2004 P Cr (PLP)

Akbar Tarar, Addl. A.‑G. Date of hearing: 27th June, 2003. Through this writ petition, the petitioner seeks order for quashing case F.I.R. No 243‑ of 1998 registered on I8‑6‑1998 in Police Station A‑Division City Kasur, under sections 420, 468 and 471, P. P. C.

2. The F.I.R. was lodged by one Muhammad Aslam Tahir under sections 420, 468 and 471, P. P. C. The complainant is the owner of Tahir Brothers Instalment Corporation, Lahore Road, Kasur and who was running the business of sale of motorcycles, fridges, T.Vs. and other electronic goods. About two years ago, the accused namely Abdul Rauf son of Khushi Muhammad, who used to work as an employee at a Medical Store used to visit the shop of the complainant. He expressed the desire for the purchase of a motorcycle on instalments basis. The complainant asked for the security and which was furnished by him and the motorcycle was given to him by the complainant. He made payment of some instalments. Later on, the basis of security furnished by him; the accused obtained six other motorcycles in different names. However, later he refused to make payment of. instalments. In connivance with registration office, he misused the identity card of complainant and got affixed his own photograph thereon, prepared fake transfer letters and sold away all these motorcycles. Hence the complainant reported the matter to the police on the allegation of fraud/forgery for the purpose of cheating and using as genuine and forged documents i.e. transfer letters.

3. After the investigation, the challan was submitted in the learned trial Court. After the charge was framed and order 'was passed for summoning the prosecution evidence, the petitioner/accused filed an application under section 249‑A, Cr.P.C. The application was dismissed by the learned trial Court on 30‑1‑2002. The petitioner filed a revision petition which was also dismissed by the learned Additional Sessions Judge, Kasur, on 5‑3‑2002. Aggrieved of the same, the petitioner has now filed the instant writ petition.

4. Arguments have been heard and record perused.

5. The learned counsel for the petitioner has argued that the Investigating Officer of this case had conducted the investigation without permission of the Magistrate and hence he had violated the provisions of section 155(2), Cr.P.C. and had prepared a report under section 173,1 Cr.P.C. against law. He has argued that the filing of report under section 173, Cr.P.C. after investigation of the case without the permission of the 'Magistrate in non‑cognizable cases clearly an act against the provisions of law and also against the decisions of the Honourable superior Courts. In this respect, he has placed reliance on (1) Peroo v. The State 1982 PCr.LJ 795 (Karachi), (2) Hussain Bakhsh v. The State PLD 1963 W.P. Lah. 46, (3) Qudrat Hussain v. The State 1996 PCr.LJ 735 and (4) Muhammad Aslam v. The State 1993 PCr.LJ 205 (Lahore). The learned counsel for the petitioner has argued that the learned trial Court has taken cognizance on the report under section 173, Cr.P.C. which had been submitted illegally by the police and hence the proceedings as well as the entire investigation conducted in this case were liable to be quashed as the Investigating Officer was not competent to investigate the case, without the permission' of the Magistrate as the offences in question under sections 468 and 471, P.P.C. were non -cognizable. He has argued that the learned trial Court had wrongly, dismissed the application of the petitioner under section 249‑A, Cr.P.C. and similarly the order passed by the learned Additional Sessions Judge, whereby revision petition of the petitioner had been dismissed, is also erroneous and is liable to be set aside.

6. The learned Additional Advocate‑General has resisted the petition on the ground that the revision petition filed by the petitioner in the learned Court of Session against the order of acquittal was not competent and it is an other matter that the revision petition had been dismissed by the learned Additional Sessions Judge. He has argued that the case against the petitioner was not merely under sections 468 and 471, P. P. C. but. it was also under section 420., P. P. C. and which is a cognizable offence. He has argued that the provisions of section 155(1), Cr.P.C. can be regarded as applicable only in those cases where the information given to the police relates solely to a non‑cognizable offence and where information is given to the police of a cognizable offence and the case is registered regarding that offence, the Investigating Officer while investigating the cognizable offence cannot be possibly debarred from investigating a non‑cognizable offence which may arise out of the facts and can also include the latter offence in his report section 173, Cr.P.C.

7. I have carefully considered the arguments. It was 4held in Muhammad Jamil v. S.H.O. and others 1998 PCr.LJ 1718 (Lahore) that where a case was registered relating to facts entailing commission of both cognizable and non‑cognizable offences, section 155(2), Cr.P.C. was not attracted and police could investigate all such cases without the permission of a Magistrate. In this case also the offences under sections 468 and 471, P.P.C. were not the only offences regarding which the F.I.R. had been registered. The same was also registered regarding the offence under section 420, P.P.C. as well and which is clearly a cognizable offence. It is a clear position of law that when a case is registered relating to facts entailing commission of both cognizable and non‑cognizable offences, section 155(2), Cr.P.C. is not attracted and the police can investigate such a case without the permission of a Magistrate.

8. In view of what has been stated above, this writ petition seeking an order for quashing the F.I.R. in question and the proceedings based thereon is without any basis and the same is accordingly dismissed. H.B.T./A‑849/L Petition dismissed.