' MAULVI ANWARUL HAQ, J.---This judgment shall decide Writ Petitions Nos.6824 and 6600 of 2005 as common questions are involved.
2. The petitioner is a Police Officer posted as DSP, Regional Investigation Branch, Multan. The investigation of case F.I.R. No,219 dated 23-4-2004 under sections 302/324/148/149, P.P.C. At Police Station, Farid Town, District Sahiwal, was entrusted to the petitioner. He conducted the said proceedings and concluded the same on 14-7-2004. According to the opinion formed by the petitioners, he declared Muhammad Aslam alias Baggo, one of the accused persons, to be innocent. The complainant of the case filed an application against the petitioner. Some inquiry was conducted and the conclusion reached was that the petitioner ante-dated his report and further that Muhammad Asif Ali and Sajid Manzoor witnesses who had never supported the accused party were stated to have done so. Upon receipt of this inquiry report dated 18-10-2005 the Inspector- General of Police placed the petitioner under suspension.
3. Asif Ali (the client of Mr. Altaf Ibrahim Qureshi, Advocate) filed an application under section 21-A and B Cr.P.C. For registration of a case under Articles 155/156 of the Police Order, 2002, against the petitioner. This application was allowed on 31-10-2005 by a learned A. Additional Sessions Judge, Sahiwal, who directed the S.H.O., Police Station Farid Town, Sahiwal, to register a case against the petitioner under the said provisions of law. This order has been impugned in these two writ petitions.
4. M/s. Ch. Abdul Sattar Goraya and Ch. Pervaiz Aftab, Advocates, representing the petitioners urge that the said complaint filed before the learned Additional Sessions Judge was bogus and further that he had no jurisdiction to get the case registered. Particular reference is being made to Sub- Article (2) of Article 155 of the said Police Order to urge that the prosecution under the said provision of law requires a report in writing from an authorized officer to be prescribed by the Rules which are to be framed. Reliance has been placed upon the cases of Agha Nadim and another v.
The Station House Officer, Police Station, Lohari Gate, Lahore and another (1998 PCr.LJ 181), Khadim Hussain v. The State (1993 MLD 560), A.H. Masood v. Province of the Punjab through Chief Secretary and 3 others (1994 PCr.LJ 825), Muhammad Hafeez and others v. State (1999 MLD 1174) and Haji Muhammad Hussain v. S.H.O. Police Station, Chunian and 6 others (1999 PCr.LJ 1314). Mr. Zafarullah Khan, learned A.A.-G., on the other hand contends with reference to the case of Naseem Akhtar Khan v. District and Sessions Judge (PLD 2005 Karachi 285) that the learned ASJ has acted within his domain while passing the impugned order. According to the learned A.A.-G. The offence is punishable with three years imprisonment and as such is cognizable and there is no express bar in the said Police Order in this behalf. He also relies on the cases of Ali Ahmad, (Sub-Inspector) v.
Additional Director, Anti-Corruption Establishment, Multan Region, Multan (2005 MLD 1647), Muhammad Yousuf v. Director, Anti-Corruption Establishment, Punjab, Lahore and 5 others (PLD 2004 Lahore 284), Nazar Hussain v. The State (2002 PCr.LJ 440) and Mian Muhammad Iqbal and others v. Government of Punjab (PLD 1999 Lahore 109). Learned A.A.-G. Also questions the competency of these writ petitions with reference to the cases of Collector of Customs, Lahore and others v. Universal Gateway Trading Corporation and another (2005 SCMR 37) and Haji Muhammad Sadiq v. Ilaqa Magistrate Police Station Factory Area, Faisalabad and others (2001 PCr.LJ 1571). Mr. Altaf Ibrahim Qureshi, Advocate, learned counsel for the complainant has also argued on the line taken by the learned A.A.-G.
5. I may state here that the learned counsel had in the course of limine hearing on 5-12-2005 stated that he will not be pressing the departmental proceedings underway against the petitioner reserving his rights to take appropriate proceedings in accordance with law. I am also not inclined to go into the merits i.e, correctness or otherwise of the opinion formed or report made by the petitioner-officer in the matter of said investigation conducted by him.
6. The legal question involved in these writ petitions as to whether on an application filed by a private persons as in the present case, a learned Additional Sessions Judge/Justice of Peace can issue the directions of the nature contained in the impugned order i.e, directing the concerned S.H.O. To register a case under the said Articles 155/156 of the Police Order, 2002. I may note here that upon a reading of said provisions of law, so far as the facts of the present case are concerned, I am not called upon to take into consideration the provisions of Article 156 of the said Order. Article 155 of the same is reproduced hereunder:-- "155. Penalty for certain types of misconduct by Police Officers.--- (1) Any Police Officer who--
(a) makes for obtaining release from service as Police Officer, a false statement or a statement which is misleading in material particular OR uses a false document for the purposes;
(b) is guilty of cowardice, or being a Police Officer of junior rank, resigns his office or withdraws himself from duties without permission;
(c) is guilty of any wilful breach or neglect of any provision of law or of any rule or regulation or any order which he is bound to observe or obey;
(d) is guilty of any violation of duty;
(e) is found in a state of intoxication, while on duty; (0 malingers or feigns or voluntarily causes hurt to himself with the intention to render himself unfit for duty;
(g) is grossly insubordinate to his superior officer or uses criminal force against a superior officer; or
(h) engages himself or participates in any demonstration, procession or strike or resorts to or in any way abets any form of strike or coercion or physical duress to force any authority to concede anything.
(i) shall, on conviction, for every such offence be punished with imprisonment for a term which may extend to three years and with fine.
(2) Prosecution under this Article shall require a report on writing by any officer authorized in this behalf under the rules."
' Now according to the learned counsel for the petitioners, the said provision of the said Sub-Article
(2) of Article 155 of the Police Order, 2002, constitutes a bar upon any person to initiate prosecution under the said Article and that it will be only upon a report of an officer authorized in this behalf under the rules that the prosecution will commence. I may further note that the admitted position is that no such Rules have been framed so far.
7. Now, I will examine the said judgments being relied upon by the learned counsel for the petitioners and the learned A.A.-G. Now in the case of Agha Nadim and another, this Court considered the provisions of the Drugs Act, 1976 and the rules framed thereunder to hold that a case got registered by a Drug Inspector without permission of the Quality Control Board as required by sections 11(5) and 19(6) of the Drugs Act, 1976 read with Rule 4 of the said Rules is liable to be quashed. In the said case of Khadim Hussain, this Court considered the provisions of section 24(6) of the Emigration Ordinance, 1979, to hold that the Special Court could not have taken cognizance on police report and this could have been done only upon a complaint as mentioned in the said provision of law. In the case of A.H. Masood, a case registered without the permission of the Anti-Corruption Committee was quashed. In the said case of Muhammad Hafeez, etc., it was held that a case registered by the local Police is violative of the provisions of Rule 8 of the Punjab Anti-Corruption Establishment Rules, 1985, while in the said case of Haji Muhammad Hussain, provisions of section 195, Cr.P.C. Came up for consideration. Now in the matter of said Anti- Corruption Rules, the law is now settled that these cannot override the provisions of the Ordinance under which these have been framed and this is so held in the latter judgments cited by the learned A.A.-G.
8. Now the judgment rendered by a learned Division Bench of the High Court of Sindh at Karachi (PLD 2005 Karachi 285) being relied upon by the learned A.A.-G. Is one in which the provisions of the Police Order, 2002, vis-a-vis section 22-A, Cr.P.C. Were considered by their Lordships and a similar order passed by the learned Sessions Judge, Karachi East/Justice of Peace was upheld. I may note here that Ch. Abdul Sattar Goraya, Advocate, has with reference to para-5 of the said judgment (page 288 of the report) has vehemently urged that their Lordships left the question involved in the present case open.
9. Having read the entire judgment, I am not inclined to agree with the learned counsel for the petitioners. It is true that their Lordships did observe that the contention of the learned counsel that Article 155(2) of the said Order 2002, requires a report in writing by an authorized officer for prosecution for the said offences mentioned in Article 155(1) of the said Order, need not be gone into at this stage. However, the judgment contains the reasons as well. The reason stated is that since the prosecution has yet to commence in a competent Court and the direction being only to register a case, the said arguments need not to be considered. The ultimate finding was that the case has been correctly ordered to be registered by the Justice of Peace. Needless to state that the offence in question is punishable with three years imprisonment and with fine. Their Lordships have observed and correctly so that the offence is cognizable within the meaning of Second Schedule to the Cr.P.C. No bar is spelt out in the said Order, 2002, against an investigation to be conducted in the matter. At the moment, the matter is at investigation stage and I do find that the proper stage for consideration of the implications of the said Article 155(2) of the Police Order, 2002, will be when the matter is reported to the Court for commencement of the prosecution. Both the writ petitions are accordingly dismissed but without any orders as to costs.