LAHORE: The Lahore High Court (LHC) ruled on Wednesday that the Federal Investigation Agency (FIA) is supposed to register an FIR only in case of a cognisable offence under the Prevention of Electronic Crimes Act 2016 (Peca) and that too after complying with its investigation rules.

However, in case of a non-cognisable offence, the circle in-charge of the agency’s cybercrime wing should seek permission of the competent court for investigation, Justice Tariq Saleem Sheikh observed in his judgement.

The case related to the petition filed in the LHC by a lawyer, Munir Ahmad Bhatti, who challenged an order passed by an ex officio justice of peace in Lahore.

The lawyer said his brother made several defamatory statements against him in a YouTube programme. He then filed a complaint with the FIA cybercrime wing in Lahore on which an inquiry was initiated.

Justice Tariq Saleem observes FIA is supposed to lodge FIRs in cognisable crimes

He said that after recording statements, the inquiry officer did not respond, which constrained him to approach the ex officio justice of peace with a request to order the FIA to register an FIR against the respondent.

However, the judge disposed of Mr Bhatti’s petition and directed the inquiry officer to conclude the inquiry as early as possible and then proceed in accordance with the law. The lawyer, being aggrieved with the order, then petitioned the high court.

His petitioner contended that the respondent, i.e. Mr Bhatti’s brother, committed a cognisable offence and therefore the FIA was obligated to register an FIR against him.

Non-cognisable offences misbehaviour, public annoyance, etc, and in such crimes a police officer has no authority to arrest someone without a warrant and cannot investigate a person without the court’s permission. In contrast, cognisable cases are more serious and a police officer has the authority to arrest someone without a warrant and to launch an investigation with or without court’s permission.

The petitioner’s counsel argued that the ex officio justice of peace did not take into consideration Section 154 of the Code of Criminal Procedure (CrPC), which mandated that an FIR should be registered in respect of a cognisable offence right away without any inquiry or investigation.

However, a deputy attorney general told the court that the petitioner’s allegations could, at the most, constituted an offence under Section 20 of Peca (offences against a person’s dignity), which was non-cognisable and compoundable. Therefore, the impugned order was adequate in this regard, he argued.

Barrister Waqqas A. Mir — being an amicus curiae (friend of the court) — told the court that the investigation rules of 2018 under Peca prescribed a special procedure for their investigation, prosecution and trial.

These provisions would prevail over the CrPC if there was a conflict, he argued, adding that the petitioner’s reference to Section 154 of CrPC was inapt and inappropriate.

In the present case, no FIR could be registered because the complaint did not mention a cognisable offence, he added.

In his verdict, Justice Sheikh noted that the registration of an FIR was not a condition to start the investigation.

He observed that since cybercrimes required some preliminary inquiry to justify prosecution of an accused person, Rule 7(4) of the Investigation Rules 2018 talked about legal opinion and prior approval of the additional director in the FIA zone.

The judge observed that Peca and the Investigation Rules 2018 constituted a special law on the subject and would therefore prevail over the general law set out in the CrPC.

He said Section 154 of CrPC ordained that when information relating to the commission of a cognisable offence was given to an officer in charge of a police station, he shall enter it in the prescribed book or register.

He held that the section did not permit the police to hold a preliminary inquiry before it to ascertain the authenticity of a piece of information.

Peca rules, in contrast, required some actions before the FIR was lodged, the judge explained.

The allegation levelled by the petitioner against his brother apparently attracted Section 20 of Peca, which was a non-cognisable and compoundable offence in terms of Section 43.

About the merits of the case, Justice Sheikh observed that the ex officio peace justice rightly directed the inquiry officer to conclude it expeditiously and asked the parties to wait for its outcome.

“In as much as the alleged offence is non-cognisable, FIR cannot be ordered to be registered in any eventuality,” he concluded while dismissing the petition.

Published in Dawn, March 24th, 2022