PESHAWAR: The Peshawar High Court has ordered quashing of an FIR registered against several protesters in Lower Dir for staging a demonstration despite ban imposed by the deputy commissioner under section 144 of Code of Criminal Procedure.

A bench consisting of Justice Mohammad Naeem Anwar and Justice Dr Khurshid Iqbal ruled that a violation under section 188 (disobedience to order of a public servant) of Pakistan Penal Code was non-cognisable offence for which an FIR could not be lodged.

The bench ruled that cognisance of such an offence could only be taken when a complaint was made in writing to the relevant court by the public servant concerned.

The bench accepted a petition filed by Attiqur Rehman and 21 other protesters, named in the FIR, who had requested quashing of the said FIR by declaring its registration as illegal.

Bench rules police not empowered to lodge cases in non-cognisable offences

The deputy commissioner of Dir Lower had issued a notification on October 6, 2022, placing ban on certain activities under section 144 of CrPC including assembly of people at public places except mosques and other religious places.

The petitioners along with other protesters had staged a protest on October 7 near Timergara Medical College against ignoring them by the college’s management for recruitment on certain posts there.

The impugned FIR was registered at Khal police station under section 188 of Pakistan Penal Code and SHO Mehran Shah was complainant in it.

Normally, the deputy commissioners have been issuing orders under section 144 of CrPC in relation to different activities and violation of such orders is an offence under section 188 of PPC.

Police in different districts have frequently been registering FIRs under section 188 of PPC for violation of orders issued under section 144 of CrPC but high court in its order has now declared such practice illegal.

Advocates Asghar Ali and Syed Abdul Haq appeared for the petitioners and contended that the SHO overstepped his powers by registering the FIR for a non-cognisable offence.

The bench explained the mode of dealing with cognisable and non-cognisable offences by police stating that section 154 of CrPC provided the mechanism to be adopted regarding cognisable offences by police.

The bench observed that section 154 of CrPC cast a duty on officer-in-charge of a police station to enter the information regarding commission of a cognisable offence in the relevant book and he had no discretion to refuse registration of FIR.

However, the court observed when it came to a non-cognisable offence as provided under section 155 of CrPC it put a clog on the power of police for direct registration of a case.

The bench explained that section 4 (f) of CrPC defined a cognisable offence as an offence in which a police officer might arrest a person without warrant.

The bench observed that in Schedule II of CrPC, it was mentioned that in the offences under section 188 of PPC, police should not arrest a person without warrant, which meant that those offences were non-cognisable.

The bench observed that under section 195(a) of CrPC, no court should take cognisance of any offence punishable under sections 172 to 188 of PPC, except on the complaint in writing of the public servant concerned or some other public servant to whom he was subordinate.

In the instant matter, the bench ruled, irrespective of this fact that the deputy commissioner had passed an order by imposing ban in respect of certain activities mentioned therein and procession by the petitioners along with others on a particular date, after issuance of the notification under section 144 of CrPC, could not provide any justification to DC, SHO or any other public servant to get register an FIR and that too under section 188 PPC, which had been categorised in Schedule II of CrPC as a non-cognisable offence.

“Cognisance of such offence could only be taken when a complaint is made in writing by a public servant concerned or some other public servant to whom he is subordinate, as such, mandatory provision of law was grossly violated by the police by registering the FIR against the petitioners in a non-cognisable offence without following the prescribed procedure provided in CrPC,” the bench ruled.

The bench observed that lodging of the FIR was unjustified, unwarranted and in violation to section 195 of CrPC and that too by a responsible officer i.e the SHO on the basis of an order passed by the DC under section 144 of CrPC.

Published in Dawn, November 7th, 2022