SARDAR TARIQ MASOOD, J.--- Khuda Bakhsh son of Qadir Bakhsh petitioner through this constitutional petition under appeal, 199 of the Islamic Republic of Pakistan, 1973 seeks issuance of writ to set aside the order, dated 15-9-2009 passed by the learned Additional Sessions Judge, D.G.
Khan regarding registration of case against the petitioner and declaring the some as illegal, without jurisdiction and contrary to law.
2. The brief facts giving rise to the filing of this writ petition are that respondent No,4 Muhammad Rafique lodged F.I.R. No, 234 of 2001, dated 9-7-2009 under sections 467, 468, 471, P.P.C. At Police Station City D.G. Khan by the orders of the learned A.S.J, D.G. Khan/respondent No, 1.
3. The investigation of the above said case was entrusted to the petitioner who was an A.S.-I.
Posted at Police Station City D.G. Khan. During the investigation the facts of the aforesaid F.I.R. Were found doubtful vide case Diary No,2 dated 13-7-2009.
Thereafter, the petitioner was transferred and investigation of the aforementioned case was entrusted to Khadim Hussain who also found the facts of the said F.I.R. As false and finding was confirmed by Azhar Hussain Sangi, S.H.O. On 4-8-2009. Said investigation was further confirmed by Tanvir Malik DSPISDPO D.G. Khan on 5-8-2009 and he asked Khadim Hussain, S.-I. To prepare the cancellation report and produce the same before the Ilaqa Magistrate.
' Thereafter respondent No,4 moved an application before the learned ASJ, D.G. Khan, respondent No,1 for taking action against the petitioner as well as rest of the accused of case F.I.R. No, 234-09 in which the learned ASJ directed the S.H.O./respondent No,3 to register a case B against the petitioner under section 201, P.P.C. Read with section 155(c) of the Police Order, 2002 vide order dated, 15-9-2009.
4. On 28-9-2009 when the matter came up for hearing notice was issued to respondents Nos.2 to 4 and operation was suspended by this Court.
5. Learned counsel for the petitioner contended that offence under section 155(c) of the Police Order 2002 and section 201 P.P.C. Are non-cognizable, hence, F.I.R. Can be registered against the petitioner in a non-cognizable offence and the order for registration of the case against the petitioner in a non-cognizable offence is illegal, without jurisdiction and is liable to be set aside.
Learned counsel for the petitioner has relied upon the case of Muhammad Zubair Malik v. S.H.O.
And 5 others (2008 PCr.LJ 1358).
6. Heard.
7. Section 154 of Cr.P.C. Deals with cognizable offences, whereas section 155, Cr.P.C. Deals with the non-cognizable offence which reads as under:--- "When information is given to an officer-in-charge 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 information to the Magistrate."
' So, it is clear that instead of taking cognizance in a non-cognizable offence, only entries are made in the Roznamcha waqiati and the Investigating Officer. Cannot investigate the case at all without the direction of the Magistrate.
' In the above-referred case Muhammad Zubair Malik, it was held that:-- "Section 155, Cr.P.C.' provides that when an application is received by the Incharge of the Police Station as to the commission of non-cognizable offence, he should make entries in a book (Roznamcha) maintained for the purpose and without any investigation, shall refer the matter to the Magistrate for orders and after obtaining, appropriate orders from him, he shall proceed in accordance with subsection (3) of section 155 Cr.P.C. In the instant case the application was submitted to the S.H.O. Copy for the same was also submitted to the D.P.
0. Of the District but no action was taken. Finally application under sections 22-A and 22-B, Cr.P.C.
Was moved seeking direction in the name of concerned S.H.O. To take appropriate action in accordance with law. The learned Additional Sessions Judge dismissed the application simply on the ground that no order for registration of case can be passed by him with regard an offence, which is non-cognizable. The learned Additional Sessions Judge has failed to apply his judicial mind to the legal proposition. Obviously no order for registration of case could be passed but he could have directed the S.H.O. Concerned to receive the application, entertain the same in the Roznamcha and thereafter under subsection (2) of section 155 Cr.P.C. Apply to the Magistrate seeking permission to investigate the matter and proceed strictly in accordance under subsection
(3) of section 155, Cr.P.C."
9. After going through the above case law the position is that the offence under section 155(c) and
(d) of the Police Order, 2002 and under section 201 P.P.C. Are non-cognizable and the learned ASJ/Justice of Peace fell in error in passing the impugned D order and, consequently, while accepting this writ petition the impugned order dated 15-9-2009 is declared to be without lawful authority and of no legal effect.
' No order as to costs in the facts and circumstances of this case.