' SH. NAJAM-UL-HASAN, J.---By way of this common order Writ Petition No. 29215 of 2011 (Misal Khan v. Govt. Of Pakistan and others), Writ Petition No.29606 of 2011 (Sardar Dost Muhammad -Khosa v.
I.G.P. Punjab and others) and Writ Petition No. 29 of 2012 (Misal Khan v. Sardar Dost Muhammad Khosa and others) are being disposed of together as matter in issue is the same.
2. Vide order dated 17-1-2012 the Hon'ble Chief Justice entrusted Writ Petition No 23909 of 2011 (Judicial Activism Penal v. Government of Punjab and others) along with these petitions to this Bench for disposal as the matter in issue in these petitions relates to the recovery of one Mst. Zeba Khan alias Sapna Khan or registration of a criminal case.
3. Brief history of this matter may be given first:- One Mst. Zeba Khan alias Sapna Khan, statedly daughter of Misal Khan (petitioner in Writ Petitions Nos. 29215 of 2011 and 29 of 2012) and statedly ex-wife of Sardar Dost Muhammad Khosa, (petitioner in Writ Petition No.29606 of 2011) went missing. Judicial. Activism Panel through Mr. Muhammad Azhar Siddique, Advocate filed Writ Petition No.16353 of 2011 against Govt. Of Punjab for recovery of said Mst. Sapna Khan which was dismissed by this Court vide order dated 14-7-2011 with the observation that the petitioner may file a petition under section 491, Cr.P.C. Thereafter a petition under section 491, Cr.P.C. Was filed by the same petitioner which was entrusted to Mr. Malik Mobeen, learned Addl. Sessions Judge, Lahore.
The same was however dismissed for non-prosecution. Later on the same was restored on the same day but later on again dismissed for non-prosecution on 12-8-2011. On an application of the petitioner the matter was referred to another learned Addl. Sessions Judge (Ch. Nazir Ahmad).
Ultimately on 15-9-2011 said application was again dismissed. Writ Petition No. 23909 was filed on 25-10--2011 by Judicial Activism Panel through Muhammad Azhar Siddique, Advocate against Govt.
Of Punjab and others for production of Mst. Zeba Khan and for registration of case. This petition was, however, dismissed as withdrawn on 24-2-2012. On 25-11-2011 Misal Khan statedly father of Mst. Zeba Khan filed an application under section 22-A/ 22-B, Cr.P.C. Before Ex-Officio Justice of the Peace essentially seeking issuance of a direction to the S.H.O. Of Police Station Race Course, Lahore for registration of a case. The same was decided by the learned Addl. Sessions Judge having powers of Ex-Officio Justice of the Peace vide order dated 7-12-2011. The operative part of the said order runs as under:-- "Be that as it may, the petitioner is directed to approach for redressal of his grievance to the police and the S.H.O. Of Police Station Race Course is directed to record the version of the petitioner and if any cognizable offence comes on the surface he is directed to record the version of the petitioner and get investigated the matter from the concerned quarter and if the version of the petitioner found false, he is directed to proceed under section 182, P.P.C. And to effect the arrest of accused to keep in mind the provisions of section 169, Cr.P.C. With this observation, petition is disposed of. File be consigned to the record room after its due completion."
' It seems that the respondent-S.H.O. Did not oblige Misal Khan, petitioner with registration of case, as such he filed another application before the learned Ex-Officio Justice of the Peace/Addl.
Sessions Judge, Lahore for issuance of direction to the S.H.O. To implement the above mentioned order dated 7-12-2011. During proceeding of the said application on 12-12-2011 objection was raised by learned counsel appearing on behalf of Sardar Dost Muhammad Khosa, that the person present before learned Court as petitioner was not actual father of Mst. Sapna Khan and was impersonating to be genuine person. Ex-Officio Justice of the Peace directed the respondent S.H.O.
To inquire into identity of said Misal Khan, statedly father of Mst. Zeba Khan. Ultimately on 14-12-2011 this application was decided and the matter was referred to C.C.P.O. Lahore. On 16-12-2011 the C.C.P.O. Lahore directed the D.I.G. Operations, Lahore to ensure that orders of Ex-Officio Justice of the Peace dated 7-12-2011 and dated 14-12-2011 are duly complied with in letter and spirit. In the meantime vide Rapt No. 21 dated 11-12-2011 in the Daily Diary of the Police Station Race Course Lahore, the S.H.O. Reported that contents of the application filed by Misal Khan were inquired and found false. Later on 20-12-2011 another Rapt No. 17 was entered in the Daily Diary of the police station in which it was stated that a report under section 157(2), Cr.P.C. Read with Rule 4 of Chapter 24 of the Police Rules 1934 was sent to the Magistrate in this matter while finding the contents of the application false.
' On 22-12-2011 Misal Khan filed Writ Petition No. 29215 of 2011 for direction to the respondents for implementation of orders of Ex-Officio Justice of the Peace dated 7-12-2011 and 14-12-2011. During proceedings of the said petition the respondent-S.H.O. Produced a report which he prepared and sent to the Magistrate under section 157(2), Cr.P.C. And informed that the report was received by the Magistrate on 4-1-2012 but till date no order has been made by the learned' Magistrate in this matter.
' In the meantime Sardar Dost Muhammad Khosa also filed an application under section 22-A/22- B, Cr.P.C. On 22-12-2011 for registration of a case against Misal Khan and others. The Ex-Officio Justice of the Peace/Additional Sessions Judge, Lahore passed the order on 24-12-2011 operative part of which is also reproduced hereunder:-- "Be that as it may, the petitioner is directed to approach for redressal of his grievance to the police and the S.H.O. Of Police Station concerned is directed to record the version of the petitioner and if any cognizable offence comes on the surface he is directed to record the version of the petitioner and get investigated the matter from the concerned quarter and if the version of the petitioner found false, he is directed to proceed under section 182, P.P. C. And to effect the arrest of accused to keep in mind the provisions of section 169 Cr.P.C. With this observation, petition is disposed of.
File be consigned to the record room after its due completion."
' The case was not registered in accordance with the order dated 24-12-2011 and as such Writ Petition No. 29606 of 2011 has been filed by Sardar Dost Muhammad Khosa, seeking issuance of a direction to the S.H.O. To implement the said order for registration of the case.
' Misal Khan has filed Writ Petition No. 29 of 2012 calling in question the same order dated 24-12-2011 passed by Ex-Officio Justice of the Peace in the application under sections 22-A/22-B, Cr.P.C. Of Sardar Dost Muhammad Khosa.
4. The matters remained pending before this Court and were adjourned on request of the police that efforts were being made to trace out whereabouts of Mst. Zeba Khan but till date statedly no clue has been got by the police.
5. I have heard learned counsel for the petitioners in all these petitions as also the learned Law Officer and also gone through the record.
6. At one stage the learned Law Officer and even learned counsel for the parties tried to argue that the other party had alternate remedy available to him by way of a private complaint, as such the writ petition filed by the other side was not competent and the parties may be directed to avail of the alternative remedy. Reference in this regard was also made to the case reported as RAI ASHRAF AND OTHERS V. MUHAMMAD SALEEM BHATTI AND OTHERS (PLD 2010 SC 691). I have gone through the said precedent case and have found that facts and circumstances in the said reported case were entirely different from the present case and it has been laid down in the said authoritative judgment that each and every case is to be decided on its own peculiar facts' and circumstances.
In the present case filing of private complaint, is not alternative remedy because both the petitioners have approached this court through their respective writ petitions for, implementation of orders of the Ex-Officio Justice of the Peace. Secondly, both the parties are primarily interested in recovery of Mst. Zeba Khan which exercise can more effectively be undertaken through investigation. Thirdly the respondentS.H.O. Seems to have refused to comply with order of his most senior police officer and fourthly because that even the Magistrate did not take any action in the matter under section 159, Cr.P.C.. On the report of the S.H.O submitted under section 157(2), Cr.P.C.
6. Essentially these matters relate to the recovery of Mst. Zeba Khan who is not traceable for the last many months and when no clue was made available, Misal Khan, father of said Zeba Khan filed a petition under 22-A/22-B, Cr.P.C. For registration of a criminal case in which the Ex-Officio Justice of the Peace passed an order issuing direction to the respondentS.H.O. Which has been reproduced above. Even the C.C.P.O. Lahore has directed the respondent-S.H.O. Through the DIG. Operations, Lahore to comply with orders of Ex-Officio Justice of the Peace. The S.H.O. Instead of complying with the order, started proceedings under section 157(2), Cr.P.C. And gave certain opinion that accusations made in the application by Misal Khan were found incorrect. Sardar Dost Muhammad Khosa also filed a petition under 22-A/22-B, Cr.P.C. For registration of a criminal case in which again the Ex-Officio Justice of Peace ordered the S.H.O. Which has also been reproduced above.
However, regarding application filed by Sardar Dost Muhammad Khosa no proceedings were taken by the S.H.O. And the said matter remained pending with the S.H.O. For one reason or the other mainly on the ground that efforts were being made by the police to recover Mst. Sapna Khan with the help of both the parties but till date her whereabouts have not been traced out.
7. It is strange that orders of Ex-Officio Justice of the peace have not been complied with 4 the respondent-S.H.O. More so in spite of order of the C.C.P.O. Lahore and the D.I.G. Operations in this regard. The Police Department has been divided into different categories which include Operation and the Investigation. Both these wings have to act separately. After registration of the case the matter can only be investigated by the Investigation Wing of the police department and in Lahore it is headed by the D.I.G. Investigation. But in this matter it has not been investigated by any official from the Investigation Wing only for the reason that case was not registered. The respondent S.H.O.
Has tried to justify inaction on his part for non-compliance of the orders of Ex-Officio Justice of the Peace, by claiming that he investigated the matter under section 157, Cr.P.C. And found that the information supplied by Misal Khan, petitioner was incorrect and accordingly he made report to the concerned Magistrate under secticn 157(2), Cr.P.C. I am afraid this approach of the respondent S.H.O. To the Criminal Law is not correct. In order to better appreciate section 157, Cr.P.C. It may be reproduced hereunder: '
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 td 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. (Emphasis and underlining is mine)
' A bare reading of above quoted provision of law relied by the respondentS.H.O. Would reveal that whenever from the information received through the F.I.R. A or otherwise if even he suspects commission of. a cognizable offence, he is duty bound to immediately commence investigation of such a case and that such A investigation has to be done at the spot i.e. At the place of occurrence and not at some other place. At this juncture I would like to place reliance on the dictum laid down by the Hon'ble Supreme Court in MUHAMMAD BASHIR V. STATION HOUSE OFFICER, OKARA CANTT. AND OTHERS (PLD 2007 SC 539) wherein in similar situation as in the present case, it was held by the apex court as under:-- "What transpires from a bare reading of these provisions contained in the main body of subsection (1) of section 157, Cr. P.C. Is that whenever an Officer Incharge of a Police Station, from information received i.e. F.I.R. Or otherwise, even suspects the commission of a cognizable offence, he is obliged to commence, immediately, the investigation of such a case and further that such an investigation had to be done at the spot i.e. At the place of occurrence and not while sitting in his office or elsewhere. The provisions of clauses (a) and (b) of the said subsection (1) are exceptions to the said command of the said subsection (1). Clause (a) mentions the exceptional situation where an Investigating Officer needs not carry out the investigation at the place of occurrence and clause (b) envisages a situation where the S.H.O. Was permitted to refuse to investigate a case which discretion, is however, exercisable subject to the conditions mentioned in subsection (2) of section 157, Cr.P.C. And is subject to the control of a superior police officer under section 158 Cr.P.C. And a magisterial check under section 159 of the said Code.
26. It will thus be noticed that the provisions of section 157, Cr. P.C. Equip a police officer only with a discretion to refuse to investigate .a case and nowhere 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 disclosed the commission of a cognizable offence."
' Needless to mention that stage of investigation commences after registration of F.I.R. And not before that.
' Section 154 Cr.P.C. Makes it mandatory on the S.H.O. To record such information which discloses commission of cognizable offence and in case cognizable offence is not made out then he has to report the matter under section 155, Cr.P.C. As the S.H.O. Has prepared a report under section 157, Cr.P.C. So it is clear that he was aware of the fact that there were circumstances indicating commission of cognizable offence so he must have registered the case under section 154, Cr.P.C.
And thereafter he would have proceeded in accordance with law which include proceedings under section 157, Cr.P.C. It may be mentioned that for investigation the matter has never been placed before the investigation department which seems to be against the scheme of the criminal law in this respect.
8. It may also be noted that even the concerned Magistrate remained failed to exercise powers vesting in him under section 159, Cr.P.C. To get the matter investigated/inquired upon the report submitted by the respondent-S.H.O. Under section 157, Cr.P.C. Neither he passed any order indicating that he has agreed with report of the respondent-S.H.O. Nor has issued any direction for investigation/ inquiry into the matter.
9. So in the circumstances I am of the affirm view that the respondent S.H.O. Has not complied with the order of Ex-Officio Justice of Peace in sheer violation of law. He is, therefore, directed to see that orders of the Ex-Officio Justice of the Peace dated 7-12-2011 implementation of which is sought through Writ Petition No. 29215 of 2011 filed by Misal Khan and the order dated 24-12-2011 implementation of which is sought through Writ Petition No. 29606, of 2011 filed by Sardar Dost Muhammad Khosa are complied with in accordance with law in letter and spirit. As the matter involves recovery of a human being who is still missing so it will be appropriate that after fulfilling requirement of law, these matters may be investigated by some Senior Police Officer of Investigation Wing of the Police Department in accordance with law. Writ Petition No.29215 of 2011 and Writ Petition No.29606 of 2011 are disposed of accordingly.
10. Since the matter relates to recovery of Mst. Sapna Khan as such it is necessary for the police to associate all concerned in the investigation. Therefore, I see no force in Writ Petition No.29 of 2012 which is accordingly dismissed.