SAYYED MAZAHAR ALI AKBAR NAQVI, J.---With the concurrence of learned counsel for the parties, the instant case is being dealt as Pakka case.
2. Through the instant constitutional petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, Habib Ullah, petitioner, has sought direction to Station House Officer, Police Station Civil Lines, Lahore, to register a criminal case against the culprits as directed by learned Additional Sessions Judge, Lahore in terms of order dated 24-11-2010:
3. Succinctly, facts of the case, arising out of the petition are that the petitioner filed an application under section 154, Cr.P.C. Before the S.H.O./respondent No.2 against Liaquat Hussain Mintoo, Amjad Raza' Laiq Butt, Tahir Butt, Mudassar and three others; mentioning therein that Sajid son of the petitioner has been employed at New Allied Electronics Industry Private Limited, Lahore. On 3-8- 2010, the accused persons under the garb of a meeting, called his son at their residence and while levelling allegation of theft in Workshop, kept him hostage within the premises of Industry situated at 11-A, Lawrance Road, Lahore. Thereafter at 11-00 p.m. (night), they contacted Shakir Ali, son of the petitioner, brother of Sajid, on his Mobile No.0333-4310075 and asked him to arrange Rs.5,00,000 for the release of his brother. When Shakir Ali, in search of his brother, reached at Industry, the accused persons along with three unknown persons, started beating them and also gave them fist blows.
The accused persons in order to set at liberty Muhammad Sajid, took gold ornaments weighing 6- Tolas and while releasing him also took cheque No.2850991 dated 1-11-2010 amounting to Rs.2,00,000 with an intent to lodge a criminal case if they tried to proceed in the matter in accordance with law.
4. Learned counsel for the petitioner while opening arguments submitted that prima facie application of the petitioner spells out commission of cognizable offence and the S.H.O./respondent No.2 was duty bound to lodge a criminal case against the culprits. Learned counsel next contended that the learned Additional Sessions Judge/Ex-Officio Justice of Peace, Lahore while exercising powers under section 22-A, Cr.P.C. Passed a clear-cut direction to respondent No.2 to discharge his obligation, if the petitioner approached him, therefore, the noncompliance of the order passed by the learned Additional Sessions Judge/Ex-Officio Justice of Peace, the S.H.O. Has committed contempt of court and he is liable to be proceeded against on this count too. Learned counsel next agitated that in the landmark judgment passed by august Supreme Court of Pakistan in the case of Muhammad Bashir v. Station House Officer, Okara Cantt.
And others (PLC 2007 SC 539), it is the statutory duty of the S.H.O. To register a case while exercising powers under section 154, Cr.P.C. And any act on his behalf to refuse or to avoid to register a case, has been deprecated. Learned counsel next argued that report under section 157, Cr.P.C. Could not have been made without proceeding under section 154, Cr.P.C. It was next contended by the learned counsel for the petitioner that act of the S.H.O. Not only failing in discharging his duties under section 154, Cr.P.C., rather disobeying the order of the competent court by the S.H.O., has resulted into grave miscarriage of justice. In this backdrop, learned counsel prayed for a direction to the S.H.O./respondent No.2 to proceed in accordance with provisions of section 154, Cr.P.C. And register a criminal case against the accused culprits. The learned counsel for the petitioner has placed reliance on Said Jalal and 2 others v. The State and another (1972 SCMR 516), Muhammad Shah and 3 others v. The State (1982 PCr.LJ 124), Haji Muhammad Khan v. Ch. Khizar Hayat and 3 others (PLD 1977 Lahore 424) and Muhammad Aslam Saleemi Advocate v. The Pakistan Television and another (PLD 1977 Lahore 852).
5. As against above learned counsel representing the accused, against whom F.I.R. Has been sought, has vehemently opposed the contentions raised by learned counsel for the petitioner. It was argued that report submitted by S.H.O./respondent No.2 before the learned Additional Sessions Judge/Ex-Officio Justice of Peace, as well as, before this Court clearly depicted that the occurrence as mentioned in the application filed by the petitioner, was against the real facts and circumstances. On the receipt of information of theft of several parts from the Industry, an inquiry was held and Muhammad Sajid and others were found guilty and some amount was also deposited by them. Learned counsel also argued that as the averments of the application were found false, therefore, the S.H.O./respondent No.2 was well justified in proceeding under section 157, Cr.P.C. Qua order dated 24-11-2010 passed by the learned Ex-Officio Justice of Peace, learned counsel for the accused stated that the same has been passed in a stereotype manner, which being against the actual facts has no weight.
6. Learned Additional Advocate-General, however, while supporting the scheme of law has vehemently urged that the practice of police officials incorporating report under section 157, Cr.P.C.
Without adverting to provisions of section 154, Cr.P.C. Should be deprecated.
7. I have given my anxious consideration to the arguments' and gone through the record as well as case law cited by learned counsel for the petitioner.
8. First of all I intend to dilate upon the course necessary for registration of a crime report. In the Criminal Procedure Code, section 154, Cr.P.C. Deals with this question. It would be advantageous to reproduce the same for ready reference, which reads as under:-- "Every information relating to the commission of a cognizable offence if given orally to an officer incharge of a 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 ..."
Bare perusal of the section supra reveals that a statutory duty casts upon officer Incharge of Police Station to enter information regarding commission of any cognizable offence. Requirement of law is that Police Officer has to record F.I.R. Mandatorily of a cognizable case under section 154, Cr.P.C.
Whenever a cognizable offence has been committed.
9. As the main crux of lis between the parties revolves around section 157, Cr.P.C, therefore, it would be advantageous to reproduce the swpa section, which reads as under:--
157. Procedure where cognizable offence suspected.---(1) If, from information received or otherwise an officer incharge of a police station has reason to suspect the commission of an offence which he is empowered under section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance 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: Provided as follows:
(a) Where local investigation dispensed with. When any information as to the commission of any such offence is given against any person by name and the case is not of a serious nature, the officer incharge of a police station need not proceed in person or depute a subordinate officer to make an investigation on the spot;
(b) Where police officer incharge sees no sufficient ground for investigation. If it appears to the officer incharge of a police station that there is no sufficient ground for entering on an investigation, he shall not investigate the case.
(2) In each of the cases mentioned in clauses (a) and (b) of the proviso to subsection (1), the officer incharge of the police station shall state in his said report his reasons for not fully complying with the requirements of that subsection, and, in the case mentioned in clause (b), such officer shall also forthwith notify to the informant, if any, in such manner as may be prescribed by the Provincial Government, the fact that he will not investigate the case or cause it to be investigated."
Bare reading of section 157(1), Cr.P.C. Wherein it is mentioned that an officer incharge of a police station has reason to suspect the commission of an offence which he is empowered under section 156 to investigate, depicts that section 157, Cr.P.C. Comes into play when the matter has been initiated under section 154, Cr.P.C.
10. In the landmark judgment in the case of Haji Muhammad Khan v. Ch. Khizar Hayat and 3 others (PLD 1977 Lahore 424), it was held as under:-- "The provisions of sections 154 and 157 of the Criminal Procedure Code 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 suo motu by the officer incharge of a police station, would be section 154 which C makes it incumbent upon such officer to reduce in writing the information given or get it so reduced and,then to enter it in the book kept for this purpose. The provisions to section 157 are applicable only to investigation and not to the recording of the First Information Report."
Similarly in the case of State of West Bangal and others v. Sanchaita Investments and others (AIR 1982 Supreme Court 949), it has been held as under:-- "A First information report which does not allege or disclose that the essential requirements of the penal provision are prima facie satisfied, cannot form the foundation or constitute the starting point of a lawful investigation.
11. The upshot of my above discussion is that proceedings taken by the S.H.O./respondent No.2 under section 157, Cr.P.C. Without registering case under section 154, Cr.P.C. Are against the canons of law, as well as, settled principles by the superior courts of the country, on the subject. Therefore, the instant petition is allowed. Resultantly, the application of the petitioner, filed before the S.H.O/respondent No.2, shall be deemed pending before him, who is directed to proceed on the application of the petitioner strictly in accordance with law.
12. The instant writ petition is accepted in the above terms.