Commission of Cognizable Offence is sufficient for registration of FIR

PLJ 2013 Lahore 304

Present: Umar Ata Bandial, J.

MADAWA--Petitioner

versus

I.G. PUNJAB, etc.--Respondents

W.P. No. 3657 of 2012, decided on 29.3.2012.

Constitution of Pakistan, 1973--

----Art. 199--Pakistan Penal Code, (XLV of 1864), S. 489-F--Negotiable Instrument Act, 1881, S. 30--Constitutional petition--Investigation of criminal case u/S. 489-F, PPC was assailed--Pre-conditions for registration of FIR--Conflict with settled law--Commission of cognizable offence was sole basis for registration of FIR--Validity--No dispute on duty of police officer to register an FIR, whether complainant disclose commission of a cognizable offence--It was directed that respondent in matter of registration of FIR u/S. 489-F, PPC satisfied regarding, prima facie, disclosure of an offence by provision of dishonour slip and notice u/S. 30 of Negotiable Instrument Act, prior to registration of FIR for that offence--Petition was disposed of.      [Pp. 305, 306 & 307] A & F

Pakistan Penal Code, 1860 (XLV of 1860)--

----S. 489-F--Negotiable Instruments Act, 1881--S. 30--Prerequisite documents--Dishonour slip and a notice were valid demands by police officer before registering a case u/S. 489-F, PPC--Condition, establishment of dishonesty obligation and genuiness of signatures of drawer were matters that require probe and evidence. [P. 306] B & C

Police Rules, 1974--

----R. I--Chapter, 34--Criminal Procedure Code, (V of 1898), S. 154--Elements cannot prevent registration of FIR--Elements by I.O. might be justified before arresting accused--Assert of suspect or an accused person is necessary or sine qua non for investigation of a crime--Validity--It was wrong presumption on part of police authorities that upon registration of FIR for cognizable offence, person accused must be arrested immediately--Held: A suspect is not to be asserted straightaway upon registration of an FIR or as a matter of course--Arrest is to be deferred till such time that sufficient material or evidence becomes available on record of investigation prima facie satisfying investigation officer about correctness of allegation leveled by complainant party against a suspect's involvement in commission of crime alleged.            [P. 306] D & E

Mr. Faiz Rasool Jalbani, Advocate for Petitioner.

Mr. Khawar Ikram Bhatti, Addl. A.G. for Respondents.

Date of hearing: 29.3.2012.

Order

Learned counsel for the petitioner has assailed guidelines for investigation of cases under Section 489-F, PPC issued by the Inspector General of Police on 15.8.2011. Submits that three pre-conditions for registration of FIR alleging the offence under Section 489-F, PPC have been imposed which are beyond the legal authority and competence of the respondent I.G.P. He submits that the Police Order, 2002 does not permit the I.G.P. to issue instructions that conflict with the settled law declared by superior Courts that the commission of a cognizable offence is the sole basis for registration of FIR and no inquiry into the commission of such offence may be launched by a SHO prior to registration of the FIR. Relis on Muhammad Bashir vs. SHO etc. (PLD 2007 S.C 539) and Chapter 34, Rule 1 of the Police Rules, 1934 read with Section 154 of the Cr.P.C. Learned counsel further adds that he acknowledges the wisdom of the police authorities to regulate their investigative powers, however, such regulation should take place after registration of FIR. He has candidly pointed out one category of cases that unnecessarily benefits from the impugned guidelines. This is the case of the habitual offenders who fraudulently issue cheques in consideration of money received with the intention that the cheque will be dishonoured.

2.  After hearing the learned counsel for the petitioner, the learned Addl. A.G. and perusing the parawise comments filed by the Respondent No. 2, it emerges that there is no dispute on the duty of a police  officer  to  register  an  FIR  under  Section 154 of Cr.P.C. where a complaint discloses the commission of a cognizable offence. In the context of an offence under Section 489-F, PPC two of the pre-requisite documents noted in the instructions, namely, dishonour slip and a notice under Section 30 of the Negotiable Instruments Act, 1881 are valid demands by a police officer before registering a case under Section 489-F of PPC. However, the third pre-condition, namely, establishment of dishonesty, obligation and genuiness of signatures of the drawer-accused are matters that require probe and evidence. A police officer does not have authority to carry out an inquiry prior to legislation of a case as held by the Hon'ble Supreme Court in Muhammad Bashir Vs. SHO etc. (PLD 2007 S.C. 539) and as reflected in Chapter 34, Rule 1 of the Police Rules, 1934 read with Section 154, Cr.P.C. Consequently, the three elements noted in the impugned instructions cannot prevent registration of FIR. However, initial probe in those three elements by an Investigating Officer may be justified before arresting an accused-drawer of a cheque. It is wrong presumption on the part of the police authorities that upon registration of FIR for a cognizable offence, the person accused therein must be arrested immediately. Reliance is placed on Khizer Hayat and others Vs Inspector General of Police (Punjab), Lahore and others (PLD 2005 Lahore 470) wherein a learned Full Bench of this Court has rejected the view that an arrest of a suspect or an accused person is necessary or sine qua non for investigation of a crime. "A suspect is not to be arrested straightaway upon registration of an F.I.R. or as a matter of course... Arrest is to be deferred till such time that sufficient material or evidence becomes available on the record of investigation prima facie satisfying the Investigating Officer" about correctness of the allegation levelled by a complainant party against a suspect's involvement in the commission of the crime alleged. The law disapproves depriving of a person of his liberty on the basis of unsubstantiated allegations. Insistence by the complainant party for the immediate arrest of an accused should not swamp an Investigating Officer to ignore the rules governing exercise of his discretion and jurisdiction in the matter. Accordingly, the appropriate course for the Respondent No. 1 is to establish a protocol to regulate the authority of an investigating officer by specifying the steps to be taken by him with reference to the type of offence in issue. Consequently, whilst the relevance of the criteria noted in the instructions is not doubled, it is the stage of application of one of these which is disputed by the petitioner on the basis of binding law.

3.  It is accordingly, directed that the respondents shall in the matter of registration of FIR under Section 489-F of PPC satisfy themselves regarding, prima facie, disclosure of an offence by the provision of a dishonour slip and a notice under Section 30 of the Negotiable Instruments Act, 1881 prior to registration of FIR for the said offence. However,  in  so  far  as  the  remaining  criterion  noted  in   the impugned instructions is concerned the same shall be applied after registration of FIR and if justified by the facts, before the arrest of an accused-drawer of a dishonoured cheque.

4.  Petition disposed of.

(R.A.)  Petition disposed of