2017 LHC 265 Judgments Quashing of FIR
Form No: HCJD/C-121
ORDER SHEET
IN THE LAHORE HIGH COURT MULTAN BENCH,
MULTAN
(JUDICIAL DEPARTMENT)
Case No.
W.P. No.17013-Q/2016
Mumtaz Hussain
Versus
The State, etc.
Sr.No.of order/
Proceedings
Date of order/ Proceedings
Order with signatures of Judge, and that of parties or counsel, where necessary.
24.01.2017.
Mr. James Joseph, Advocate for the petitioner.
Malik Riaz Ahmed Saghla, Deputy Prosecutor General along-with Shabbir A.S.I.
Through this Constitutional Petition Under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, Mumtaz Hussain, the petitioner seeks quashing of FIR No.602, dated 12.11.2016 in respect of offence under Section 14(I) of Punjab Security Vulnerable Establishment Ordinance, 2015 registered at Police Station Jatoi, District Muzaffargarh.
2. Brief contents of the FIR are that on 12.11.2016 at about 10:50 a.m., Muhammad Arshad Munir Ahmed Sub Inspector along-with other police contingents checked petrol pump of the petitioner and found that close circuit Camera (CCTV) were not functioning, gunman was not available at the petrol pump and no proper arrangements were seen for keeping the sale proceed in safe custody. Hence, the impugned FIR was registered.
3. Learned counsel for the petitioner contends that the Station House Officer/complainant was not authorized under Punjab Security Vulnerable Establishment Ordinance, 2015 to register a
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criminal case against the petitioner; that complainant was authorized only to inspect any Vulnerable Establishment and submit his report to the Chairman of the Committee under intimation to the head of District Police Officer but in the case in hand, he had failed to follow the procedure prescribed under the Act; that law is very clear that in case of any default, it was only the Committee, who may issue written warning under Section 10 & 11 of the Act ibid to the Manager of the petrol pump and the Manager was bound to implement the advice of the Committee within a stipulated period; that the registration of FIR is without jurisdiction, illegal and void ab-initio. Lastly, learned counsel has prayed for acceptance of instant petition and quashing of the impugned FIR.
4. On the other hand, learned Deputy Prosecutor General appearing for the State, in all fairness, did not controvert the arguments on legal side advanced by learned counsel for the petitioner however, he added that the challan of above said case has been submitted before the trial Court.
5. Arguments heard. Record perused.
6. The arguments of learned counsel for the petitioner has much force with regard to the legality and propriety of the case registered against the petitioner. The procedure prescribed under the Punjab Security Vulnerable Establishment Ordinance, 2015, necessary for invoking the penal provisions of the Act ibid, was not adopted by the Incharge of the Police Station. Before discussing further, it is appropriate to re-produce Sections 9, 10 & 11 of the Punjab Security Vulnerable Establishment Ordinance, 2015 for ready reference as under:-
“9. Inspection by Station House Officer:-
The Station House Officer may, at any time, inspect any vulnerable establishment and submit his report to the Chairperson of the Committee under intimation to the Head of District Police.
10. Warning.
(1). If the Committee is satisfied on the basis of information received from any source or from the
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inspection report of the sub-committee or the Station House Officer that the security arrangements as per advice of the Committee have not been carried out at a vulnerable establishment, the Committee may issue a written warning to the manager of the vulnerable establishment specifying specific violation of its advice.
(2). The manager of the vulnerable establishment shall, within such time as is mentioned in the letter of warning, implement the advice of the Committee.
11. Sealing of the vulnerable establishment.
(1). If the manager of a vulnerable establishment fails to implement the advice of the Committee within the stipulated time, the Committee may direct complete or partial sealing of the vulnerable establishment or suspension of its operations till the time of advice is fully implemented and satisfactory security arrangements are made or the manager undertakes in writing to do so within such further time as the Committee may allow.
(2). The Station House Officer shall implement the direction of the Committee under this section and, for the purpose, use such force as may be necessary.”
7. Bare reading of the aforementioned provisions/procedure, the Station House Officer / complainant was not competent to register the impugned FIR against the petitioner. He was under legal obligation to report the matter to the Committee, who after verifying and satisfying with the inspection reports received from any source or inspection report of the Station House Officer, may issue a written warning to the Manager of the petrol pump and in case of non-compliance of the direction within the stipulated period, the Committee may direct complete or partial sealing of the vulnerable establishment. Furthermore, the Manager of the petrol pump, in case of any grievance, may file an appeal under Section 12 of the Act ibid before District Intelligence Committee and then, if he intentionally contravenes the aforementioned provisions or fails to furnish evidence under Section 13 of the Act ibid, the penal provision of Section 14 of the Act ibid shall be imposed. The law is very much clear on the subject right from inspection of the vulnerable establishment by
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the Station House Officer up to the initiation of summary trial of an accused wherein it has nowhere been mentioned that the Station House Officer was authorized to straightaway lodge a criminal case against the petitioner. The act committed by the Station House Officer for registration the impugned FIR against the petitioner is totally illegal, unwarranted and void ab-initio. It has been brought to the notice of the Court that the challan has been submitted before the Court. Though normally when the Challan is reportedly submitted before the trial Court, the Courts while exercising Constitutional jurisdiction, hesitate to quash the FIR as an alternate remedy is available to an accused by filing application under Section 249-A/265-K Cr.P.C. yet the fact remains that where an illegal act committed by an officer of the Law Enforcing Agency is clearly in violation of the statute, the interference by this Court is not circumvent.
8. Considering the afore-noted legal proposition, the writ petition in hand is allowed and the impugned FIR is hereby quashed being non-existent under the law.
(Asjad Javaid Ghural)
Judge