieved of the above-mentioned impugned orders, the petitioners in both the writ petitions have challenged the
same before this Court.

4. Arguments heard and record perused.

5. No doubt, the investigating agency has ample powers under section 154, Cr.P.C. to register a criminal case provided
the information given clearly constitutes a cognizable offence. In this regard section 7(d) of The Khyber Pakhtunkhwa
Prosecution Service (Constitution, Functions and Powers) Act, 2005 is relevant which lays down that:

7. Additional Powers of District Public Prosecutor/Public

Prosecutor. —

(d) the Public Prosecutor on completion of investigation shall scrutinize the case file and refer the shortcomings or faults
in investigation to the Head of. Investigation for removing or improving the same, which shall be complied with by the
Head of Investigation within seven days, and on fulfillment thereof, it shall be sent to the Public Prosecutor putting it in
the court.

The above provision of law along with other provisions of the Act ibid has clearly prescribed the powers of the
prosecutor to scrutinize the case and as such the insertion or deletion of any section of law falls within the exclusive
domain of the prosecutor. This point has been discussed by the Lahore High Court in its judgment reported as 2008 YLR
(Lahore) 2017the relevant portion whereof is reproduced herein below:
“From the above, it is evident that the learned Ex-Officio Justice of Peace cannot make any observation with regard to
the nature of offence or direct addition or deletion of a penal provision as the same exclusively falls within the domain
of the Investigating Officer before the challan is submitted and thereafter the trial Court which is fully competent to add
any offence if made out from the FIR, report tendered in terms of section 173, Cr.P.C. and other material available on
the record at the time of framing of the charge, Further, the parties also have the right to address arguments at the time
of framing of charge in support of their contentions”.

On the same ratio there are other judgments reported as PLD 2015 (Lahore) 84, PLD 2009 (Lahore) 135 and 2007
PCr.LJ (Lahore) 124wherein the powers of the Justice of Peace have been discussed at length. While laying down proper
guideline in this regard, this Court in a judgment reported as 2010 PCr.LJ (Peshawar) 45 observed that:-

“29. Before closing this judgment, it is directed that all Justices of Peace shall keep in mind that the provisions of section
22-A, Cr.P.C, have no surperimposing or overriding effect on other provisions of the Cr.P.C. relating to the investigation,
inquiry and trial, rather these are ancillary and supplementary in nature. The object behind it is to provide a check over
the police but of limited nature and within the defined parameters contained in all the three clauses of subsection (6)
thereof, it shall not be construed to be wider in scope giving absolute powers to the Justice of Peace to interfere with the
scheme clearly laying down the procedure, privileges, duties, powers and obligations of Police Officer connected with
the course of registration of criminal cases, investigating the same and filing of charge-sheet/ cancellation reports before
the Court competent to take cognizance. The right to investigate the crime, identify the suspects, catch and interrogate
them and *once their investigations are complete, they have to file the charge-sheet against the accused or if no case is
made out to file a cancellation report. The different stages of investigation in this regard have been well defined and
clearly laid down in Chapter-XVIII of the Cr.P.C. The Justice of Peace shall not interfere with the police investigation
if it is conducted in accordance with the requirements of the provisions of the said chapter and in case of any complaint
in that regard, the Justice of Peace has to oversee the said course with a limited scope of interference whenever it
becomes imperative on well established facts”.

In view of the provisions of the relevant law and reasoning contained in the above referred reported judgments, it is held
that insertion or deletion of an offence in the FIR, being a job of the investigation, falls within the exclusive domain of
the Prosecutor/ Investigating Agency and the Justice of Peace has no power either to interfere, with the process of
investigation or to direct deletion or insertion of section of law in the FIR.

6. So far as power of the trial Court with regard to alteration of charge is concerned, in this regard section 227 of the
Cr.P.C. empowers the trial Court Jo alter or add to any charge at any time before the judgment is pronounced. Since, in
both the cases the prosecution evidence is yet to be recorded, therefore, it is within the powers of the trial Courts to
insert the sections in the FIRs prayed, for by the applicants/respondents in both the cases, however, the trial Courts shall
consider the allegations levelled in the FIRs and other circumstances of the cases for making their mind to insert the
offence/offences in the FIRs. If the material on the record and evidence of the prosecution suggest that a cognizable
offence is made out then the trial Court has the power to insert the relevant section/sections of law in the FIR and amend
the charge either on application or on its own motion.

7. In view of what has been discussed above, interference by this Court in the impugned orders is inevitable. Therefore,
the instant writ petition as well as the connected writ petition bearing W.P No.591-M/2015 are allowed. Resultantly, the
order dated 27.2.2015 passed by the learned Additional Sessions Judge-II/Justice of Peace, Swat impugned in the instant
writ petition and the order dated 06.11.2015 passed by the learned Additional Sessions Judge-VI/Justice of Peace, Swat
are hereby set aside. Petitions allowed.