'Registration of FIR against police officer justified'

Petitioner had sought registration of an FIR against a sub-inspector for allegedly misusing power

LAHORE:

The Lahore High Court Rawalpindi Bench declared that the offence under article 155 of “Order” is cognizable offence, and the direction given by the district court judge to SHO to register an FIR against a police officer under Section 154 of the “Code” is justified.

The petitioner had sought registration of an FIR against a police official (sub-inspector in police department) complaining that he has committed excess of power against the petitioner which was beyond his authority and attracts offence under Article 155(c) of the Police Order, 2002.

As the Additional Sessions Judge directed the SHO of Police Station New Town Rawalpindi to register an FIR, the accused petitioner sub-inspector moved the LHC Rawalpindi bench on a plea that “the offence under article 155(c) of ‘Order’ is not cognizable, and as such the district court judge was not competent to pass a direction to the police to register a case”.

The petitioner

This time Justice Mirza Viqas Rauf heard this matter, but on September 21, 2021 after hearing both sides counsels and the law officer the matter was referred to the Chief Justice for constitution of a larger Bench following the conflicting views on this issue.

Finally, the division bench was constituted which was headed by Justice Mirza Viqas Rauf and the second member was Raheel Kamran.

The division bench appointed advocates Tanvir Iqbal and Ch. Imran Hassan Ali as amici curiae. The bench was to define whether or not Article 155(c) of “Order” is “cognizable” or “non-cognizable”.

Advocate Tanvir Iqbal contended that cognizable offences are of two types, one cognizable by police and other cognizable by court. He added that “Order” categorizes two types of offences one in Chapter XVI and the other in Chapter XVII. However, the offences prescribed in Chapter XVI are minor offences and are subject to summary trial whereas offences contained in Chapter XVII are not summary triable.

He argued that nowhere mentioned in the “Order” that offence under Article 155 is cognizable or otherwise.

He added that in terms of Article 153 of “Order” offences falling under Articles 148 to 152 have been made cognizable notwithstanding anything contained in the Code.

He further argued that in order to determine the nature of offence under Article 155 of “Order” we have to thus advert to Schedule II of the “Code” relating to offences against other laws. It is contended with vehemence that offence under Article 155 of “Order” is cognizable.

Advocate Ch. Imran Hassan Ali implored the bench that Article 155 of “Order” comprises two parts, and if both are read together there remains no ambiguity that by virtue of applicability of the “Code” to the “Order”, offence under Article 155 is cognizable.

He added that word “report” used in the Article 155(2) of “Order” is of significant importance which is akin to the word “report” used in Section 173 of “Code”. He added that every provision in the “Order” is independent.

The counsel for the accused petitioner submitted that offence under Article 155 of “Order” is non-cognizable and the learned Ex-Office Justice of Peace has no power to direct the “SHO” to proceed in terms of Section 154 of “Code”.

While the respondent’s counsel argued that the offence under Article 155 of “Order” provides the punishment up to three years. He added that in terms of Schedule II of “Code” offence is thus cognizable.

It is lastly contended by the Advocate-General of Punjab, Ahmad Awais, that from the plenary language of Article 153 of “Order” it can be assumed that offence under Article 155(c) of “Order” is non-cognizable.

Published in The Express Tribune, January 18^th, 2022.