1984 P Cr (PLP)

Farooq Bedar, Asstt. A.-G. for Respondents. Date of hearing: 11th June, 1984. Petitioner through this Constitutional petition prays for issuance of an appropriate writ directing respondents to register a criminal case under section 154 of the Criminal Procedure Code against Muhammad Hussain and others.

2. Briefly stated the facts are that one Ejaz and Maqbool Ahmad of Sialkot on 1st May, 1984 went to make some purchases in connection with the marriage of the son of Ghulam Rasool which was to take place on 9th May, 1984. At a distance of 11 miles from the village, Muhammad Hussain, Bashir, Atta Ullah and Saif Ali were laying shingles on the road who threw a basket of shingles on Ejaz and Maqbool while they were riding on a motor cycle. This incident gave rise to exchange of hot words and blows between the parties. It is stated that since Ejaz and Maqbool were only two in number while Atta Ullah and others were 12/13 in number, therefore, Ejaz and Maqbool thought it better to leave the place in the interests of their own safety. Ejaz is stated to have run away towards city on motorcycle while Maqbool Ahmad, his companion, ran towards the village. The other party succeeded in catching the two and gave them severe beating. During this scuffle ten persons were injured on the side of the petitioner sustaining 43 injuries in all iucluding six fractures while 12 injuries all simple in nature, were sustained by the other party viz. Atta Ullah etc. excepting one stab wound to one Rehmat which has been attributed to Zahid son of Abdullah. Injured persons on the petitioner's side immediately approached Allama Iqbal Hospital and got themselves medically examined at about 11-50 hours. Copies of medico-legal reports have been attached with the writ petition. After having got themselves medically examined, these injured persons excepting three persons who were admitted in hospital, approached Police for registration of a case at about 2 p. m. on 1st May, 1984. It is stated that on hearing the version of the injured and seeing the medico-legal report, police refused to register the case under the influence of one Nazir. The other party who got themselves medically examined much later succeeded in getting a case registered against the party of Ejaz and Maqbool Ahmad whose injuries were larger in number and more serious in nature. The police, however, refused to register a case at the instance of the petitioner.

3. Dissatisfied with the attitude of Police, Superintendent of Police was approached, for redress of the above grievance but to no avail. Thereafter constitutional jurisdiction of this Court has been invoked for the necessary relief directing the concerned police officials to register a case under section 154, Cr. P. C. in proper performance of legal duty enjoined upon it.

4. I have heard learned counsel for the petitioner and Mr. Farooq Bedar, learned Assistant Advocate-General who represented the respon dents. Learned counsel for the petitioner has contended that the Police is bound to register a case under section 154, Cr. P. C., if the facts reported to it disclose commission of a cognizable offence. This duty of registering a criminal case cannot be shirked by the police on the basis that a case had already been registered in respect of the same occurrence at the instance of the other party. The petitioner's counsel contended that the petitioner and others had been seriously injured by Atta Ullah and others who were clearly aggressors. It was also stated that the petitioner approached the police prior in point of time and reported the true version of the occurrence. The police instead of registering a case as reported to them, waited for the other party to reach and thereafter registered a case at their instance and thus frustrated the legal right of the petitioner to have his case registered first and investigated as required by law. Learned counsel has placed reliance upon the cases of Akram Ali Shah v. S. H. O., Police Station, Kotwali, Kasur and 2 others (P L D 1979 Lah. 320), Mirza v. The S. H. O. (1982 P Cr. L J 171) and Abdul Ghani v. Station House Officer, P. S. Saddar, Sheikhupura etc. (31983 P Cr. L J 2172). It has been observed in the case of Akram Ali Shah that "it cannot be laid down as a proposition of law that if one F. I. R. pertaining to a criminal occurrence has been registered then another F. I. R. containing the counter-version of the same occurrence cannot or ought not be registered. If the accused of a particular case have a counter-version for purposes of defence only then it is obvious that they are not handicapped in any manner whatsoever even if a formal F. I. R. containing that version is not in existence. On the other hand, however, if the accused of a particular case have a counter-version by way of a grievance then unless a formal F. I. R. containing that grievance exists, the accused of counter-case could get away without any punishment. Therefore, in a situation of the latter type, the existence of a counter F. I. R. would appear to be equitable as a private complaint is erroneously not given the due importance. This view is consistent with the practice established over centuries of submitting challan of cross-cases in a Court of law." Learned Single Judge of this Court in case of Mirza v. S. H. O. referred to above, relying on the case of Akram Ali Shah v. S. H. O. and a Division Bench judgment of this Court in Abdul Ghani v. S. H. O., Sadar, Sheikhupura etc. (1983 P Cr. L J 2172) in somewhat similar circumstances directed the police to receive a written complaint from the petitioner and then act in accor dance with section 154, Cr. P. C. In case of Abdul Ghani v. S. H. O., P. S. Saddar, learned Single Judge of this Court after referring to a mass of case-law observed that having given consideration to the controversy involved, I am of the view that in the attendant circumstances of the case in hand, the respondent S. H. O. is under a statutory duty to reduce into writing the information given to him by the petitioner of the commission of a cognizable offence as provided by section 154, Cr. P. C. If in the course of investigation he comes to the conclusion that the information given by the petitioner is false, be can have recourse to the cancellation of the said F. I. R. in accordance with law but it cannot be said that his refusal to record the cross-version and to register the case is in accordance with law. It may be that the occurrence reported about is the same but then there are two cross-versions of the occurrence and not two different versions of the same occurrence. The version on the basis of which the F. I. R. has already been registered is distinct i.e. the alleged trespass of the deceased into the house of the complainant and the resultant death of the deceased which according to that version occurred on account of said defence and in contravention of protection of property whereas the version given by the petitioner is totally on a different premises that his son the deceased was caught hold of, taken to the haveli and murdered by four persons named in the petition". In the instant case, it is not the cross version of the same incident but there are two absolutely different versions. The version being given by the petitioner was that the other party had with out any justification inflicted serious injuries on the persons of their party. This was not being taken as defence to the version put forward by the other party but the version is by way of grievance against the other party and unless a formal F. I. R. was registered as pointed out in Akram Ali Shah's case, the accused may get away without any punishment.

5. Learned Assistant Advocate-General, however, relied on the case of Malik Muhammad Aslant v. Station House Officer, P. S. Saddar, Sargodha and 2 others (P L D 1981 Lah 138) and the case of Jamshed Ahmad v. Muhammad Akram Khan and another (1975 S C M R 149) to contend; that in such circumstances there was no need to register a separate formal F. I. R. Learned Assistant Advocate-General contended that once a case has been registered, both the parties will pro duce their evidence before the Police in support of their respective versions who after due investigation will challan the persons found guilty for the offences committed by them even in the absence of a formal F. I. R. against them. In view of the above, learned counsel contended that the petitioner's apprehensions are ill-founded. In any view of the matter, it was contended that the petitioner could approach the Court through a private complaint to vindicate his grievance if the Police did not register a case. The case of Jamshed Aslam referred to above proceeds on distinguishable facts. There the High Court had refused relief under constitutional jurisdiction and the Supreme Court of Pakistan did not interfere with the order passed by the High Court and petition for leave to appeal was dismissed in the peculiar circumstances of the said case. In the case of Malik Muhammad Aslant which was decided on 7th December, 1980, relief in constitutional jurisdiction was refused with the observation that "in such a situation better and more efficacious alternative available to the petitioner would be the institution of a complaint before a Magistrate".

6. On a review of the case-law reproduced above, and the facts of the case as emerged from the record, the petitioner has clear grievance against the police. If as alleged, the matter was reported to the police first in point of time and the substance of information disclosed commission of a cognizable offence, then the S. H. O. could not refuse to register a formal F. I. R. for it was his duty to record the information and proceed to investigate the matter as provided in section 154, Cr. P. C. Even if an F. I. R. has been registered on the basis of one sided version, registration of a second F. I. R. showing a different grievance could not be refused by the Police Officer in proper performance of his legal duty under section 154, Cr. P. C.

7. In view of the above discussion, writ petition is accepted and it is directed that the respondent-S. H. O. shall register a case in accordance with section 154, Cr. P. C. on the information given to him by the petitioner of a cognizable offence and investigate that version. It is needless to mention that if on an investigation, the respondent S. H. O. arrives at the conclusion that the information given by the petitioner is false or incorrect he can B proceed in accordance with law for the cancellation of the case M. Z. M. Petition accepted.