Learned counsel for the petitioner has objected to the presence of the A. A.-G. And has contended that the State will not be a proper party until an F.
1. R. Has been registered. The contention is based on the supposition that there can be no case unless a report about it has been entered by the Police. The situation here is not so, because an F.
1. R. Has already been entered at the instance of the Police and the petitioner's party did approach the Police for recording their F. I. R. About the occurrence, which was declined though an entry was made in the diary by the Police. There is, therefore, a case already registered though not incorporating the petitioner's version. In the circumstance, on the question whether the refusal by the S. H. O. To record the F. I. R. Of the petitioner was justified and whether a direction can issue to him, the Stale, to my mind, is a proper party. Even otherwise, a question of law is involved as to whether when an F. I. R. Has already been registered in respect of the occurrence, another F. I. R. Can be recorded over the same occurrence on the basis of the counter allegation made by the accused party. I am, therefore, of the view that the State could be made a party. Even if the State is not made a party, there is nothing to prevent this Court from seeking assistance of the Law Officer on a question of law. Mr. R. A. Awan expressed the fear that the learned Assistant Advocate-General would be trying to defend the Police Officers for which according to him there was no occasion. I am afraid, the question of defending the Police Officers is not involved. Alt that is required to be examined is whether in the given circumstance, the Police can be directed under the law to record the F.
1. R. Of the petitioner. I have, therefore, heard the petition in the presence of Mr. Tanweer Ahmad Khan, learned Assistant Advocate- General.
2. It appears that on 2-10-1980, at about 5-30 p.m. An A. S. I. Of Police Station Sadar, Sargodha, on the receipt of an information, that Car No. LEY-6406 was coming ,from Bhalwal side carrying unlicensed arms and ammunition, held a nakabandi and on spotting the car stopped it and effected recovery therefrom of certain arms and ammunition in respect of which Muhammad Riaz, the driver of the car was apprehended at the spot (another person seen sitting in the car had managed to escape). Muhammad Riaz could produce no licence for the arms and ammunition recovered from the car. An F. I. R. Bearing No. 402 dated 2-10-.1980 under section 13 of the Arms Ordinance was accordingly registered. The petitioner does not deny the occurrence but his case is that the weapons recovered were licensed ones and that the Police had also taken away Rs.
25,000, two cheque books and other documents placed on the front seat of the car, which property was allegedly misappropriated by the Police. According to the petitioner, there is a background of enmity between him and the respondent Police Officers which had led to the filing of a number of writ petitions in the High Court. The petitioner has stated that he approached the Police for the registration, of his case but the same was refused by the S. H. O. (respondent No. 1) whereupon he addressed a registered letter making out cognizable offences under sections 395, 397, 365. 342, 506, 409 and 211, P. P. C. He has asserted that "the registration of the case is the only efficacious remedy under the law as the recovery of huge stolen property is to be effected from the accused and if no case is registered then no recovery would be effected from the respondents Nos. 2 and 3 and most important corroborative evidence would not be collected". He has, therefore, prayed that the S. H. O. (respondent No. 1) be directed to register his case against Superintendent of Police, Sargodha (respondent No. 2) and Sub-Inspector/S. H. O., Police Station Sadar, Sargodha (respondent No. 3).
3. The submission of Mr. R. A. Awan is that it was not merely for recording of another version for which the petitioner had approached the Police but that the petitioner has a definite and clear counter allegation against the Police which requires making investigation and effecting recovery which can be done only by registering the case and as such the petitioner was entitled to the recording of his F.
1. R. In this connection, he relied on Ch. Ataullah v. Ch. Mumtaz Ahmad Kahloon1973 P Cr. L J 69, Sawant v. S. H. O., Police Station Saddar, Kasur PLD 1975 Lah. 733, and Akram A.I Shah v Station House Office, Police Station Kotwali, Kasur PLD 1979 Lah. 320. In the first cited case, it was observed :- "It is one thing to say that sortie case is registered with reference to a particular incident and quite another that a case is registered with reference to the particular allegations. It is admitted by the learned counsel that no case was registered in respect of the allegations made in this case. If some other case was registered in respect of the incident which happened on that day that would not be a bar for the registration of another case on different allegations though arising out the same incident."
The view was endorsed in the second cited authority in which it was held: "The version given by the complainant party only describes their side of the case as to bow the offence was committed. The petitioner now insists that this version is not correct and that his side of the case should be investigated according to law . . . . In my view, the correct legal procedure for the Police should have been to record the F. I. R. Containing the counter version and to have investigated it. If they found that the evidence adduced by the petitioner did not sustain the charge they could have submitted a report to the Magistrate for cancellation of the case."
These views were followed in the third cited case with the following observation;-- "It cannot be laid down as a proposition of law that if one F.
1. R. Pertaining to a particular occurrence has been registered then another F.
1. R. Containing the counter version of the same occurrence cannot or ought not to be registered. . . If the accused of a particular case have a counter version for purposes of defence only then it is obvious that they are not handicapped in any manner whatsoever, even if a formal F.
1. R. Containing that version is not in existence. On the other hand, however, if the accused of a particular case have a counter version by way of a grievance, then unless a formal F. I. R. Containing that grievance exists, the accused of the counter case could get away without any punishment therefore in a situation of the latter type the existence of a counter F.
1. R. Would appear to be equitable, as a private complaint is erroneously not given the due importance."
4. In view of the above rulings and considering the fact that what the petitioner alleges would constitute a distinct grievance not covered by the F. I. R. Already recorded by the Police, it can be argued that the petitioner is entitled to the recording of an F. I. R. At his instance. The entitlement, nevertheless, is not absolute. In Mst. Bashiran Bib! v. Station House Officer, Police Station, Shorkot PLD 1978 Lah. 1523, the view expressed was;-- "The High Court cannot, while directing registration, prohibit the S. H. O. From investigating the case nor this Court has jurisdiction to transfer the investigation. 1f the S. H. O. Is inimical to the petitioner on account of any interest in the accused persons, he is likely to spoil the case of the petitioner even in the first few ziminis which he would be bound to record immediately after the registration of the case. Several complaints have been made to this Court after a direction for registration of case in the form of subsequent writ petitions and contempt applications that in such like cases the Police tries to spoil the case of the complainant as a measure of revenge. Correction during investigation then becomes impossible. In the circumstances like those explained by the learned counsel the remedy by filing a "complaint" directly before the Magistrate is more effective and efficacious. While on the one band if a case is registered the investiga--petition remains in the bands of the opponents of the complainant including a prejudiced Police Officer, on the other hand, the control of the prosecution through a preliminary enquiry by a Magistrate remains in the hands of the complainant and the counsel conducting the case. The difficulty often expressed with regard to a Magistrate dealing with such like cases, is regarding some functions which the Police can perform during the investigation. For example, in this case also learned counsel has pointed out that during alleged rape committed on the petitioner by several persons, she was forced to thumb mark some documents and according to the learned counsel it would be possible only for the Police to recover those documents and produce them in Court as corroboratory pieces of evidence. There is nothing in this connection which the Police can do and which the Magistrate cannot get it done through the Police under his own direction and control. The Criminal Procedure Code gives vast powers to a Magistrate, when dealing with the criminal trial at the enquiry stage."
Again, in Ghulam Siddique v. Station House Officer Saddar, Dera Ghazi Khan (1), whereupon a concession made on behalf of the State, a direction had issued by a Single Bench in a writ petition for recording of another F.
1. R., a Division Bench of this Court had, in review, recalled that order upon the view; "Further it is also not necessary that every information prima facie disclosing a cognizable offence be recorded. In case of a suspicion about its correctness a Police Officer may enter the substance of the information or intelligence in a station diary and shall also record his reasons for suspecting that alleged offence has not been committed. Reference be made to rule 24.4. However, a copy of such a report is to be sent to the Inspector, Police and other superior Police Officer and the District Magistrate for their perusal and orders."
It is to be noted that in the present case, too, the S. H. O., as appears from his comments, did enter Report No. 18 dated 16-10-1980 in his daily diary on the receipt of the application of the petitioner.
This was presumably in compliance with the requirement of rule 24.4 of Police Rules, 1934, which reads as follows :- 24.4. Action when reports are doubtful.- PLD 1979 Lab. 263, If the information or other intelligence relating to the alleged commission of a -cognizable offence, is such that an officer in charge of a police station has reason to suspect that the alleged offence has not been committed, he shall enter the substance of the information or intelligence in the station diary and shall record his reasons for suspecting that the alleged offence has not been committed and shall also notify to the informant, if any, the fact that he will not investigate the case or cause it to be investigated.
(2) If the Inspector or other superior officer, on receipt of a copy of the station diary, is of opinion that the case should be investigated, he shall pass an order to that effect, and shall, in any case, send on the diary or an extract therefrom to the District Magistrate for his perusal and orders."
1975 SCMR 149, the Supreme Court repelled the plea of an accused for a writ of mandamus against the S. H. O. For registering an F. I. R. On the basis of his version of the incident where an F.
1. R.
In respect of the transaction had already been registered.
5. From the above, it appears that normally the law does not con--template the recording of another F. I. R. In respect of the same occurrence but the Court in a proper situation where the counter allegations levelled are distinct and require investigation, may in its discretion direct the recording of a counter F.
1. R. Even otherwise, the relief to bee granted under the constitutional jurisdiction is discretionary in nature and it cannot be granted in every case merely upon a petitioner showing that he is an aggrieved party. In the matter before me the petitioner's own grievance is that the Police has been inimical towards him and that he had to bring a number of writ petitions and submit applications to the authorities against the Police. It is also a fact that the allegations levelled are directed against the very persons who are to record the F.
1. R. And to investigate the case. On the other side, the S. H. O., respondent No. 3, has in his lengthy comments assailed the conduct of the petitioner and in respect of his counter allegations has commented that, "As regards the allegations that the police also removed a brief-case containing Rs. 25,000 and two cheque books, it may be submitted that it is just a false, fabricated and mischievous attempt on the part of the petitioner to tarnish the image of the Police." The Police has already entered report No. 18 dated 16-10-1980 in the daily diary in compliance with rule 24.4 of the Police Rules and if the Inspector and other superior officers have not thought it fit to order investigation of case, it will be futile to expect that they would do so if the case is registered by entering an F.
1. R. In such a situation, a better and more efficacious alternative available to the petitioner would be the institution of a complaint before a Magistrate. I am, therefore, of the view that whatever be the merit of the petitioner's case, a writ in the nature of mandamus need not issue. 1, therefore, dismiss the petition in limine