2013 P Cr. L J 18
[Balochistan]
Before Jamal Khan Mandokhail and Ghulam Mustafa Mengal, JJ
MANZOOR HUSSAIN ---Petitione r
Versus
The STATE and 8 others ---Respondents
Constitutional Petition No. 125 of 2012, decided on 16th July, 2012.
(a) Constitution of Pakistan ---
----Art. 199 --- Criminal Procedure Code (V of 1898), S.417 ---Constitutional petition ---
Maintainabil ity---Alternate remedy ---Petitioner assailed judgment passed by Trial Court,
whereby respondent was acquitted of the charges ---Validity ---Remedy of appeal was
provided under S.417, Cr.P.C. to an aggrieved person, against finding of acquittal ---Trial
Court, through order in question, acquitted respondent but petitioner did not file appeal
against it, therefore, constitutional petition to the extent of acquittal of respondent was not
competent in presence of alternate remedy.
(b) Administration of justice ---
----Non-following of the procedure ---Effect ---When statute prescribes an act to be done in a
manner, then it must be done as directed so, and its deviation vitiate entire proceedings.
(c) Penal Code (XLV of 1860) ---
----Ss. 182 & 211 ---Criminal P rocedure Code (V of 1898), Ss. 155, 195 & 561 -A---
Constitution of Pakistan, Art. 199 ---Constitutional petition ---False information to public
servant and false charge ---Quashing of proceedings ---Taking of cognizance ---Earlier, a case
was registered by petit ioner against respondent and Trial Court acquitted respondent on the
ground that case was false ---Subsequently, on the direction of Sessions Judge, case under
S.182, P.P.C. was registered against petitioner ---Validity ---Registration of F.I.R. by police on
letter issued by District Attorney on behalf of Sessions Judge followed by investigation by
police, at his own were not permitted by law ---Such act of police was void, unlawful and trial
on the basis of the same was coram non judice ---Proceedings under S.1 82, P.P.C. could only
be initiated on a written complaint of police officer but the section was inserted in F.I.R. on a
letter from District Attorney ---Offence having not been included on a written complaint of
police officer concerned, proceedings under S .182, P.P.C. were unlawfully initiated against
petitioner ---Proceedings under S.211, P.P.C. could only be initiated on a written complaint of
a court or by any other court to which such court was subordinate but there was no complaint
in writing from Trial Court or any other court ---Provisions of sections 155 and 195, Cr.P.C.
were mandatory in nature, therefore, its non -compliance vitiated entire proceedings ---
F.I.R. registered against petitioner on the direction of Trial Court was void and illegal , hence
proceedings initiated against petitioner were without jurisdiction ---Order passed by Sessions
Judge for registration of case was set aside and F.I.R. registered against petitioner was
quashed ---Petition was allowed accordingly.
Saleemullah Khan for Petitioner.
Abdul Aziz Khilji, Additional A. -G. for the State.
Date of hearing: 24th May, 2012.
JUDGMENT
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 nom inated 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 -K 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 Muhamm ad 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. agai nst 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 t he
Constitutional Petition against the acquittal of the private respondent is not maintainable for
having an alternate remedy of appeal under section 417, Cr.P.C. He further stated that the
trial Court also got the power of a Magistrate to initiate pro ceedings 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 a n 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 a n 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 poli ce-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 publ ic justice: Prosecution far 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 pu blic 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 t he 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 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 Uth al 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.
MH/71/Q F.I.R. quashed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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