2015 PLP 1949 (YLR)

M.A. No.7861/2012 SAYED MUHAMMAD FAROOQ SHAH, J.

Before filing the instant application under section 561-A, Cr.P.C. (M.A. No.7861/2012) an order was passed on 19-2-2012 on Criminal Miscellaneous Application No.S-615 of 2012. The applicant Soofi Aurangzeb (proposed accused) has sought to recall the order on the facts and grounds stated in the application.

2. Heard the learned counsel for the parties and perused the record.

3. By an order dated 19-12-2012, the concerned SHO or anyone as acting on his behalf was directed to register the FIR against the proposed accused, but strictly in accordance with law. Applicant Soofi Aurangzeb has conducted the investigation who is proposed accused, against whom the order of registration of FIR in accordance with law has been passed.

4. Learned counsel for the applicant contends that the court can review its own order and in this respect reliance is being placed on 2010 PCr.LJ

658. At para No.5 of the citation of Division Bench of Quetta High Court in the case of Habib-ur-Rehman v. The State, it was held that section 561-A, Cr.P.C. empowers the High Court to rectify its own order, if relevant fact has mistakenly been not recorded in the same, which effect the right of party. It is an admitted position that High Court under its inherent power can review its judgment or order if it is found to have been passed without jurisdiction or without adjudication on merits in violation of any law or obtained by playing fraud upon Courts. Learned counsel representing the proposed accused at the very out set contends that a fraud has been played in the court as there were two persons namely Bhagwano which fact has been suppressed from the court.

5. On the other side, Syed Madad Ali Shah learned counsel representing the applicant submitted that there is no illegality or flouting mistake on the surface of the record, which requires rectification of the order passed by this court earlier on 19-12-2012 which is a speaking order and the court has rightly directed the concerned police to lodge FIR. Learned counsel in this respect placed reliance on the cases reported in PLD 2007 SC 539, PLD 2005 Kar. 621, 2011 PCr.LJ 268 and a latest citation in the case of Syed Shafiq Hussain and 2 others v, Province of Sindh and others reported in 2012 MLD 1814, wherein a Division Bench of this Court observed that, "High Court could exercise constitutional jurisdiction under Article 199 of the Constitution, if any condition laid down in the dictum of Supreme Court in case reported as 2010 SCMR 624, are being violated by investigation agency," It has been further observed that "High Court could not supervise the investigation in any case, that was the purely domain of investigation agency and the High Court or any other Court had no powers to stop any person from registration of any FIR." At relevant page 1823, the learned Division Bench of this Court observed that "accused had no right to be heard before registration of FIR" and in para No.3 it was observed that "Police Authorities are directed to act strictly in accordance with law and keep themselves to be impartial. If any FIR is being lodged against the petitioner, petitioner may approach the proper court having jurisdiction to avail remedy provided to them under the law." It would be advantageous to reproduce section 154, Cr.P.C. as under:-- "S.154. Information in cognizable cases. Every information relating to the commission of a cognizable offence if given orally to an officer in-charge of a police-station, shall be reduced to writing by him or under his direction, and be read over to the informant, and every such information, whether given in writing or reduced to writing as aforesaid shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the Provincial Government may prescribe in this behalf"

6. Section 154, Cr.P.C. lays down procedure for registration of an information of cognizable cases and it also indeed gives mandatory direction for registration of the case as per the procedure and the police has no power to cause delay in registration of the case and under the law is bound to act accordingly, enabling the machinery of law to come into play as soon as it is possible and first information report should be registered without any delay. It is advisable that the provision of S.154 of the Code read with rule 24.5(c) of the Police Rules, 1934 be adhered to strictly and there should not be any negligence in recording the FIR and supply copies to concerned quarters because departure from the mandatory provisions of law creates a room to doubt the truthfulness of the allegation against the accused incorporated in the FIR as held in 2001 SCMR

424. In another citation reported as 2001 PCr.LJ 199 it was held that purpose of section 154, Cr.P.C. is to give information of a cognizable offence to SHO of the police station and set machinery of law into motion and fate of accused nominated in FIR cannot be solely decided on the allegation made in the FIR.

7. It is settled that it becomes mandatory for the police to lodge the FIR if from the statement of the informant a cognizable case is made out and subsequently if it is found fabricate or false then proceedings can be initiated under section 182, P.P.C. against the informant. In my humble view it would be a sort of wrong practice if the police be directed not to register or lodge FIR and while taking the benefit of such order culprits/accused and criminals will play havoc and harassment to the actual and lawful informants/complainants, particularly to the persons who are having genuine grievances. Suffice to say that the application in discussion is having no merits for consideration is hereby dismissed. MWA/G-49/Sindh Application dismissed.