PLJ 2014 Lahore 161 [Multan Bench Multan] Present: Muhammad Qasim Khan, J. MUHAMMAD JAVED TARIQ--Petitioner versus STATION HOUSE OFFICER POLICE STATION FAREED TOWN SAHIWAL and 2 others--Respondents W.P. No. 10002 of 2012, decided on 10.6.2013. Constitution of Pakistan, 1973-- ----Art. 199--Criminal Procedure Code, (V of 1898) Ss. 22-A & 155(c)--Constitutional Petition--Direction of ex-officio justice of peace to register case was sought to be quashed--Non-cognizable offence neither could be registered nor investigated without permission of Magistrate--Validity--If police officers are guilty of any willful breach or neglect of any provision of law or any rule or regulation or any order, which he is bound to observe or obey is a cognizable offence and a direction for registration of case could be issued against delinquent official--Petition was dismissed. [Pp. 164 & 165] A & B Mr. Khawar Siddique Sahi, Advocate for Petitioner. Mr. Mubashir Latif Gill, Assistant Advocate General for Respondent. Haji Muhammad Tariq Aziz, Advocate for Respondent/ Complainant. Date of hearing: 10.6.2013. Order Briefly the facts leading to the filing of instant writ petition are that Respondent No. 3 Farhat Ali got lodged an FIR No. 28/2012 dated 13.01.2012 under Sections 392/397, PPC at police station Farced Town, Sahiwal and as the petitioner was posted at the said police station, the investigation of the said case was entrusted to him. Afterwards, the Respondent No. 3/complainant filed an application under Section 22-A, Cr.P.C. before the learned Ex-officio Justice of Peace to the effect that petitioner being the Investigating Officer misused his authority, prepared a fake application on behalf of the complainant/Respondent No. 3 and arrested one Imran who had no concern with the FIR, nor the Respondent No. 3 had ever nominated said Imran as his accused. On receipt of application under Section 22-A, Cr.P.C., the learned Ex-officio Justice of Peace vide order dated 22.05.2012 directed the District Police Officer to register a case under Article 155(c) of the Police Order, 2002, as a result whereof, an FIR No. 293/2012 under Article 155(c) of the Police Order, 2002 has been registered against the petitioner at police station Fareed Town, Sahiwal. 2. Through the instant writ petition the FIR No. 293/2012 registered pursuant to the direction of learned Ex-officio Justice of Peace, is sought to be quashed, mainly on the ground that offence under Article 155(c) of the Police Officer is non-cognizable, therefore, neither the same could be registered nor investigated without permission of the Magistrate. In support of his arguments, the learned counsel for the petitioner placed reliance on the case Muhammad Shafi versus S.H.O. and others (2012 Y.L.R 828), Shahid Hussain and another versus Additional Sessions Judge, Taunsa Sharif Distt. D.G. Khan and others (2011 Y.L.R 294) and Khuda Bakhsh versus Additional Sessions Judge, D.G. Khan and 3 others (2010 Y.L.R 2622). 3. The learned Law Officer assisted by learned counsel for the Complainant/Respondent No. 3 opposed this petition by arguing that offence under Article 155(c) of the Police Order, 2002 is a cognizable offence and furthermore, after registration of the FIR the same is under investigation, therefore, it would be inapt to interfere in the investigation domain of the investigating hierarchy. 4. I have heard the arguments of learned counsel for the parties and perused the file with their assistance. 5. As shall be seen from the above narration of facts, the moot point in this case is whether an offence under Article 155(c) of the Police Order, 2002 is cognizable or non-cognizable? The word cognizable has not been defined in the Police Order, 2002 and the Code of Criminal Procedure, 1898 as procedural law is applicable to the penal provisions of Police Order, 2002 for the purposes of registration of cases, investigation and trial, etc. 6. The Code of Criminal Procedure, under Section 4(1) defines the word cognizable as an offence in which a police officer, may, in accordance with second schedule or under any law for the time being in force, arrest the accused without warrant, and further Section 4(n) of the Code, ibid, defines the word non-cognizable as an offence for which a police officer may not arrest the accused without warrant of arrest. Schedule-II is in tabular form, firstly it deals with, PPC and at the end of this schedule there is separate heading OFFENCES AGAINST OTHER LAWS. When this part of the schedule is read with Section 4(f) of the, Cr.P.C., it makes clear that all offence under other laws are cognizable, if punishable with imprisonment for three years and upwards. However, its only exception is the relevant statute itself as the statute could define which offences are cognizable and bailable and which offences are non-cognizable and non-bailable. If with regard to some of the offence the statute is itself silent, then relevant part of Schedule-II (offences against other laws) as mentioned in the, Cr.P.C. shall hold the field. 7. Article 153 of the Police Order, 2002 only refers to certain offences which have been specified to be cognizable. Said Article 153 of the Police Order, 2002 reads as under: 153. Certain offences to be cognizable.--Notwithstanding anything contained in the Code, offences falling under Articles 148 to 152 shall be cognizable. While interpreting a Statute, no meaning other than those mentioned in the statute itself, can be derived, as the words of a statute are to be read in its original text, no addition, alternation or deletion can be made. The above reproduced Article, declares some of the offences covered under Articles 148 to 152 of the Police Order, 2002 as cognizable, and by bare reading of this section, it appears that the offences declared as cognizable by Article 153 of the Police Order, 2002 mostly carry short sentences. As there is no mention in Article 153, ibid, that rest of the offences under Police Order, 2002 are non-cognizable, the sentence under Article 155 of the Police Order, 2002 entail punishment which may extend to three years, therefore, by applicability of the Code of Criminal Procedure, when Section 4(f), Cr.P.C. is read with its Schedule-II, the offence under Section 155, Cr.P.C. shall be considered as cognizable, as when the statute itself is silent in this respect, therefore, relevant part of Schedule-II (Offences Against other laws) as mentioned in the Cr.P.C. shall fully attract. In this context relevant portion from a Division Bench judgment of the Karachi High Court in the case Naseem Akhtar Khan versus District and Sessions Judge (PLD 2005 Karachi 285), is reproduced as under:-- Finally learned counsel further argued that an offence under Article 155 of the Police Order was non-cognizable. We are not impressed by this contention either. Indeed the Police Order only requires a prosecution to be initiated upon a written report but does not say that no arrest can take place without a warrant The offence being punishable with imprisonment up to three years, it would be deemed to be cognizable under the Second Schedule to the, Cr.P.C. On the same point, a Division Bench of the Peshawar High Court in the case Haji Rehman SHO and 3 others versus Provincial Police Officer, Government Of Khyber Pakhtunkhwa, Peshawar and 5 others (2012 P.Cr.L.J 1526), declared that Schedule-II of, Cr.P.C. under the heading, Offences Against Other Laws provided that police officer could arrest the accused without warrant in an offence, which was punishable with imprisonment for three years or upward and such offence had also been made non-bailable. As no such exception had been provided in, Cr.P.C. or Police Order, 2002 for an offence punishable under Art. 155 of said Order, therefore, on the above analogy offence under Section 155, Cr.P.C. was declared as cognizable offence. Furthermore, a Full Bench judgment of this case in the case Khizar Hayat vs. Inspector-General of Police (Punjab) Lahore (PLD 2005 LAHORE 470), wherein, following observations were made:-- Upon a complaint received by him regarding non-compliance of his earlier direction on ex-officio Justice of the Peace can issue a direction to the relevant police authority to register a criminal case against the delinquent police officer under Article 155(c) of the Police Order, 2002. In view of the above reproduced extract from the Full Bench judgment, it has been settled once for all that if police officers are guilty of any willful breach or neglect of any provision of law or any rule or regulation or any order, which he is bound to observe or obey, is a cognizable offence and a direction for registration of case could be issued against the delinquent official. In the presence of judgment of the Full Bench of this Court, perhaps at the time when the judgments referred by learned counsel for the petitioner were delivered, proper assistance was not rendered to the Court. Even otherwise, it is settled position of law that the judgment of a Division and that of the Full Bench have to be followed by the Single Bench. In this view of the matter, I see no force in the contention of learned counsel for the petitioner that offence under Article 155(c) of Police Order, 2002 is non-cognizable. This writ petition, therefore fails and is accordingly dismissed. (R.A.) Petition dismissed
Posted on: Sun, 07 Dec 2014 15:51:57 +0000
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