1. Though the appellants and the petitioners in many cases voiced their individual grievances against the orders directing or refusing the registration of cases but appellants in Civil Appeal No. 491 of 2013 also questioned the vires of Section 22-A in general and 22-A(6) of the Cr.P.C. in particular. This Court after hearing the learned ASCs for the parties crystallized the formulations as under:
“3. We have gone through the leave granting order dated 13.12.2013, wherein the afore-referred questions have been adverted to for consideration, however, while hearing the appellant’s learned counsel, we find that certain issues relatable to the vires of Section 22-A Cr.P.C. and the manner it is being used, require consideration. In this view of the matter, we are persuaded to direct the learned counsel for the parties to address the Court, inter alia, on the following issues:
a) Whether Section 22-A Cr.P.C. is ultra vires of the Constitution inasmuch as it confers Executive powers to a Judicial Officer? and
b) Whether its alleged misuse is not in consonance with the canons of expeditious justice? and
c) Whether the exercise of power under Section 22-A Cr.P.C. amounts to interference in the investigative domain of police, which is violative of this Court’s judgment in Muhammad Bashir Vs. Station House Officer, Okara (PLD 2007 SC 539) and Imtiaz Ahmad. Vs. Government of Pakistan (1994 SCMR 2142)?
2. Notices were issued to the Advocates General of the Provinces whereas Kh. Haris Ahmed and Mr. Farogh Naseem were appointed as amicus curiae. This case was heard on 20.11.2014 by a Bench of this Court, which ordered it to be heard by a Larger Bench by observing as under:
“2. We have heard the learned amicus curiae. Both the learned counsel have submitted that the powers exercisable under Section 22-A (6) read with Section 25 of the Cr.P.C. are quasi judicial in nature and therefore do not violate the provision of Article 175(3) of the Constitution; and that if these powers are declared to be executive or administrative in nature, the same would not be in consonance with the provision of Article 175(3) of the Constitution. During the course of arguments two judgments were brought to our notice; one by the Lahore High Court authored by Hon’ble Justice Asif Saeed Khan Khosa, as Judge of that Court, which was reaffirmed by a three member bench of this Court in the case of Muhammad Ali. Vs. Additional I. G. Faisalabad and others (PLD 2014 SC 753) declaring that the said powers are administrative and executive in nature. Since the said judgment has been handed down by a three member bench, it would be appropriate that this case be heard by a larger bench, in order to determine whether the powers under Section 22-A(6) of Cr.P.C. are quasi judicial in nature, and if not, would it violate the provision of Article 175(3) of the Constitution.”
3. The learned Advocates Supreme Court appearing in the appeals as well as civil petitions and criminal petitions addressed arguments in support of and against the formulations. The main theme and thrust of the arguments addressed in support of the formulations was that the Ex-officio Justice of Peace while exercising powers under Section 22-A (6) Cr.P.C. interferes with investigation, delays dispensation of justice, and thereby abuses the process of the Court which is violative of the dicta rendered in the cases of Muhammad Bashir. Vs. Station House Officer, Okara Cantt. and others (PLD 2007 SC 539) and Brig. (Retd) Imtiaz Ahmad. Vs. Government of Pakistan through Secretary, Interior Division, Islamabad and 2 others (1994 SCMR 2142). Some of the ASCs also went to the extent of calling this provision as ultra vires in the sense that these powers being executive and administrative in nature militate against the concept of independence of judiciary and its separation from the executive as enshrined in Article 175 of the Constitution of the Islamic Republic of Pakistan.
4. Sheikh Zamir Hussain, learned ASC appearing on behalf of respondents Nos. 4 and 7 in C. A. No. 1491 of 2013 contended that the people could live and lump up with the powers of the Exofficio Justice of Peace under Section 22-A(6) Cr.P.C. but not with their abuse and misuse especially when he assumes the role of investigator, prosecutor and the Court before the case is sent thereto or any other Court for trial and thereby defeats the purpose this provision was enacted for.
5. Mr. Saiful Malook, learned ASC appearing on behalf of the petitioner in C. P. No. 2489-L of 2015 by highlighting the excesses committed by the Ex-officio Justice of Peace in exercise of his powers, vehemently pleaded for prescribing parameters in this behalf lest it does more harm than good.
6. Mr. Muhammad Shahid Kamal, learned ASC appearing on behalf of the appellant in C. A. No. 1491 of 2013 contended that enactment of Section 22-A, 22-B and 25 of the Criminal Procedure Code is well intentioned, if their efficacy in facilitating the cause of justice is looked at and that there may be deviations here and there, but they can well be corrected through judicial review.
7. The learned Advocates General of the respective Provinces contended that these provisions cannot be treated as heal-all inasmuch as their side effects have added to the backlog which is already mountain-high as was also observed by this Court in the case of Muhammad Bashir. Vs. Station House Officer, Okara Cantt. and others (supra) .
8. Kh. Haris Ahmed, learned ASC appearing as amicus curiae having cited a good number of judgments sought to canvass at the bar that interference with investigation at any level has not been approved of by this Court unless of course it is malafide and without jurisdiction. He next contended that even the powers conferred on the High Court under Section 561-A of Cr.P.C. cannot be used to impede or hamper the investigation, but to prevent the abuse of the process of the Court. The learned ASC to support his point of view referred to the cases of Muhammad Bashir. Vs. Station House Officer, Okara Cantt. and others, Brig. (Retd) Imtiaz Ahmad. Vs. Government of Pakistan through Secretary, Interior Division, Islamabad and 2 others (supra), Emperor. Vs. Khawaja Nazir Ahmad (AIR 1945 PC 18), Shahnaz Begum. Vs. The Hon’ble Judges of the High Court of Sindh and Baluchistan and another (PLD 1971 SC 677) and Ghulam Mohammad. Vs. Muzzamil Khan (PLD 1967 SC 317). The learned ASC went on to argue that what cannot be permitted in exercise of jurisdiction under Article 199 of the Constitution or 561-A of Cr.P.C. cannot be permitted at the level of the Ex-officio Justice of Peace.
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