2012 P Cr (PLP)

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.