Haji Rehman SHO etc vs PPO etc

2012 P Cr. L J 1526

[Peshawar]

Before Nisar Hussain Khan and Qaiser Rashid Khan, JJ

Haji REHMAN SHO and 3 others---Petitioners

Versus

PROVINCIAL POLICE OFFICER, GOVERNMENT OF KHYBER PAKHTUNKHWA, PESHAWAR and 5 others---Respondents

Writ Petition No.8-B of 2012, decided on 3rd February, 2012.

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

----Ss. 4(f), 154, 561-A & Sch. II--- Police Order (22 of 2002), Art.155---Constitution of Pakistan, Art. 199---Constitutional petition---Cognizable offence, misconduct by police officers- --F.I.R. had been registered against accused-police officials under Art.155 of Police Order, 2002- --Contention of accused-police officials was that offence under Art.155 of Police Order, 2002 was non-cognizable, therefore, F.I.R. had been wrongly registered by the police---Validity--- Art.155 of Police Order, 2002, entailed punishment of three years and no express provision existed in the said Order to state that it was a non-cognizable offence, and in such a situation recourse had to be made to S.4(f) of Cr.P.C, according to which the offence or case in which a police officer may arrest the accused without warrant in accordance with the Schedule II of Cr.P.C. is a cognizable offence or a cognizable case---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, except for S.13 of West Pakistan Arms Ordinance, 1965---No such exception had been provided in Cr.P.C. or Police Order, 2002 for an offence punishable under Art. 155 of said Order---Offence being a cognizable offence, F.I.R. had been legitimately registered in pursuance of S.154, Cr.P.C., to which no exception could be taken--- Constitutional petition was dismissed, in circumstances.

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

----S. 155---Police Order (22 of 2002), Art. 155---Constitution of Pakistan, Art. 199--- Constitutional petition---Misconduct by police officers--- Information in non-cognizable cases--- Scope--- In non-cognizable cases/offences, the only course open for the police, by virtue of S. 155, Cr.P.C., was to obtain permission of Magistrate after making entry in the concerned book and then to investigate the case; in a non-cognizable offence the police could neither

register a case under S.154, Cr.P.C. nor could it arrest the accused without a warrant.

Dost Muhammad Khan and Hidayatullah for Petitioners.

Ahmad Farooq Khattak, A.A.-G. for Respondents.

Date of hearing: 3rd February, 2012.

JUDGMENT

NISAR HUSSAIN KHAN, J.---Through instant writ petition, petitioners seek quashment of F.I.R. No. 539, dated 21-12-2011, registered under Article 155 of Police Order, 2002 at Police Station Yaqoob Khan Shaheed, Tehsil Takht-e-Nasrati, District Karak.

2.The resume of the facts forming the background of instant petition is that a letter No.12684/LB, dated 21-12-2011, was sent by District Police Officer, Karak to Deputy Superintendent of Police, Takht-e-Nasrati, that inquiry committee constituted, vide Endst: No.491-99./CRC, dated 14-12-2011 of the office of Additional Inspector-General of Police, Khyber Pakhtunkhwa, Peshawar has recommended registration of case against the petitioners, police officers on charges of displaying cowardice, negligence in duty and abetment, in connection with the occurrence of case F.I.R. No.529, dated 9-12-2011, registered under sections 302/109/148/149, P.P.C., at Police Station Yaqoob Khan Shaheed. On the basis of this letter, instant F.I.R was registered.

3.Learned counsel for the petitioners argued that offence under Article 155, Police Order, 2002 is non-cognizable, so the F.I.R has wrongly been registered by the Police. At the most, officer-in-charge of the Police Station could have investigated it after obtaining permission from the Judicial Magistrate under section 155, Cr.P.C. for investigation as it was a non-cognizable offence. Thus the F.I.R. is the culmination of illegal exercise of power, which is liable to be quashed.

4.Learned A.A.-G., has vehemently opposed the contention of learned counsel of the petitioner.

5.The proposition to be resolved in the instant petition is that; whether the offence under Article 155 of Police Order, 2002 is cognizable or otherwise? The main reliance of learned counsel for the petitioner was on Article 153 of ibid Order, by virtue of which certain offences have been declared as cognizable, which does not include Article 155, hence it according to him, would be non-cognizable. The proposition advanced by the learned counsel is misconceived. Chapter XVI of Police Order, 2002, comprising Articles 148 to 152 are offences relating to the public and these offences have been made cognizable by virtue of Article 153 of the Police Order 2002. In pursuance of Article 154 of ibid Order these offences are summarily triable by the competent Court, as provided for summery trial in Criminal Procedure Code. The punishments provided in Articles 148, 149, 150 and 152 are minor in nature as of imprisonment

of six months or/and three months along with fine, which in normal course, would have been non-cognizable offences, except Article 151, which entails punishment of three years. But the legislature has made it cognizable, despite of having lesser punishment by inserting special clause of Article 153 in the ibid Order. On the other hand Chapter XVII of Police Order specifically deals with the punishment provided for police officers, relating to the offences of their omissions or commissions, during the discharge of their official duties. Article 155 entails punishment of three years for which there is no specific express provision in Police Order 2002, that it is a non-cognizable offence. In such situation recourse would be made to the general law of Criminal Procedure Code, 1898. Section 4(f) of the Code, defines the cognizable offence or cognizable case, according to which the offence or case in which a police officer may arrest the accused without warrant in accordance with IInd Schedule of the Code is a cognizable offence or a cognizable case. Under the head of "OFFENCES AGAINST OTHER LAWS" it is provided in the IInd Schedule of the Code that police officer may arrest the accused without warrant in an offence, which is punishable with imprisonment for three years or upward and has also been made non-bailable, except section 13 of Arms Ordinance, 1965. There is no such exception provided in the Code or in the Police Order, 2002 for an offence punishable under Article 155 of the Police Order. In view of this legal perspective, it is a cognizable offence and F.I.R has rightly and legitimately been registered, in pursuance of section 154, Cr.P.C.

6.There is no cavil with the proposition that in non-cognizable cases/offences, the only course open for the police, by virtue of section 155, Cr.P.C., is to obtain permission of Magistrate after making entry in the concerned book and then investigate the case. Neither the police officer can register the case under section 154, Cr.P.C. in a non-cognizable offence nor can arrest the accused without warrant. As offence under Article 155 Police Order 2002 is a cognizable one, so F.I.R. has rightly been registered, to which no exception can be taken.

7.For what has been discussed above, this petition being devoid of merits, is hereby dismissed.

M.W.A./90/P Petition dismissed.