Dr. Amjad Vs The State etc

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

MINGORA BENCH (DAR-UL-QAZA), SWAT

(Judicial Department)

W.P No.165-M/2026

Dr. Amjad Vs.

The State and others

Present: M/S. Raza-ud-Din and Rashid Ali Khan, Advocates for Petitioner.

Mr. Haq Nawaz Khan, Addl: A.G for official Respondents.

Nemo for Respondent No.2.

Date of hearing: 10.02.2026

JUDGMENT

Dr. Khurshid Iqbal, J: -

Through the instant constitutional petition, Dr. Amjad, the petitioner, has challenged the legality of the order dated 22.01.2026 passed by the learned Special Judge, Anti-Terrorism Court (ATC)- I, Malakand Division at Swat, whereby an application under Section 22-A of the Code of Criminal Procedure, 1898 (Cr.P.C.) of respondent No.2, for registration of a criminal case against the petitioner, was allowed. The petitioner has also questioned FIR No.17 dated 22.01.2026, registered under Sections 120, 120-A, 121, 121-A, 124-A, 153, 153-A, 504, 505, and 506(ii) of the Pakistan Penal Code, 1860 (P.P.C.) at P.S. Kokarai, District Swat, pursuant to the impugned order. He has prayed for quashing both the said order and the FIR, as being illegal and without lawful authority.

2.Sajid Ali, respondent No.2, filed an application u/s 22-A (6) Cr.P.C. before the learned ATC, Swat, seeking registration of a criminal case against the petitioner. He alleged that during a public gathering in the hujra of Mr. Akhtar Khan in Dangram, the petitioner incited the masses against the State and its institutions by threatening to storm the GHQ, cantonments, and the Circuit House at Mingora. It was further alleged that the petitioner intimidated the Sabz Ali/* (D.B) Justice Dr. Khurshid Iqbal & Justice Qazi Jawad Enhanullah

State and public servants, thereby committing offences under Sections 120, 120-A, 121, 121-A, 124-A, 153, 153-A, 504, 505, and 506(2) PPC/7ATA. It was further stated that his request was not entertained by the concerned SHO. The learned ATC issued notice to the petitioner. Comments from the SHO were also called for. After hearing arguments, the application was allowed by the ATC vide order dated 22.01.2026, and the impugned FIR was registered against the petitioner on the same day. Hence, this petition.

3.The learned Additional A.G. present in another case (W.P No.128-M/2026) filed by the present petitioner only against the impugned order, was put on notice. Arguments of learned counsel for the petitioner and learned A.A.G. heard. Record perused.

4.The core controversy is narrow but fundamental: whether the learned Special Judge, ATC, had lawful jurisdiction to entertain and decide an application under section 22-A(6), Cr.P.C., and to issue directions for registration of an FIR. This is a pure question of jurisdiction. Where jurisdiction is absent, the defect is not curable by consent, acquiescence, or the perceived gravity of allegations, because jurisdiction is a condition precedent to the valid exercise of authority. In this context, it is necessary to recall the constitutional limitation on jurisdiction. Article 175(2) of the Constitution declares that no court may assume jurisdiction unless it is conferred by the Constitution or by law. Therefore, in determining whether the ATC could act as an ex officio Justice of the Peace, the Court must identify a clear legal source which confers such power. In the absence of an enabling provision, any assumption of such jurisdiction would be contrary to the constitutional command and would render the exercise coram non judice.

5.The office of Ex-officio Justice of Peace is a creation of Section 22, Cr.P.C., which, for ready reference, is reproduced hereunder:

Sabz Ali/* (D.B) Justice Dr. Khurshid Iqbal & Justice Qazi Jawad Enhanullah

22.Appointment of Justices of the Peace. The Provincial Government may, by notification in the official Gazette, appoint for such period as may be specified in the notification, and subject to such rules as may be made by it any person who is a citizen of Pakistan and as to whose integrity and suitability it is satisfied, to be a Justice of the Peace for a local area to be specified in the notification, and more than one Justice of the Peace may be appointed for the same local area.

6.Appointment of Justices of the Peace. The Provincial Government may, by notification in the official Gazette, appoint for such period as may be specified in the notification, and subject to such rules as may be made by it any person who is a citizen of Pakistan and as to whose integrity and suitability it is satisfied, to be a Justice of the Peace for a local area to be specified in the notification, and more than one Justice of the Peace may be appointed for the same local area. Whereas, the powers of the Ex- Officio Justice of the Peace are provided u/s 22-A, Cr.P.C. The same is reproduced as under:

22-A. Power of Justices of the Peace: (1) A Justice on the Peace for any local area shall, for the purpose of making an arrest have within such area all the powers of a police officer referred to in section 54 and an officer-in-charge of a police station referred to in section 55.

(2)A Justice of the Peace making an arrest in exercise of any powers under sub-section (1) shall, forthwith, take or cause to be taken the person arrested before the officer incharge of the nearest police station and furnish such officer with a report as to the circumstances of the arrest and such officer shall thereupon re-arrest the person.

(3)A Justice of the Peace for any local area shall have powers, within such area, to call upon any member of the police force on duty to aid him.

a) in taking or preventing the escape of any person who has participated in the commission of any cognizable offence or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists of his having so participated; and b) in the prevention of crime in general and, in particular, in the prevention of a breach of the peace or a disturbance of the public tranquility.

(4)Where a member of the police force on duty has been called upon to render and aid under sub-section (3), such call shall be deemed to have been made by a competent authority.

(5)A Justice of the Peace for any local area may, in accordance with such rules as may be made by the Provincial Government,-- a) issue a certificate as to the identity of any person residing within such area, or b) verify any document brought before him by any such person, or c) attest any such document required by or under any law for the time being in force to be attested by a Magistrate, and until the contrary is proved, any certificate so issued shall be presumed to be correct and any document so verified shall be deemed to be duly verified, and any document so attested shall be deemed to have been as fully attested as if he had been a Magistrate.

(6)An ex-officio justice of peace may issue appropriate directions to the police authorities concerned on a complaint regarding.

Sabz Ali/* (D.B) Justice Dr. Khurshid Iqbal & Justice Qazi Jawad Enhanullah

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. (underlined supplied) Subsection (6) of Section 22-A, Cr.P.C., specifically provides, inter alia, for issuance of directions by the Ex-officio Justice of Peace regarding the registration or non-registration of a criminal case. Such is the main controversy involved in the instant constitutional petition. Section 25, Cr.P.C., pertains to the nomination of the Ex-Officio Justice of Peace. For ready reference, the same is reproduced hereunder:

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

Section 25, Cr.P.C., clearly nominates the Sessions Judges of the respective Districts, and, on their nomination, the Additional Sessions Judges, as Justices of the Peace for the whole of the district, in which, they are serving. However, the said section makes no mention of the Judges of Special Courts, including those of the Anti-Terrorism Courts. This omission is decisive. The legislature, while expressly identifying Sessions Judges (and, on nomination, Additional Sessions Judges) as ex officio Justices of Peace, did not extend such designation to Special Judges or to Judges of Anti-Terrorism Courts. By itself, the ATA, 1997, does not amend Section 25, Cr.P.C., to include ATC Judges as Ex- Officio Justices of the Peace. Jurisdiction being a matter of conferment, the absence of a statutory conferment cannot be supplied by implication, convenience, or administrative practice, particularly in view of the constitutional restraint under Article

7.It is also important to appreciate the functional distinction embedded in the statutory scheme. The jurisdiction under section 22-A(6), Cr.P.C., though described by superior courts as quasi- judicial, is not part of the trial jurisdiction of criminal courts. It is a supervisory direction-making power in relation to police duties, Sabz Ali/* (D.B) Justice Dr. Khurshid Iqbal & Justice Qazi Jawad Enhanullah

intended to ensure that the mandatory provisions of criminal procedure, including registration of cognisable offences, are not frustrated by inaction, neglect, or excess. Such powers are vested in the Sessions Judge acting as Justice of Peace by virtue of section 25, Cr.P.C., and not in Special Courts established under special statutes for the purpose of trial.

8.The learned Special Judge, ATC, is appointed under a special statute, and his powers are circumscribed by the ATA, 1997. The statute creates a special forum for special offences, and the forum cannot travel beyond its statutory mandate. This is not a matter of forum, but of constitutional and legal discipline: where the legislature creates a special jurisdiction, it must be exercised in the manner and within the limits prescribed. To permit the ATC to assume Justice of Peace functions would be to create, by judicial interpretation, a jurisdiction which the legislature did not confer.

9.The learned counsel for the petitioner is, therefore, correct in contending that an ATC Judge cannot be equated with an ex officio Justice of Peace. The case is not about whether the allegations disclose a cognisable offence. It is about the competence of the forum to issue the impugned direction. Where the forum lacks competence, the order is void, irrespective of the merits, because merits can only be examined by a competent authority acting within jurisdiction.

10.The learned Additional A.G. argued that the offences alleged are of such nature that they attract the ATA, 1997, and that the ATC being a Court of Sessions under the Act could competently act. This submission, though facially attractive, overlooks the limited operation of the statutory deeming provision and the carefully defined boundaries of special jurisdiction.

11.Although, under Section 32 of the ATA, 1997, an ATC is deemed to be a Court of Sessions. However, such deeming fiction operates only for the purpose of trial of offences registered under the ATA, 1997. The application of the Cr.P.C. during a trial is also subject to the provisions of the ATA, 1997. It also provides an Sabz Ali/* (D.B) Justice Dr. Khurshid Iqbal & Justice Qazi Jawad Enhanullah

overriding effect. However, it is expressly conditioned to the extent of inconsistency. The same is reproduced as under:

32.Overriding effect of Act.- (1) The provisions of this Act shall have effect notwithstanding anything contained in the Code or any other law but, save as expressly provided in this Act, the provisions of the Codes shall, in so far as they are not inconsistent with the provisions of this act, apply to the proceedings before an Anti-terrorism Court shall be deemed to be a Court of Session.

Thus, the provisions of the Cr.P.C. continue to apply to cases triable by the ATC, to the extent that they are not inconsistent with the ATA, 1997. In clear terms, the deeming status of an ATC as a Court of Sessions, therefore, relates to trial and judicial proceedings, and does not extend to administrative or executive functions. In Javed Iqbal v. The State (2016 SCMR 787), when a question arose before the Hon’ble Supreme Court as to whether prior Government sanction required under the Cr.P.C. for taking cognizance of certain offences, was applicable to proceedings before an ATC, the same was answered in the negative, holding that:

However, bar of taking cognizance provided under section 196, Cr.P.C would not apply to the proceedings before the Anti-Terrorism Courts in view of the combined effect of sections 12, 19, 30 and 32 and the overriding effect of section 32 of the Anti-Terrorism Act, 1997, being proceedings under a special statute, which provided exclusion of those provisions of Cr.P.C. and other laws which were inconsistent with the provisions of the said Act.

12.Similarly, section 19(3) of the ATA, 1997 empowers the ATC to take direct cognizance of cases triable by it, without the case being sent by a Magistrate u/s 190, Cr.P.C. This legal position itself demonstrates that an ATC performs functions strictly in its judicial capacity. Whereas, Sessions Judges or Additional Sessions Judges perform functions of a quasi-judicial nature, combining judicial and administrative roles, in accordance with the provisions of the Cr.P.C., particularly Section 25, as held in Muhammad Bashir v. SHO. (PLD 2007 SC 539). In Younas Abbas v. Additional Sessions Judge, Chakwal, (PLD 2016 SC 581), the august Apex Court has also clarified that the powers u/s 22-A (6), Cr.P.C., are quasi-judicial in nature, but are vested in the Sessions Judge acting as Justice of Peace, and not in Special Courts.

Sabz Ali/* (D.B) Justice Dr. Khurshid Iqbal & Justice Qazi Jawad Enhanullah

13.Thus, it is evident that a Sessions Judge exercising powers u/s 22-A, Cr.P.C., holds a distinct legal status as an Ex-Officio Justice of Peace. This status is separate and independent from that of an ATC Judge, who functions under the ATA, 1997 exclusively for trial and other judicial proceedings arising under the Act. Reliance is placed on Mir Ali v. State and another (PLJ 2020 Cr.C 53), wherein it was held that:

There can be no denial that the legal position that status of a judge of ATC is that of a Magistrate and he exercises all powers of a Magisterial Court during course of investigation... The Judge of the Court takes cognizance directly on the police report which act shall always be believed to be an independent act.

14.Moreover, u/s 13 of the ATA, 1997, the ATC has been established for the purpose of speedy trial of cases, and a condition precedent for the ATC to exercise its authority is that it first takes cognizance of a case registered under the provisions of the ATA, 1997. The words “cognizance of the case” in Section 23 of the Act simply mean that when the ATC, on receipt of the challan, takes any step indicative of proceedings in the trial. By no stretch of imagination, it implies that the ATC, on receipt of a direct complaint u/s 22-A, Cr.P.C., can order registration of a criminal case, thereby stepping into the jurisdiction of the Sessions Court or the local police, empowered under the law. In Ali Gohar and others v. Pervaiz Ahmed and others (PLD 2020 SC 427), the august Apex Court has held that:

ATC Court would be said to have taken "cognizance of the case" when on the receipt of the challan along with the material placed therewith by the prosecution, it took judicial notice thereon by the conscious application of mind and took positive steps to indicate that the trial of the case was to follow. Such steps need not necessarily be recorded as judicial orders; what was essential was that the orders so passed or steps taken reflected that ATC Court was to proceed with the trial.

15.The fact that the offence attracts the provisions of the ATC, 1997, itself, does not oust the jurisdiction of the Ex-Officio Justice of Peace, because it is by now well-settled that the Ex-Officio Justice of Peace, in exercise of powers u/s 22-A Cr.P.C., is competent to issue directions for the registration of a criminal case irrespective of the nature of the offence or the specialized forum Sabz Ali/* (D.B) Justice Dr. Khurshid Iqbal & Justice Qazi Jawad Enhanullah

that may ultimately try the matter. In Makhdoomzada Syed Mushtaq Hussain Shah v. Additional Sessions Judge, Islamabad (PLD 2013 Islamabad 26), it was observed that the Ex-Officio Justice of Peace has the jurisdiction to direct registration of a case even against specialized agencies such as the FIA, and such jurisdiction cannot be curtailed merely because the offence falls within the domain of a special court. The relevant portion of the judgment is reproduced as under:

14.Though by Section 10 of the Act, the Pakistan Special Police Establishment Ordinance. 1948 was repealed on promulgation of Federal Investigation Agency Act, 1974, therefore, there remained no ambiguity to concerned agency (FIA) and powers exercised by its members as officer Incharge of the Police Station. Therefore, status of the FIA defines as Police Station and Incharge whereof is officer Incharge of the Police Station as Station House Officer, therefore as defined being Police Station and Officer Incharge of the said Police Station. The Ex-Officio Justice of Peace can issue such direction while exercising powers under section 22-A, Cr.P.C., which includes the appropriate direction to the Police Authority concerned. For such purpose FIA, being Agency is a Police Authority comes within such definition.

16.It may be reiterated that the ATC is a Special Court constituted under the ATA, 1997 and is required to perform judicial functions qua trial of offences registered under the said Act after receipt of challan from the prosecution. It cannot entertain an application under Section 22-A, Cr.P.C. It is a settled law that on receipt of a complaint regarding commission of a scheduled offence (for example, abduction for ransom), the ATC, may take cognizance u/s 19(3) of the ATA, 1997. However, in such a situation, it is obliged to proceed u/s 200, Cr.P.C., by examining the complainant, rather than dismissing it or treating the same as an application under Section 22-A, Cr.P.C. This view has been taken by the Lahore High Court in Mst. Kaneez Mai v. Judge, ATC (2021 LHC 376). However, in the instant matter, the application was neither treated as a criminal complaint by recording the statement of the complainant, nor was it filed in that sense. In Rao Fahd Ali Khan v. State (2014 PCr.LJ 1071), the Islamabad High Court has categorically held that the Sessions Judge and the ATC are performing two distinct jurisdictional functions within their Sabz Ali/* (D.B) Justice Dr. Khurshid Iqbal & Justice Qazi Jawad Enhanullah

statutory limits. The said matter was pertaining to trial of a criminal case, wherein it was held that:

Though section 23 of the Anti-Terrorism Act provides a procedure for transfer of the case to the court of ordinary jurisdiction, but same again could not be done neither bypassing procedural law nor the Anti-Terrorism Court is empowered to transfer the case directly to the Court of Sessions or Additional Sessions Judge without following the procedure laid down under sections 190(3) and 193, Cr.P.C. Likewise, Sessions Judge has no authority by virtue of law to transfer or send the case to any court constituted under the Anti-Terrorism Act, 1997. In both the cases or circumstances when occur before either of the Court, the Court has to follow the procedure laid down by Criminal Procedure Code or if any provision is provided by the special enactment. Under the circumstances, in all such type of cases, respective courts have no alternate except to return back the F.I.R. and final report submitted by police to the prosecution or concerned I.O. for the purpose of its onward process by presenting the same before the court of competent jurisdiction.

17.The above legal discourse leads us to an irresistible conclusion that the learned Judge, ATC, does not hold the quasi- judicial status of an Ex-officio Justice of Peace. Rather, he is performing only judicial functions strictly in respect of trial of criminal cases already registered under the provisions of the ATA, 1997, by applying the provisions of the Cr.P.C. only to the extent that they are not inconsistent with ATA, 1997. The powers u/s 22- A, Cr.P.C., exercised under the ordinary law (Cr.P.C), were not vested in the learned ATC. The application u/s 22-A, Cr.P.C., ought to have been dismissed by it on the ground of maintainability. In Ghulam Shabbir v. Muhammad Anwar and 02 others (2022 YLR Note 131), the order passed by a Special Judge, Anti-Corruption, directing the Circle Officer to record an FIR against the petitioner was set aside on the legal ground that the Special Judge, Anti-Corruption, was not an Ex-Officio Justice of the Peace. Similarly, in the present matter, the learned Special Judge, ATC, while entertaining the application filed under Section 22-A, Cr.P.C., seeking registration of a criminal case against the petitioner, acted as coram non judice and lacked lawful authority either to entertain the application or to pass the impugned order. The impugned order is, therefore, patently illegal and without lawful authority. Consequently, the FIR registered pursuant thereto is also not sustainable in law. Reference may be made to Muhammad Ashraf v. Justice of Peace and others (2014 PCr.LJ Sabz Ali/* (D.B) Justice Dr. Khurshid Iqbal & Justice Qazi Jawad Enhanullah

343), wherein, while setting aside an order passed u/s 22-A, Cr.P.C., regarding directions for inquiry, it was held that when the foundation itself was not sustainable, the superstructure build thereon, was bound to collapse.

18.Accordingly, the instant constitutional petition succeeds, which is admitted and allowed. Resultantly, the impugned order dated 22.01.2026 along with FIR No. 17 dated 22.01.2026 and all subsequent proceedings arising therefrom, are hereby quashed/ set aside. However, it is observed that respondent No. 2 (complainant), if so advised, may approach the competent Court of Justice of Peace for redressal of his grievance, in accordance with law.

19.Before parting with this order, it is pertinent to clarify that only the above pure legal question regarding the jurisdiction of the learned Special Judge, ATC, was examined and resolved in this constitutional petition. No factual aspect of the case has been touched upon. The determination of this legal issue shall not prejudice the rights of the respondent/complainant, as it is a settled principle of law that when a thing is required to be done in a particular manner, it must be done in that manner and not otherwise. It shall, therefore, not be considered as an order passed against the interest of the respondent/ complainant as his right for resort to the competent Court for redressal of his grievances has already been protected. In these circumstances, issuance of notice to the respondent/complainant was not considered necessary, as it would have served no useful purpose and the outcome would have remained the same.

Announced.

10.02.2026 ...Sd..

JUDGE

.....Sd...

JUDGE

Sabz Ali/* (D.B) Justice Dr. Khurshid Iqbal & Justice Qazi Jawad Enhanullah