Case law

1. 2012 P Cr. L J 1526
[Peshawar]
Before Nisar Hussain Khan and Qaiser Rashid Khan, JJ
Haji REHMAN SHO and 3 others---Petitioners
Versus
PROVINCIAL POLICE OFFICER, GOVERNMENT OF KHYBER PAKHTUNKHWA,
PESHAWAR and 5 others---Respondents
Writ Petition No.8-B of 2012, decided on 3rd February, 2012.
(a) Criminal Procedure Code (V of 1898)---
----Ss. 4(f), 154, 561-A & Sch. II--- Police Order (22 of 2002), Art.155---Constitution of
Pakistan, Art. 199---Constitutional petition---Cognizable offence, misconduct by police officers-
--F.I.R. had been registered against accused-police officials under Art.155 of Police Order, 2002-
--Contention of accused-police officials was that offence under Art.155 of Police Order, 2002
was non-cognizable, therefore, F.I.R. had been wrongly registered by the police---Validity---
Art.155 of Police Order, 2002, entailed punishment of three years and no express provision
existed in the said Order to state that it was a non-cognizable offence, and in such a situation
recourse had to be made to S.4(f) of Cr.P.C, according to which the offence or case in which a
police officer may arrest the accused without warrant in accordance with the Schedule II of
Cr.P.C. is a cognizable offence or a cognizable case---Schedule II of Cr.P.C. under the heading,
"Offences Against Other Laws" provided that police officer could arrest the accused without
warrant in an offence, which was punishable with imprisonment for three years or upward and
such offence had also been made non-bailable, except for S.13 of West Pakistan Arms
Ordinance, 1965---No such exception had been provided in Cr.P.C. or Police Order, 2002
for an offence punishable under Art. 155 of said Order---Offence being a cognizable
offence, F.I.R. had been legitimately registered in pursuance of S.154, Cr.P.C., to which no
exception could be taken--- Constitutional petition was dismissed, in circumstances.
(b) Criminal Procedure Code (V of 1898)---
----S. 155---Police Order (22 of 2002), Art. 155---Constitution of Pakistan, Art. 199---
Constitutional petition---Misconduct by police officers--- Information in non-cognizable cases---
Scope--- In non-cognizable cases/offences, the only course open for the police, by virtue
of S. 155, Cr.P.C., was to obtain permission of Magistrate after making entry in the concerned
book and then to investigate the case; in a non-cognizable offence the police could neither

2. register a case under S.154, Cr.P.C. nor could it arrest the accused without a warrant.
Dost Muhammad Khan and Hidayatullah for Petitioners.
Ahmad Farooq Khattak, A.A.-G. for Respondents.
Date of hearing: 3rd February, 2012.
JUDGMENT
NISAR HUSSAIN KHAN, J.---Through instant writ petition, petitioners seek quashment of
F.I.R. No. 539, dated 21-12-2011, registered under Article 155 of Police Order, 2002 at Police
Station Yaqoob Khan Shaheed, Tehsil Takht-e-Nasrati, District Karak.
2. The resume of the facts forming the background of instant petition is that a letter
No.12684/LB, dated 21-12-2011, was sent by District Police Officer, Karak to Deputy
Superintendent of Police, Takht-e-Nasrati, that inquiry committee constituted, vide Endst:
No.491-99./CRC, dated 14-12-2011 of the office of Additional Inspector-General of Police,
Khyber Pakhtunkhwa, Peshawar has recommended registration of case against the petitioners,
police officers on charges of displaying cowardice, negligence in duty and abetment, in
connection with the occurrence of case F.I.R. No.529, dated 9-12-2011, registered under sections
302/109/148/149, P.P.C., at Police Station Yaqoob Khan Shaheed. On the basis of this letter,
instant F.I.R was registered.
3. Learned counsel for the petitioners argued that offence under Article 155, Police Order,
2002 is non-cognizable, so the F.I.R has wrongly been registered by the Police. At the most,
officer-in-charge of the Police Station could have investigated it after obtaining permission from
the Judicial Magistrate under section 155, Cr.P.C. for investigation as it was a non-cognizable
offence. Thus the F.I.R. is the culmination of illegal exercise of power, which is liable to be
quashed.
4. Learned A.A.-G., has vehemently opposed the contention of learned counsel of the
petitioner.
5. The proposition to be resolved in the instant petition is that; whether the offence under
Article 155 of Police Order, 2002 is cognizable or otherwise? The main reliance of learned
counsel for the petitioner was on Article 153 of ibid Order, by virtue of which certain offences
have been declared as cognizable, which does not include Article 155, hence it according to him,
would be non-cognizable. The proposition advanced by the learned counsel is misconceived.
Chapter XVI of Police Order, 2002, comprising Articles 148 to 152 are offences relating to the
public and these offences have been made cognizable by virtue of Article 153 of the Police
Order 2002. In pursuance of Article 154 of ibid Order these offences are summarily triable by
the competent Court, as provided for summery trial in Criminal Procedure Code. The
punishments provided in Articles 148, 149, 150 and 152 are minor in nature as of imprisonment

3. of six months or/and three months along with fine, which in normal course, would have been
non-cognizable offences, except Article 151, which entails punishment of three years. But the
legislature has made it cognizable, despite of having lesser punishment by inserting special
clause of Article 153 in the ibid Order. On the other hand Chapter XVII of Police Order
specifically deals with the punishment provided for police officers, relating to the offences of
their omissions or commissions, during the discharge of their official duties. Article 155 entails
punishment of three years for which there is no specific express provision in Police Order 2002,
that it is a non-cognizable offence. In such situation recourse would be made to the general law
of Criminal Procedure Code, 1898. Section 4(f) of the Code, defines the cognizable offence or
cognizable case, according to which the offence or case in which a police officer may arrest the
accused without warrant in accordance with IInd Schedule of the Code is a cognizable offence or
a cognizable case. Under the head of "OFFENCES AGAINST OTHER LAWS" it is provided in
the IInd Schedule of the Code that police officer may arrest the accused without warrant in an
offence, which is punishable with imprisonment for three years or upward and has also been
made non-bailable, except section 13 of Arms Ordinance, 1965. There is no such exception
provided in the Code or in the Police Order, 2002 for an offence punishable under Article 155 of
the Police Order. In view of this legal perspective, it is a cognizable offence and F.I.R has rightly
and legitimately been registered, in pursuance of section 154, Cr.P.C.
6. There is no cavil with the proposition that in non-cognizable cases/offences, the only
course open for the police, by virtue of section 155, Cr.P.C., is to obtain permission of
Magistrate after making entry in the concerned book and then investigate the case. Neither the
police officer can register the case under section 154, Cr.P.C. in a non-cognizable offence nor
can arrest the accused without warrant. As offence under Article 155 Police Order 2002 is a
cognizable one, so F.I.R. has rightly been registered, to which no exception can be taken.
7. For what has been discussed above, this petition being devoid of merits, is hereby
dismissed.
M.W.A./90/P Petition dismissed.