' FAZAL-E-MIRAN CHAUHAN, J.---By filing writ petition the petitioner has sought a direction in the name of District Police Officer, Muzaffargarh (respondent No,2) to proceed against the concerned S.H.O. And to get registered a case against the accused persons.
2. It is argued by learned counsel for the petitioner that thepetitioner, who is a Town Planner and had carried out a number of schemes in different areas and works in the name and style of Pak Scheme Enterprise Private Limited, Multan. In order to establish a Town, the petitioner approached Haji Abdul Karim (respondent No,5), who was owner of land measuring 240 Kanals, situated in Chowk Sarwar Shaheed, Muzaffargarh and the petitioner struck a bargain of the aforesaid land for a consideration of Rs,82,00,000. The payment was made in presence of Muhammad Jaffar and Roshan Din. When the payment of an amount of Rs,62,00,000 was made over to him in different mode in a short span, possession of the aforesaid land was handed over to the petitioner by respondent No,5. After taking the possession, a project in the name of Karim Town was launched.
The petitioner got prepared map of a Town. The land was developed spending an amount of Rs,20,00,000, thereafter the petitioner started selling the residential plots to the different people.
Haji Abdul Karim, owner of the land, having come to know about the progress in the business of the petitioner, prepared a plan in connivance with employees of the petitioner and in the absence of the petitioner, when he was leaving with ailing health and had become bed-ridden, respondent No,5 and the employees of the petitioner started selling the plots. The employees of the petitioner in connivance with respondent No,5 took away all the articles of the office and forcibly took possession of the residential plots. Respondent No,5 started exploiting of the petitioner and started demanding huge amount over the above price, agreed with the petitioner or demanded that half and a half share of the project, which the petitioner would earn in the business. On refusal of the petitioner, he denied the agreement and also refused to return the stolen articles and restored the possession of the land illegally taken over by him.
3. On refusal of respondent No,5, the petitioner was left with no other option but to approach the District Coordination Officer, Muzafargarh (respondent No,1) through an application for registration of case, who marked the same to the District Police Officer, Muzaffargarh (respondent No,2) to register an F.I.R. Against respondent No,5. Respondent No,2 marked the application to the Deputy Superintendent of Police, Circle Kot Addu, District Muzaffargarh (respondent No,3) for necessary action, who neither looked into the matter nor taken any action on the same.
4. It is argued that under section 154, Cr.P.C., when commission of a cognizable offence is reported to the S.H.O. Concerned, he is boundto register the F.I.R. And thereafter inquire into the matter. The concerned police officer cannot proceed with the case without recording an F.I.R. As per section 154, Cr.P.C., when an information of a cognizable offence is conveyed to the Officer concerned, he shall reduce the same into writing and read over to the complainant, got it signed by him and the substance of the same shall be entered into a book to be kept by him. This section lays down the procedure for registration of case on information of a cognizable offence, and for its registration, the mandatory direction shall be kept in mind. He is not supposed to delay the matter. Thereafter, under section 157, Cr.P.C. He is required to send the copy of the same to the Magistrate empowered to take cognizance and if he feels that he is empowered to investigate the case under section 156, Cr.P.C., he shall proceed with the investigation. Further argues that under section 155, Cr.P.C., he is required to look as to whether the offence, so reported to him, is cognizable or non-cognizable. If offence is non-cognizable, he shall enter in a book to be kept into Police Station and report the matter to a Magistrate seeking permission to investigate the cases. Argues that under section 156, Cr.P.C., Investigating Officer Incharge of Police Station may without the order of a Magistrate, investigate any cognizable case, which the Court having jurisdiction. Section 157, Cr.P.C. Lays down the Procedure, where cognizable offence suspected. Also argues that after rule 24 of Police Rules, 1934, Police Officer on receiving the information whether cognizable or non-cognizable, shall record the same. Section 154, Cr.P.C. Has been reproduced in sub-rule(3) of Rule 24, meaning thereby while framing Police Rules 1934, the spirit of section 154, Cr.P.C. Was kept in mind and rules framer were conscious of the duty of Police Officer fixed by the Act of 1.898 (Criminal Procedure Code).
Further argues that column (2) of sub-rule 4 of Rule 24 casts a duty upon the Police Officer that he shall record his reasons for suspection that such offence has not been committed. It is a clear discretion of the S.H.O. To inquire into the case and give reasons. Further argues that on receipt of station diary, if the superior Officer agrees with the report, files the same, if he differs with the opinion and may on receipt of station diary, shall pass an order for investigation of the case.
Section 157, Cr.P.C. Cannot be substituted and is mandatory as the word "shall" is used. Finally argues that the S.H.O., being the Incharge of the Police Station, is duty bound to record the statement of the informer. The word "information" is defined in section 154, Cr.P.C. (relied upon Sreedhara Marar Raman Pillay and other v. State of Kerala (AIR 1965 Kerala 196)). The phrase "information received" used in section 157, Cr.P.C. Refers to information furnished in section 154, Cr.P.C. Reliance has been placed on Nandamuri Anandayya's case (SC 25 Ind. Cas. 630 (SC) and Jagdami Pershad Singh v. Mahadeo Kandoo and others (SC 5 Ind. Cas. 693). Rule 24.4 ibid, deals with powers of investigation and notwith recording of F.I.R., given by a complainant. Rules 24.1 and 24.4. Do not vest Police Officer with powers to refuse to record the F.I.R. Under section 154, Cr.P.C. In section 154, Cr.P.C. And Rule 24.1, the use of the word "shall" makes it incumbent upon the Police Officer to record the F.I.R. On the information of a cognizable offence.
5. Conversely, Ch. Muhammad Anwar ul Haq, Advocate for the respondent No,5 argues that there is no cavil to the proposition that on information of the commission of cognizable offence, Police Officer concerned is duty bound to reduce the same into writing and then proceed as provided under section 154, Cr.P.C. Section 157, Cr.P.C. Is independent power of the Police Officer and in such a case, registration of F.I.R. Is not -necessary. He shall record a report under section 157, Cr.P.C. And copy of the same would be sent to the Illaqa Magistrate, having the jurisdiction. Receipt of information is not a condition precedent in section 157, Cr.P.C., which refers to Lord Chancellor (Viscount Simon), Lords Porter, Simonds and Gaddard and Sir Madhavban Nair Emperor v. Khawaja Nazir Ahmad (AIR 1945 PC 18) and State of Uttar Pradesh v. Vhagwant Kishore Joshi (AIR 1964 SC 221). Further argues that the step taken by him under section 157, Cr.P.C., recording of F.I.R. Is not condition precedent and forinvestigation under section 157 Cr.P.C., recording of F.I.R. Is not necessary. Reliance is placed on Faiz Muhammad v. The State (PLD 1979 Karachi 513), M. Bashir Saigol and another v. The State and another (PLD 1964 Lahore 148) and Ghulam Muhammad alias Gaman v. The State (PLD 1981 FSC 121). Except when section 157, Cr.P.C. Is invoked, investigation is to be followed and not to proceed the registration of F.I.R. Pursuant to section 154, Cr.P.C. Relied upon Islamuddin v. P.O. Sindh and others (1995 MLD 372 Karachi (DB)). Also argues that the information in section 155, Cr.P.C. Is totally different than the information in section 157, Cr.P.C. It is only when information of a cognizable offence is given, F.I.R., shall be recorded in section 154, Cr.P.C. And the investigation under sections 156 and 157 Cr.P.C. Shall be conducted, when the offence is non- cognizable, information is to be recorded in a diary kept at the Police Station and conducting of investigation is not must without permission of the Magistrate. The writ petitioner and the respondents are bound by the compromise effected between them before the Civil Court. It is purely a civil dispute. No criminal act or offence has been committed. Further argues that the petitioner can proceed under section 51 of Specific Relief Act and ask for restoration of its possession. The writ petition is not maintainable and the petitioner has an adequate alternate remedy of filing a private complaint under the law.
6. The learned A.A.-G. Argues that it was necessary to the S.H.O. Respondent No,4 to first record information and then proceed under section 157, Cr.P.C. Reliance has been placed on Mst. Shehnaz v. S.H.O., Sariab, Police Station, Quetta and 2 others (2003 YLR 1941 (Quetta) and Muhammad Hafeez v. Special Judge, Anti-Terrorism Court, Mirpurkhas and 2 others (2001 PCr.LJ 199 (Karachi)). When there are cognizable and non-cognizable offence, then the whole matter would be tried as non- cognizable offence and the F.I.R. Must be recorded on the information received.
7. I have heard the learned counsel for the parties, perused the relevant documents placed on record and the report and parawise comments submitted by the S.H.O.-respondent No,4. The Code has divided the offences into two classes, cognizable and non-cognizable. In the first category all those offences for which a police officer, may arrest without warrant and in the latter case, he was not competent to arrest without warrant. The nature of class of offences is to be determined in accordance with the provision made in the second schedule appended with the Code. In order to be a cognizable case, it is enough that if one or more of the offences are cognizable.
8. In order to set the criminal law in motion, two modes have been provided in Criminal Procedure Code; one by way of lodging of report under section 154, Cr.P.C. With the Police in respect of commission of a cognizable offence and the other by filing of a private complaint before a Magistrate as provided by section 190 of the said Code.
9. Section 154, Cr.P.C. Provides that substance of every information relating to the commission of a cognizable offence, if given to an Officer Incharge of the Police Station, shall be entered in a book, to be kept for such purposes in such terms as the Provincial Government may prescribe the information.
' So far as non-cognizable offence is concerned, section 155, Cr.P.C. Provided that substance of such information, shall be recorded in the book and informant be referred to the Illaqa Magistrate.
10. After recording information under section 154, Cr.P.C. By the Police Officer Incharge Investigation, the matter under sections 156 and 157, Cr.P.C. Lay down the procedure, where cognizable offence is suspected. If he under proviso (b) to subsection (1) of section 157, Cr.P.C. And subsection (2) to section 157, Cr.P.C., is of the view that there is no sufficient ground to investigate, he after recording reasons to that effect in the report, can decline to investigate the case, but it is mandatory for him to notify the information to the fact that hewill not investigate the case or the same will not be investigated. From the perusal of the scheme provided in Chapter XIV, Part V, under section 154, Cr.P.C., a Police Officer is under a statutory obligation to C enter/record the information, relating to cognizable offence in the prescribe register. It is not his ' sweet will to record or not to record it.The question whether information is correct, depends on the investigation, which the Police Officer is required to conduct under section 157, Cr.P.C. The guarantee of the correctness of the information/F.I.R., is ensured by section 182 Cr.P.C. If the report given under section 154 Cr.P.C. Was incorrect, the informant shall be liable to punishment. The Police Officer cannot refuse to register a case where a cognizable offence is made out. The Police Officer D failing to register such case, renders himself, liable to be dealt with by his superior for negligence of duty. The only requirement of law is that the F.I.R. Shall contain information so as to commission of cognizable offence. Section 154, Cr.P.C. Deals with the recording of the information of cognizable cases and that every information relating to the commission of a cognizable offence, is given to the Incharge Police Station, who shall reduce the same into writing and its substance shall be entered in the book kept in the Police Station.
11. Provisions of section 154, Cr.P.C. Is mandatory as it leaves no scope for exercise of any discretion by the Police Officer concerned in recording the first information report or in refusing to record the same.
12. The procedure to be adopted by the Police Officer where he suspects commission of any cognizable offence is provided in section 157, Cr.P.C. These provisions have to be read along with provisions of section 156, Cr.P.C. which authorizes the Officer Incharge of a Police Station to investigate without order of a Magistrate any cognizable offence, where a Court having jurisdiction over the local area within the provisions of Chapter XV Cr.P.C. Relating to the place of inquiry or trial.
Section 157, Cr.P.C. Provides that if, from information received or otherwise, an Officer Incharge of a Police Station has reasons to suspect the commission of an offence which he is empowered under section 156, Cr.P.C. To investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizable of such offence upon a police report, and shall proceed in person or shall depute one of his subordinate officers not being below such rank as the Provincial Government; may, by general or special order, prescribe in this behalf to proceed, to the spot, to investigate the facts and circumstances of the case, and, if necessary, to take measures for the discovery and arrest of the offender. This provision is subject to two provisos. The first proviso authorizes the Officer Incharge not to proceedin person or depute a subordinate officer to make an investigation on the spot when the information as to the commission of any offence is given against any person by name and the same is not of serious nature. The second proviso authorizes him not to investigate the case if there is no sufficient ground for entering on an investigation.
13. Provisions of sections 154, Cr.P.C. And 147, Cr.P.C. Are different in scope. The section which is applicable to a case where the First Information Report is given by some other person and the action is not taken suo motu by the Officer Incharge of a police station, would be section 154, Cr.P.C.
Which makes it incumbent upon such officer to reduce in writing the information given or get it so reduce and then to enter it in the book kept for this purpose.
14. Again rule 24.4 deals with the powers of investigation and not with the recording ' of the First Information Report given by a complainant. In this view of the matter, it cannot be said that these rules vest the police station officer concerned with any power to refuse to record the F.I.R. Of a cognizable offence as required by section 154, Cr.P.C. The section as well as, rule 24.1 uses the word "shall" to make it incumbent upon the police officer to record the F.I.R. Learned counsel for the petitioner tried to make distinction that under section 157, Cr.P.C., the police officer can refuse to record the F.I.R. And enter the same in the report, if according to him no offence is made out.
15. Sections 154 and 157, Cr.P.C. Deal with different contingencies. The former section provides for the recording of the F.I.R. At the instance of a complainant while section 157 deals with the procedure for investigation of any cognizable offence. The latter provisions leaves it to the judgment of the relevant police officer to refuse to investigate in certain cases, where for example, there is no sufficient ground for entering on an investigation. But this power should not be confused with his responsibility to record the First Information Report. He has no choice in the recording of the First Information Report though he has a discretion in the making of investigation or refusing to make it on the grounds given in section 157, Cr.P.C.
16. For what has been discussed above, this writ petition is allowed and the S.H.O., Police Station Sarwar Shaheed, Muzaffargarh (respondent No, 4) is directed to record the information under section 154, Cr.P.C. And thereafter to proceed in accordance with law.