1996 P Cr (PLP)

Ch. Anwar Dhollan for the State. The question which arises out of this writ petition is whether the S.H.O. can directly register a case under section 10/11 of Qazf Ordinance VIII of 1979.

2. I have heard the arguments of learned counsel and perused the record carefully.

3. The learned counsel for the petitioner contended that whoever commits "Qazf" liable to "Tazir" under section 10 of the Ordinance is liable to punishment under section 11 of the Ordinance which may extend to two years and with whipping not exceeding forty stripes and also liable to fine as contended by the learned counsel the punishment for the offence under section 10/11 two years according to Schedule 11 attached with Cr.P.C. is non cognizable offence and non-cognizable offence according to definition provided in section 4(n) of Cr.P.C. means, a case, in which, a Police Officer, may not arrest without warrants.

4. Indeed section 155, Cr.P.C. provides procedure of investigation into non-cognizable case in subsection (2) of section 155, Cr.P.C. which runs as under:-- "(2) Investigation into non-cognizable cases.

No Police Officer shall investigate a non-cognizable case without the order of Magistrate of the first or second class having power to try such case (or send the same for trial to the Courts of Sessions)."

5. True according to the definition of non-cognizable offence as provided in section 4(n), Cr.P.C. a case in which a Police Officer, may not arrest without warrant as according to section 155, Cr.P.C the Police Officer is also duty bound not to investigate into the case of non-cognizable offence without the approval of Magistrate who has the jurisdiction of the area.

6. While on the other hand the Ordinance being a special law has provided the procedure for filing a complaint under section 8; which runs as under:-- "

8. Who can file a complaint.

No proceedings under this Ordinance shall be initiated except on a report made to the police or a complaint lodged in a Court by the following, namely:-- (a) if the person in respect of whom the Qazf has been committed be alive, that person, or any person authorised by him; or (b) if the person in respect of whom the Qazf has been committed be dead, any of the ascendants or descendants of that person." It is manifest and clear from the bare reading of the section that the proceedings under the Ordinance shall be initiated even on a report made to the police by the person in respect of whom Qazf has been committed; in case in hand the S.H.O. initiated proceedings on the report of the complainant and it is well-settled principle of interpretation that the provisions of Special Law overrides the provisions of general law; therefore, the proceedings initiated by the respondent S.H.O. on the complaint of the complainant are legal; resultantly the petition lacks merits and the same is dismissed. N.H.Q./M-148/L Petition dismissed.