MANZOOR HUSSAIN vs The STATE and 8 others

' JAMAL KHAN MANDOKHAIL, J.---Facts in brief are that the petitioner lodged an F.I.R. No,9 of 2009, under sections 265,.395, 34, P.P.C., with the Police Station Uthal, District Lasbella. It was alleged that on 6th March, 2009, he along with his driver namely Muhammad Altaf son of Ghulam Nabi was on his way from Quetta to Karachi in his private Car No,AHZ254, all of a sudden, the persons nominated in the F.I.R. Stopped his vehicle and abducted him and his driver. During the course of the investigation, the driver recorded his statement under section 164, Cr.P.C. Before the Judicial Magistrate and also appeared before the trial Court and recorded his statement on oath, wherein, he did not support the contention of the petitioner. The trial Court on an application under section 265-K, Cr.P.C., acquitted the accused/respondent No,6 and declared the F.I.R. As false, by means of the order dated April 21st, 2010 and simultaneously directed the prosecution to initiate proceedings against the petitioner/complainant for lodging the false F.I.R. The SHO, Police Station, Uthal on receiving a letter from the District Attorney at Hub, registered an F.I.R. No,34 of 2010, against the petitioner under sections 182 and 211, P.P.C. And started investigation. Upon completion of the challan, the Judicial Magistrate took cognizance of the case and framed charge against the petitioner, hence, this petition.

2. The learned counsel for the petitioner states that the trial Court did not follow the provisions of section 265-X and came to a wrong conclusion by acquitting the accused/private respondent in the main case F.I.R. No,9 of 2009. According to him, the impugned order of the trial Court is based on the statement of Muhammad Altaf, but no opportunity of cross-examination was provided to the petitioner, nor the remaining evidence available on record was discussed, in presence whereof, the statement of Muhammad Altaf could not have been made a solid reason for acquitting the private respondent. The learned counsel next argued that the direction made by the trial Court for the registration of the F.I.R., under sections 182 and 211, P.P.C. Against the petitioner/complainant is absolutely without jurisdiction as both the offences are non-cognizable, and the procedure provided by law .Has not been adopted.

3. On the other hand the learned P.-G. Opposed the contention and stated that the Constitutional Petition against the acquittal of the private respondent is not maintainable for having an alternate remedy of appeal tinder section 417, Cr.P.C. He further stated that the trial Court also got the power of a Magistrate to initiate proceedings in respect of a non-cognizable offence, as such, the impugned order is just and proper.

4. We have heard the learned counsel for the parties and have perused the record. The petitioner assailed the impugned order, which consist upon two parts i.e, the acquittal of the private respondent and the direction for registration of the F.I.R. Against the petitioner. Section 417, Cr.P.C., provides a remedy of appeal to an aggrieved person, against a finding of an acquittal. Through the impugned order, the trial Court acquitted the private respondent, but the petitioner did not file an appeal against it, therefore, the petition to the extent of acquittal of the private respondent is not competent, in presence of an alternate remedy.

5. As far as the direction made by the trial Court for the registration of the case against the petitioner is concerned, there are two types of offences i.e, cognizable and non-cognizable. In cognizable, offences, the F.I.R. Has to be registered by an Officer Incharge of a Police Station, on, receiving an information of a commission of an offence, therefore, he has to start an investigation himself or to assign it to an officer of the concerned police station and can arrest an accused without a warrant from the Magistrate. On the other hand, for the registration of a non-cognizable offence, section 155 of the Cr.P.C., provides a procedure, which is reproduced herein below:--

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 into non-cognizable cases. No police-officer shall investigate a non-cognizable case without the order of a Magistrate- of first or second class having power to try such case [or sent 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.

6. Moreover, out of the non-cognizable offences, for the registration of case under sections 182 and

211. P.P.C., section 195, Cr.P.C., has provided the following procedure:--

195. Prosecution for contempt of lawful authority -of public servants: Prosecution for certain offences against public justice: Prosecution for certain offences relating to documents given in evidence.---(1) No Court shall take cognizance:--

(a) of any offence punishable under sections 172 to 188 of the Pakistan Penal Code, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is subordinate.

(b) of any offence punishable under any of the following sections of the same Code namely sections 193, 194, 195, 196, 199, 200, 205, 206, 207, 208, 209, 210, 211 and 228, when such offence is alleged to have been committed in, or in relation to any proceeding in any Court, except on the complaint in writing of such Court or of some other Court to which such is subordinate, or

(c) of any offence described in section 463 or punishable under section 471, section 475 or section 476 of the same Code, when such offence is alleged to have been committed by a party to any proceeding in any Court in respect of a document produced or given in evidence in such proceeding, except on the complaint in writing of such Court, or of some other Court to which such Court is subordinate.

7. Pursuant to the above provisions, an incharge of a police station on receiving information in respect of a non-cognizable offence, shall enter it in a book/register and to refer the information to a Magistrate for further action. On receiving a permission of initiating investigation into the matter and after obtaining a warrant, the police officer can then arrest an accused. The present case has been registered by the police officer under sections 182 and 211, P.P.C., upon a letter issued by the District Attorney, on behalf of the Sessions Judge Lasbella at Hub. Admittedly, both the offences are non-cognizable, for the registration of which the law has provided a procedure, but it has not been followed. When a statute prescribes an act to be done in a B manner, then it must be done as directed so, and its deviation vitiates the entire proceedings. The registration of the F.I.R. By the police officer on the letter issued by the District Attorney on behalf of the Sessions Judge, followed by the investigation by the police officer, at his own were not permitted by law, therefore, the act of the police officer is void and unlawful, consequently, the trial on the basis thereof is coram non judice.

8. Without prejudice to above, even otherwise, the proceeding under section 182, P.P.C. Could only be initiated, on a written complaint of a police officer, but this section has been inserted in the F.I.R., on a letter of the District Attorney. Since, the offence has not been included on a written complaint of the police officer concerned, therefore, the proceedings under section 182, P.P.C. Have unlawfully been initiated 'against the petitioner. Similarly the proceeding under section 211, P.P.C. Could only be initiated on a written complaint of a court or by any other court to which such court is subordinate but admittedly, in the present case, there is no complaint in writing from the, trial Court or any other court. The provisions of sections 155 and 195, Cr.P.C. Are since mandatory in nature, therefore, its non-compliance vitiates the entire proceedings. Resultantly, the F.I.R. No,34 of 2010, registered by the SHO, Police Station Uthal on the direction of the Sessions Judge Lasbella at .Hub is void and illegal, hence, the proceedings initiated by the Judicial Magistrate, thereon - are without jurisdiction.

' Thus, in view of what has been stated above, the petition is partly allowed. The impugned order dated 21st April, 2012, passed by the Sessions Judge Lasbella at Hub only to the extent of the direction for the registration- of a case -against the petitioner is set aside, consequently, the F.I.R.

No,34 of 2010, is quashed.

F.I.R. Quashed.