' MUHAMMAD AFZAL SOOMRO, J.--- By this petition, petitioner Niaz Hussain Khaskheli approached this Court for registration of F.I.R. Against the proposed accused mentioned in para. No,6 of the petition.
2. The crux of the petition is that the petitioner is a law abiding and respectable citizen of Pakistan.
He used to live in village Setharja, Taluka Mir Wah, District Khairpur. It has been alleged that on 24- 12-2001 the petitioner's Nikah was performed with his cousin Mst. Ghulam Zohra daughter of Muhammad Saleh Khaskheli resident of Setharja, with the consent of her parents according to Muhammadan Law and the same was registered with Union Council, Setharja on the same day, a copy whereof has been produced before this Court as Annexure "A". It is further alleged that petitioner's wife Mst. Ghulam Zuhra is primary school teacher in Government Girls School, Setharja and she used to perform her duty there. On 30-4-2002 she left for duty and did not return from duty for about four days. Thereafter the petitioner searched for her. And narrated the facts to his Nekmard namely Allah Wadhayo Khaskheli and others about the missing of his wife. When she returned back to his house on inquiry she told that she has gone to meet her relatives. Again on 18- 9-2002 she went to her duty and did not turn back and the petitioner searched her continuously.
On 26-9-2002 when die petitioner's father and maternal-uncle were called at Police Station, Mir Wah where they handed over copy of the Petition No,793 of 2002 filed by Mst. Ghulam Zuhra against Police Officers regarding harassment. After going through the said petition, he come to know that his wife after developing illicit terms with Mureed Hussain son of Ghulam Hyder Leghari has performed her Nikah with him over the Nikah. He further alleged that proposed accused Mst.
Ghulam Zuhra has committed Zina with the proposed accused namely Mureed Hussain with the conspiracy/collusion of other co-accused Abdul Ghafoor son of Budhal, Loung son of Usman, Muhammad Chuttal son of Muhammad Murad, Mazhar Hussain Chano son of Kouro Khan and Moulana Shabir Ahmed son of Nazir Khan being witnesses, Vakeel and Nikah Khawan as they knowingly performed the Nikah of proposed accused Mst. Ghulam Zuhra with Mureed Hussain, therefore, they are liable to be prosecuted under sections 11/16 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979. The petitioner has further stated that he moved an application to T.P.O.
Mir Wah for registration of F.I.R. And taking action against the proposed accused, who forwarded the same to S.H.O. Concerned on 27-9-2002, but the S.H.O. Did not take any action in the matter.
Photostat copy of the same had been produced along with this petition. Thereafter he approached the District Police Officer, Khairpur and narrated him about the incident and requested him to take action in the matter according to law, but no useful purpose could be served.
3. Being embarrassed with the situation and having no other alternate and adequate remedy available to the petitioner and being A constrained with the situation he had prayed for his relief as under:--
(a) To direct the respondent No,1 to lodge the F.I.R. Against the proposed accused mentioned in para.6 of the petition as they have committed offence under sections 10/11/16/15 of Offence of Zina Hudood Ordinance and Pakistan Penal Code sections.
(b) To grant any other relief which this Honourable Court deems fit and proper.
(c) To award cost of the case.
4. On 7-10-2002 notice was directed to the respondents which returned served and in response thereto S.H.O. Police Station, Thari Mir Wah appeared before this Court. Learned A.A.-G. Had filed statements of D.P.O. Khairpur and S.H.O. The same were taken on record. Firstly the statement of S.H.O. Reads as under:--- "I, Imdad Hussain Malah, S.I.P./S.H.O. Police Station, Thari Mir Wah beg to submit that the order of this Honourable Court No,5916, dated 9-10-2002 petitioner named above filed petition in this Honourable Court, petitioner never approached before undersigned respondent and not any application brought at police station for registration of F.I.R. The allegation in this petition at para. No,7 is false if the petitioner came at police station his F.I.R. Will be registered according to law and if cognizable offence is made out, the same will be registered.
' Further petitioner in the para.7 of the petition made that on 27-9-2002 forwarded the application from T.P.O. And appeared before S.H.O., respondent No,1 in this I taken over the charge on 28-9- 2002, on the same date petitioner not appeared. All the allegations are false and fabricated.
' It is submitted that in this connection, the report was called from S.H.O. Police Station Mir Wah. Now he has submitted his report that the petitioner has never appeared at Police Station Mir Wah for lodging his F.I.R., as and when he will appear his statement will be recorded and if cognizable offence is made out, his F.I.R. Will be registered as per law.
' The petitioner has not appeared before the undersigned. The report of S.H.O. Police Station Mir Wah is comprehensive, hence I agree with it."
5. In support of the petition, learned counsel for the petitioner has filed affidavits of father, brother, uncle and maternal-uncle of Mst. Ghulam Zuhra in which they have admitted that according to Muhammadan Law the Nikah was solemnized with the petitioner Niaz Hussain on 21-12-2001 with her consent and the same was registered on 24-12-2001. Thereafter on 30-4-2002 she left for duty and returned back after four days and again on 18-9-2002 she left for duty and did not return back, subsequently they came to know that she developed illicit terms with her paramour Mureed Hussain Leghari and they are now committing Zina with each other after managing false Nikahnama.
6. Mr. Imdad Ali Awan, learned counsel for the proposed accused has filed written reply to the petition and denied the contents of main petition and its supporting affidavits, as the same are wrong, false, fabricated, misconceived, concocted, beyond the real facts and based on mala fide on the part of the petitioner. He has contended that the petition for registration of F.I.R. Is not maintainable in law, as the petitioner has the alternate remedy available under the law. He has further contended that previously she was married with late Ghulam Mureed about 14 years back and from the said wedlock she has got three sons and one daughter and her husband expired about 15 months ago and after his death some relatives namely Manzoor Hussain, Wazir and Niaz Hussain had snatched her kids, which made her life miserable and she being a widow, was feeling unsecured and finding no other way except to remarry with Mureed Hussain, as Mureed Hussain had close cordial connection with her family, therefore, with the consent of her father and brother after swearing free-will affidavit before the learned Judicial Magistrate No,3, Hyderabad on 2-5- 2002 she solemnized Nikah with Mureed Hussain son of Ghulam Hyder Leghari. He has further contended that she filed a constitution petition in respect of harassment before this Court as the petitioner as well as his relatives named above were not happy with her marriage and they were threatening her for dire consequences with the help of local police, the same petition was disposed of after filing the statement of concerned S.H.O. a copy whereof have been produced before this Court as Annexures "F" and "F-1". Learned counsel has further urged that after disposal of that petition, she had filed family suit for jactitation of marriage before the learned Family Judge, Mir Wah. Photostat copy of the same has been produced before this Court as Annexure "F-2". It has been contended by the learned counsel that the petitioner has to face the family suit till the decision and no action is warranted against her under the law and the statements filed by respondents Nos.1 and 2 are self-contradictory with the previous statements. Lastly he has contended that this petition mer its no consideration and is liable to be dismissed with special costs.
6-A. I have considered the arguments of the respective parties and perused the record. The learned has supported the arguments of learned counsel for the petitioner. I, however, regret and cannot see eye to eye to the plea raised by the respondent No,1 also the plea taken by learned counsel for the proposed accused.
7. Registration of case is dealt with in section 154 of Criminal Procedure Code which for the facility of reference is reproduced as under:-- "Every information relating to the commission of a cognizable offence if given orally to an officer incharge of 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."
8. Bare reading of the aforesaid provision of law makes it abundantly clear that once an information regarding commission of a cognizable offence is given to a Police Officer of police station, he is bound to reduce the same in writing and substance thereof has to be entered into a book to be kept by such officer in such form as the Provincial Government may prescribe in this behalf. Reducing the information in writing at the instance of informant regarding a cognizable offence is an imperative of law about which there is no cavil. Reliance is placed on M. Anwar, Barrister-at-Law v. The Station House Officer, Civil Lines Police Station, Lahore and others PLD 1972 Lah.
493. This judgment streamlined the law relating to the First Information Report under section 154 of the Code of Criminal Procedure and I can with advantage reproduce the relevant portion of the judgment as under:-- "If there is information relating to the commission of a cognizable offence, it falls under section 154 of the Code of Criminal Procedure, and a Police Officer is under a statutory obligation to enter it in the prescribed register. The condition precedent is simply two-fold; firstly, it must be information and secondly, it must relate to a cognizable offence on the face of it and not merely in the light of subsequent events. A Police Officer is bound to receive the complaint when it is preferred to him or where the commission of an offence is reported to him orally, he is bound to take down the complaint. If he does not incorporate in the register a complaint so made he fails to perform a statutory duty as a public servant and, therefore, renders himself to be dealt by his superior Officer for neglect of duty. Thus, it does not depend on the sweet will of a Police Officer who may or may not record it."
9. Refusal of the S.H.O. Or any other Police Officer acting under his direction can either be brought to the higher echelons or can be agitated through the instrument of writ. In the instant case there is an averment in the petition that the petitioner was running from pillar to post i,e, the petitioner has approached the concerned S.H.O. Mir Wah Police Station on 27-9-2002 for the purpose of registration of F.I.R. Which was not entered into a book under section 154, Cr.P.C. And thereafter he approached to the District Police Officer, Khairpur for legal action, but none of them paid any heed to the request of the petitioner for the registration of F.I.R. Resultantly the lapse in law was brought to the notice of this Court. The question for consideration is that whether hearing of the proposed accused was essential under the law or according to the principle of equity and natural justice.
Writ petition filed for seeking order from this Court for registration of case is to remind the Station House Officer of his obligation under the law, which he has failed to perform. Would it be essential at the interim stage to call the proposed accused and also give them hearing before issuing a direction to the Station House Officer for registration of the case? I am of the considered view that the answer to the question is in negative. Taking the question from another view, is so essential that when the Station House Officer is prepared to do his duty under section 154, Cr.P.C. Is he bound by any opinion of law to first provide an opportunity to the accused and thereafter, if he is satisfied that they have no cause to offer, only then he has to register a case? It is a well-settled law by now that the moment, the Station House Officer receives an information of a cognizable offence he shall reduce it in writing and shall proceed in accordance with law. If providing of an opportunity to the accused to be heard is not necessary under the law at the time of registration of case, would the position change if a recalcitrant Police Officer is complained against to the High Court for not doing his duty under the law, the answer once again is that there is no such mandate because the position remains the same, in one case by doing his duty the Police Officer is bound to get the case registered in case information of a cognizable offence is laid before him and in the second case when he refuses, he is directed by the High Court in the exercise of constitutional jurisdiction to perform his duty.
' Registration of a case involving cognizable offence is not to be all and end-all of the matter. The Police Officer investigates the information given to him and if he finds grounds connecting the accused against which information is given, to be proceeded against, it is only then that he is called to explain the situation and upon failure to do so takes him in custody and proceeds further.
The order directing the Police Officer to get the case registered which he has earlier refused to do so is of interim nature in which participation of the accused is not mandate of law for the reasons that once a case is registered, it culminates into a full-fledged inquiry in which undoubtedly the accused has full chance to present his version. No rights of the accused stand trampled at the time of registration of the case and mere registration does not cause stigma. It is only after conviction that stigmatization commences. If the information is found false, those who have been put to baseless inquiry i,e, the accused can invoke provisions of section 182, P.P.C. Or bring an action in law for damages.
' A similar question arose in the case of Syed Muhammad Ali Shah Bukhari v. Chief Administrator - of Auqaf, Punjab, Lahore and others PLD 1972 Lah. 416, where application of the rule of audi alterm partem was considered and it was held that the action of taking over a Waqf by the Chief Administrator of Auqaf being interim in nature it was not necessary to afford opportunity of hearing to all those persons who were affected by such action because a full-fledged judicial remedy was available to such persons to challenge the action of the Chief Administrator of Auqaf in a petition before the District Judge under section 7 of the West Pakistan Waqf Properties Ordinance, 1961. The relevant portion of the illuminating judgment is reproduced as under:-- "The scope of the right or interest that can be claimed by the petitioner as a person affected is next to be determined. The property being Waqf could have been assumed control of by the Chief Administrators under section 6 of the Ordinance. That action of the Chief Administrator has been considered by the Ordinance not to be final as the very next section namely, section 7, provides for a forum to scrutinize the correctness or otherwise of the notification. Under that section, a person affected may claim that the property assumed control of, is not Waqf or that the property is Waqf property within the limits stated in the petition. Can the petitioner lay claim that the property may not be assumed control of even if it is Waqf property? Admittedly he cannot enforce any such claim, therefore, viewing the question of application of the rule of audi alteram partem from that angle, the interim or provisional decision of assumption of control passed under section 6 will fall within the exception of the rule, especially when a hearing is provided for against such interim order. Some argument has been raised that an ex post facto hearing is negation of the rule of audi alteram partem."
' This question also cropped up in the case of Khushi Muhammad v. Commissioner, Multan Division PLD 1965 Lah. 250, relevant portion is quoted as under:-- "A comparison of provisions of sections 4, 5, 5-A and 9 with the provisions of section 40 of the Land Acquisition Act, 1894 will show that wherever it was intended by the Legislature that the person affected will have a right to show cause, a distinct provision to that effect is made.
' The commission in section 40 of a provision as regards notice to person interested in the land to be acquired for the benefit of a Company is, thus, deliberate; the underlying consideration being that the satisfaction of the Commissioner is not in the nature whether land belonging to a person shall be acquired for the benefit of a Company or not but is entitled to provide material for determining whether the Government shall act on behalf of a Company in that behalf of or not. The non-issuance of the notice to the petitioner in the inquiry under section 40 has, thus, no effect on the validity of the consent given by the Commissioner to the acquisition in question.
' The rule of natural justice is not of universal application."
' I may also rely on the judgment of Abul A'la Maudoodi v. Government of West Pakistan PLD 1964 SC
637. It was held by the apex Court as under:-- "I am prepared to concede that whenever an emergency requires passing of an order without hearing the party concerned an order may be passed and to this extent there was to be a proviso to the maxim audi alteram partem but action can be taken ex parte only to the extent to which it is absolutely necessary. The ex parte order in such cases to be regarded only as an interim order or a provisional order which will remain in force till a final order is passed after hearing the party concerned..."
' I may conveniently refer to the book on Judicial Review of Administrative Action by the celebrated author S.A. De Smith wherein it was noted that there are some cases which may exclude, by implication, the application of the rule of audi alteram partem and one such factor is where appropriate substitute for prior notice and opportunity to be heard is available.
' There is no requirement as noted above, at the time of registration of the F.I.R. To give a hearing to the accused named in the complaint. However, soon thereafter, once the case is registered the Investigating Officer, while gathering evidence confronts the accused with the name and records their version which ultimately goes for adjudication before a Court of law where, undoubtedly, those complained against are given full and absolute hearing.
'Viewed from another angle prior hearing if considered essential before the registration of the case would amount to placing the cart before the horse. This Court while considering the matter whether direction should be issued to the police for registration of F.I.R. Against the person complained, if embarks on any inquiry whether the offence was, or was not committed by the accused in my view would be transgressing its jurisdiction and would be travelling in the realm meant for others to probe.
' The upshot of the above discussion is that the petitioner has been able to make out a case for registration of F.I.R. Against the proposed accused and in the circumstances he is directed to appear at the Mir Wah Police Station and S.H.O. Concerned is further directed to register the F.I.R. Of the petitioner under sections 10/11/16/15 of the Zina Hudood Ordinance and Pakistan Penal Code sections.