SAKHAWAT HUSSAIN SHAH vs THE STATE and 3 otherss

ORDER

1. ' SYED SHABBAR RAZA RIZVI, J.--- The petitioner through the learned counsel filed the present writ petition to seek quashment of F.I.R. No,283 of 2005 registered under Article 155(c) of Police Order, 2002 at Police Station Sambrial District Sialkot.

2. ' The petitioner is a Police Inspector, the above mentioned F.I.R. Has been registered against him accusing that he declared innocent accused nominated in F.I.R. No,427, dated 1-9-2004 at Police Station Sambarial, District Sialkot. S.P. Investigation Sialkot deputed A.S.P., Daska to probe into the matter on whose report D.P.O. Sialkot ordered for registration of present F.I.R. Which has been sought to be quashed.

3. ' The learned counsel for the petitioner contends that registration of the F.I.R. Is void ab initio as it was registered in disregard of mandatory provisions of sub-Article (2) of Article 155 of Police Order, 2002. According to him, under the said provisions, the prosecution cannot be initiated unless a report in writing is made by an officer authorized in this behalf.

4. ' The report was sought from the D.P.O. Sialkot. In the said report the D.P.O. Stated that petitioner was found guilty of faulty/ defective investigation, therefore, at the instance of respondent No,3, the F.I.R. Was registered under Article 155(c) of the Police Order, 2002.

5. ' The learned counsel for the petitioner as well as the learned Additional Advocate-General Punjab were directed to address this Court as to what is definition of "prosecution" as the whole case of the petitioner hinges upon the definition of "prosecution". They were also asked to give their opinions whether prosecution includes registration of F.I.R. Because the learned counsel for the petitioner has sought quashment of the F.I.R. On the ground mentioned above. Today, the learned counsel was asked to substantiate his arguments with some case-law or legal literature, he expressed his inability to find out any case law. Both the learned counsel for the petitioner as well as the learned Additional Advocate-General, Punjab were suggested some case-law by me and the case was kept in waiting but none of them have appeared.

6. The Honourable Supreme Court of Pakistan construed the expression "prosecution" in several cases. For example his Lordship Shafi-ur-Rehman, J. Expressed himself in the following words:--- "On the extended meaning of word "prosecution" all the steps taken by the Court after filing of a police report or on a complaint with the object of holding the trial would amount to prosecution of the accused. (Muhammad Abbas v. The State PLD 1981 SC 642)."

7. ' In another judgment considering the meaning of word "Prosecution" in context of Article 13 of the Constitution of Pakistan, his Lordship, Naseem Hassan Shah, J. Referred to some well-known sources of law and also considered extended and limited meanings, in different contexts of "prosecution". For advantage of all, the relevant para. Is reproduced as under:- "The important word in Article 13 is "prosecution". According to Corpus Juris Secundum the term "prosecution" has differed meanings when used in different relations and it is regarded as a word of limited or extended signification according to the intention of the law maker or the person using it.

8. In its broadest sense the term would embrace all proceeding in the course of justice or even elsewhere for the protection or enforcement of a right of the punishment of a wrong, whether of a public or private character. In a more limited sense the term includes the act of conducting or waging a proceeding to Court; the following up or carrying on of an action of suit already commenced until the remedy be attained; the institution and carrying on of a suit in a Court of law or equity to obtain some right or to redress and punish some wrong. It includes commencing, conducting and carrying a suit to a conclusion in a Court of justice. It is in this limited sense that the word "prosecution" appears to have been used in Article 13 of the Constitution, significantly, the marginal heading indicates that this Article is a protection against double punishment, which tends to show that it is only where the prosecution has finally concluded and ended either in acquittal or conviction that a fresh prosecution for the same offence would be barred. Stroud's Judicial Dictionary explains that term "prosecution" amongst others in the following manner:- "The "prosecution" of an action ends with the final judgment therein (Hurne v. Druyff, LR 8 Ex.2 l4)."

9. ' The word "Prosecute" is derived from a Latin word and signifies not only "to follow", but "to follow intensively" without intermission; thus, to follow or pursue with a view to reach, execute or accomplish." (Syed Alamdar Hussain Shah v. Abdul Baseer Qureshi and 2 others PLD 1978 SC 121)."

10. ' From the above it is clear that the word "prosecution" in context of Article 155(2) means institution and continuance of a criminal proceedings after framing of a formal charge before a competent Court and pursuing the said proceedings until final judgment of acquittal or conviction.

11. ' According to Wharton's Law Laxicon by A.S. Oppe 14th Edition 1976, prosecution means institution and continuance of a criminal proceedings after framing of a formal charge before a competent Court and pursuing the said proceedings until final judgment of acquittal or conviction. According to Wharton's Law Laxicon by A.S. Oppe 14th Edition 1976 reprint, page 810, "prosecution" means a proceeding either by way of indictment or information, in the criminal Courts in order to put an offender upon his trial. According to the Sindh High Court, the word "prosecution" occurring in Article 13 would mean initiation or starting of proceedings of criminal nature before a Court of law or a judicial Tribunal in accordance with the procedure prescribed in the Statute which creates the offences and regulates the proceedings. (Ismail A. Rehman v. Muhammad Sadiq PLD 1990 Kar.

12. 286).

13. ' Similar findings were given by his Lordships (late) Rustam S. Sidhwa, J. Of Lahore High Court, Lahore (as he then was) in Tasawar Hussain v. The State 1986 PCr.LJ 2218.

14. ' As a result of above discussion, it is held that merely registration of an F.I.R. Cannot be construed as "prosecution" in context of Article 155(2) of the Police Order, 2002, thus, this writ petition is