1994 P Cr (PLP)

The expression cognizable offence is defined in section 4(1)(f); and "cognizable offence" means an offence for, and "cognizable case means a case in which a Police Officer, may in accordance with the Second Schedule or under any law for the time being in force, arrest without warrant. The other relevant sections to which reference in due course will have to be made are sections 154, 155 and 156 appearing in Chapter XIV of the Code and Rules 24.1, 24.3 and 24.4 of Police Rules, 1934.

7. It is the admitted position that before recording the impugned F.I.R. no permission from the Magistrate has been obtained. I have repeatedly questioned the Police Officer assisting the learned Additional Advocate-General, Punjab, on this point and each time he has stated that no permission had been obtained prior to the recording of F.I.R. According to Schedule II of the Code, the offence covered by section 124-A is non-cognizable inasmuch as in column 3, it is stated against section, 124-A that the police "shall not arrest without warrant". It may be added that this amendment was brought about in 1984 by way of Ordinance XLIII of 1984. The question as to how the Police Officer is to deal with the information regarding commission of non-cognizable offence has been answered in section 155 of the Code which reads as under:-- 155(1). When information is given to an officer incharge of a police station of the commission within the limits of such station of a non-cognizable offence, he shall enter in a book to be kept as aforesaid the substance of such information and refer the informant to the Mariat. A comparative reading of sections 154 and 155 leads one to the conclusion that under section 154 a statutory duty has been cast upon the officer incharge of police station to enter the information regarding commission of any cognizable offence in a register the form of which is prescribed by the Provincial Government. This form is known as F.I.R. in common parlance. As regards recording of information relating to commission of a non-cognizable offence another book is prescribed and it is in that book that substance of such information is recorded. This book is known as "Roznamcha" or "Station Diary". It is in this "Roznamcha" that such an information is recorded and generally the informant or complainant is sent away without action by the police after being given a copy of report so entered. However, in subsection (2) of section 155, if the Police Officer wants to investigate such an information, he has to obtain order from the Magistrate. Section 156(1) of the Code empowers the officer incharge of a police station to investigate any cognizable case without order of a Magistrate. The other subsections of section 156 of the Code are not strictly relevant to the present discussion.

8. Survey of the above statutory provisions leads to the conclusion that since the information in the case in hand pertains to the commission of a non cognizable offence, the officer incharge of the police station could only proceed under section 155 of the Code and not under section 154 as he has done in this case. As stated he had obtained no permission from the concerned Magistrate for investigating the information pertaining to alleged offence under section 124-A. In my view what has been done by the officer incharge of the police station in this case is clearly contrary to the above-referred statutory provisions.

9. Examining the submission of the learned counsel for the petitioners further, reference is required to be made to section 196 reproduced above. Section 196 appears in Chapter XV of the Code. Portion B of the Chapter consists of sections 190 to 199-B and is headed "Conditions requisite for Initiation of Proceedings". Section 196 appearing in this portion tells us as to how the Court is going to take cognizance of offences mentioned in section

196. Offence covered by section 124-A, P.P.C. is one of the described offences of section 196 of the Code. The section opens with a prohibitory command and it debars the Court from taking cognizance of an offence covered by section 124-A, P.P.C. except upon complaint made by order of, or under authority from the Central Government or the Provincial Government concerned or some officer empowered in this behalf by either of the two Governments.

10. The definition of complaint as reproduced above clearly excludes the report of a Police Officer. Now if the proceedings for prosecution of an offence under section 124-A, P.P.C. can only commence upon complaint and not on the basis of a police report, the registration of F.I.R. pertaining to the offence of section (section 124-A, P.P.C.) is further ruled out by necessary implication.

11. It seems respondents themselves have realised the correct legal position because in the parawise comments filed in this Court by the District Magistrate, Okara under his own signatures, it is stated as under:-- "The Superintendent of Police, Okara vide his Memo. No.8430, dated 28-6-1994 addressed to the District Magistrate, Okara moved for the preparation of a complaint envisaged under section 196, Cr.P.C. to enable the learned trial Court to try the accused persons under section 124-A, P.P.C. On this request, the requisite complaint was prepared and signed by the undersigned on 4-7-1994 after going through the file and considering the facts of the case in exercise of the powers delegated vide Notification No.5-9/H.S.P.LIII/88, dated 18th March, 1989 issued by the Government of the Punjab, Home Department. " If as stated by the District Magistrate above, it is the complaint which is to do the trick for the respondents, then the whole exercise of recording F.I.R. and gathering evidence by way of statements under section 161, Cr.P.C. becomes an exercise in futility. Of course, the District Magistrate has to and ought to .i certain facts before lodging complaint under section 196, Cr.P.C. but this will have to be done in the manner permitted by law.

12. The argument of the learned Additional Advocate-General, that there is no bar to the registration of an F.I.R. and investigation even in non-cognizable cases without the permission of the Magistrate, is not supported by statutory provisions of sections 154 and 155, Cr.P.C. Section 155, Cr.P.C. not only bars investigation of non-cognizable case without prior permission of the Magistrate as claimed by the learned Additional Advocate-General, but also lays down in mandatory language that substance of information pertaining to commission of non-cognizable offence shall be entered in a book to be kept for the purpose. This book is different than the one prescribed in earlier section i.e. section 154, Cr.P.C. and the common man's distinction is that while the record of information under section 154 is described as "F.I.R.", record of information under section 155 is known as "report". I have asked the learned Additional Advocate-General to substantiate his argument by reference to the case-law. He referred me to a case reported as 1990 P Cr. L J 1708 and wanted to persuade me to hold that the observation at page 1711 of the cited judgment supported his contention. I am afraid that this is not so. Not only that the reported judgment does not support the learned Additional Advocate-General, in fact it supports the case of the petitioners and the conclusion, which I am drawing from the above statutory provisions.

13. The learned counsel for the petitioners also relied upon the above-cited case and further supported his contentions by referring to and relying on Maulana Dost Muhammad v. The State 1976 P Cr. L J 184, Muhammad Ishaque and others v. The State 1988 P Cr. L J 992 and Salman Taseer v. Judge, Special Court 1993 S C M R

71. The last-mentioned case is a leave granting order of the Supreme Court and point No.4, to examine which the leave has been granted reads: "(4) That since the police took cognizance of the case, investigated the same and filed the challan much before sanction was received and conveyed to the Court, the said proceedings must be treated as void. See Dost Muhammad v. State 1976 P Cr. L J 184." The first two cases noted above do support the contentions raised by Kh. Muhammad Sharif, Advocate, the learned counsel for the petitioners. In the case of Dost Muhammad 1976 P Cr. L J 184 the Provincial Government ordered the Superintendent of Police to file complaint in the Court under section 124-A, P.P.C. against the accused-petitioners in that case. In turn the Superintendent of Police asked the S.H.O. to register the case. After investigating, the S.H.O. submitted the challan accompanied by F.I.R. in the Court of District Magistrate, Nawab Shah. The District Magistrate took cognizance of the case and decided to proceed. On a petition under section 561-A, Cr.P.C. the Sindh High Court quashed the proceedings on the ground that the offence under section 124-A, P.P.C. being non-cognizable, the S.H.O. could not have recorded the F.I.R. and further that without proper complaint under section 196, Cr.P.C. the Court could not proceed. A similar view was taken in the case of Muhammad Ishaq and others 1988 P Cr. L J

992. The learned Judge deciding the case followed the dictum laid down in Maulana Dost Muhammad case above referred. In this case also proceedings of an offence under section 124-A, P.P.C. were initiated by registering an F.I.R. The same was quashed on the ground that cognizance of such an offence could only take place upon complaint as laid down in section 196, Cr.P.C. and not upon report under section 173, Cr.P.C. which report terminates the investigation, at least for the time being.

14. As a result of the above discussion, I hold that registration of F.I.R. No.100/94 Police Station City Renala Khurd, District Okara to the extent of offence under section 124-A, P.P.C. is illegal but the matter does not end with this finding. The further question to be resolved is the effect of addition of offence under section 147, P.P.C. and section 16 of Maintenance of Public Order Ordinance, 1960 in the F.I.R. It may be noted that offences under section 147, P.P.C. and that under section 16 of Maintenance of Public Order Ordinance, 1960 are not mentioned in section 196, Cr.P.C. As such the entire F.I.R. cannot be quashed on this ground.

15. I asked the learned counsel for the petitioners to address on this aspect of the case. His reply was two-fold-- (i) that even if the facts alleged in the F.I.R. are admitted or deemed to have been proved, no offence either under section 147, P.P.C. or under section 16, Maintenance of Public Order Ordinance, 1960 can be said to have been made out; and (ii) that substance of the accusation against the petitioners is that of an offence under section 124-A, P.P.C. and that section 147, P.P.C. and section 16, Maintenance of Public Order Ordinance, 1960 have been added by the police to lend variety to the charges. The learned counsel submitted that if the registration of F.I.R. for the main accusation (under section 124-A, P.P.C.) is held to be illegal, then the subsidiary and interlinked offences also go. Reliance is placed on Mst. Saleem Bibi and others v. Fazal Hussain 1976 P Cr. L J 555 and Syed Hisanuddin and others v, The State 1973 P Cr. L J 683.

16. Section 147, P.P.C. prescribes punishment for the offences of rioting. It lays down that the offence of rioting is punishable up to two years, or with fine or with both. Offence of rioting is defined in section 146, P.P.C. which is reproduced below,:-- "Whenever force or violence is used by an unlawful assembly, or by any member thereof, in prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting. " It will be seen that the use of force or violence by an unlawful assembly or by any member thereof in prosecution of the common object of such assembly is essential ingredient of the offence of rioting. A bare perusal of the contents of F.I.R. is sufficient to reveal that there is no allegation that the petitioners-accused even if they had formed an unlawful assembly had used force or violence in any manner. All that it states is that the petitioners were making provocative speeches against the Prime Minister of Pakistan and the Chief Minister of Punjab and that because of the speeches lot of people were gathering and getting provoked. There is no allegation that the petitioners, collectively or any of the petitioners singly were armed in any manner and had used force or violence. On the face of it, therefore, the offence of rioting is not made out even if the contents of the F. I. R. are taken to be true.

17. Similarly on the self-same allegations contained in the F.I.R., it is difficult to come to a conclusion even prima facie, that an offence described in section 16 of the Maintenance of Public Order Ordinance, 1960 is made out. Section 16 aforesaid reads: "

16. Whoever-- (a) makes any speech, or (b) by words whether spoken or written or by signs or by visible or audible representations or otherwise publishes any statement, rumour or report, shall be punished with imprisonment which may extend to three years, or with fine, or with both if such speech, statement, rumour, or report-- (i) causes or is likely to cause fear or alarm to the public or to any section of the public; (ii) further or is likely to further any activity prejudicial to public safety or the maintenance of public order. It will be seen that the allegation in the F.I.R. is that speeches were causing provocation amongst the people. There is no allegation that the speeches being made by the petitioners were causing fear. In concluding whether the speeches fall within the mischief of sub clause (ii) of section 16, Maintenance of Public Order Ordinance, 1960 allowance must be made that we as a nation are trying to run an open and democratic political system in which difference of opinion and adverse criticism is the part and parcel. It is often being said and rightly in my opinion, that tolerance and large heartedness is the essential requirements for running a good democratic system. In the absence of such tolerance/large heartedness, every adverse speech can be claimed to be "furthering any activity prejudicial to public safety or the maintenance of public order". Once again reverting to the F.I.R., and as already stated the Allegation is only of trying to cause provocation, which is not claimed to have the likelihood of prejudicing public order or public safety. I find considerable force in the submissions of lag Muhammad Sharif, Advocate, the learned counsel for the petitioners that on the basis of contents of the F.I.R. and other material so far gathered by the police, the two offences are not made out.

18. As regards the second submission that gravamen of the charge against the petitioners is that of sedition described in section 124-A, P.P.C. and the prosecution would be content if the petitioners are convicted and punished under that section. Addition of section 147, P.P.C. and section 16, Maintenance of Public Order Ordinance, 1960 in the F.I.R. is merely supportive in nature. E Therefore, if substantive offence goes, the subsidiary ones also go. However, in view of the earlier finding, this point need not be further explored in this case and well-considered adjudication of the same may be left to some appropriate case.

19. For the reasons stated above, I would accept this petition and hold the registration of F.I.R. 100/94 at Police Station City Renala Khurd, District Okara under section 124-A, P.P.C., section 147, P.P.C. and section 16, Maintenance F of Public Order Ordinance, 1960. and consequential investigation as without lawful authority and of no legal effect. I would leave the parties to bear their own costs.

20. It is however, added and made clear that the above order shall not preclude the District Magistrate or any other authorised officer and/or legally competent functionary to file a complaint against the petitioners in the competent Court of law on the present allegations as envisaged in section 196, Cr.P.C. It is further clarified that findings recorded above as regards existence of offences under section 147, P.P.C. and section 16, Maintenance of Public Order Ordinance, 1960 are tentative in nature and based upon the material made available to this Court. It would be open to the trial Court to give its own findings on the material/evidence produced before it during the trial of the complaint, which the District Magistrate is contemplating to file. N.H.Q./N-227/L Petition accepted.