P L D 2015 Peshawar 76 (PLP)

IKRAMULLAH KHAN, J-. Through the instant petition, under Article 199 of the Islamic Republic of Pakistan, 1973, the petitioner has sought the quashment of impugned judgment/order dated 4-6-2014 rendered by respondent No.3, the justice of the peace, whereby the learned justice of the peace has directed the local Police to register a criminal case against the petitioner.

2. According to the facts, as narrated therein the application under section 22-A, Cr.P.C., preferred by the respondent No.1, before the learned justice of the peace (respondent No.3) that the respondent No.1 along with other inmate of the house, were present in their house on 29-5-2014, at 2.00 p.m., when in the meanwhile, petitioner along with other Police contingent entered their house and as soon as they made their entrance into the house, the petitioner ordered the constable, (name unknown) shot the deceased son of the respondent No.1 and in pursuance of the said order, the Police constable, opened fire upon his deceased son Muhammad Idrees, who sustained serious injuries, and the petitioner took him in Police mobile to Police Station, Lahor District Swabi. The respondent No.1 tried his best to report the matter to the local Police, but he was not allowed even to enter the Police Station Lahor District Swabi, rather to lodge the FIR.

3. The dead body was thereafter shifted to R.H.C. Kunda Swabi, wherein, post mortem was conducted and thereafter, the Police left the corpse of son of the petitioner in hospital, which was collected by the respondent No.1, therefrom the hospital.

4. Petitioner along with other co-villagers, protested against the incident and at last approached the learned justice of the peace for taking cognizance of the matter.

5. The learned justice of the peace, called comments in the matter from the local Police, who in turn, submitted their comments and apprised the learned justice of the peace, that on 29-5-2014, the S.H.O. Police Station, Lahor (Swabi) along with constable Aftab, Ishtiaq, Arsala Zaman and a lady constable Fuzia, in connection of search operation under control of DSP Circle were present in the vicinity of Lahor, that in the meanwhile, the SHO was informed that, Idrees, Zahid, proclaimed offender in case and FIR No.213 dated 28-5-2014 under section 394 Pakistan Penal Code, 1860 and case FIR No.214 dated 29/5/2014 under section 392 Pakistan Penal Code, 1860 were present near their house. The S.H.O. on receiving the said information rushed there to the spot, where the accused were stated to be present, and when the Police party reached the required place, accused Idrees (the deceased) and his co-accused opened fire upon the Police party and in exercise of right of self defence, Police party also retaliated and as result of cross firing, accused Idrees was shot dead while the co-accused Zahid was apprehended on the spot fully equipped with lethal weapon. Police had also recovered a 30-bore pistol along with cartridges, therefrom the dead body of the Idrees.

6. Further apprised the Court that deceased Idrees was a dacoit, involved in a number of criminal cases of dacoity. The father of the deceased in collaboration with some of his relatives and students of an Islamic School, to mould the incident, and to implicate Police officials in a false criminal case, brought the corpse of the deceased to Court premises and had also blocked the road to falsely protest in order to enrobe Police officials in a false criminal case.

7. The learned justice of the peace, did not satisfy with the comments/report filed by the local Police and directed the Police to lodge an FIR. under the relevant provision of law against petitioner. Hence, this very impugned order is challenged through the instant writ petition.

8. The learned counsel for the petitioner tried his best to convince this Court, that petitioner is innocent and respondent No.1 had twisted the facts of the case, in strive of got a favourable order and against the petitioner from the learned justice of the peace.

9. The available record and the copies of two F.I.Rs., and the statements/comments of the local police filed before the learned justice of the peace, suggest that there are two versions in regard to the same incident, which could not be scrutinized and analyzed, by this Court, without recording evidence in that regard, which this Court, could not perform, being in exercise of its constitutional jurisdiction. However, under the provisions of section 154 Cr.P.C., every Police official, is legally bound to register a cognizable case, and thereafter proper investigation, submit report under section 173 Cr.P.C. before the trial Court, along with finding in this regard, innocence or otherwise of the accused but, the Police could not have the jurisdiction, that without proper investigation into a cognizable offence, preliminary hold that the report communicated to him was false and concocted.

10. The learned justice of the peace, being conferred with jurisdiction under section 22-A, Cr.P.C., may exercise its jurisdiction on his satisfaction if a cognizable offence had committed, to direct for registration of the case.

11. Whenever justice of the peace seized of a complaint under section 22-A, Cr.P.C; the principle and procedure would be applicable as provided under section 154 Cr.P.C. and justice of the peace had to apply the same test by applying prudent mind in ascertaining as to whether the facts constituted a cognizable offence or not. When justice of the peace arrived to the conclusion that a cognizable offence had committed, then the justice of the peace had left with no choice but to direct the local Police of concerned police station, in whose jurisdiction, the offence was committed to register the case through lodging of FIR under the relevant provisions of the law, attracted to the facts of the case.

12. So, in view of section 154, Cr.P.C; the officer Incharge of a Police station is legally bound to register the report in the relevant book, formerly called FIR and mere, lodging of FIR by no means curtailed the power of the investigating officer concerned, to investigate the correctness or otherwise of the information conveyed thereof. In case the Police Investigating Officer arrived at the conclusion that the allegation, put forward against an accused were false, concocted or fabricated, and no evidence could be collected to hold the accused responsible for commission of the offence, could legally recommend the accused under section 169, Cr.P.C and also place him in column 2 of the report under section 173, Cr.P.C. to be discharged from the charges levelled against an accused, however, no officer Incharge of a Police station or any one else, had the power to refuse to reduce into writing the relevant information of a cognizable offence in the relevant register under section 154, Cr.P.C.

13. It is also, not mandatory or incumbent upon the officer Incharge of the concerned Police station to forthwith arrest the nominated accused thereafter registration of the case, when there existed no likelihood of absconsion of the accused or apprehension of tampering and hampering with the prosecution evidence. Likewise, the government also not, in every case, where a public servant is charged in a criminal case has to suspend his services forthwith, however, in case an accused, being public servant, was arrested, he shall proceed on leave, and when the government come to the conclusion that a public servant had prima facie committed an offence, might proceed further to suspend his services.

14. So in light of the reasons given herein above, no any infirmity, illegality, want of jurisdiction could be pointed out, in the impugned judgment rendered by a competent authority in that regard, to warrant interference in the impugned judgment, therefore, the instant writ petition is accordingly dismissed. HBT/420/P Petition dismissed.