2024 P Cr (PLP)

ALI ZIA BAJWA, J.

Through this petition filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, (hereinafter the 'Constitution'), the petitioner has assailed the vires of the impugned order dated 03.02.2021 passed by the learned Ex-officio Justice of Peace, Gujrat (hereinafter 'JOP') whereby petition under section 22-A(6) of the Code of Criminal Procedure, 1898 (hereinafter the 'Code') filed by the petitioner, for issuance of direction to register a criminal case, was dismissed.

2. The petitioner being aggrieved by the alleged occurrence of robbery filed an application before the Station House Officer, Police Station Civil Lines, Gujrat (hereinafter the 'SHO') and on failure to get his grievance redressed, filed a petition before JOP, which was dismissed through the impugned order on the ground that SHO has the power under Rule 24.4 of the Punjab Police Rules, 1934 (hereinafter the 'Rules') to probe into the contents of the application filed before him and refuse to register a criminal case if same are found to be doubtful.

3. The pivotal question of law in the facts and circumstances of this case, which warrants determination is whether the SHO can resort to section 157 of the Code read with Rule 24.4 of the Rules for disposing of the 'information' regarding the commission of a cognizable offence furnished to him under section 154 of the Code without registration of a criminal case. It deems appropriate to take a bird's eye view of the legislative history of section 154 of the Code and then discuss its scope to arrive at a definite finding, whether this provision of law can be sidestepped by pressing into service section 157 of the Code read with Rule 24.4 of the Rules.

4. Section 139 of the Code of Criminal Procedure of 1861 (Act 25 of 1861) passed by the Legislative Council of India read that 'every complaint or information' preferred to an officer in charge of a police station should be reduced into writing which provision was subsequently modified by section 112 of the Code of 1872 (Act 10 of 1872) which thereafter read that 'every complaint' preferred to an officer in charge of a police station shall be reduced in writing. The word 'complaint' which occurred in previous two Codes of 1861 and 1872 was deleted and in that place the word information' was used in the Codes of 1882 and 1898 which word is now used in sections 154, 155, 157 and 190(c) of the present Code of 1898.1 It shall not be out of place to reproduce section 154 of the Code and Rule 24.1(1) of the Rules for better comprehension, therefore, same have been reproduced hereinafter: -

154. Information in cognizable cases: Every information relating to the commission of a cognizable offence if given orally to an officer in charge 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: 24.1 First Information how recorded.

(1) Sections 154 and 155, Code of Criminal Procedure, provide that every information relating to an offence, whether cognizable or non-cognizable, shall be recorded in writing by the officer incharge of a police station.

5. Conjunctural reading of section 154 of the Code and Rule 24.1(1) of the Rules makes it abundantly clear that on receiving the information regarding the commission of a cognizable offence, the same shall culminate in the registration of a criminal case. The legislature by using the word 'every' to qualify the word 'information', ultimately left no discretion with an SHO to refuse the registration of a criminal case after receiving information regarding the commission of a cognizable offence. The words 'every information' clearly postulate that the legislature designedly abstained from further qualifying these words. It can be observed that in section 154 of the Code, the legislature in its collective wisdom carefully and cautiously used the expression 'every information' contrary to sections 22-A(3)(a) and 54 of the Code wherein the expressions, 'reasonable complaint' and 'credible information' have been used. Apparently, the use of the words 'every information' in section 154 unlike in sections 22-A(3)(a) and 54 of the Code is for the reason that the SHO should not have the power to refuse to record the information relating to the commission of a cognizable offence and to register a case thereon on the ground that he is not satisfied with the reasonableness or credibility of the information. In other words, 'reasonableness' or 'credibility' of the said information is not a condition precedent for the registration of a criminal case. A comparison of the present section 154 of the Code with those of the earlier Codes indicates that the legislature had intentionally thought it appropriate to employ only the words 'every information' without qualifying the said words. An overall reading of all the Codes makes it clear that sine qua non for recording a first information report is that there should be an information and that information must disclose the commission of a cognizable offence.

6. Section 156 of the Code confers the power upon a police officer to investigate a cognizable offence whereas section 157 lays down the manner, in which that investigation should be carried out. The commencement of investigation by a police officer under section 157(1) of the Code is subject to two conditions, firstly, the police officer should have reasons to suspect the commission of a cognizable offence and secondly, the police officer should subjectively satisfy himself as to whether there is sufficient ground for entering on an investigation even before he starts an investigation into the facts and circumstances of the case. Under the provisos (a) and (b) to section 157(1) of the Code, there are situations where investigation can be dispensed with. Firstly, when any information as to the commission of a cognizable offence is given against a person by name and case is of a trivial nature, the investigating officer shall not make an investigation on the spot and secondly, where it appears to the officer incharge of police station that there is no sufficient ground for carrying out the investigation. Section 158 of the Code further lays down the self-explanatory procedure to submit a report under section 157 of the Code.

7. Comprehensive scrutiny of sections 154, 156, 157 and 158 of the Code makes it abundantly obvious that section 157 read with Rule 24.4 of the Rules is post registration of criminal case stage, therefore, section 157 read with Rule 24.4 cannot be pressed into service before the registration of a criminal case. It is only the registration of a criminal case which activates Rule 24.4 of the Rules read with section 157 of the Code. The question of law that can Rule 24.4 of the Rules be acted upon before the registration of a criminal case came up for consideration before the worthy Division Bench of this Court in Zulfiqar Ali Alias Dittu2 and it was authoritatively ruled that 'the law requires that a Police Officer should first register a case and then form an opinion whether the facts stated in the FIR are true or not.' This view was affirmed by a prestigious Full Bench of the Supreme Court of Pakistan in Abdul Rehman Malik3, observing as infra: - "Rule 24.4 does not tyrannically foreclose doors to a complainant to voice his/her grievance nor it dogmatically empowers an Officer Incharge to terminate a prosecution before its inception on his subjective belief of its being false; its application is subservient to the scheme laid down in Part V of the Code ibid and, thus, has to be essentially read in conjunction with section 169 thereof. Therefore, an Officer Incharge can possibly invoke the Rule, that too, for reasons strong and manifest after registration of First Information Report."

8. I have no hesitation to hold that section 157 of the Code read with Rule 24.4 cannot be employed before the registration of a criminal case under section 154 of the Code. When information of a cognizable offence is received by the SHO, he cannot embark upon an inquiry to examine the reliability or credibility of such information to refuse the registration of a criminal case. He is under a statutory duty to register a criminal case and then to proceed with the investigation, if he has reason to suspect the commission of an offence, which he is empowered under section 156 to investigate, subject to proviso (b) to section 157(1) of the Code read with Rule 24.4 of the Rules, whereby an investigating officer has the ample power to dispense with the investigation altogether.

9. From the above discussion and analysis of statutory law including the judicial verdicts relied upon, this Court is of the considered view that order passed by the learned JOP is patently illegal and unwarranted, therefore, the same is set-aside. This petition is allowed with the direction to the SHO/respondent No.2 to register a criminal case on the information of the petitioner, clearly disclosing the commission of a cognizable offence, already furnished to him. MH/A-137/L Petition allowed.