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Petitioner: Umar Sheraz VS Respondent: Govt. of Punjab, etc
Court Name: Lahore High Court Judge(s): Anwaarul Haq Pannun Title: Umar Sheraz vs Govt. of Punjab, etc Case No.: W.P No.2062 of 2023 Date of Judgment:2025-01-07 Reported As: 2025 LHC 965 Result: Order Accordingly
JUDGMENT
JUDGMENT Anwaarul Haq Pannun, J. Through this writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has assailed the order dated 02.03.2023 passed by the Superintendent of Police, Punjab Highway Patrol, Bahawalpur Region Bahawalpur/respondent No.3 whereby, the petitioner, despite being successful throughout the selection/recruitment process, was refused his appointment letter as Constable in the Police Department. 2. Precisely, the factual matrix of instant writ petition is that the petitioner submitted his application with a requisite affidavit against Minority Quota, for his appointment as Constable in the Punjab Highway Patrol, in response to an advertisement, inviting applications from the eligible candidates for their recruitment by respondent No.2/DIG (Establishment-II), Central Police Office, Lahore. He was declared successful throughout the process of recruitment, as aforesaid, yet he was not issued his appointment letter, constrained of the situation, the petitioner had to file Writ Petition No.6630 of 2022/BWP, which was disposed of, vide order dated 30.11.2022 as follows:- "Learned counsel for the petitioner does not press this petition and would be satisfied if copy of this petition alongwith all annexures is forwarded to respondent No.3 who will consider it as a "representation' of the petitioner and decide the issue in hand after affording opportunity of hearing to all concerned including the petitioner through a well-reasons speaking order, strictly in accordance with law and in the light of judgments of this Court reported as Waseem Yaqoob Vs. Govt. of the Punjab and others (2018 PLC (C.S) 454) and Inamullah Vs. Govt. of KPK through Chief Secretary and 3-others (2017 PLC (C.S) 926) as early as possible. 2. Order accordingly".
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The Superintendent of Police, Punjab Highway Patrol, Bahawalpur Region Bahawalpur/respondent No.3 dismissed the representation of the petitioner, vide its order dated 02.03.2023. Hence this petition with the following prayer:- "By accepting this writ petition the impugned order dated 02.03.2023 passed by respondent No.3 by which respondent No.3 declared the petitioner as unfit for police department and stopped the appointment letter of the petitioner, is illegal against the law and facts, may kindly be set aside, respondent No.3 may kindly be directed to issue the appointment letter for constable in PHP Region Bahawalpur in favour of the petitioner, without any further delay in the interest of justice". 3. In compliance with the order dated 17.03.2023, respondents No.2 & 3/police department have filed their report and para-wise comments, perusal whereof, in pith and substance discloses that position of the petitioner being on merit is not disputed, however, it has been maintained that during his character/antecedents verification, it came to light that previously, the petitioner was challaned in a criminal case registered vide FIR No.319/2014 dated 08.08.2014, offence under Section 377 PPC at Police Station Faqeerwali, District Bahawalnagar. He had although been acquitted of the charge on the basis of compromise, vide judgment dated 27.03.2015 by the trial Court, yet the petitioner while submitting his application along with a sworn affidavit did not disclose this fact, therefore being guilty of making this concealment, in the light of instructions issued by the office of Inspector General of Police Punjab, vide its office letter No.AD-III/6066-6104/XV dated 20.05.2022 & Addl. IGP/PHP Lahore vide letter No.14234/OSI/ PHP/HQ dated 05.09.2022, the petitioner was not issued his appointment letter. Along with the comments, a copy of letter issued by Government of the Punjab Police Department, to all heads of police in Punjab bearing No. SE-IV/7317-70/II, dated 26.06.2014 is appended, whereby "the competent authority has decided in principal that all those candidates who, during character verification, have been found involved in criminal cases (either under trial or acquitted on multiple grounds) shall not be appointed in Police Department as constable". 4. Arguments heard and record perused. 5. In the facts and circumstances of instant case, a question regarding the legality and sustainability of adverse consequences, effecting the fundamental rights due to previous involvement of the petitioner in a criminal case despite he had been acquitted of the charge, as contained in the impugned order, based upon the letter bearing No.AD-III/6066-6104/XV dated 20.05.2022 & Addl. IGP/PHP Lahore vide letter No.14234/OSI/ PHP/HQ dated 05.09.2022, and initial policy instructions vide letter No.SE-IV/7317-70/II, dated 26.06.2014, has emerged as a pivotal point, seeking its determination authoritatively, which requires an elaborate discussion, therefore, the same is being made hereunder. 6. Under Section 154 and 155, Part-V, Chapter XIV of the Code of Criminal Procedure, 1898 [Information to the police and their powers to investigate] every information relating to the commission of a cognizable offence, whether given orally or in writing to the officer-in-charge of the police station, has to be reduced into writing and signed by the person giving it and its substance is entered in a book to be kept by such officer in the form prescribed by the Provincial Government in this behalf, [The original copy of FIR shall be a permanent record in the Police Station] WHEREAS when an information in non-cognizable cases is given to officer-in-charge of a police station, he is obliged to enter the substance of such information in a book kept for the purpose and refer the informant to the Magistrate. Thereafter the officer incharge of the police station is required under Section 156(1) of Cr.P.C to investigate [investigation includes, as per Section 4(l) of Cr.P.C; all the proceedings under the Code for the collection of evidence conducted by a police-officer or by any person (other than a Magistrate) who is authorized by a Magistrate in this behalf] the cases cognizable by the police registered under Section 154, Cr.P.C, in the light and guidance as contained in the Police Rules, 1934, hereinafter to be called as Rules,
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1934, which stands adopted under Section 185 of the Police Order, 2002 by extending the requisite statutory backing to ensure continuity in police administration and procedure previously governed by the Police Act 1861. The officer-in-charge cannot start investigation in non-cognizable offences, without securing permission from the Magistrate and once it is granted, the investigation shall be conducted in the same manner as the offences were cognizable, yet the arrest of an accused can only be made after issuance of a warrant by a magistrate, as warranted by Section 155(3) of Cr.PC and Rule 25.11(2) of the Rules, 1934. A Police Officer making an investigation as required under Rule 25.53 has to enter the proceedings he had undertaken day by day in a case diary, and submit in the same prescribed manner for cognizable cases. The nomination of a person as an accused in the FIR or through some supplementary or subsequent statements cannot necessarily be equated with involvement of such accused in the commission of offence. The Investigating Officer, is under a legal obligation as mandated by Rule 25.2(3), to investigate the matter with an object to discover the actual facts of the case and to find out the truth of the matter while considering all the versions of the incident brought to his notice from all possible angles and to cause arrest of the real offender or offenders. The Investigating Officer, thus, is required not to commit himself prematurely to any of the view of the facts for or against any person. A police officer however under Rule 26.1 of the Rules, 1934 is authorized to arrest any person, who, in his opinion formed objectively, has been concerned in any cognizable offence or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, without a warrant. The power of the police regarding arrest of the accused without a warrant is, permissive and not obligatory. Ordinarily no person is to be arrested straightaway only because he has been nominated as an accused person in an FIR or in any other version of the incident brought to the notice of the Investigating Officer by any person until the investigating officer is satisfied that there exists, as aforesaid, sufficient justification for his arrest, in the light of relevant provisions of the Cr.P.C and the Rules, 1934. It is significant to highlight that under Rule 26.2 of Police Rules 1934, the police officer has been vested with the power to defer the arrest of a person accused of an offence until the investigation is sufficiently complete. In a case titled "Mst. Sughran Bibi Versus The State" (PLD 2018 SC 595), the apex Court has observed that "ordinarily no person is to be arrested straightaway only because he has been nominated as an accused person in an FIR or in any other version of the incident brought to the notice of the Investigating Officer by any person until the investigating officer feels satisfied that sufficient justification exists for his arrest and for such justification he is to be guided by the relevant provisions of the Code of Criminal Procedure, 1898 and the Police Rules, 1934. According to the relevant provisions of the said Code and the Rules, a suspect is not to be arrested straightaway or as a matter of course and, unless the situation on the ground so warrants, the 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 regarding correctness of the allegations leveled against such suspect or regarding his involvement in the crime in issue." Reliance can also be placed upon the case reported as "Shahzada Qaiser Arfat alias Qaiser Vs. The State and another" (PLD 2021 SC 708), "Sarwar and others Vs. The State and others" (2014 SCMR 1762). 7. A police officer, in case of arrest of an accused on his own whims and wishes, cannot detain such person for an indefinite period. He is required, as warranted by Rule 25.56 read with Section 61, Cr.P.C having its roots in Article 10 (2) of the Constitution of Islamic Republic of Pakistan, 1973, to get the arrest and detention of an accused regulated for the purpose of further investigation. The Police Officer has to make an application in accordance with the provisions of section 167, Cr.P.C, on an incomplete charge sheet [in Form 25.56(1)] along with the case diaries or its copies, whereupon, the Magistrate can authorize the detention of the accused not exceeding fifteen days in the whole to complete the investigation or discharge such person under Section 63 Cr.P.C owing
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to deficit evidence. However, the Investigating Officer, if upon further investigation finds out that in the attending circumstances of the case, the allegations levelled against the accused, appear either to be false or there exists no sufficient incriminating material on record, implicating him with the commission of alleged offence, he is not denuded of his power to release the accused on his executing a bond to appear before Magistrate if and when so required, under Section 169 Cr.P.C (see Rana Farhan-ul-Hassan and another Vs. the State and another" (2007 P. Cr. L J 570)), and on the other hand, if he finds that there is sufficient evidence or reasonable grounds exist, he shall forward the accused under custody under Section 170 of Cr.P.C to Magistrate to take cognizance of offence and try the accused or send him for trial to the competent court of jurisdiction. Furthermore, the officer-in-charge of the police station is under a statutory obligation to forward a complete or incomplete report under section 173 of Cr.P.C, placing the name of accused, against whom, in his opinion, sufficient evidence connecting him with the commission of offence has been found, in its column No.3, whereas the name of the accused against whom there existed a deficient evidence or who had been declared proclaimed offender shall be entered in column No.2 thereof respectively yet the entry of proclaimed offender shall be made with red ink, after making requisite compliance with Section 9(4) and 9(7) of the Punjab Criminal Prosecution Service Act, 2006, in a prescribed form to Magistrate either to take cognizance of the offence or send it for the trial to the court of competent jurisdiction, and if it appears from such report to the Magistrate that the accused placed in column No.2 of the report due to deficiency of incriminating material against him, has already been released on bond, shall by applying his judicial mind to the material placed before him, make an order for discharge of such bond or otherwise as he thinks fit. It may also be important to highlight that upon withdrawal of prosecution by the Public Prosecutor under section 494(a) Cr.P.C, prior to framing of charge, the accused is discharged. The above narrated procedure for investigation into the offences, irrespective of their seriousness or heinousness, leaves no room in lawfully assuming that while empowering the police officer to investigate the crime, and the Magistrate, with his supervisory power over investigation, on each and every step, an emphasis has been laid to safeguard the human liberty, guaranteed as a fundamental right under Article 9 of the Constitution of Islamic Republic of Pakistan, 1973. 8. In addition to above, the Police officer, after investigation, is also authorized to recommend the case for its cancelation. Strictly speaking, in the Code of Criminal Procedure, 1898, there exists no express power for cancelation of FIR. However, an FIR can be cancelled by a Magistrate under Rule 24.7 of the Rules, 1934 and in the light of law laid down in case of "Bahadur and another Vs. The State and another" (PLD 1985 SC 62), which is being consistently followed, wherein, it has authoritatively been ruled that although "neither section 173 Cr.P.C nor any other provision of the Criminal Procedure Code specifically deals with the question of cancellation of a registered criminal case, such a power was found to be "inherent in section 173 read with Section 190 of the Code of Criminal Procedure though the language of subsection (3) does not specifically apply to the case" by agreeing with the recommendations/cancellation report, provided the same is forwarded by Superintendent of Police with independent opinion formulated in a supervisory capacity and the Prosecutor as required under Section 9(4) of the Punjab Criminal Prosecution Service Act, 2006 on the grounds (i) found to be maliciously false or (ii) false owing to mistake of law or fact or (iii) to be non-cognizable or (iv) matter for a civil suit, unless the investigation of a case is transferred to another police station under Rule 25.7 [Cancellation of a case in one police station and registration in another] or District under Rule 25.8 [Cases which may be lawfully investigated in more local areas than one] or the investigation has been transferred under Article 18 (6) of Police Order 2002. Reliance is placed on the case reported as "Ehsan Ullah Chaudhry Vs. the Staten and 3 others" (PLD 2023 Lahore 233) and "Ali Mansoor Vs. Area Judicial Magistrate, etc."
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(PLJ 2024 Lahore 315). An order of discharge of an accused puts the FIR in hibernation whereas the cancellation of FIR is like burial of a dead-body in a grave. 9. The matter can be viewed through the same prism yet from another angle. Article 9 of the Constitution of Islamic Republic of Pakistan, 1973, ordains that "no person shall be deprived of their life or liberty except in accordance with the law." In criminal jurisprudence, the state's power to arrest, detain, or punish an individual directly impacts the right to liberty. To ensure that such actions conform to the due process of law, the Code of Criminal Procedure, 1898 (Cr.P.C.), provides a structured framework, through classification of the offences and the provisions relating to bail, thereby reinforcing the principles enshrined in Article 9. Under Section 4(o) of the Cr.P.C., an "offence" is broadly defined as any act or omission made punishable by law, encompassing crimes under the Pakistan Penal Code (PPC), 1860, as well as other special and local laws. However, all offences are not treated alike. The severity and impact of an offence on society necessitate a differentiated legal response. To maintain this balance, Section 4(b) Cr.P.C. classifies offences into bailable and non-bailable categories, to ensure that the legal system does not impose undue restrictions on liberty in less severe cases while maintaining relative strict control for graver offences. In bailable offences, Section 496 Cr.P.C. guarantees the accused's right to bail, ensuring that an individual is not unjustly detained for minor offences, which has been embodied in the light of the guarantee contained in Article 9 preventing the unnecessary deprivation of liberty and upholding the principle that an accused should not suffer undue hardship before conviction. Conversely, Section 497 Cr.P.C. governs non-bailable offences, where bail is not an absolute right of an accused, which can however be availed subject to judicial discretion to be exercised by the relevant Court. Even the prolonged detention without trial being in contradiction to the essence of Article 9, has been recognized a good ground for the release of an accused on bail to prevent arbitrary or indefinite deprivation of liberty. For further reinforcement of these principles, Section 498 Cr.P.C. empowers the High Court and the Court of Sessions to grant pre-arrest bail, ensuring a safeguard by way of judicial oversight against potential misuse of power. All this aligns with the doctrine of presumption of innocence, which remains a cornerstone of criminal law, and ensures that an individual is not treated as guilty until proven otherwise through a fair and impartial trial [see "Sardaran Bibi Vs. State" (2024 SCMR 1116),"Zaheer Sadiq Vs. Muhammad Ijaz"(2017 SCMR 2007), "Mst. Anwar Begum vs. Akhtar Hussain alias Kaka" (2017 SCMR 1710)]. Thus, the interplay between Article 9 of the Constitution and the procedural safeguards embedded in the Cr.P.C. reflects a harmonized legal structure designed to balance individual freedoms with the imperatives of justice and public order. While the state holds the authority to punish offenders in the interest of law and order, this authority is not absolute; it must operate within the framework of legality, due process, and judicial oversight. By ensuring that no person is deprived of liberty without lawful justification, the legal system upholds the fundamental tenets of justice, fairness, and human dignity, making Article 9 not just a constitutional guarantee but a living principle that shapes the administration of criminal justice in Pakistan. It may not be out of place to point out that even Section 426 Cr.P.C. allows the appellate courts to suspend a sentence pending appeal, and as such prevents a convict from being unnecessarily deprived of his liberty while exercising his legal right to challenge the verdict. 10. Ordinarily upon a report under Section 173 Cr.P.C with a sufficient incriminating material against the accused, or in a private or suo-motu complaint, the Magistrate while proceeding under Section 190 of Cr.P.C, takes cognizance of offence or has to send the case to the Court of competent jurisdiction. However, sometimes certain extra ordinary situations occur i.e. if the Magistrate fails to pass any order in respect of an accused, placed in column No.2 of report under Section 173 Cr.P.C, either requiring him to submit a bond for his appearance in the court to face the trial or his bond is not discharged or such an accused is not summoned even on the request of the
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complainant or the state at a later stage of the trial and the order of non-summoning to the accused or otherwise to face trial, are either upheld or set aside respectively by the higher fora or an order due to non-appearance of complainant/evidence under Section 249 Cr.P.C for stopping the proceedings, is passed or a discharge order of an accused as a result of withdrawal from prosecution prior to framing of charge, by a Public Prosecutor under Section 494(a) Cr.P.C is made, to the prejudice of the accused, without any fault on his part, therefore, a question would arise as to whether the fate of such accused despite owing to his inherent presumption of innocence or not, in absence of pronouncement of a final judgment, shall remain uncertain and hanging just because of pendency of his criminal case. Since the inherent presumption of innocence attached to a person accused of an offence, unless proven guilty is rooted deeply in right of life guaranteed under Article 9 of the Constitution of Islamic Republic of Pakistan, 1973, therefore, such pendency would not affect right of such accused. Reliance is placed upon case reported as "Sohail Aslam Vs. The State" (2017 YLR 1383), "Sadar alias Sadaruddin and another Vs. The State"(2023 P.Cr.LJ 874). Irrespective of the above situation, ordinarily the proceedings against an accused facing trial terminate either in the form of acquittal, under section 249-A Cr.P.C [power of magistrate to acquit accused at any stage], 245 of Cr.P.C [acquittal after trial by the magistrate], 265-K Cr.P.C [power of Court of Sessions to acquit the accused at any stage], 345 Cr.P.C [acquittal as a result of compounding of offences with or without permission of Court] or by delivering a judgment under Section 366 Cr.P.C or under section 494(b) Cr.P.C [as a result of withdrawal from prosecution, after a charge has been framed or when under the Code no charge is required, with the consent of the Court by the Public Prosecutor] or culminate into judgment of conviction. 11. It may be significant to point out that on completion of the case/conclusion of trial originated on a report under Section 173 Cr.P.C, a charge sheet slip commonly called as "saza slip" in compliance with the rule 27.2, is filled in, under the order of the Criminal Court trying the case and returned to the office of the Senior Superintendent of Police. Such result is entered in the General Crime Register and the English Register of Cognizable Offences and is also communicated to the Police Station concerned. A carbon copy of the charge sheet slip [in Form 27.2 (1)(a)] is submitted to the District Crime Record Bureau of the concerned District Headquarter for record by the Prosecution Branch concerned. In addition to above, the particulars of the charge sheet slip, are also scribed under sub Rule 5 of 24.5. (First Information Report Register) Rules 1934 on the reverse of the original copy and the slip is returned to the Superintendent's office. 12. On the other hand, in-spite of there being a judicial consensus that a private complaint [Complaint means as defined under section 4(h) of Cr.P.C "the allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person whether known or unknown, has committed an offence, but it does not include the reports of a police-officer], is an alternate remedy yet Unlike a case instituted upon a police report, no such rule exists in the Police Rules, 1934 putting the police under an obligation to maintain the record regarding the persons accused of an offence, facing the trial in a private complaint within the territorial limits of relevant Police Station. However, in case of culmination of a complaint into conviction in certain cases, the Magistrate under High Court Rules and Order Volume III Chapter 11 Part G [Information of conviction in complaint cases to be furnished to the police] is obliged to furnish the police with such information. 13. Furthermore, a record is also maintained relating to conviction and orders to execute bonds in all cognizable police cases, as warranted by Rule 27.29 of Rules, 1934, by making entries in this regard in (a) the Urdu General Crime Register and the English Register of Cognizable Offences maintained in the office of the Superintendent (b) the First Information Report Register, maintained at the police station reporting the offence. The detail of convictions and the orders passed in certain offences is also entered (c) the Conviction Register to fulfil the purpose of
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Section 75 of Pakistan Penal Code [Enhanced punishment for certain offences under Chapter XII or Chapter XVII after…
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