February 2023

PLJ 2023 Lahore 129

Present: Tariq Saleem Sheikh, J.

SHAHZAD--Petitioner

versus

EX-OFFICIO JUSTICE OF PEACE etc.--Respondents

W.P. No. 80439 of 2021, heard on 30.3.2022.

Criminal Procedure Code, 1898 (V of 1898)--

----S. 22-A/22-B/25--Second marriage without divorce to petitioner--Dismissal of petition--Independent statutory remedy--Petitioner previously moved an application before Ex-officio Justice of Peace, Faisalabad, u/S. 22-A, Cr.P.C. for registration of FIR against Respondents No. 3 & 4 on same facts which was dismissed--principle of res-judicata postulates that when parties have litigated a claim before a Court of competent jurisdiction and it has finally decided controversy, interests of State and of parties require that validity of claim and matters directly and substantially in issue in action shall not be litigated again--Ex-officio Justice of Peace exercises quasi-judicial functions u/S. 22-A(6), Cr.P.C.--Principle of res-judicata applies to applications made to him seeking direction to officer in-charge of a police station to register FIR under Section 154, Cr.P.C.--Nevertheless, it does not bar institution of a private complaint as it is an independent statutory remedy--Petition dismissed. [Pp. 133 & 135] A, B, D & E

PLD 2016 SC 581 ref.

Principle of Res-judicata--

----S. 22-A/22-B/25--Res-judicata--Doctrine of res-judicata is based on public policy and applies to all judicial proceedings. [P. 134] C

AIR 1994 SC 152 ref.

Mr. Mahboob Saeed Khokhar, Advocate for Petitioner.

Mr. Mukhtar Ahmad Ranjha, Assistant Advocate General for Respondent No. 2.

Mr. Kashif Alexander Rajpoot, Advocate, assisted Ms. Nadia Hameed, Advocate for Respondent No. 3.

In person Respondent No. 4.

Date of hearing: 30.3.2022.

Judgment

This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the “Constitution”), is directed against order dated 29.11.2021 passed by the Ex-officio Justice of Peace, Toba Tek Singh.

The factual background

2. The Petitioner and Respondents No. 3 & 4 are Christian by faith. On 09.10.2021 the Petitioner moved an application under Section 22-A, Cr.P.C. stating that in the year 2011 he married Respondent No. 3 and two children were born to them. In 2015 the lady left him and went to her parents’ house alongwith the siblings and refused to come back despite his best efforts. Lately he learnt that Respondent No. 3 had contracted second marriage with Respondent No. 4 without getting divorce from him. The Petitioner contended that Respondents No. 3 & 4 had committed a cognizable offence and prayed that a direction be issued to the Respondent SHO for registration of FIR against them. The Ex-officio Justice of Peace dismissed the said application vide order dated 29.11.2021 on the ground that it was not maintainable as his earlier application on the same facts had been dismissed by the Ex-officio Justice of Peace, Faisalabad. Hence, this petition.

The submissions

3. The Petitioner contends that Respondents No. 3 & 4 have committed a cognizable offence so the Respondent SHO is obligated to register FIR against them forthwith. He further contends that he cannot be non-suited for the mere reason that he moved an application under Section 22-A, Cr.P.C. on the same facts earlier. He argues that the impugned order dated 29.11.2021 is perverse and not sustainable.

4. The Assistant Advocate General contends that the Petitioner’s first application under Section 22-A, Cr.P.C. was dismissed on merits. He did not challenge the dismissal order before any forum so it has attained finality and he is precluded from filing new application.

5. Respondent No. 3 has supported the impugned order and argues that the Petitioner has filed the above-mentioned application under Section 22-A, Cr.P.C. to harass her as she has obtained a decree for maintenance against him. She further alleges that he has committed polygamy himself which is forbidden in Christianity and an offence under the laws of Pakistan. Hence, he is liable to be prosecuted.

6. Respondent No. 4 has also termed the proceedings initiated by the Petitioner as malafide and vexatious.

Discussion

7. In the Indo-Pak sub-continent the original role of the Justice of Peace under the Code of Criminal Procedure, 1898 (the “Code” or “Cr.P.C.”), was primarily to assist the police in maintaining public order and peace and, in the event of infarction of law, to help apprehend the culprit and investigate the crime.[1] However, his role was subsequently enlarged and made more comprehensive through various amendments in the Code. On 21.11.2002, the Criminal Procedure (Third Amendment) Ordinance, 2002 (Federal Ordinance No. CXXXI of 2002)[2] added sub-section (6) in Section 22-A, Cr.P.C. and conferred additional powers on the Ex-officio Justices of Peace. The said provision reads as under:

(6) An Ex-officio Justice of Peace may issue appropriate directions to the police authorities concerned on a complaint regarding:

(i) non-registration of 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.

Section 25, Cr.P.C. defines Ex-officio Justice of Peace as follows:

25. Ex-officio Justice of the Peace.– By virtue of their respective offices, the Sessions Judges and on nomination by them, the Additional sessions Judges, are Justices of the Peace within and for whole of the District of the Province in which they are serving.

8. In Younas Abbas and others v. Additional Sessions Judge, Chakwal and others (PLD 2016 SC 581) a larger Bench of the Hon’ble Supreme Court of Pakistan considered Sections 22-A and 25, Cr.P.C. and ruled as under:

(i) Sections 22-A(6) and 25, Cr.P.C. are not ultra vires the Constitution.

(ii) The functions of the Justice of Peace under sub- Sections (1) to (5) of Section 22-A and Section 22-B, Cr.P.C. are executive, administrative, preventive and ministerial. However, those of the Ex-officio Justice of Peace under Section 22-A(6), Cr.P.C. are quasi-judicial as he entertains applications, examines the record, hears the parties, passes orders and issues directions with due application of mind. Every lis before him demands discretion and judgment.

(iii) Traditionally it is the prerogative of the High Court to issue a writ. Our Constitution of 1973 also recognizes it but the legislature has lately conferred some powers on the Ex-officio Justice of Peace to provide remedy to the aggrieved people at their doorstep. The parameters laid down for the High Court for the exercise of that jurisdiction would apply to the Ex-officio Justice of Peace with the same force.

9. Admittedly, the Petitioner previously moved an application before the Ex-officio Justice of Peace, Faisalabad, under Section 22-A, Cr.P.C. for registration of FIR against Respondents No. 3 & 4 on the same facts which was dismissed vide order dated 22.09.2020 after hearing both the sides. The foremost question that requires consideration is whether second application is maintainable. In other words, whether the principle of res-judicata applies to the proceedings under Section 22-A(6), Cr.P.C.

10. The principle of res-judicata is based on two legal maxims – “interest reipublicae ut sit finis litium”,[3] and “nemo debet bis vexari pro eadem causa”.[4] Corpus Juris Secundum, Volume 50 (Edition 2009) states: “The term ‘res-judicata’ is sometimes used in a broad or generic sense to encompass or describe a group of related concepts concerning the conclusive effect of a final judgment. Used thusly, the term has been stated to encompass merger, bar and collateral estoppel, or claim and issue preclusion. So as to exclude issue preclusion, or collateral estoppel, res-judicata is sometimes used in a narrow sense. In this context, res-judicata is sometimes defined as, considered to be synonymous with, claim preclusion, and many Courts treat the two concepts as interchangeable, as by using the phrase ‘res-judicata’ or ‘claim preclusion’.”[5]

11. The principle of res-judicata postulates that when the parties have litigated a claim before a Court of competent jurisdiction and it has finally decided the controversy, the interests of the State and of the parties require that the validity of the claim and the matters directly and substantially in issue in the action shall not be litigated again by them or their representatives. In Commissioner v. Sunnen, 33 U.S. 591 (1948), the U.S. Supreme Court stated:

“The general rule of res-judicata applies to repetitious suits involving the same cause of action. It rests upon considerations of economy of judicial time and public policy favoring the establishment of certainty in legal relations. The rule provides that when a Court of competent jurisdiction has entered a final judgment on the merits of a cause of action, the parties to the suit and their privies are thereafter bound ‘not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose.’ Cromwell v. County of Sac, 94 U.S. 351, 352. The judgment puts an end to the cause of action, which cannot again be brought into litigation between the parties upon any ground whatever, absent fraud or some other factor invalidating the judgment. See Von Moschzisker, ‘Res Judicata,’ 38 Yale L.J. 299; Restatement of the Law of Judgments, § § 47, 48.”

12. The question as to whether the doctrine of res-judicata is applicable to administrative determinations is quite contentious. Some authorities hold that it is completely inapplicable because the administrative procedures are often summary in nature, the parties are sometimes unrepresented and the dealing officers lack the training that the judges have for adjudication of disputes. The other set of legal experts opine that it depends on the legislative policy. However, the more recent view is that the applicability of the doctrine depends on the nature of the administrative tribunal involved, generally being applied where the function of the administrative agency is judicial or quasi-judicial.[6] Halsbury’s Laws of India explains:

“Although the Code of Civil Procedure 1908 does not apply to proceedings other than suits, the general principles of res-judicata govern not only the findings of Courts, stricto sensu, but also the findings of administrative tribunals and quasi-judicial authorities which are acting in judicial or quasi-judicial capacity. Thus, the plea of res-judicata is available in respect of decisions of Courts of exclusive jurisdiction as also decisions rendered by other adjudicating authorities. The rule, however, does not apply to administrative decisions, for example the policy matters of the government. The power to change, adjust or readjust policy is untrammelled.”[7]

13. In Sulochana Amma v. Narayanan Nair (AIR 1994 SC 152) the Supreme Court of India held that the doctrine of res-judicata is based on public policy and applies to all judicial proceedings, whether civil or otherwise, and to the quasi-judicial proceedings of the tribunals other than the civil Courts. Accordingly, in A.K. Muthuswamy v. Securities Exchange Board of India[8] the Madras High Court held that the Board was not competent to entertain second complaint on the same cause of action as it exercises quasi-judicial functions. Further, it could not treat that complaint even as a review petition because the statute did not confer such power on it.

14. The principle of res-judicata is applied to quasi-judicial proceedings in other jurisdictions as well. In The State Ex Rel.

[1]. Khizer Hayat and others v. Inspector-General of Police (Punjab), Lahore and others (PLD 2005 Lahore 470).

[3]. “It is a public concern that there should be an end to litigation”.

[4]. “No one ought to be twice vexed for the same cause”.

[7]. Halsbury’s Laws of India (2014), Vol. 7, p. 105.

[8]. https://indiankanoon.org/doc/3546452/.