' SABIHIJDDIN AHMED, C.J.--- The petitioners who are doctors, paramedics and other administrative functionaries of the Liaquat National Hospital, Karachi, have called in question the order of the Ex- officio Justice of Peace (respondent No,1) dated 4-8-2006 directing the S.H.O. Police Station New Town, Karachi (respondent No,3) to register a case against them on the basis of an application by the respondent No,2 alleging that his wife and new born baby died on account of criminal negligence of the petitioners.
2. The admitted facts appear to be that the respondent No,2 made a request in writing to the respondent No,3 alleging that owing to incompetence and grave negligence of doctors and the callous attitude of the 'management of Liaquat National Hospital, his wife and new born baby died on account of not being given .Proper and appropriate treatment. It was, requested that an F.I.R. For their "Qatl-e-Amd" be registered against four directors and nine doctors of the Hospital.
Nevertheless, it appears that no further action was taken by the respondent No,3, whereupon the respondent No,2 invoked the jurisdiction of the respondent No,1 under section 22-A(6) of the Criminal Procedure Code in June, 2006 and the later after a detailed examination of the material relied upon by the respondent No,2 allowed the application and directed the respondent No,3 to register a case. Against the concerned doctors, administration and paramedics of the hospital.
3.. Mr. Azizullah K. Shaikh, learned counsel for the petitioners, emphatically argued that respondent No,1 had no jurisdiction to examine 'the merits of the allegations made by the respondent No,2 and issue directions to the respondent No,3 for registration of the case. According to learned counsel, it was the sole function of the Investigating Officer to decide whether an F.I.R. Was required to be registered and against whom and the respondent No,1 could not assume such functions which were conferred by law upon the Officer Incharge of a police station. Learned counsel argued that under section 154, Cr.P.C. The decision to register or not to register an F.I.R. Was to be made by the Officer Incharge of the police station under section 154, Cr.P.C. Upon an independent application of mind and a direction by the respondent No,1 requiring him to do so is ultra vires the powers of the respondent No,1. On merits he urged that under no circumstances could hospital administration be found guilty of criminal negligence and at best only one of the doctors could be accused of the offence. In support of his contention Mr. Azizullah Shaikh relied on a recent decision of a Division Bench of this Court in C.P. No,D-1917 of 2006 wherein it was observed as follows:-- "In the circumstances the petitioner is directed to take the written complaint to the concerned officer incharge of police, station, if so advised, who will conduct himself within the parameters of section 154, Cr.P.C. Under which it is his prerogative and statutory duty to form opinion from the information received either orally or written as to whether or not a cognizable offence has been committed then he is required to register the F.I.R. And cannot refuse to do so. If he forms opinion that no cognizable offence has been committed but a non-cognizable offence has been made out, then he is required to register such information in the station diary of the police station and refer the informant to the Magistrate as provided under section 155, Cr.P.C. For forming any such opinion, the officer incharge of a police station has to form his own independent, honest, fair, just opinion and for advancement of the purpose of the enactment without influencing himself from any quarters or circumstances or pressure or direction from any authority or Justice of Peace or Court to form a particular opinion or with respect to offence."
4. Mr. Abdul Jabbar Lakho, learned Assistant Advocate-General, however, argued that once the allegations of commission of a cognizable offence was made, the respondent No,3 was left with no discretion to record or not to record the F.I.R. An F.I.R. According to. Learned A.A.-G. Was the first step to set the criminal law into motion and only after having recorded the F.I.R. Investigation into the allegations contained therein could take place and the findings on the basis of such investigation were to form the basis of a challan presented before the Court.
5. Having carefully considered the assertions of learned counsel we are of the view that learned Assistant Advocate-General appears to be correct in contending that wide discretion to register or not to register the F.I.R. Does not vest in a police officer. To hold otherwise would mean that such officer may be fully empowered to pick and choose as regards to which particular case he would like to investigate and would refrain from investigating the other case. There is also force in the arguments that the process of investigation would normally start only after recording the F.I.R.
6. With reference to the judgment cited above, we are inclined to observe that Mr. Shaikh seems to be reading a little more than what it really says. No doubt, it is the function of S.H.O. To determine whether an F.I.R. Is to be recorded but such determination is only confined 4.o the question whether the allegations contained in the information conveyed to him, prima facie, amount to a cognizable or a non-cognizable offence. In case the information received, prima facie, constitutes a cognizable offence he would record F.I.R. And otherwise proceed under section 155, Cr.P.C. The question as to the truth of the information or the involvement of the persons mentioned as having committed the offence will be determined in the course of investigation and his conclusions arrived at thereby could be stated in his report under section 169, Cr.P.C. Indeed their Lordships did not intend to hold that an ex-officio Justice of Peace could not pass any order on a complaint regarding non-registration of a criminal case or neglect of duties by a Police Officer. Therefore, we are of the opinion that whenever a Police Officer fails to register a criminal case a direction to do so can always be issued under section 22A(6)(1), though it will be for such officer to determine whether the matter falls under section 154 or 155, Cr.P.C.
7. Indeed, we are conscious of the fact that upon the conferment of powers under section 22A(6), applications for quashment of F.I.Rs, have been multiplying and parties expect a Court to adjudicate upon the truth or otherwise of the allegations even without investigation process having been completed. Apparently, it happens on account of the apprehension of arrest that they face upon registration of F.I.Rs, containing allegations, which may be false. We need to reiterate that truth or falsehood of the allegations could only be determined during or after investigation.
However, it needs to be made clear that though the police is required to investigate every allegation of commission of a cognizable offence a person named as an accused cannot be arrested unless some tangible material becomes available, which can cause a reasonable suspicion of his having committed the offence as laid down by the Honourable Supreme Court in Government of Sindh v. Raeesa Farooq 1994 SCM R 1283. Such protection is sufficient for any innocent person against whom a false F.I.R. Is registered.
8. Coming to the merits of the instant case, we are satisfied that once the respondent No,2 had conveyed information to the police regarding commission of an offence its failure to submit a report before a Court within the time fixed by law was a good ground for enabling him to approach the Ex-Officio Justice of Peace who could pass an order directing registration of a case.
Nevertheless, Mr. Shaikh appears to be right in contending that the latter had no occasion to undertake a detailed analysis of the allegations and other material and record his own opinions, which could possibly influence the process of investigation.
9. For the foregoing reasons, by a short order announced on 1-3-2007, we had dismissed the petition with the observation that the police should investigate the matter, being uninfluenced by any observation made in the impugned order and that the petitioners should not be arrested unless some tangible material connecting them with the commission of a cognizable offence become available.