M. TABASSUM AFTAB ALVI, C.J.---The supra titled writ petition has been directed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, whereby vires of the impugned order dated 15.01.2015, passed by the learned Sessions Judge/Justice of Peace Bagh, has been challenged for having been recorded without lawful authority.
2. The precise facts forming background of the instant writ petition are that an application was moved by private respondent No.6, before local police Station Dhirkot, on 28.11.2014. It was stated in the application that wife of the aforesaid respondent, was injured by petitioners Nos.3 to 6, hence, the concerned police entered a report in Roznamcha and injured non-petitioner No.5, was referred to R.H.C. Dhirkot, for medical examination. After obtaining medical report, a complaint was filed by the concerned police as per order of Magistrate against petitioners Nos.3 to 6, herein, in the concerned Court of competent jurisdiction, Dhirkot, on 09.01.2015. However, private respondent No.5, preferred an application under Section 22-A Criminal Procedure Code, 1898, for registration of FIR before Justice of Peace Bagh, which was allowed through the impugned order dated 15.01.2015, hence, the instant constitution petition.
3. The writ petition, has been resisted by respondents through comments which on request of their learned counsel were treated as written statement vide order dated 16.12.2015, wherein, it is averred chat petitioners failed to point out any illegality or violation of law on the part of Court below, therefore, writ petition is not maintainable. It is pleaded that petitioners do not fall in ambit of aggrieved party as per Section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, therefore, they have got no locus standi to file the instant writ petition. It is further claimed that admittedly answering respondent No.5, received injuries in occurrence took place on 28.10.2014, however, in the instant case local police violated the provisions of Cr.P.C., therefore, the learned Justice of Peace rightly directed to record statements of respondent No.5 and proceed with case in accordance with law, hence, writ petition is not maintainable.
4. Syed Shafqat Hussain Gardezi, Advocate, appearing on behalf of petitioners-accused strenuously argued that as per section 155 of Cr.P.C., 1898, no FIR could be registered by the concerned police except registration of complaint which was duly filed before the concerned Magistrate, hence, application filed by private respondent No.5, before the learned Sessions Judge/Justice of Peace, for registration of case was not maintainable. The learned counsel in support of his contention placed reliance on the following case law:-- (i). Muhammad Azam v. The State and 2 others, (2005 PCr.LJ 906).
(ii). Sajid Iqbal v. Station House Officer, P.S. Miana Gondal, District Mandi Baha-ud-Din and 3 others, (PLJ 2010 Lahore 68).
(iii). Dr. Babar Hussain v. S.H.O., Police Station City Courts, Karachi and another, (2013 PCr.LJ 1002).
(iv). Shanshah Shamil Paracha v. Ex-Officio Justice of Peace and others, (2013 MLD 674).
In case of Muhammad Azam, supra, it was held by the Lahore High Court, that under provisions of S.154, Cr.P.C., a statutory duty had been cast upon officer Incharge of Police Station to enter information regarding commission of any cognizable offence in a register the form of which was prescribed by Provincial Government which was known as "FIR" For recording of information of commission of non-cognizable offence another book was prescribed which was known as 'Roznamcha' or Station Diary in which information relating to commission of non-cognizable offence was recorded.
In case of Sajid Iqbal, ibid, it was held by the Lahore High Court, that in the given case as per opinion of police no cognizable offence was made out and allegations were found false and baseless. It was further opined that law provides alternate adequate remedy, hence, if respondent, so advised, she was at liberty to avail the same.
In Dr. Babar Hussain's case, it was held by the Sindh High Court, that if an offence was reported by complainant to concerned Station House Officer, it was his duty to record statement of complainant and if a cognizable offence was made out to register FIR under S.154, Cr.P.C. against accused nominated therein. On receiving complaint, it was prerogative of concerned Station House Officer to form an opinion as to whether a cognizable offence was made out or not, whereas in non-cognizable cases concerned Station House Officer was not obliged to register FIR and to drag persons nominated therein unnecessarily in order to avoid abuse of process of law. It was held that as no prima facie cognizable offence was reported in the case, therefore, High Court declined to exercise discretion under S.561-A, Cr.P.C. either to set aside order passed by Ex-Officio justice of peace or to issue directions to concerned Station. House Officer to register FIR.
In case of Shanshah Shamil Paracha, ibid, it was held by the Lahore High Court, that Order passed by Justice of Peace was illegal and of no legal consequence. The petition was allowed and impugned order of Justice of Peace was set aside with the observation that provisions of S.154, Cr.P.C. were blatantly misused by the public.
6(sic). Raja Sajjad Ahmed Khan, the learned counsel for contesting respondents vehemently argued that in non-cognizable offences it was legal duty of police to obtain sanction from the respective Magistrate and then after registration of report investigation could be conducted. He argued that difference between sections 154 and 155 Criminal Procedure Code, 1898, is only that under former section in cognizable offences S.H.O. is bound to register FIR, however, in latter section S.H.O. cannot investigate the case on the basis of report, without prior permission of the concerned Magistrate. The learned counsel pressed into service that in the instant case no investigation was conducted by the concerned police, therefore, provisions of sections 155 and 156 of Criminal Procedure Code, 1898, were seriously violated, hence, defended the impugned order passed by the learned Justice of Peace, with full force. The learned counsel 'in support of his submissions, placed reliance on the following case law:-- (i). Miandad Ghanghro v. S.H.O. P.S. Kandhra and others (1989 PCr.LJ 1945).
(ii). Qudrat Hussain v. The State (1996 P.Cr.L.J 735).
(iii). Altaf Hussain v. Abdul Samad and 3 others (2000 SCMR 1945).
In case of Miandad Ghanghro, supra, it was held by the Karachi High Court, that Section 155, Cr.P.C. provides that substance of information in non-cognizable offence shall be entered in a book to be kept for such purpose and informant is to be referred to the Magistrate.
It is further provided that no Police Officer shall investigate a non-cognizable case without order of a Magistrate having power to try such case. After receiving such order from Magistrate, Police Officer can investigate the case and may exercise the powers in the same way as in a cognizable case.
In case of Qudrat Hussain, ibid, it was opined by the Shariat Court of AJ&K, that provisions relating to investigation into non-cognizable cases express bar placed Qn police that no investigation can be conducted without obtaining sanction of Magistrate having power to try such case, which has to be strictly construed, otherwise not only the purpose underlying it would be frustrated but also the provisions itself would be rendered nugatory.
In Altaf Hussain's case, it was held by the Apex Court of Pakistan, that generally speaking police officers are not competent to investigate an offence which is non-cognizable and require permission from a competent Magistrate before the commencement of investigation. However, if through bona fide error or misconception of facts and law police officer has undertaken investigation of a crime in which he is not authorized to arrest an accused without a warrant from a Magistrate and a case is taken to a Court competent to try it in terms of section 190(1)(a) and (b), of Criminal Procedure Code, 1898.
7. I have perused the contents of writ petition, examined the appended documents made available and have given my earnest thought to the points raised by the learned Advocates for parties.
8. There are two classes of criminal offences namely cognizable and non-cognizable, having been categorized by the Code of Criminal Procedure, 1898. The information relating to the commission of cognizable offence is dealt with under section 154, whereas, information relating to commission of non-cognizable offence is dealt with as per section 155(1) of the Code of Criminal Procedure, 1898.
Before considering arguments of the learned counsel, it seems appropriate to reproduce sections 154 and 155 of Code of Criminal Procedure, 1898, herein below:-- "154. Information in cognizable cases.---Every information relating to the commission of a cognizable offence if given orally to an officer Incharge of a police-station, shall be reduced to writing by him or under his direction and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a hook to be kept by such officer in such form as the Provincial Government may prescribe in this behalf."
155. Information in non-cognizable cases:---(1) 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 informant to the Magistrate.
(2) Investigation in non-cognizable cases. No police officer shall investigate a non-cognizable case without the order of Magistrate of the first or second class having power to try such case [or send the same for trial to the Court of Session.]
(3) Any police officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer Incharge of a police station may exercise in a cognizable case."
9. A plain reading of the aforesaid provisions of law reveals that an officer In-charge of police- station is required to lodge an FIR in the relevant book kept at police-station under Section 154 of the Code of Criminal Procedure, 1898, if from the information given to him prima-facie a cognizable offence is made out and in case information disclosed a non-cognizable 'offence, the officer In- charge of police-station is required under section 155(1) of Code of Criminal Procedure, 1898, to enter substance of such information in the relevant book kept at the police-station and refer the informant to the concerned Magistrate. The officer In-charge of Police-station cannot refuse to enter information in relevant book as the case may be. An identical proposition came under consideration before the Karachi High Court, in case titled "Muhammad Ilyas v. Senior Superintendent of Police and another" (1989 PCr.LJ 1129). At pages 1131 and 1132, of report, it was opined as under:-- "The controversial point involved in this petition is whether it is mandatory for S.H.O. or any other officer at police station authorized in this behalf to register FIR of the complainant or it is open to him to refuse registration on the ground that no offence is made out. In this context reference can be made to sections 154 and 155, Cr.P.C. as they both relate to registration of FIRs. Section 154, Cr.P.C. relates to information in cognizable cases and section 155, Cr.P.C., relates to information in non-cognizable cases. Perusal of section 154, Cr.P.C. clearly shows that it is mandatory in nature and in the said section at three places word 'shall' is used by legislature to emphasize the fact that officer at police station is mandatorily bound by law to register the FIR in cognizable cases and he cannot refuse registration on any ground. Reading of this section clearly shows that every information relating to the commission of a cognizable offence, it given orally to an officer Incharge of police station shall be reduced to writing by him or under his direction and be read over to the informant. First 'shall' as stated above very clearly in unequivocal terms requires the Police Officer to reduce into writing information with regard to the cognizable offence. He cannot wriggle out of it on any ground and cannot say that offence is not made out. Second 'shall' is used in that section, when it goes on further to read that such statement shall be signed by the person giving it, which makes it compulsory for the Police Officer to get that information or complaint signed by the complainant and the third 'shall' used in the same section is to the effect that such report shall be entered in a book to be kept by such officer in such form as Provincial Government may prescribed in this behalf. The third 'shall' contemplates maintenance of register under section 154, Cr.P.C. at police station. Section 154 is very clear and leaves no. room at all for doubt for dispute about the fact that it is mandatory for Police Officer at police station to register report of the complainant in a cognizable offence and not only that but the procedure is also prescribed that report is to be reduced into writing and is to be signed by the complainant and is to be entered in 154, Cr.P.C. register.
So far non-cognizable offence is concerned, section 155, Cr.P.C. provides that substance of such information shall be entered in a book to be kept aside for such purpose and informant is to be referred to the Magistrate. It is further provided that no Police Officer shall investigate a non- cognizable case without order of a Magistrate having power to try such case. After receiving such order from Magistrate, Police Officer can investigate the case and may exercise the powers in the same way as in a cognizable case. Joint perusal of both the sections mentioned above shows that the requirement of law is that the Police Officer has to record the FIR mandatorily of a cognizable case under section 154, Cr.P.C., but if it is a non-cognizable case then substance of such information is to be entered in the register maintained under section 155, Cr.P.C. but in each case refusal is out of question."
A similar proposition came under consideration before the Peshawar High Court, in case titled "Mst.
Malka Jan v. I.G. Police N. W.F.P. Peshawar and 2 others" (PLJ 2000 Peshawar 3 (DB)). At page 7 of the report, it was held as under-- "So far as non-cognizable offence is concerned, section 155, Cr.P.C. provides that substance of such information shall be entered in a book to be kept for such purpose and informant is to be referred to the Magistrate. It is further provided that no Police Officer shall investigate in non-cognizable case without order of the Magistrate having power to try such case. After receiving such order from Magistrate, Police Officer can investigate the case and may exercise powers in the same way as in cognizable case."
10. A perusal of record reveals that when in the instant case an application was moved before S.H.O. Police Station Dhirkot, he referred the matter to the Magistrate 1st Class, Dhirkot, who without applying judicial mind directed to the police to lodge complaint against petitioners-accused. On the basis of the aforesaid order of Magistrate, S.H.O. filed complaint before the concerned Court on 10.01.2015. The order, therefore, passed by the Magistrate 1st Class Dhirkot, was recorded contrary to scheme of law laid down in section 155 of the Code of Criminal Procedure, 1898. The paramount duty of Magistrate concerned was to allow the concerned police to initiate investigation. Section 156, Cr.P.C. empowers the Incharge of a Police Station to investigate cognizable cases, whereas Section 157, Cr.P.C. lays down that on receiving information with regard to commission of a cognizable offence which a Police Officer is competent to investigate, report is to be sent immediately to Magistrate empowered in that behalf and to take necessary steps for discovery and arrest of offender. If the Officer Incharge of Police Station under proviso-B to Section 157(1) and subsection (2) to Section 157, Cr.P.C. is of the view that there is no sufficient ground to conduct the investigation, he after recording reasons to that effect in the report can decline to investigate but it is mandatory for him to notify the information about the fact that he would not investigate the case or that the same will not be investigated. Section 159, Cr.P.C. lays down that on receipt of such a report by Magistrate under Section 157, Cr.P.C. he may determine either not to proceed further or he may take cognizance of the offence as provided under Section 190(1)(b), Cr.P.C. or under Section 203, Cr.P.C. Similarly, Section 169, Cr.P.C. empowers the Incharge of a Police Station to release to the accused in deficient evidence on his own bond or Without sureties for his appearance when-ever he is required. Section 170(1), Cr.P.C. provides that upon investigation if there is sufficient evidence the Incharge of Police Station would forward the accused to Magistrate.
Section 173, Cr.P.C. envisages that Incharge of Police Station is required to submit a final report after the completion of investigation containing the complete result of investigation conducted in the case and action taken in respect of informant before the Magistrate,' competent to take cognizance in the case. However, direction for filing complaint against petitioners-accused was unlawful, hence, whole proceedings conducted by the concerned Police and. Magistrate are liable to be quashed as such.
11. The crux of above discussion is that finding no substance in the instant writ petition, the same is hereby dismissed. However, while exercising powers as visualized under section 561-A of the Code of Criminal Procedure, 1898, whole proceedings conducted by the concerned police and Magistrate 1st Class Dhirkot are hereby quashed. The concerned S.H.O. Police Station, Dhirkot, is directed to investigate case and submit challan after completion of investigation before competent Court of law within fortnight period 'from the receipt of the instant judgment. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.