' MUHAMMAD QASIM KHAN, J. --- Through this petition, the petitioner who is Sub-Inspector in the police department, seeks quashing of F.I.R. No, 636/2009, dated 19.06.2009 registered with Police Station Noshera Jadeed under Article 155(c) of the Poke Order, 200", on the ground that Article 155(C) of the Police Order is non-cognizable and sub-Article (2) of Article 155(c) imposed a restriction, hence, case against the petitioner could not have been registered. Learned counsel with reference to unreported judgment of this Court dated 02.06.2008 handed down in W.P. No, 310/2007 "MUHAMMAD SALEEM v. SHO, etc." contends that in the said judgment although F.I.R. Was not quashed because challan had been submitted and alternate remedy was available yet it was held that offence under Article 155C of the Police Order was non-cognizable and in non-cognizable cases F.I.R. Could not be registered, only an information is to be entered into a book kept for this purpose under Article 155, Cr.P.C. And an information had to be referred to the Magistrate and Police could not investigate the matter without prior permission of the learned Magistrate, concerned.
2. On the other hand, learned A.A.G. Assisted by learned counsel for the complainant has opposed the petition on the ground that lodging of F.I.R. Is different than initiation of proceedings before the learned Trial Court, as such, the F.I.R. Cannot be quashed and the petitioner may agitate this legal objection in his defence before the learned Trial Court at appropriate stage.
3. Heard. Record perused.
4. There are two propositions in this case: (i)
Whether offence under Article 155-C is cognizable one or not; and (ii) whether in the light of sub- clause (2) of Article 155 a case under Section 154, Cr.P.C. Can be registered. There are two types of criminal cases i,e, cognizable and non-cognizable, the definition has been provided in subsection (4)(f) of the Cr.P.C. As follows:- "Cognizable offence: Cognizable case". "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."
' I have gone through the relevant articles in the Police Order, 2002 with the assistance of learned counsel for the parties, the Police Order is silent regarding Articles No, 155 and 156 being cognizable or otherwise, in the absence of any specific provision in the Police Order, the Code of Criminal Procedure will come in filed, its 2nd Schedule would attract and at the end of this Schedule under sub-title "offences against other laws" is applicable and its second paragraph 'deals with the offences punishable with imprisonment for three years, making the offences under Articles 155 and 156 of the Police Order, 2002 as cognizable offence. The same view has been adopted by this Court in the case of
5. Now the second proposition is whether in the light of Article 155(2) of the Police Order, 2002, F.I.R.
Could be registered or not? This article reads as under:--- "155. Penalty for certain types of misconduct by police officers. (1) ------------------------------ -----------------------------------
(2) Prosecution under this Article shall require a report on writing by an officer authorized in this behalf under the rules [to be made by the Government].
' From bare reading of this Article it appears that prosecution and the registration of case are two distinct things in a criminal case. Investigation starts after registration of the case, which is defined under Section (4)(1), Cr.P.C. As under:-
(I) 'Investigation. 'Investigation' includes all the proceedings under this Code for the collection of evidence conducted by a police-officer or by any person (other than Magistrate) who is authorized by a Magistrate in this behalf; ' The investigation consists of several steps to be taken by the Police Officer to ascertain whether any offence has been committed at all and if so by whom and what is the evidence on which the prosecution is based. A criminal case is registered under Section 154, Cr.P.C. And the investigation commences. During investigation material/evidence is collected from both the sides and thereafter it is seen by the I.O. That there is sufficient evidence/material against the accused to proceed against him in the Court. The purposes of the investigation is to find out the truth and place the same before the Court and it is duty of the Investigating Officer not only to set up a case of the complainant party with such evidence as could enable the Court to record the conviction; but also to bring out the truth. Where a suspicion arises with regard to the guilty of an accused, it becomes the duty of the Investigating Agency to put all efforts with a view to reach at the truth.
After the completion of investigation a report about the conclusion of investigation is prepared by the SHO under Section 173, Cr.P.C. (Challan) and the same is put in Court for judicial proceedings on it.
6. On the other hand prosecution includes every step and action, from its commencement to its final determination. In Words and Pirases Permanent Edition 34A, the prosecution has been defined:- "A 'prosecution' is the means adopted to bring a supposed offender to justice and punishment by due course of law. And consists of the series of proceedings from the time when the formal accusation is made by the filing of an affidavit or a bill of indictment or information in the Criminal Court until the proceedings are terminated."
' The prosecution has been defined in Black's Law Dictionary Sixth Edition as under:- "Prosecution. A criminal action; a proceedings instituted and carried on by due course of law, before a competent tribunal, for the purposes of determining the guilt or innocence of a person charged with crime."
' The above definitions make it clear that prosecution is final adjudication on a fact in issue or relevant fact between the parties by the competent Court of law, whereas registration of F.I.R. And investigation relate to the proceedings conducted by executive authorities. Both are two different steps in criminal cases. In Article 155(2) of the Police Order, 2002, it seems that legislature has intentionally used the word "prosecution" considering that due to false criminal cases the police officials/officers are not demoralized, as such they restricted the prosecution of a Police Officer with special permission, but did not restrict the registration of F.I.R. And investigation conducted as a result of the F.I.R. Because the legislature was of the view that concerned authority under the rules will look into the whole evidence and material collected by the Investigating Agency after registration of the case and then if they come to the conclusion that offence has been committed and there is reasonable evidence on the record to proceed with the case, the concerned officer under the rules shall file a report in writing for the prosecution of the case. No restriction is there for the investigation of case and its investigation up to its final conclusion in accordance with law, as it has been held in the case "Aijaz Ali and 3 others v. The State and another" (2001 Y.L.R. 1448) the word "prosecution" was defined as under:--- "Prosecution means proceedings either by way of indictment or information in criminal Court in order to put an offender upon his trial."
7. It is admitted position in the instant petition that F.I.R. Under Article 155-C of the Police Order was not registered straightaway, rather a full fledge inquiry was conducted by the R.P.O., wherein the petitioner was found involved and only thereafter, complainant moved an application to the learned Justice of Peace and got an order, on the basis of which the F.I.R. Was registered. There is no cavil to this proposition of law that registration of case and initiation of criminal proceedings are entirely two different things. The Hon'ble Supreme Court of Pakistan in the case of "Industrial Development Bank of Pakistan and others v. Mian Asim Fareed and others" (2006 C.L.D. 625), had created distinction between the investigation of case and taking of cognizance and disapproved quashing of F.I.Rs, by this Court, by holding that:- "No order for quashing of F.I.R. Could be passed nor the same could be approved in absence of any finding that the offences mentioned in the F.I.R. Were false and malicious and in absence of a finding that if a particular forum or mode had been prescribed with respect to taking of cognizance of an offence then the same also implied prohibition regarding the registration of F.I.R.--- Registration of F.I.R. And taking of cognizance of cases tvere two distinct and independent concepts under the criminal law---If the intention of law-maker was to put any clog on the registration of F.I.R. Then the Legislature would have said so specifically and that if the law put a condition only on the taking of cognizance then it could never be read to imply prohibition on registration Df F.I. Rs--- ' High Court did not pass legal and valid order---Supreme Court converted petition for leave to appear into appeal and set aside the order passed by High Court."
' This proposition came under consideration before this Court in the case "Masood Ahmad Javed v.
The State and 5 others" (2006 M LD 855) and it was held as under:- "Since prosecution had yet to commence in a competent Court and the direction being only to register a case, case had rightly been ordered to be registered by Justice of Peace---Offence in question being punishable with three years imprisonment and fine, same was cognizable within the meaning of Second Schedule to Cr. P. C---No bar was spelt out in the Police Order, 2002 against an investigation to be conducted in the matter---Matter was at investigation stage and proper stage for consideration of implication of Art. 155(2) of Police Order, 2002 would be when the matter was reported to the Court for commencement of prosecution."
' As regards the view taken by this Court in an unreported judgment, as referred (hereinbefore) by learned counsel for the petitioner, the Hon'ble Supreme Court of Pakistan in the case "Multiline Associates v. Ardeshir Cowasjee and 2 others" (PLD 1995 Supreme Court 423), held that "Earlier judgment of equal Bench in the High Court on the same point is binding upon the second Bench--- lf, however, a contrary view has to be taken then request for constitution of a larger Bench should be made." Thus, the legal position which emerges is that in the light of above judgment of the apex Court, the second Bench of this Court should not have given findings contrary to the findings of the 1st single Bench on the same point as reported in "Masood Ahmad Javed v.The State and 5 others"
(2006 M LD 855) and should have adopted the correct method by making a request for constitution of a larger Bench, if at all a contrary view had to be taken. Anyhow, that having already been done, the view taken by the earlier single Bench has to be prevailed upon.
8. Apart from the above legal aspect of the case, the Hon'ble Supreme Court of Pakistan in its judgment passed in the case of "Muhammad Saleem Bhatti v. Syed Safdar All Rizvi" (2006 SCM R 1957), while dilating upon a matter wherein this Court had quashed F.I.Rs, while invoking its jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, held as under:- "High Court was to exercise jurisdiction under Art. 199 of the Constitution within certain settled parameters---High Court was not supposed to enter into a factual controversy unless it was established that certain facts were not disputed between the parties--Complainant/respondent had alleged fraud which was controverted by petitioner; and keeping in view factual controversy between the parties, it was not fair to quash F.I.R. Which was under investigation and was at preliminary stage---Petitioner could seek alternate remedy under S. 249-A, or 265-K, Cr.P.C. After submission of challan or by invoking jurisdiction of competent Court under S. 439, Cr.P.C. Or that of High Court under S. 561-A, Cr.P.C.---Jurisdiction of High Court under Art. 199 of the Constitution had been invoked without availing appropriate remedies under Ss. 249-A, 265-K and 439 of Cr.P.C.--- As F.I.R. Had been quashed at preliminary stage it was bound to cause prejudice and injustice to the case of complainant---Judgment of High Court was set aside and case was sent back to Investigating Agency for conducting investigation and submitting challan in accordance with law- --Complainant/respondent had challenged finding of High Court only to the extent of one F.I.R., therefore, quashment of other F.I.Rs, was to remain unaffected by the order passed by Supreme Court---Petition was converted into appeal and allowed accordingly."
9. The sole object behind all legal formalities is to safeguard the paramount interest of justice. The rules and the regulations are only meant to streamline the procedure and administer the course of justice, but not to thwart the same. Mere technicalities unless and until offering some insurmountable hurdle should not be allowed to defeat the ends of justice. The entire scheme of the Code is to channelize and facilitate the smooth running of the system of criminal justice, therefore, while interpreting any provision of it, efforts have to be made so that neither any obstruction in its way is created, nor it is thwarted in any manner and that too on the basis of technicalities simpliciter, because effect to the former and is not to be substance would certainly defeat the ends of justice and ultimately the purpose of the law itself and such approach would definitely be prejudiced to the system itself.
10. For what has been discussed above, respectfully following the dictum laid down by the apex Court as reproduced above; this petition has no force and is accordingly dismissed.
11. Before parting with this judgment, it has become imperative to mention here that the learned Assistant Advocate General was called upon to obtain instructions from the concerned quarters whether in terms of Article 2 of the Police Order any officer had been authorized by the Government to file a report in writing for prosecution, the learned Law Officer has informed that so far none has been authorized as such. This being so the office is directed to send copy of this judgment to the Ministry of Law & Parliamentary Affairs to take necessary steps to avoid the difficulty in initiating prosecution against the real offenders.