2004 P Cr (PLP)

The petitioner, initially invoked) the jurisdiction of the learned Additional Sessions Judge, Rawalpindi, under sections 22-A and 22-B of the Criminal Procedure Code, 1898 seeking registration of a criminal case against Muhammad Afzal S.H.O., Police Station Westridge, Rawalpindi, Muhammad Jahangir Sub-Inspector, Sakhawat Havaldar and Muhammad Saleem Constable of the same police station, asserting that his nephew Wajahat Hussain, and three servants were arrested by the S.H.O. and Muhammad Jahangir Sub-Inspector, in case F.I.R. No.377 registered with them. According to his claim on 27-7-2003, S.H.G. and the above named Sub-Inspector along with the police contingent broke open the door of his house and committed a criminal trespass without any search warrant and misbehaved/abused the female inmates. The assailants threatened that in case, Wajahat Shah is not produced before them, he will be killed in a police encounter. The needed persons were not in the house of the petitioner but in spite of it the raiding party forcibly snatched an amount of Rs.5,000 from mother of Wajahat Shah. It was claimed that the required accused persons were arrested and during their physical remand on 30-7-2003, the above-referred police officials exercised severe torture on the apprehended/arrested persons. The petitioner also complained that when his brother Kafayat Shah and one Raja Asghar went to police station to give meal to the arrested persons they saw those persons naked in the said police station who were being beaten with "Dandas" and with leather "litters" The unauthorized activities were reported to the concerted A.S.P. on 31-7-2003, besides moving an application to ATA Court No.1 Rawalpindi. On expiry of physical remand all the four arrested persons were medically examined under the orders of the learned Duty Magistrate and subsequently they were examined by a Medical Board, constituted under the orders of the Learned Judicial Magistrate. The Medical Board unanimously opined that Saifullah Yasar Waseem Raja Nasir and Wajahat Shah were subjected to police torture out of them, Saif Ullah victim also remained in hospital for two days.

2. The learned Additional Sessions Judge in view of report of the Medical Board and controversial stances of the parties, directed judicial inquiry into the matter by appointing the learned Civil Judge/Judicial Magistrate, Rawalpindi, as Inquiry Officer. Result of judicial inquiry went against the police officials vide report dated 25-11-2003, on the basis of which, coupled with report of the Medical Board dated 13-8-2003, the learned Additional Sessions Judge through his order dated 9-12-2003, referred the matter to . A.S.P./S.D.P.O. Cantt., for registration of criminal case against the above named 4 police employees.

3. Direction for registration of criminal case given by the learned Additional Sessions Judge, vide his order, dated 9-12-2003, was not complied, necessitating complaint before the learned Additional Sessions Judge, where respondent No.2 appeared on 7-1-2004 and urged that since no cognizable offence is made out from the complaint therefore, the order, dated 9-12-2003 cannot be complied. This complaint is reported to be penning. The instant Constitutional petition has now been filed with the prayer that in terms of report of the Medical Board and judicial inquiry, respondent No. 1 may be required to register a criminal case against all the 4 police officials who exerted physical torture, as he is bound to do it in view of provisions of section 154, Cr.P.C. Malik Waheed Anjam, Advocate, has appeared on behalf of the police officials against whom prayer for registration of criminal case is made by the petitioner. Though under law this Court is not legally obliged to hear the accused persons while directing compliance of provisions of section 154, Cr.P.C. yet in order to examine their view point, their learned counsel was heard at a considerable length. According to his submissions, neither the report of the Medical Board is factually correct nor the inquiry report by the learned Civil Judge/Judicial Magistrate is worth reliance and at the same time the application filed by the petitioner before the learned Additional Sessions Judge, does not make out a cognizable offence thus, the direction prayed, cannot be issued. In support of his submissions the learned counsel for the accused police officials relied on the case of Riaz Ahmad and 3 others v. The State PLD 1994 Lah.

485. He further submitted that law provides the petitioner an alternative remedy by way of a private complaint under section 200 of the Cr.P.C. for redressal of his grievance, as such, no direction for registration a criminal case cannot be issued by this Court in exercise of Constitutional jurisdiction. He in this behalf referred to the case of Abdul Aziz v. S.H.O. Police Station Qutabpur, Multan and 7 others 1997 MLD 1270. The learned A.A.-G. could not effectively oppose the prayer of the petitioner on account of non-availability of police record.

4. I have anxiously considered the arguments of the learned counsel for the parties and have examined the record appended herewith. The petitioner in para. 5 of his application under section 22-A, Cr.P.C. before the learned Additional Sessions Judge had asserted that on 30-7-2003 the accused persons resorted to the worst police torture with following narrations:--

5. If the above assertions of the petitioner which are supported by unanimous opinion of Medical Board, affirmed by the judicial inquiry report, does not make out a cognizable offence then according to my view there can be no other better case making out a cognizable offence attracting provisions of section 154, Cr.P.C. This provision of law is mandatory and makes it obligatory for the concerned official to register a criminal case, leaving no room for escape to discharge his these statutory obligations, on the lame excuses, as put forth in opposition of this Constitutional petition. It is really amazing that statutory obligations which were to be discharged by respondent No.1, of his own, are being avoided without any just cause or reason, in spite of a speaking order by the learned Additional Sessions Judge.

6. Adverting to the objection of the learned counsel for the police officials that in view of availability of alternative remedy to the petitioner, by way of filing a complaint under section 200,Cr.P.C., the instant Constitutional is not maintainable. I must observe that availability of alternative remedy in itself does not exclude the jurisdiction of this Court vested in it under Article 199 of the Constitution. This is the prerogative of this Court to adopt it or not, in order to regulate its g Constitutional jurisdiction. This Court cannot close its eyes to glaring exercise of excess of jurisdiction or use of colourful authority by the State functionaries and 'thus, even in the presence of an alternative remedy, this Court can assume jurisdiction according to the circumstances of the case. Since accused officials acted beyond the sphere of their authority fixed by law under which they are working in an unbecoming manner, to the disadvantage of the poor citizen of this country, I find this case to be the most appropriate case for invoking the Constitutional jurisdiction. My this view gets support from the alighted judgments of the Honourable Supreme Court in the case of Syed Match Company Ltd. through Managing Director v. Authority under Payment of Wages Act and others 2003 SCMR 1493 and Farzand Raza Naqvi and 5 others v. Muhammad Din through Legal Heirs and others 2004 SCMR 400.

7. For what has been discussed, above, I feel respondent No. 1 was legally obliged to comply the order, dated 9-12-2003 passed by the learned Additional Sessions Judge, Rawalpindi, in letter and spirit by registering ,a criminal a case as directed. Consequently, the instant petition is allowed and writ as prayed is issued. Compliance report shall be submitted to Deputy Registrar (Judicial) of this Court, at Rawalpindi Bench. N.H.Q./R-74/L Petition accepted.