2018 PLP 275 (YLRN)

ARSHAD HUSSAIN KHAN, J.

Through this criminal miscellaneous application, the applicant has challenged the order dated 24.10.2017, passed by learned Additional Sessions Judge Sehwan in Criminal Miscellaneous Application No.885/2017, whereby the application has been dismissed.

2. The facts leading to the filing of present application, as averred therein are that on 24.09.2017 when the applicant along with his brothers and friends had arranged the Niaz O Langar in the name of Hazrat Imam Hussain (R.A.) and were available at Syed Sakhi Muhammad Shah (R.A.), when proposed accused Habibullah, Razaque, Qurban, Roshan, Fareed, Akbar, Ismail and Abdul Rasool all by caste Lakho along with other accused with the league of police namely Wahid Bux Machhi, Kando Khokhar, Sharif Gopang had assaulted upon them with common object duly armed with pistols hatchets and lathis, SMG Rifles, opened straight fires upon them with intention to kill them but they fell down and missed fires. According to applicant, as a result of which, Ghulam Shabbir Gopang received injuries at his head and back of right shoulder. The accused party after abused and issued murderous threats to the applicant party and they fled away from Sakhi Syed Muhammad Shah (R.A.) and saved their lives. Hence, the applicant preferred instant application praying for setting aside the impugned order.

3. Conversely, pursuant to notices of this Court issued to the respondents and proposed accused, respondent No.3, the proposed accused namely Habibullah, P.Cs. Kandoo Khokhar, Wahid Bux and Muhammad Sharif have filed their comments on the instant application denying the allegations of applicant against them.

4. Learned counsel for applicant during the course of arguments has contended that the impugned order passed by learned respondent No.1 is contrary to the facts, law, equity and justice. He pointed out that the respondent No.1 has not considered the fact that on the very day of incident the applicant was issued a letter for medical treatment of the injured but after such treatment, the police failed to record the statement of applicant and register FIR; that the fact of registering FIR bearing No.50/2017 at Police Station Bhan Saeedabad by the police against applicant party lodged by proposed accused Habibullah and non-registration of report of the applicant party clearly shows that violation of section 550, Cr.P.C. on the part of police despite issuance of letter for medical treatment to the injured. He further contended that a base is also pending between the parties, however, each case is to be decided on its own merits, hence, prayed for lodgment of FIR of the applicant.

5. Learned A.P.G. Sindh appearing on behalf of State while supporting impugned order has vehemently opposed the registration of case against police personnel on the ground that the police party performed their duties after FIR bearing No.50/2017 registered against the applicant party. He further contended that each criminal case is to be decided by its own fact, however, in case, statement of the applicant is recorded and if a cognizable offence is made out, the FIR may be registered and a fair investigation be conducted.

6. Mr. Abdul Hafeez Panhwar learned counsel for proposed accused No.1 has contended that the story narrated by the applicant in his application is false, fabricated and has been made due to lodgment of FIR bearing No.50/2017 at Police Station Bhan Saeedabad for the offence under sections 324, 147, 148, 149, 114, 504, 337-H(2), P.P.C. against the applicant party by proposed accused Habibullah, in order to make a counter-case. He further contended that presumption for implication of police party in the instant false story, who made their duties in accordance with law in pursuance of said FIR, can be depicted that the story made by the applicant is forged, manipulated and concocted one.

7. I have heard arguments of learned counsel for the applicant, learned A.P.G. Sindh for the State, learned counsel for proposed accused No.1 and perused the available record.

8. Before going into further discussion it would be advantageous, for the sake of ready reference, to reproduce Sections 154 and 155, Cr.P.C.:-- "

154. Information in cognizable cases. Every information relating to the commission of a cognizable offence if given orally to an officer incharge 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.

155. Information in non-cognizable cases. (1) When information is given to an officer incharge of a police-station of the commission within the limits of such station of a non-cognizable offence, he shall enter in a book to be kept as aforesaid the substance of such information and refer the informant to the [Magistrate]. (2) Investigation into non-cognizable cases. No police-officer shall investigate a non-cognizable case without the order of a Magistrate of first or second class having power to try such case [or send the same for trial to the Court of Session]. (3) Any police-officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer incharge of a police station may exercise in a cognizable case." From the perusal of above provisions, it appears that nowhere the police is restrained from registering the FIR. Police is duty bound to reduce information relating to the commission of a cognizabie offence into writing under section 154, Cr.P.C. or otherwise act under section 155, Cr.P.C. Further, if the informant gives false information, there is provision under section 182, P.P.C. to come into force. For the sake of ready reference, section 182, P.P.C. is reproduced as under:--

182. False information with intent to cause public servant to use his lawful power to the injury of another person

Whoever gives to any public servant any information which he knows or believes to be false, intending thereby to cause, or knowing it to be likely that he will thereby cause, such public servant:- (a) to do or omit anything which such public servant ought not to do or omit if the true state of facts respecting which such information is given were known by him, or (b) to use the lawful power of such public servant to the injury or annoyance of any person, shall be punished with an imprisonment of either description for a term which may extend to six months, or with fine which may extend to [three thousand rupees], or with both.

9. The above referred provisions reflect that the same are foundation that when a thing was required to be done by law in a particular manner it should be done in that manner or not at all. The SHO is duty bound to record the statement of the complainant under section 154, Cr.P.C. in accordance with law, if from the contents thereof a cognizable offence is made out, he shall register FIR and if such first information is found to be false during course of the investigation, legal action can be initiated against the complainant. In case of cognizable Offence SHO or anyone else has no authority to refuse to record complainant's statement and to refuse to register an FIR. Further, it is needless to say that nobody is over the law of land. In the instant case, an FIR against private persons by the police has been registered promptly but on the other hand report against police personnel including private party as per version of applicant is denied. It is added that despite the assertion being narrated by the person is either correct or incorrect, but how it can be said as 'false' without any investigation. As stated above, the falseness or truthfulness can always be determined during the course of investigation as either parties take their own stance.

10. In view of above facts, circumstances, instant criminal miscellaneous application is allowed with direction to concerned SHO to record the statement of applicant and if a cognizable offence is made out, register FIR forthwith, however no arrest shall be made in respect thereof unless tangible evidence is brought on record, connecting the proposed accused with the commission of crime. MQ/N-22/Sindh Application allowed.