2002 PLP 280 (MLD)

QAZI EHSANULLAH QURESHI, J.‑‑‑Through the instant Constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, Ms t. Shahi Lai petitioner herein, seeks registration of a criminal case under sections 302/148/149, P.P.C. against respondents Nos. 1 to 5 herein, in the interest of justice so that they may be dealt with in accordance with law.

2. The relevant facts giving rise to this petition are that Ali Haider son and Iqbal Hussain grand son of the petitioner while present in the Hujra of one Bashir Khan at Kalpani situated in the vicinity of Police Station, Daggar, the police party headed by respondent No.2 alongwith respondents Nos.3 to 5 and other 25/30 police personnel on the direction of respondent No.1 without notice and adopting the mandatory requirements under the law, raided the said Hujra on the night between 8/9‑7‑2000, whereupon the deceased Ali Haider and his son Iqbal Hussain voluntarily surrendered then‑!selves it) the police arid they were taken into custody but during the police custody the police party shot dead Ali Harder son of the petitioner which act is not only cruel but amounts to custodial killing. The respondent No. 2 thereafter, lodged a false report under sections 324/353/212/188/216‑A/148/149, P.P.C. read with section 13(B) of the Arms Ordinance vide F.I.R. No.608, dated 8‑7‑2000 Police Station, Daggar against the deceased as well as other alleging that as a result of encounter occurrence took place. The petitioner approached the high‑ups of the police through various applications and media but to no avail.

3. Learned counsel for the petitioner No. I who previously remained as S.P. Buner, had friendly relation with Ali Harder deceased anal so lie used to ask him to carry out his dictation in connection with operations against the alleged undesirable elements to which the deceased aid not accede and in consequence whereof their relations became strained and respondent No. 1 threatened him with dire consequences; that during his tenure as S.S.P., Peshawar, the respondent No 1 was facing tough time due to dacoity, robbery under his supervisory jurisdiction, so in a case registered under section 17(3) of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 at Police. Station, Gulbahar vide F.I.R. No.528, dated 4‑7‑2000 wherein no one was nominated or named in the alleged offence, respondent No.: tried to book Ali Harder deceased in the above case in order to take revenge and deputed the police party to the Hujra of Bashir Khan at Kalpani, District Buner, so the police party headed by respondents Nos.2 to 5 alongwith 25/30 police personnel raided the said Hujra where Ali Harder and his son Iqbal Hussain voluntarily surrendered themselves who were taken into custody and later on during the custody the police killed Ali Harder deceased, on the instruction/direction of respondent No. 1.

4. On the other side learned A.A.‑G. firmly resisted the writ petition and argued that the petitioner had adequate remedy in form of private, complaint available to her which she did not `avail: It' the police authorities did not register a case on her request she could easily file a private complaint in the competent Court of law. He further submitted that the Press clippings annexed with the writ petition are not admissible. The deceased was involved in case F.I.R. No.528, dated 4‑7‑2000 under section 17(3) of Harrabah, registered at Police Station, Gulbahar, so he was not a law abiding citizen; that the deceased was required in the above case, therefore, for his arrest a raid was made. The deceased instead of surrendering to the raiding party attempted at the life of law‑enforcing agency and the police party in their defence also opened fire with the result that the deceased was hit. He further submitted that the police had already registered a case about the said incident vide F.I. R. No.602, dated 8‑7‑2000, therefore, question of registration of another case regarding the same occurrence does not arise.

5. We have heard the learned counsel for the parties and have gone through the available material placed on file. We have also perused the comments furnished by the. respondents.

6. In order to set the criminal law into motion two modes have i been provided in the Criminal Procedure Code; one by way of lodging of report with the police under section

154. Cr.P.C., in respect of commission of cognizable Offence and the other by filing of a complaint before a Magistrate as provided by section. 190 of the Code of Criminal Procedure. The requirement of law is that the police officer has to record the F.I.R. mandatory of a cognizable offence under section 154, Cr.P.C but if it is a non‑cognizable case then substance of such information is to be entered in the relevant register but in each case the refusal is out of question. The Incharge of a police station is duty‑bound and it is his statutory obligation that on receipt of information whether orally or in writing he has to record the same in the book prescribed for that purpose and no option or discretion is left with him in this regard. The fact that the petitioner has an alternate remedy of filing a private complaint would not take away the discretion of this and. deter the Court from giving direction to the police to record and F.I.R: in an appropriate case. According to the principle laid down by the superior Courts the discretionary powers must be exercised in good faith having regard to all relevant considerations and it should be exercised justly, fairly and reasonably.

7. In the instant case the police officials declared the occurrence as police encounter and they had registered a case F.I.R. No.602 dated 8‑7‑2000 whereas the petitioner who is' the mother, of Ali Haider deceased has charged respondents Nos.2 to 5 for the murder of her son at the instance of respondent No. 1 when he was in police custody which fact has been admitted by the respondents in para. 6 of their comments. The police is not possessed with right to murder or kill or take life of any citizen accused of any offence only for the reason that such person was involved in criminal cases and keeps a previous bad record. A person keeping bad record may be innocent in the case registered against him because under the law presumption oil innocence will continue until he is proved guilty. If the police machinery takes law in their hands they are to be dealt with in the same manner as the ordinary citizens are dealt with. Nobody can be allowed to take law into his hands and it is the duty of the Courts to curb the high‑handedness sternly. The version on the basis of which F.I. R. No.602 has already been registered on 8‑7‑2000 is distinct whereas the version given by the petitioner is totally on different premises that her son Ali Haider deceased was killed by respondents Nos.2 to 5 while he was in Police custody. At this stage we cannot hold as to which version is correct but truth can be ascertained only if the case of the petitioner is registered and both the cases are investigated upon together and thereafter, report or reports are submitted by the Investigating Agency. Unless both the versions are placed before the Court no proper adjudication of the respective contentions could be made. To submit challan in one case and to ignore the version given in any other is not at all conducive to the interest of justice.

8. Consequently this writ petition is accepted against respondents Nos. 2 to

5. Since the respondent No. 1 was not a member of the raiding party, therefore, he is exonerated. It is directed that the D.I.‑G., Crimes should register a proper case of the petitioner against respondents Nos.2 to 5 in accordance with section 154, Cr.P.C. for the murder of ‑ the son of the petitioner namely Ali Haider deceased. The investigation of the case be entrusted to an experience and honest police officials of the Crime Branch. The petitioner is directed to approach the D.I.‑G., Crimes for registration of the case. H.B.T./406/P Petition accepted/order accordingly.