' IFTIKHAR MUHAMMAD CHAUDHRY, C.J.---Instant proceedings under Article 184(3) of the Constitution of Islamic Republic of Pakistan, 1973 have originated from an application received from Mst. Bibi Zahida wife of Darya Khan. Petition has been entertained for enforcement of fundamental rights involving question of public importance about the denial of right of the general public to have excess to justice by the law enforcing agency i,e, the police, as a result whereof victims continuously suffered at the hands of culprits, leading to the increase of unrest/uncertainty in the society.
2. In the instant case, petitioner Mst. Zahida alleges murder of her daughter Waheeda @ Palwasha @ Honey, which took place on 19-5-2013 at the hands of her husband Darya Khan and son Khalidur-Rahman within jurisdiction of Police Station University Town, Peshawar.
3. Recapitulating facts of the events which had given rise to the instant case can only be appropriately explained by reproducing the contents of her application in extenso herein below:- {{URDU TEXT}} 0334-5476215, 0300-5060050 H.323, Basement, St.21, E-11/4, Islamabad 21-5-2013
4. At the hearing of the petition, it revealed that the case of deceased lady could not be handled as per criminal law prevailing in the country against culprits, reasons of which are still required to be unearth because insistence of petitioner to register F.I.R. Of murder of her daughter was not conceded to by Peshawar police at highest level. Inasmuch as, without conducting autopsy, her dead body was dispatched from Peshawar to Islamabad in an ambulance but on her hue and cry, the police was compelled to get back the dead body from a place known as Tarnol near Islamabad , to A Peshawar, where allegedly -post-mortem was conducted at 4-00 p.m. Statedly instead of issuing post-mortem report, one of the parts of her body i,e, heart was sent to Forensic Science Laboratory, Lahore as it was difficult to ascertain her cause of death. As such no F.I.R. Was registered except recording report vide Entry No,16 in Daily Diary of Police Station Shalimar, wherein her case was treated to be covered under section 174, Cr.P.C. It is stated that deceased's husband is resident of Islamabad where she was living with him along with her two children, therefore, her dead body was again brought back to Islamabad in the house of her father-in-law, Bani Amin Khan who is IGP, Islamabad.
5. The petitioner did not permit her burial without registering F.I.R. And getting Post-Mortem. On this, F.I.R. No,134 of 2013 dated 19-5-2013, under section 302/34, P.P.C. Was registered at Police Station Shalimar, Islamabad, knowing well that incident had taken place in the area of Town Police Station, Peshawar (KPK).
6. On having issued process under HRC, reportedly no effective progress was made by concerned Authority, therefore, petitioner, Mst. Bibi Zahida submitted another application, contents whereof are reproduced as under:- {{URDU TEXT}}
7. The hearing of the case commenced on 3-7-2013 when Mr. Yasin Farooq SSP Operation conceded that in respect of murder of daughter of petitioner, namely Mst. Waheeda @ Palwasha @ Honey, F.I.R. Should have not been registered at Islamabad. Contents of his statement read thus:-- "Statement regarding case F.I.R. No,134 Police Station Shalimar, Islamabad.
' On 19-5-2013, at around 8 p.m. All officers were in the residence of I.G. Islamabad regarding the funeral of his daughter in law Miss Waheeda. The mother of the deceased sat in front of the Ambulance and insisted for an F.I.R. Before the burial.
' At this IG Islamabad directed SHO Shalimar Sajjad Haider and DSP Margalla Rashid to record their statement and register the F.I.R. In compliance of his orders F.I.R. No,134 of 2013 under section 302/34, P.P.C. Police Station Shalimar was registered. Sd/- YASEEN FAROOQ SSP/Islamabad"
' The above statement was followed by another statement of the same officer, which has been incorporated in the following para of the proceedings dated 4-7-2013:-- ' Since the occurrence/incident had taken place at Peshawar, hence registration of F.I.R. At Islamabad is not legally justified. It may be noted that undersigned has not passed any orders for registration of F.I.R. It is further submitted that after verifying that the incident has actually taken place in the jurisdiction of Police Station Town, Peshawar and legal proceedings were already underway, cancellation report in the subject case was prepared on 25-5-2013 and the matter was referred to the Home Department, Government of KPK."
8. On 4-7-2013 IGPs of KPK and Islamabad were asked to furnish lists of officers/officials to whom they consider that right of hearing should be provided to them, lest, injustice may not be caused to them, if any adverse order is passed. Following lists were according furnished:-- List of KPK Police Officers . (1) Mr. Ihsan Ghani, IGP
(2) Mr. Imran Shahid, SSP (Operations)
(3) Mr. Faisal, SP (Cantt.)
(4) Mr. Umar Farooq ASP, Town
(5) Mr. Sardar Hussain, SHO Town
(6) Mr. Rizwan Ullah, I.O.
List of Police Officers of Islamabad
(1) Mr. Bani Amin Khan, IGP, Islamabad
(2) Mr. Yaseen Farooq, SSP '(Operations),
(3) Mr. Jameel Hashmi, SP Saddar Zone
(4) Mr. Rasheed Niazi, DSP, Margalla
(5) Mr. Sajjad Haider, SHO, PS. Shalimar
(6) Mr. Rasheed Ahmed, SI, P.S. Shalimar
9. Mr. Latif Afridi, Advocate Supreme Court filed H.R.C.M.A. No,98 of 2013, whereas Mr. Bani Amin Khan, IGP Islamabad also filed H.R.C.M.A. 97 of 2013. Similarly Jamil Hashmi, SP. Filed separate application.
10. We have heard to all of them in support of contentions put forward by them.
11. Learned counsel for IGP, KPK contended that as per facts disclosed to police, no evidence was available to conclude prima facie that she died because of unnatural death, therefore, police after recording report No,16 dated 19-5-2013 in the Daily Diary Register of Police Station, proceeded to consider incident covered under section 174, Cr.P.C. Because in the meanwhile incomplete Post- Mortem report was received and police surgeons/doctors were waiting for the result of Forensic Laboratory to whom, heart of deceased was sent for examination to ascertain whether her death was natural or due to administrating poison to her or due to asphyxia.
12. However, in his presence, Mr. Ihsan Ghani, IGP, KPK stated that Bani Amin was insisting for registration of the case but he refused to do so. Such statement he had also made on 3-7-2013 during the hearing of the case. As per Mr. Bani Amin Khan, IGP, Islamabad, he approached to everyone, responsible for registration of case, including Moharar to IGP, KPK but no body listened him.
13. It is important to note that learned counsel for IGP, KPK also conceded that Police should have registered the case at Peshawar as there were allegations of murder against the father and brother of the deceased.
14. Learned Additional Advocate-General, KPK also agreed that as per section 154, Cr.P.C. Police had no option except to register the case at the police station where incident of murder of deceased allegedly took place.
15. It is to be observed that when there is no difference of opinion amongst all of them that case should have been registered under section 154, Cr.P.C. When matter was reported, the police administration is bound to follow the dictate of law, which has been explained by this Court time and again. Reference may be made to the following paras of the judgments in the case of Muhammad Bashir v. Station House Officer, Okara Cantt. (PLD 2007 SC 539):--
27. The conclusions that we draw from the above, rather lengthy discussion, on the subject of F.I.R., are as under:--
(a) no authority vested with an Officer Incharge of a Police Station or with anyone else to refuse to record an where the information conveyed, disclosed the commission of a cognizable offence.
(b) no authority vested with an Officer Incharge of a Police Station or with any one else to hold any inquiry into the correctness or otherwise of the information which is conveyed to the S.H.O. For the purposes of recording of an F.I.R.
(c) any F.I.R. Registered after such an exercise i,e, determination of the truth or falsity of the information conveyed to the S.H.O., would get hit by the provisions of section 162, Cr.P.C.
(d) existence of an F.I.R. Is no condition precedent for holding of an investigation nor is the same a prerequisite for the arrest of a person concerned with the commission of a cognizable offence;
(e) nor does the recording of an F.I.R. Mean that the S.H.O. Or a police officer deputed by him was obliged to investigate the case or to go through the whole length of investigation of the case mentioned therein or that any accused person nominated therein must be arrested; and finally that
(f) the check against lodging of false F.I.Rs, was not refusal to record such F.I.Rs, but punishment of such informants under section 182, P.P.C. Etc. Which should be, if enforced, a fairly deterrent against misuse of the provisions of section 154, Cr.P.C.
16. Prior to above dictum, this Court in the case titled as the Human Rights Case No,3212 of 2006 (2006 SCMR 547) observed as under:--
(3) I.G. Police is appearing in another case, which pertained to District Sialkot, therefore, the above matter was brought to his notice as he was present in the Court. D.P.O. Sheikhupura stated that now the case has been registered by the police vide F.I.R. No,138, dated 28-4-2006 under section 302, P.P.C. And investigation is going on. Non-registration of a criminal case wherein a murder has taken place for a period about 2-1/2 years clearly demonstrates inefficiency, and gross negligence on the part of the concerned Police Officers. It is well-settled that during the investigation it is always better to collect evidence if available, as early as possible. We are not in a position to understand that in such a case where murder has taken place what would be the result of the same and particularly poor lady Mumtaz Bibi who has appeared and is complaining against the police attitude saying that she had been approaching them again and again for the purpose of registration of the case but no one had listened her and at the end of the day D.P.O. Came to her rescue and directed the registration of the case and entrusted investigation to S.P. Investigation.
We understand that matter will be investigated and evidence will be collected, sufficient or otherwise for the purpose of submitting challan but what would be the recompense to the lady whose son has been killed in a gruesome manner.
(4) As far as the system of the law is concerned, the Constitution says that everyone is entitled to the protection of the same and is entitled to get justice in all the circumstances but the attitude of the police in this case is irresponsible and on account of such attitude, mother of the deceased Mumtaz Bibi is bound to suffer throughout her life, so long as she lives. As per her claim she is a widow and after the death of her husband she had taken it as a mission to bring up her children but in the meanwhile this incident took place. The facts and circumstances of the case which have been narrated before I.G. Police and AdvocateGenerai, Punjab, her plight can be well imagined by all of us. However, we direct I.G. Police to take personal interest in the investigation of the case.
(5) Let this case remain pending and I.-G. Police shall submit report personally after every week in respect of the progress of the case and even after the submission of challan it would be his responsibility to ensure that evidence is produced if ultimately evidence is not available then it would be the liability/responsibility of the police department to compensate her in any manner whatever they deem fit, under the circumstances. In the meanwhile I.G. Police shall take strict disciplinary action against officers/officials who are responsible for not registering the case ultimately after the happening of the incident as this Court observed time and again that it is the duty of the police to register the case without any delay and submit challan as far as possible within the period of fifteen days in terms of section 173, Cr.P.C. Reference in this behalf may be made to Hakim Mumtaz Ahmed and another v. The State PLD 2002 SC 590.
17. Unfortunate aspect of the case is that IGP, KPK is taking responsibility as noted above upon his shoulder not once but twice that he had declined to register the case.
18. Whereas on the other hand Bani Amin I.G.P., Islamabad, whose daughter-in-law (wife of his son Ali Amin) has been murdered, maintained that deceased was poisoned as according to him he had noticed that: (i) her hands and feet were bluish; (ii) there were wounds on her lips; and (iii) spots on cheeks. To substantiate his plea, he had also produced photographs of dead body, which were taken after her death. Contention so raised, seems to be true as per photographs. Not only this, he had also shown another photo to show that a sign of administering injection was visible on her forearm, which has also been confirmed by petitioner when picture was shown to her in Court.
19. Prima facie these facts are sufficient to establish that police of KPK abused their powers in not registering of F.I.R. On 19-5-2013 as in view of principles discussed hereinabove, in the judgments and the law on the subject under section 154, Cr.P.C. The IGP, KPK and his subordinates had no lawful authority to deny access to justice to petitioner. This is nothing but clearly a case of either inefficiency or criminal negligence of the police for the reasons best known to them, including external pressure on all of them but a law abiding officer is not supposed to deny due process of law to victim party.
20. Importantly it is to be noted that during hearing of matter, a case has been registered vide F.I.R.
No,366 of 2013, Police Station Town, District Peshawar dated 19-5-2013 under section 302/34, P.P.C.
Copy of F.I.R. Has been placed on record.
21. Now turning towards the conduct of Islamabad Police, which needs no discussion as per facts noted above and same are sufficient to conclude that all of them acted with sheet criminal negligence, favouritism and inefficiency.
22. The statement of IGP Bani Amin noted above is not acceptable as he being a senior police officer, without getting registered F.I.R. At Peshawar brought back dead body of her daughter-in- law to Islamabad where under his direction in respect of incident of Peshawar a case was got registered in Islamabad and subsequently a guard was posted on her grave, disclosure of which has been made by him during hearing when pointed out by Mst. Bibi Zahida, reason should be known to him. Inasmuch as, none amongst other officers whose named he has furnished himself, refused to accede his illegal demand including SP Jamil Hashmi, who now is trying to distance him from the illegal act.
23. Learned Additional Advocate-General pointed out that provincial government of KPK has constituted a committee to probe into the incident of killing of Mst. Waheeda on 19-5-2013 for non- registration of the case in Peshawar and SSP Imran Shahid has been suspended.
24. Learned Deputy Attorney stated that Federal Government has been conveyed about hearing of the case and registration of F.I.R. At Shalimar Police' Station. He also agreed that no F.I.R. In respect of incident, which had taken place about the alleged unnatural death of Mst. Waheeda in the area of Town Police Station, Peshawar could have been registered at. Shalimar Police Station.
25. It is to be noted that heavy responsibility lies upon the law enforcing agencies, particularly, police to ensure that life and property of the people in terms of Article 9 of the Constitution is protected by them but we are constrained to observe that in our country police is not fulfilling its commitments efficiently, as a result whereof, law and order situation, all over the country, is worsening day-by-day. There could be acceptable reasons, on account of which the forces including the police, with other duties, maintain peace in society and bring the culprits to book without being influenced from anyone because once the accused is involved in an offence, he and his near ones try their best to ensure that he is saved from the clutches of law.
26. We have in our police department such officers who are known for their efficiency, credibility, commitment and whenever any task is assigned to them, they do discharge their duty strictly in accordance with the Constitution and the law. However, justice does nct mean that it should only be done to the culprits, because at the same time, victims/sufferers also deserve for the same and their grievance can only be redressed, if the accused are brought to book immediately.
27. In the instant case as we have noticed, petitioner Bibi Zahida is agitating that her daughter Waheeda @ Palwasha @ Honey has been killed by her husband Darya Khan and son Khalid-ur- Rahman but no one is ready to listen her, with the result she has to run from pillar to post and ultimately matter reached in Human Right Cell of this Court, where jurisdiction is exercised under Article 184(3) of the Constitution along with all other enabling provisions of law on individual or collective requests, to ensure enforcement of fundamental rights, particularly, in public importance cases.
28. There could be numerous complaints against the police throughout in the country and some of them reach to this Court in its Human Rights Cell, which is functioning continuously to redress the grievances but despite of issuing directions, the law enforcing agencies failed to redress the grievances of the complainants. In this context reference to the reported judgment in the case of the Human Rights Case No,3212 of 2006 (ibid) may be made, wherein a lady had been waiting for a period of 2-1/2 years but no one registered F.I.R. Of the murder of her son and ultimately she succeeded in getting the justice from this Court. This is one case, there could be more than that.
29. Thus, under the circumstances we direct that:--
(i) The Federal and Provincial governments may take initiative for improving the professional efficiency of the police department enabling them to meet with all types of challenges to ensure that whosoever has taken the law in his hands, notwithstanding the status, he has to face the consequences.
(ii) The Police Department in all the Provinces and Islamabad should strictly adhere to the Constitution and the law, while dealing with the criminal cases instead of showing any leniency or favouritism, either to the complainant or to the accused, whatsoever the case may be.
(iii) As far as registration of the cases is concerned, they should follow the law under section 154, Cr.P.C. And the principles discussed hereinabove in light of Muhammad Bashir's case (ibid).
(iv) As in the instant case F.I.R. Has been registered at Peshawar but on having seen the facts and circumstances, noted hereinabove, let the Federal and Provincial Governments ensure that no influence is used by any of the police officers who have already committed criminal negligence in not handling the case of the deceased lady. The competent authority should also deal with them in accordance with law on the subject.
(v) To ensure transparent and independent inquiry, the Chief Secretary of KPK and Secretary Interior shall take steps to constitute a team of independent police officers who shall be responsible to conduct the investigation and submit challan in the court of law accordingly. Both these functionaries shall submit report compliance of the direction within a period of two weeks because any further delay in concluding the investigation of the case is likely to cause further injustice and prejudice to the petitioner.
30. Petition stands disposed of accordingly. '