Through this Constitutional petition the petitioner seeks direction for Respondent No, 1 for registration of a criminal case under the provision of Section 154 Cr.P.C. in accordance with law.
2. Briefly the facts of the case are that on 26.11.2008 at about 10:00 p.m. Respondent Nos,2 to 10 trespassed into the house of the petitioner while armed with deadly weapons, abducted the petitioner and subjected him to tortue, and gave severe beating to him to put pressure on the petitioner to sale out the land measuring 167-Kanals 10- Marlas situated in village Chowkia, Tehsil Sahiwal. District Sargodha in favour of Respondent No, 2 who is ex-MNA and landlord of the area.
The petitioner moved applications before Respondent No, 1 and before DPO Sargodha for registration of an F.I.R. but no action was taken on these applications. Thereafter, the petitioner approached the learned Justice of Peace through an application on 04.02.2010. The learned Justice of Peace instead of applying its mind to the petition and directing the respondent SHO to lodge a criminal case dismissed the petitioner's application through the impugned order dated 17.02.2010 to the effect that, "police has reported that no such occurrence took place. Admittedly there is land dispute between the parties pending in Court. Petitioner has failed to produce any MLC. Petition has been filed just to put more pressure on the respondents. The same is dismissed".
3. On the strength of case reported as Muhammad Bashir versus Station House Officer, Jhang Cantt., and others (PLD 2007 S.C. 539) learned counsel for the petitioner contends that from the contents of the applications submitted by the petitioner before the respondent SHO and DPO Sargodha, prima facie, a cognizable offence is made out. That the respondent S.H.O. was duty bound to lodge an F.I.R. as no authority vests with an officer Incharge of a police station or with anyone else to refuse to record an F.I.R. where the information conveyed, discloses commission of a cognizable offence. Adds that the impugned order dated 17.02.2010 passed by learned Addl.
Sessions Judge, Sargodha Camp at Shahpur Saddar is not a speaking order, lacks application of mind, without jurisdiction and thus not sustainable under law. That the learned Addl. Sessions Judge, has fell in error while passing the order dated 17.02.2010.
4. Learned A.A.G. states that during the pendency of the applications by the petitioner before the Respondent No,1 DPO Sargodha, the petitioner approached the learned Justice of peace seeking direction for respondent SHO to register a criminal case against the accused-persons. Therefore, in the circumstances, the learned Addl. Sessions Judge, Sargodha has rightly dismissed the petitioner's application on the ground that some land dispute between the parties is pending in the Court.
5. Arguments heard. Record perused. Bare perusal of the applications by the petitioner before Respondent No, 1 and DPO Sargodha reveals that, prima facie, a cognizable offence is made out.
The petitioner approached the police hierarchy for registration of a criminal case against the accused persons. Thereafter, the petitioner approached the learned Addl. Sessions Judge for directions to respondents for the said purpose which has been dismissed through the impugned order.
6. No provision exists in the Code of Criminal Procedure or any other law which permits a S.H.O. to refuse to record an F.I.R. provided the information conveyed to him discloses the commission of a cognizable offence. Provisions of Section 157 Cr.P.C. equip a police officer only with a discretion to refuse to investigate a case and no where do these provisions, even remotely indicate, any power vesting in the S.H.O. to refuse to record an F.I.R. if the information conveyed to him discloses commission of a cognizable offence. Needless to add that, rules are always subordinate to the statutory provisions and no rule can permit what was not allowed by a statutory provision.
7. This Court is fortified while forming its opinion from the judgment of Hon'ble Supreme Court of Pakistan in case of Muhammad Bahir versus Station House Officer, Jhanq Cantt., and others (PLD 2 7 S.C. 539). Despite this responsibility falling upon the shoulder of Respondent No, 1 he failed to exercise the responsibility which was incumbent upon him under Section 154 Cr.P.C. to register a case and then to investigate the same in accordance with law. If police officials fail to incorporate in the register a complaint so made, this amounts to failure on the part of the respondent to perform the statutory day as a public servant. The information mentioned in Section 154 Cr.P.C. appears to be something in the nature of a complaint or accusation or at least information of a crime with the object to putting the criminal law into motion. There should remain no doubt in the mind of the SHO that in case of commission of a cognizable offence, an F.I.R. should have been registered.
8. The learned Additional Sessions Judge has failed to apply his judicial mind, to consider the information placed before him and to examine whether the information contained in the application of the petitioner did or did not disclose something resulting in commission of a cognizable offence. If the answer was in the affirmative, then it was incumbent upon the learned Justice of Peace to issue directions to the SHO to record an FIR without going into the veracity of the said information. If the answer was in the negative then it was imperative for the learned Addl.
Sessions Judge to pass a speaking order with reasons in writing.
9. For what has been discussed above, this writ petition is allowed. A copy of this order be sent to Respondent No, 1 who shall proceed under Section 154 Cr.P.C. on the application of the petitioner under intimation to the Deputy Registrar (Judl.) of this Court.
Disposed of.