1. ' RAFIULLAH SULTANI, I.--- This writ petition is addressed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974.
2. ' The facts giving rise to the instant writ are that respondents lodged two F.I.Rs, against petitioner and he was released on bail from the Court and after that at the instance of private respondents police tortured petitioner. Due to torture and threat of police the petitioner left his village and shifted to Muzaffarabad. The private respondents launched an attack on the house of petitioner at village Challai and killed grandson of the petitioner named Amir son of Ashfaq aged 6 years. Wife of the son of the petitioner informed him (petitioner) at Muzaffarabad. The petitioner moved an application before respondent No,3 for lodging F.I,R. Against the private respondents Nos.4 to 10.
3. Respondent No,3 forwarded the said application to Deputy Inspector-General Police, Muzaffarabad and the same is sent to respondents Nos.1 and 2 for lodging F.I.R. Against private respondents.
4. When the petitioner approached to respondents Nos.1 and 2 for lodging F.I.R. In respect of murder of his grandson, they arrest the petitioner along with his sons in lieu of the F.I.R. No,106 of 2006 under section 216, which was concocted F.I.R. The.Petitioner and his sons were released on bail by the Tehsil Criminal Court on 16-1-2007. The respondents Nos.1 and 2 are not registering the report of murder of his grandson against private respondents. The official respondents 1 and 2 had received bribe from the private respondents and could not lodge the F.I.R. With mala fide intention and recorded the statement of mother of the deceased by threatening her on gunpoint. The witnesses, who are mentioned in application, respondents Nos.1 and 2 are also threatening them. It is the duty of official respondents to register F.I.R., according to occurrence and invest ate the same according to law. When all the efforts proved fruitless then he has filed writ petition before this Court for lodging of F.I.R. On the direction of the Court, respondents Nos.4 to 10 submitted written statements on 30-9-2007, in which the allegations levelled in writ petition have been denied.
5. ' The learned counsel for the petitioner reiterated the grounds of writ and further argued that it has been pleaded in parawise comments by the respondents that allegations against private respondents 4 to 10 have not been proved in police investigation. The version of respondents is not correct because without lodging of F.I.R. Police was not legally authorized/entitled to investigate the matter. He further argued that statement under section 164, Cr.P.C. Cannot be recorded without registration of F.I.R. He further argued that identification of mother of deceased has not been mentioned in her statement under section 164, Cr.P.C. And her statement was recorded at 6-00 p.m., which was not Court time. He further argued that according to law, the statement under section 164, Cr.P.C. Is secret document and how the private respondents got the copy of said document. He further argued that enmity is proved between the parties and on account of that private respondents have murdered the grandson of petitioner. He further argued that according to section 157, Cr.P.C., the official respondents are not authorized to investigate the matter and dismissed due to non-occurrence without filing F.I.R. Lastly, he argued that affidavits sworned in favour of private respondents are false, neither can be given nor can be considered at this stage.
6. He cited following case-law in support of his version:--- (1) 1985 PCr.LJ 1081, (2) 1999 PCr.LJ 1645, (3)
7. PLD 1997 Lah. 135, (4) 1994 PCr.LJ 798 and (5) 2001 SCMR 424. The learned counsel for the respondents reiterated the grounds of written statement and further argued that petitioner is not an aggrieved person and he cannot file writ petition for lodging F.I.R. Against private respondents because the mother of deceased has recorded her statement in the Court of S.D.M. Athmuqam under section 164, Cr.P.C. On 2-12-2006, in which, she has stated that her son fell down from a Nakka ( {{URUDU TEXT}}) near the house on 29-11-2006 at 3-00 p.m. Her son kept out by the persons of locality and reached back to home from beneath the down side of house at that time he was alive. He died on the next day dated 30-11-2006 at 8-00 a.m., which was buried at 4-00 p.m.
8. Under the supervision of my uncle (Lala). My husband was in Muzaffarabad and I was alone in my house. I have no doubt against anyone. They further argued that said statement of mother of the deceased was recorded in the Court of S.D.M. And has got presumption of truth. They further argued that all the notable persons of the village had sworned affidavits, which are on the file that occurrence had not taken place in that matter, which has been alleged by the petitioner in application for lodging the report. They further argued that respondents Nos.4 to 10 are innocent persons and the allegations made by the petitioner have not been proved in police investigation.
9. They further argued that petitioner has alternate remedy to file the private complaint and writ cannot lie on this count too. The application for lodging is based on mala fide intention due to enmity. The police had reached at the conclusion after investigating that respondents Nos.4 to 10 are innocent persons regarding the said occurrence. They cited case-law in support of their version:-- 2004 PCr.LJ 880, 1979 SCMR 484 and 2002 MLD 1250.
10. ' I have heard the learned counsel for the parties and gone through the record of the case carefully.
11. ' The controversy raises the following legal points to be resolved first before dealing the facts of the case is in hand:---
(1) Whether every information relating to the commission of cognizable offence given to S.H.O. Shall be entered in a book to be kept for the purpose?
(2) Whether police can apply for recording of the statement under section 164, Cr.P.C. Without recording of F.I.R.?
(3) Whether a direction can be issued by this Court In case of refusal by the concerned Police Officer for registration of the case disclosing cognizable offence?
(4) Whether the remedy in shape of private complaint is adequate alternate remedy?
12. ' Before dealing the first point, I would like to reproduce the relevant law i,e, section 154 of the Code of Criminal Procedure as under:--- "154 Information in cognizable cases.--- 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."
13. It is evident from the above proposition. Of law that Police Officer is under statutory obligation to receive the complaint preferred to him or take down oral report if it is disclosed a cognizable offence and to investigate the same. If he fails to incorporate in the register a complaint so made, he fails to perform his statutory duty as a public servant. The A information mentioned in section 154 of Code of Criminal Procedure appears to be something in the nature of complaint or accusation or at least information of crime given with the object of putting the law in motion there remains no ambiguity of a case disclosing cognizable offence to be registered.
14. ' Next, the question arises that police can apply to Magistrate for recording of statement under section 164, Cr.P.C. And to investigate the matter in absence of F.I.R.? Here I want to reproduce the section 164 of Cr . P. C . : "164. Power to record statements and confessions.--- (1) (***), Any Magistrate of the first class and any Magistrate of the Second Class specially empowered in this behalf by the [Provincial Governmenf] may, if he is not a Police Officer, record any statement or confession made to him in the course of an investigation under this Chapter or at any time afterwards before the commencement of the inquiry or trial.
15. [(1-A) Any such statement may be recorded by such Magistrate in the presence of the accused, and the accused given an opportunity of cross-examining the witness .Making the statement].
(2) Such statement shall be recorded in such of the manners hereinafter prescribed for recording evidence as is, in his opinion, best fitted for the circumstances of the case. Such confessions shall be recorded and signed in the manner provided in section 364, and statements or confessions shall then be forwarded to the Magistrate by whom the case is to be inquired into or tried.
(3) [A Magistrate shall, before recording any such confession, explain to the person making it that he is not bound to make a confession and that if he does so it may be used as evidence against him and no Magistrate] shall record any such confession unless, upon questioning the person making it, he has reason to believe that it was made voluntarily; and, when he records any confession, he shall make a memorandum at the foot of such record to the following effect:-- [I have explained to (name) that he is not bound to make a confession and that, if he does so, any confession he may make may be used as e=vidence against him and I believe] that this confession was voluntarily made. It was taken in my presence and hearing, and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him."
16. It is evident from section 164 of Cr.P.C. That a statement under section 164 of Cr.P.C. May be recorded at the instance of police but at the request of accused, the aggrieved person or the witness himself. The word accused is used in the section 164 of Cr.P.C., which reveals that in absence of F.I.R. Statement under section 164 cannot be recorded as stated earlier that purpose of F.I.R. Is to give information of a cognizable offence and to set the law into motion. The other purpose of F.I.R. Is to provide a reliable base for initiation of investigation of the crime in right direction, but this would be possible only_if the F.I.R. Is recorded. In case reported in 1985 PCr.LJ 1081 caption (c) titled Muhammad Ramzan v. The Station House Officer, Police Station Jahanian and others it was held as under:-- "(a) Criminal Procedure Code (V of 1898)--- - ---Ss. 154 & 157---Police Rules, 1934, R.24(4)---Incumbent upon Police Officer to record F.I.R.--- Scope and application of Ss.154 & 157, Cr.P.C.---Police has no choice in recording of F.I.R. Through has a discretion in making investigation.
(c) Criminal Procedure Code (V of 1898)--- ---Ss. 154 & 157---Police Officer, held, could not investigate without formal registration of a case."
17. ' Now it is clear from the survey of above case-law that police cannot investigate the matter in absence of F.I.R. And the statement under section 164, Cr.P.C. Cannot be recorded during the investigation of case if the F.I.R. Is registered.
18. ' Now to determine the 3rd point, whether a private complaint is an adequate remedy available to the informant in case of refusal to register his case by police. It may be pertinent to mention that under law a statutory right is available to the aggrieved person to get a case registered and it is imperative for the Police Officer to register the same as stated earlier. Therefore, the remedy of filing a private complaint cannot take place as substitute of statutory right available to the petitioner and a such the last point that relief of registration of a case through the intervention of this Court in writ jurisdiction on the basis of above remedy cannot be refused. This point of view gets support from the case-law:--- PLD 1971 SC 677, PLD 1972 Lah. 493 and PLJ 1975 Cr. C.
19. 368.
20. ' Now coming back to the facts of the case in hand, it is disclosed in writ petition that private respondents Nos.4 to 10 launched an attack on the house of petitioner at village Challai and killed the grandson of petitioner aged 6 years, In the application, which has been moved for registration of F.I.R,, eye-witnesses of occurrence have been mentioned.
21. ' The above said application has been moved before respondent No,3, which directed the respondents Nos,1 and 2 to proceed with according to law. The respondents Nos.1 and 2 without recording the F.I.R. Investigated the case and at the instance of police the statement of mother of deceased was recorded before S.D.M. Athumuqam on 2-12-2006 after the Court time at 6-00 p.m.
22. It may be observed that the Officer Incharge of Police Station Athmuqam was duty bound to register such application in the register provided by the. Government for this purpose and then make an investigation under law as provided under section 157 of Cr.P.C. The Officer Incharge Police Station Athmuqam has failed to perform his legal duty in registering a case, which otherwise prima facie disclosed a cognizable offence. It is safely concluded that the S.H.O. Athmuqam was duty bound to register a case and then investigate the same in accordance with law.
23. ' Keeping in view the over all circumstances of the case, which have been pleaded in writ petition the objection raised by the learned counsel for the respondents with regard to laches is not applicable on the case in hand. Similarly, the question raised with regard to the petitioner for not being aggrieved person is also devoid of force because case relating to cognizable offence can be registered at the instance of any person and the writ petition could also be filed by a person having such grievance. The ground relating to submission of affidavits is also devoid of force as the F.I.R.
24. Was not registered and the same could not be considered at this stage in absence of F.I.R.
25. ' In view of above, this writ petition is accepted and it is directed to the official respondents 1 to 3 to register F.I.R. In accordance to the contents of application submitted by the petitioner. The same shall be investigated in accordance with law and the case shall be made over to any Police Officer, who has not conducted inquiry/investigation earlier. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.