2002 PLP 3617 (YLR)

(b) Criminal Procedure Code (V of 1898)‑‑-- ‑‑‑‑S.4(l), 154 & 156‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Registration of criminal case‑‑ Investigation of‑‑‑Registration of criminal case was binding on police if any application was submitted for the same before Police, constituting commission of cognizable offence‑‑‑Registration of criminal case means to set criminal machinery at motion against alleged crime‑‑‑Accused if was innocent could prove his innocence before Investigating Officer by producing evidence, but direction for registration of case could not be declared as illegal and unlawful‑‑‑Purpose of investigation as defined in S.4(l), Cr. P. C. was to collect evidence of alleged commission of offence and prosecution could not be deprived of collecting evidence against accused against whom complaint was‑made for commission of cognizable offence‑‑‑Not necessary for the police or Investigating Officer to hear accused before registration of case against them because they had to be afforded opportunity to establish their innocence during investigation and in case they were challaned they were to face trial before Court. Farooq Amjad Meer for Petitioner. Through this Constitutional petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioner has prayed for setting aside of the order of respondent No.1 dated 18‑6‑2002 whereby he has recommended for the registration of the criminal case against the petitioner and others directing respondent No.4 and has also prayed, for declaring the same as illegal and unlawful.

2. The brief facts of the case are that the petitioner was posted as S.H.O. Police Station Sukheki District Hafizabad in the year 1999. On 9‑6‑1999 a police encounter took place within the jurisdiction of his Police Station where one Talib Hussain who was previously involved in 91 criminal cases of various nature was murdered, in self‑defence by the police and F.I.R. No.183 was registered on 9‑6‑1999 under section 353, 324, P.P.C. read with section 13(XX) of the Arms Ordinance, 1965 at the same Police Station. District Magistrate Hafizabad vide his order dated 15‑6‑1999 directed the Assistant Commissioner Pindi Bhattian to hold a judicial inquiry. He recorded the statements of 35 witnesses including the statement of the present petitioner and four police officials but the post of Assistant Commissioner was abolished due to introduction of new City Government and respondent No.3 submitted the judicial inquiry to respondent No.2 for, its entrustment to respondent No.2. Respondent No.2 instead of starting denovo inquiry has given his report with the recommendations on 10‑6‑2002 for the registration of the murder case against the petitioner and other police officials. On 18‑6‑2002 the petitioner submitted an application to respondent No.1 for setting aside of the judicial inquiry report of respondent No.2 but this application was rejected and a direction was issued to respondent No.4 to register the criminal case.

3. Learned counsel for the petitioner contends that the judicial inquiry report of respondent No.2 is illegal and unlawful as he was not initially entrusted the inquiry, thus he was bound to hold the denovo inquiry and afford an opportunity of hearing to all the parties before holding that the petitioner is liable to face the trial of the murder case of said Talib Hussain, hence direction issued on the basis of earlier inquiry is illegal and unlawful and is liable to be set aside by this Court. It is further contended that the petitioner has been condemned unheard and the petitioner will suffer irreparable loss in case the inquiry proceedings are not set aside. It is also contended that the petitioner is ready to face the inquiry by any Judicial Officer and to prove his innocence.

4. I have heard the learned counsel for the petitioner at length and also perused the documents attached with this petition. I do not find any reason for setting aside the order dated 18‑6‑2002 passed by the learned Sessions Judge, Hafizabad, for the registration of the criminal case against the petitioner and other police officials who participated in the fake police encounter with Talib Hussain who has lost his life. The contention of the learned counsel for the petitioner is that Talib Hussain was involved in 91 cases but it hardly gives a licence to the police to murder said Talib Hussain. He had a right to be dealt with in accordance with law but could not be done to death if the allegations leveled against the police officials are correct. Since the Judicial Magistrate. who was entrusted the inquiry by respondent No.1, after perusal of the evidence recorded by the Assistant Commissioner has come to a definite conclusion that the police encounter was suspicious and the evidence has been brought on the record which is sufficient to prima facie arrive at a conclusion/finding that the occurrence has not taken place in the manner as has been narrated by the police, as such the learned Sessions Judge has rightly directed respondent No.4 to register the criminal case. The registration of the criminal case is binding on the police even otherwise if any application is submitted for the same before the police constituting the commission of cognizable offence. As the learned Judicial Magistrate has recommended after the perusal of the evidence and the learned Sessions Judge has also come to the conclusion that prima facie the police encounter is fake and the matter requires to be thoroughly investigated, the petitioner if is innocent can prove his innocence before the Investigating Officer by producing evidence but the direction for registration of the case cannot be declared as illegal and unlawful as the registration of the criminal case means to set the criminal machinery at motion against the alleged crime. It cannot be stayed as the purpose for the investigation defined under section 4 of the Criminal Procedure Code is to collect the evidence for the alleged commission of the offence and the prosecution cannot tie deprived of collecting the evidence against the accused persons against whom the complaint is made for the commission of cognizable offence. The petitioner cannot be considered as an aggrieved by the said order due to the registration of the case. It is not necessary or incumbent upon the police or the Investigating Officer to hear the accused persons before the registration of the case against them, because the accused persons have to be afforded opportunities of proving their innocence during the investigation and in case they are challaned have to face the trial before the Court.

5. In view of the foregoing discussion I do not find any merit in this writ petition which is dismissed to limine. H.B.T./M‑1383/L Petition dismissed.