P L D 2013 Lahore 442 (PLP)

UMAR ATA BANDIAL, J.

Learned counsel for the petitioner has assailed guidelines for investigation of cases under section 489-F, P.P.C. issued by the Inspector General of Police on 15-8-2011. Submits that three pre-conditions for registration of F.I.R. alleging the offence under section 489-F, P.P.C. have been imposed which are beyond the legal authority and competence of the respondent I.G.P. He submits that the Police Order, 2002 does not permit the I.G.P. to issue instructions that conflict with the settled law declared by superior courts that the commission of a cognizable offence is the sole basis for registration of F.I.R. and no inquiry into the commission of such offence may be launched by a SHO prior to registration of the F.I.R. Relies on Muhammad Bashir v. SHO and others (PLD 2007 SC 539) and Chapter 34, Rule I of the Police Rules, 1934 read with section 154 of the Cr.P.C. Learned counsel further adds that he acknowledges the wisdom of the police authorities to regulate their investigative powers, however, such regulation should take place after registration of F.I.R. He has candidly pointed out one category of cases that unnecessarily benefits from the impugned guidelines. This is the case of the habitual offenders who fraudulently issue cheques in consideration of money received with the intention that the cheque will be dishonoured.

2. After hearing the learned counsel for the petitioner, the learned Addl. A.G. and perusing the parawise comments filed by the respondent No.2, it emerges that there is no dispute on the duty of a police officer to register an F.I.R. under section 154 of Cr.P.C. where a complaint discloses the commission of a cognizable offence. In the context of an offence under section 489-F, P.P.C. two of the pre-requisite documents noted in the instructions, namely, dishonour slip and a notice under section 30 of the Negotiable Instruments Act, 1881 are valid demands by a police officer before registering a case under section 489-F of P.P.C. However, the third pre-condition, namely, establishment of dishonesty, obligation and genuiness of signatures of the drawer-accused are matters that require probe and evidence. A police officer does not have authority to carry out an inquiry prior to registration of a case as held by the Hon'ble Supreme Court in Muhammad Bashir v. S.H.O. and others (PLD 2007 SC 539) and as reflected in Chapter 34, Rule 1 of the Police Rules, 1934 read with section 154, Cr.P.C. Consequently, the three elements noted in the impugned instructions cannot prevent registration of F.I.R. However, initial probe in those three elements by an investigating officer may be justified before arresting an accused-drawer of a cheque. It is wrong presumption on the part of the police authorities that upon registration of F.I.R. for a cognizable offence, the person accused therein must be arrested immediately. Reliance is placed on Khizer Hayat and others v. Inspector-General of Police(Punjab), Lahore and others (PLD 2005 Lahore 470) wherein a learned Full Bench of this Court has rejected the view that an arrest of a suspect or an accused person is necessary or sine qua non for investigation of a crime. "A suspect is not to be arrested straightaway upon registration of an F.I.R. or as a matter of course... Arrest is to be deferred till such time that sufficient material or evidence becomes available on the record of investigation prima facie satisfying the investigating officer" about correctness of the allegation levelled by a complainant party against a suspect's involvement in the commission of the crime alleged. The law disapproves depriving of a person of his liberty on the basis of unsubstantiated allegations. Insistence by the complainant party for the immediate arrest of an accused should not swamp an investigating officer to ignore the rules governing exercise of his discretion and jurisdiction in the matter. Accordingly, the appropriate course for the respondent No.1 is to establish a protocol to regulate the authority of an investigating officer by specifying the steps to be taken by him with reference to the type of offence in issue. Consequently, whilst the relevance of the criteria noted in the instructions is not doubted, it is the stage of application of one of these which is disputed by the petitioner on the basis of binding law.

3. It is accordingly, directed that the respondents shall in the matter of registration of F.I.R. under section 489-F of P.P.C. satisfy themselves regarding, prima facie, disclosure of an offence by the provision of a dishonour slip and a notice under section 30 of the Negotiable Instruments Act, 1881 prior to registration of F.I.R. for the said offence. However, in so far as the remaining criterion noted in the impugned instructions is concerned the same shall be applied after registration of F.I.R. and if justified by the facts, before the arrest of an accused-drawer of a dishonoured cheque.

4. Petition disposed of. MWA/M-60/L Order accordingly.