ORDER ABDUL SATTAR GORAYA, J.---By means of this constitutional petition, the order, dated 14-5- 2009 passed by the learned Additional Sessions Judge, Taunsa Sharif has been questioned.
2. Facts in brief are that complaint titled, "Nazar Hussain v. Nazar Hussain etc." was pending in the Court of learned Additional Sessions Judge where Zulfiqar Ali A.S.-I. Appeared before the Court and his statement was recorded. Warrants of arrest against the two C.Ws., were issued and the case was adjourned to 14-5-2008. S.H.O. Police Station Vohova District D.G. Khan was directed to execute the warrants through Sub-Inspector of Police. He was further directed that in case of non-execution of the warrant S.H.O. Shall appear in person but on 14-5-2009 Shahid Hussain petitioner appeared before the Court and reported in writing that the warrant of arrest in question earlier was entrusted to Bashir Ahmad A.S.-I. For execution but he has been transferred and left the charge and today early in the morning, this warrant was given to Moharar of the Police Station but the same could not be executed. The learned ASJ felt that this was a case of conscious omission on the part of the said S.H.O. Consequently it was directed that F.I.R. Under sections 155(c) and (d) of Police Order, 2002 may be registered against the delinquents.
3. Learned counsel for the petitioners states that sections 155(c) and (d) of Police Order, 2002 are non-cognizable and this question came up for consideration in Writ Petition No.310/07/BWP in which this Court maintained the order of acquittal on 2-6-2008.
4. This fact remains that section 155, Cr.P.C. Deals with the non-cognizable offences which reads as under:-- "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 information to the Magistrate."
In respect of non-cognizable offences, only entries in the Roznamcha Waqiati can be made and the Investigating Officer cannot investigate the case until there is permission from the Magistrate.
This question came up for consideration in Muhammad Zubair Malik v, S.H.O. And 5 others (2008 PCr.LJ 1358) wherein it was held:-- "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 of the same was also submitted to D.P.O. 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 to 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 should 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."
The position, therefore, which in any event from the above quoted judgment is that the offence under sections 155 (c) and (d) of Police Order, 2002 are non-cognizable and the learned Additional Sessions Judge has fallen in error in passing impugned order. Consequently, I accept this petition.
The impugned order dated 14-5-2009 of the learned Additional Sessions Judge is declared to be without lawful authority and of no legal effect. There is no order as to costs in the facts and circumstances of the case.