Daily Times

Before analysing, dissecting and discussing the highly controversial policy announced by the National Judicial (Policy Making) Committee(NJPMC) on 11th of March 2019, which have kicked a hornets’ nest amongst the legal fraternity, inviting opprobrium, and rightly so and will open a can of worms for the litigants ) in respect of the jurisdiction conferred by Sections 22-A, 22-B of Cr.p.c. on Sessions judges empowering them to lodge FIR(s), it would be profitable to reproduce here the relevant extract of minutes of the concerned meeting :

“The Hon’ble Chief Justice of Pakistan/Chairman, NJPMC stated that currently courts of the Sessions Judges and Additional Sessions Judges, under the Code of Criminal Procedure, 1898, are burdened with cases relating to giving directions to the Police Authorities for registration of case. His-lordship stated that the above referred jurisdiction tantamount to involvement of judiciary in executive functions and is in collision with the principle of separation of powers. The Secretary, NJPMC briefed the Committee that from January 1, 2017 to February 28, 2019, a total number of 614307 cases under section 22 A/22 B Cr.P.C., were filed in the District Judiciary throughout the Country, while during the same period 47029 cases under the said provisions were filed in the High Courts. The Committee also resolved that since a Police Complaint Redressal Mechanism, as per recommendations of the Police Reforms Committee, has been operationalized at district level in all over Pakistan, which is headed by SP Complaints, therefore, applications under section 22 A Cr.P.C., may not be entertained by the Courts unless accompanied by decision of the relevant district SP Complaints. The Secretary, NJPMC briefed the Committee that during January, 2019 till date, a total number of 25426 complaints have been disposed of by the Complaint Redressal Centers of Police Department”.

Has the Superior judiciary not stepped outside the jurisdiction vested in it by the Constitution and usurped the powers of the legislature, thereby effectively undermining the very theory of separation of powers it holds so dear?

As is manifestly and abundantly obvious from a bare perusal of the above-quoted extract, the CJP expresses his profound concern about dragging the judiciary into the realm of the executive under the garb of Sections 22-A & 22-B Cr.p.c., laying emphasis on trichotomy of powers, a doctrine embedded deep in our Constitutional fabric. At the same time, he is troubled by the fact that the judiciary is overburdened by the backlog of the petitions filed under these provisions. Now to resolve and address these crucial problems, the committee has made the decision(s) of the concerned district SP complaints a condition precedent to file the petitions seeking lodging of FIR before the Sessions Court. In other words, if no written decision is made by the SP, the said petition would not be competent and maintainable. It goes without saying that SP is now vested with powers to look into the matter, conduct investigation prior to making a decision whether a cognizable offence is made out or not. Needless to emphasize at this juncture that this practice was deprecated by none other than the incumbent CJP in a case reported as PLD 2005 Lah 470, which was later approved of by the Apex Court in a case reported as PLD 2007 SC 539. In the very words of Asif Saeed Khosa, it would be tantamount to “putting the cart before the horse”. It is anybody’s guess that after all those years, if his jurisprudence has gone a sea change at all. Well, as for so much emphasis placed on separation of powers theory, the order of the committee would only be counterproductive, opening a pandora’s box. Alas! At this juncture, one may wonder why the CJP has not struck down Section 22-A, if to his mind, the provisions contained therein fly in the face of the law of the land. And why has he adopted a circuitous route to right the wrong instead of addressing the problem head-on? One is also reminded of the judgment of the apex Court reported as PLD 2016 SC 581 wherein Justice Ejaz Afzal dissented from PLD 2005 Lah. 470 and held the powers exercised by the Sessions judges under Sections 22-A & 22-B are not executive or administrative in nature, rather they are quasi-judicial and refused to strike down these provisions on the touchstone of Article 175(3) of the Constitution. Needless to mention that the incumbent CJP was not a member of the bench handing down this judgment. Against these hard facts, one is quite justified in posing the same question yet another time, why have the CJP not declared Sections 22-A and 22-B ultra vires the Constitution by constituting a bench compromising all the judges of the Supreme Court? Again, has the Superior judiciary not stepped outside the jurisdiction vested in it by the Constitution and usurped the powers of the legislature, thereby effectively undermining the very theory of separation of powers it holds so dear ?

The provisions contained in Article 37 (d) of the Constitution have been turned on their heads, thereby rendering justice expensive and grindingly slow. The agony, woes and miseries of the litigants would be multiplied and compounded manifold in the wake of the decision of NJPMC. They will have to wage a protracted and long- drawn-out legal battle. They would be left at the sweet will and mercy of the police. Lodging an FIR would now be an uphill task; people have to proverbially run from pillar to post, first get an order from police and then from Justice of the peace. In case, the SP drags his or her feet over the reaching of decision, the party will have to knock the door of High Court by instituting a writ petition to get a direction therefrom. And in case, the Justice of Peace declines to order the lodging of an FIR, the party will then again have to approach the High Court. To top it all, it would unnecessarily increase the economic burden of the litigants; for the most part, they will have to bribe their way in getting orders from the SP. One can only regret over this sorry state of affairs.

The writer is a lawyer

Published in Daily Times, March 18^th 2019.