Seeks quashment of FIR No. 439 of 2010 registered under Article 155 (C) of The Police Order 2002 (Herein after called Order No. 22 of 2002) at the instance of Respondent No. 3, the then SHO Police Station Bhera.
2. Briefly the relevant facts for disposal of petition are that present petitioner was Investigating Officer of case FIR No. 280 of 2010 registered under Section 496-A of The Pakistan Penal Code, 1860 at Police Station Bhera. The petitioner recorded the statement of alleged abductee Ghulam Sakeena during course of investigation. The Respondent No. 3 on scrutiny of different files formulated opinion that pres nt petitioner being Investigating Officer of case FIR No. 280 of 2010 has not conducted investigation diligently and as such case FIR No. 439 of 2010 was registered against him under Article 155 (C) of The Police Order 2002.
3. Heard.
Learned counsel for petitioner has maintained that present petitioner being Investigating Officer did not formulate any opinion regarding innocence of accused and just recorded the statement of abductee Ghulam Sakeena, who was produced before Area Magistrate. With this background learned counsel for petitioner maintained that accusation contained in the FIR are incorrect and nothing was incorporated in order to suggest impartiality or neglect in the duty. Submitting argument on legal premises, learned counsel for petitioner while making reference to Article 155
(C) of The Police Order 2002 maintained that offence under said Article is not cognizable offence and as such no action was warranted under Section 154 of The Code of Criminal Procedure, 1898. In order to substantiate his contention that the offence under Article 155 (C) of The Police Order 2002 is a non-cognizable Offence, learned counsel for petitioner sought help from "SHAHID HUSSAIN and another vs. ADDITIONAL SESSIONS JUDGE, TAUNSA SHARIF DISTT. D.G. KHAN and others (2011 YLR 294).
On the other hand, learned AAG, while opposing the petition maintained that since there was neglect in the performance of duties on the part of petitioner, therefore, Respondent No. 3 rightly got a case registered against present petitioner to which no exception can be taken and petitioner being an accused can agitate all his grounds before learned trial Court.
4. Following are valid grounds for quashing FIR (1) Jurisdictional defect patent on the record; (2)
Patent violation of some provision of law; (3) Allegations contained in the FIR does not constitute an offence; and (4) Attempt to enforce civil liability through machinery of criminal Court.
5. First question for consideration is whether an offence under Article 155 (C) of The Police Order, 2002 is a cognizable offence or not.
Article 153 of the Order 22 of 2002 which is relevant to settle the moot point is re-produced for ready reference.
"Notwithstanding anything contained in the code, offences under Articles 148 to 153 shall be cognizable."
Since offence falling under Articles 155 .of the order does not find mentioned in the Article 153, therefore, offences under Article 155 can not be said to be cognizable. Similar question came up for adjudication before this Court in "KHUDA BAKHSH VS Additional Sessions JUDGE, D.G. KHAN and 3 others." (2010 YLR 2622) and it was held that offence under Article 155 (c) of The order is non- cognizable. Again matter came up for decision in "SHAHID HUSSAIN and another vs. ADDITIONAL SESSIONS JUDGE, TAUNSA SHARIF DISTT. D.G. KHAN and others" (2011 YLR 294) and same proposition of law was reiterated. I respectfully follow the views expressed in the above said referred judgments. As the offence allegedly committed by the petitioner was non-cognizable, therefore, no action was required under Section 154 of The Code of Criminal Procedure, 1898 and the Respondent No. 3 at the most could have proceeded under Section 155 of The Code of. Criminal Procedure, 1898.
It is settled proposition of law that when law requires a thing to be done in a particular manner, it should be done in that manner or not at all.
6. Since the allegations, the reference of which has been made in the FIR does not constitute commission of cognizable offence within the meaning of Section 154 of The Code of Criminal Procedure, 1898, therefore, action, if at all, to be initiated was under Section 155 of the code in view of use of, expression "shall" in the aforementioned provision.
7. Un-deniably there is patent violation of the provisions of sections 154 and 155 of The Code of Criminal Procedure, 1898 and continuation of proceedings shall be an abuse of process of law. It is a fit case to exercise constitutional jurisdiction and as such while accepting the petition, FIR No. 439 of 2010 registered against the petitioner at police station Bhera is quashed but with liberty to proceed under Section 155 of The Code of Criminal Procedure, 1898.