1999 P Cr (PLP)

Qazi Muhammad Javed writ petitioner has invoked the Constitutional jurisdiction of this Court to get registered a criminal case at Police Station Sabzi Mandi, Gujranwala against Sh. Muhammad Riaz, Sh. Muhammad Nawaz, Qazi Muhammad Mohsin, Qazi Pervaiz Akhtar Shahid, Muhammad Zahid Qazi and Muhammad Akbar Dalal about the alleged theft of the articles/items owned by him and incorporated in the list annexed with the complaint. According to him, he moved the Senior Superintendent of Police, Gujranwala thrice on 23-5-1993, 1-2-1994 and 1-4-1994 to get registered the criminal case. Every time his application was sent to the S.H.O. Police Station Sabzi Mandi Gujranwala who has not proceeded in the matter through the registration of a criminal case even though a cognizable offence in terms of section 154 of the Code of Criminal Procedure is made out.

2. In the comments, the Police Officers/respondents Nos.1 to 3 have submitted that the applications submitted by the petitioners were gone through and inquired into by an A.S.-I. who found the same without factual justification and the same have been filed. It is maintained therein that the petitioner is in the habit of making the applications and that it is not a case for the grant of proposed relief.

3. In the rejoinder, the contentions mentioned in the writ petition were reiterated.

4. I have hard the arguments addressed by the learned counsel for the petitioner who mainly canvassed that the purpose of the registration of the First Information Report is to set the legal machinery into motion-and it does not envisage any preliminary inquiry before the formal registration of the case. He maintained that any Police Officer who neglects or refuses to register a cognizable case exposes himself to an action under section 29 of the Police Act, 1861 as he is guilty of violation of mandatory provisions of Chapter XIV of the Code of Criminal Procedure and section 23 of the Police Act, 1861. According to him no inquiry could be conducted by the Police Officer as expressed by the S.H.O. Police Station Sabzi Mandi Gujranwala and the matter) could not be dropped without the registration of the case. He maintained that the police has no choice in recording of First Information Report though it has discretion in making the investigation. Consequently, he laid the emphasis that the Police Officer could not investigate without formal registration of a case. He relied on Sh. Naseem Ahmad v. Deputy Inspector-General of Police Sargodha and others 1985 PCr.LJ 906 and Muhammad Ramzan v. The Station House Officer, Police Station Jahanian and another 1985 PCr.LJ 1081 Lahore in support of his aforesaid contentions. On the contrary, learned Assistant Advocate-General argued that to save the skin of the innocent persons the preliminary inquiry can be held before the registration of the First Information Report and that since the allegation of the petitioner about the theft of the articles has not been found to be correct, the S.H.O. Police Station Sabzi Mandi, Gujranwala (respondent No.3) has rightly refused to register the criminal case.

5. Before proceeding further, I reproduce as under the relevant portion from the ruling published as 1985 PCr.LJ 906:-- "Learned Advocate-General submits that inquiry was conducted into the allegations against the S.H.O. respondent No.4, and no case has been found against him. He, however, concedes that such an inquiry is not envisaged under the Criminal Procedure Code. The investigation has to follow after the registration of the case under section 154, Cr.P.C. That having not been done the appellants are entitled to relief claimed. "

6. Following ,portion from the case-law reported as 1985 PCr.LJ 1081 is also reproduced:-- "Section 154, Cr.P.C. as well as Rule 24.1 of Police Rules, 1934 used the word 'shall' making it incumbent upon the Police Officer to record the F.I.R. Sections 154 and 157, Cr.P.C. deal with different contingencies, the former provides for the record of the KI.R. at the instance of a complainant while section 157, Cr.P.C. deals with the procedure for investigation of a cognizable offence. The latter provision leaves it to the judgment of the police to refuse to investigate in certain cases but this power should not be confused with his responsibility to record the F.I.R. He has no choice in recording of the F.I.R. though he has a discretion in making of investigation."

7. In the light of the aforesaid dictum enunciated in both the aforesaid rulings, I express that the reasoning adopted by the learned counsel for the petitioner has to prevail. A perusal of Chapter XIV with respect to the information to the police and their powers to investigation has made out that before the registration of the First Information Report no preliminary inquiry can be conducted about the initiation of any crime/offence. It is after registration of the F.I.R. that the legal machinery is set into motion and it is the discretion of the Police Officer competent in the matter to investigate the case according to the facts and evidence produced before him during the investigation. The negligence or refusal on the part of the Police Officer competent in the matter to register a case exposes him to an action under section 29 of the Police Act, 1861. It is the common complaint these days that the Police Officers through the transgression of their authority become negligent and violate the law by not registering the criminal cases with respect to cognizable offence(s) and the instant matter is a case of the aforesaid nature where the allegations raised by the complainant spell out commission of a cognizable offence. The police is under obligation to register the case under section 154 of the Code of Criminal Procedure. It shall not be out of place to express that through the introduction of section 182, Pakistan Penal Code the Legislature has placed the check and introduced/the balance by making liable the complainant under section 182, Pakistan Penal Code, if the information given by him is ultimately found to be false during the investigation. In view of what has been expressed above, the reasoning adopted by the learned Assistant Advocate-General has no legal force and, thus, the same is not being given the legal weight. In view of the aforesaid reasoning, I hold that the Constitutional right of the petitioner stands infringed and the S.H.O. Police Station Sabzi Mandi, Gujranwala has no alternative but to register the case and to investigate the same in accordance with law.

8. For what has been said above, I accept this writ petition, direct ,the S.H.O. to register the case as envisaged under section 154 of the Code of Criminal Procedure, in case contacted by the petitioner and shall proceed further in accordance with law which means that he shall set the machinery into motion through the initiation of investigation and finalization of the same either way. Q.M.H./M.A.K./M-917/L Petition allowed.