Added offences can't validate illegal FIR: LHC

Case against petitioner in Mian Channu quashed

LAHORE:

The Lahore High Court (LHC) has ruled that a first information report (FIR) registered in violation of the law cannot be retrospectively validated by the subsequent addition of cognisable offences.

Justice Tariq Saleem Sheikh held that where permission of a magistrate was a legal requirement before registration of an FIR, failure to obtain such approval rendered the report unlawful at its inception, and the defect could not be cured by incorporating cognisable sections during the investigation.

In a detailed judgment, the court observed that the legality of an FIR must be judged on the basis of the allegations and offences disclosed at the time of its registration and not by subsequent developments during the investigation.

Allowing a constitutional petition, the court quashed an FIR registered at Mian Channu Saddar police station against a Christian woman and other suspects after finding that the FIR had been registered only under Section 494 of the Pakistan Penal Code (PPC), a non-cognisable offence, without obtaining the mandatory permission of a magistrate.

The case arose from allegations by another Christian woman that her husband had contracted second marriage with the petitioner while their marriage was subsisting.

According to the complainant, the accused had procured a forged marriage certificate by falsely portraying the husband as unmarried and later threatened her when she confronted him.

The petitioner approached the high court seeking quashment of the FIR, arguing that Section 494 was non-cognisable and, therefore, police lacked legal authority to register or investigate the case without the approval of a competent magistrate as required under Section 155(2) of the Criminal Procedure Code.

During the pendency of the petition, the investigating officer sought a legal opinion from the district public prosecutor, who concluded that Section 494 was inapplicable and advised deletion of the offence. Acting on the opinion, the police substituted Sections 420, 468 and 471 of the PPC relating to cheating and forgery.

Justice Sheikh held that the subsequent addition of cognisable offences could not retrospectively validate an FIR that was void at its inception for want of jurisdiction. An act done without jurisdiction does not become lawful merely because different offences are inserted during investigation.

The court held that Section 155(2) if the CrPC prohibited police from investigating non-cognisable offences without an order of magistrate. Justice Sheikh observed that the word "shall" in the section reflected a clear legislative command designed to prevent arbitrary investigations.

Examining the allegations, the court also held that the Christian Marriage Act, 1872 did not criminalise a second marriage in the manner contemplated by Section 494 of PPC.