' SHAHID BILAL HASSAN,. J. Through this Constitutional petition, the petitioner has called into question the order dated 05.7.2013 passed by the learned Ex-Officio Justice of Peace at Liaqatpur, District Rahimyar Khan whereby he declined to 'make an order so as to register a criminal case on the application of the petitioner.
2. Brief facts which gave birth to the institution of this petition are to the effect that the petitioner filed an application on 18.6.2013 before the learned Addl. Sessions Judge/Justice of Peace at Liaqatpur, District Rahimyar Khan stating therein that on 08.5.2013 the son of the petitioner namely Muhammad Tariq aged 25-years was present in his house wherein one Hameed son of Mustafa and one Arabi son of Nazir Ahmad who were known to the son of the petitioner came and asked Muhammad Tariq to join them as they had been invited to some function. The behaviour of the said two was mysterious which led the petitioner to advise her son not to join them but the son went alongwith the said two. After reasonable time when the son of the petitioner did not return, the petitioner went to the house of one of the said two acquaintances and before reaching the said house the petitioner saw some police officials the names of which have been mentioned in the application forcibly taking the petitioner's son alongwith them in a while Suzuki car. The said act was witnessed by 30/40 persons living in the vicinity and certain names of witnesses were also mentioned in this regard. The petitioner alongwith her witnesses went to one Mian Manzoor Ahmed who is an influential person of the area and narrated the whole story who contacted the SHO of police station Sehja, the said SHO confessed having taken the petitioner's son. The petitioner met her son on 09.5.2013 at the police station where her son was confined in the lockup. She was informed that police officials were physically torturing her son and are keeping him at private places and there were threats of dire consequences by the said SHO to the effect that the son of the petitioner will be murdered in a police encounter and if she intends to save his life she should pay an amount of Rs, 5,00,000/-. Since the petitioner is a poor lady she could not arrange the said amount. On 13.5.2013 at about 10.00 a.m. In the morning the petitioner was informed that her son had been murdered in a so-called police encounter. The petitioner there and then alongwith witnesses again approached Mian Manzoor Ahmed who contacted the SHO concerned who stated that since the desired amount had not been given, therefore, the petitioner's son namely Muhammad Tariq had been murdered in a police encounter. The petitioner also approached the SHO concerned, who in presence of witnesses admitted that he murdered her son in a fake police encounter in the command of senior police office Rs, It has also been alleged that Hameed and Arabi who took the petitioner's son admitted that they were given illegal gratification so as to hand over the petitioner's son to the SHO for the purposes of fake police encounter. Now there .Are threats by the SHO concerned that in case the petitioner initiates any criminal proceedings against him, the other son of the petitioner was also murdered. On these grounds, the petitioner approached the learned Ex-Officio Justice of Peace who called for report and parawise comments from the SHO concerned wherein it came to light that the son of the petitioner was murdered and case F.I.R. No, 108/2013, dated 13.5.2013 under Sections 324, 353, 148 read with Section 149 of PPC at police station Sehja was registered. On receiving comments from the police, the learned Ex-Officio Justice of Peace declined the petitioner's application being not maintainable as statedly judicial inquiry was in progress. Being left with no other option the petitioner has filed this writ petition seeking declaration so as to initiate criminal proceedings against respondents No, 2 to 7.
3. The learned counsel for the petitioner has contended that there is sufficient incriminating material available with the petitioner to connect the respondents with the commission of crime; that only criteria which is fixed for registration of F.I.R. Is providing the information of commission of any cognizable offence and no authority is competent to refuse registration of FIR; that the stance taken by the petitioner and her witnesses in this petition is completely in line with their statements made during the course of judicial inquiry and their deposition made before Judicial Magistrate has illegally been ignored by learned Judicial Magistrate; that the evidence led by the petitioner is sufficient to prove a charge of 302 of PPC; that it is the right of every citizen of Pakistan to get his case investigated from the investigating agency of the country and also to get his case prosecuted through prosecution of the country then why the petitioner should be deprived from this right; that there is no mala fide with the petitioner in filing of the petition as real son who allegedly was involved in criminal activities has been murdered and all the cases pending against him (if any) have reached to an end with his murder; that the officials who are allegedly participants of so-called police encounter are neither involved in the murder of petitioner's son nor they have been arrayed as accused into this petition, because they neither made any encounter nor they committed the murder of petitioner's son; that the piece of evidence are required to be not only thoroughly investigated but also required expert's evidences including Call Data Records as cell numbers used into this occurrence are mentioned in this petition and which could only be collected through investigation process and petitioner being woman of advanced age is not in the position to collect and produce the same before court; that the contention raised by the learned counsel that issuance of direction for registration of criminal case will be a futile exercise as after registration of case the case would be cancelled is nothing more than as open threat and an expression of boundless powers shown by police authorities and keeping in view this attitude of police authorities the august Supreme Court of Pakistan held in 2012 SCMR 428 that cases of police encounter should be investigated by any independent agency so that impartial investigation can be made possible; that the parents of deceased Muhammad Nadir never made any statement in favour of police officials during the judicial inquiry rather they only showed their reluctance to make any statement; that neither any police official received any scratch nor any vehicle of police was hit by any built nor it was only the accused who received firearm injuries this shows the fakeness of police encounter; that the verdict given in judicial inquiry is not strong enough to straight away reject the evidence which is likely to be produced before the Court as proposed in this petition and that it was strongly argued by the learned counsel for the respondents that as the judicial inquiry was conducted by a Judicial Magistrate and after recording material evidence, the learned Judicial Magistrate has exonerated the police officials from any criminal activity and declared the police encounter as genuine one but it is a settled principle of law that . Judicial inquiry is not a device which could exonerate or incriminate any person of the charge. In support of his contentions, the learned counsel for the petitioner has relied on "MUMTAZ HUSSAIN v. DEPUTY INSPECTOR-GENERAL, FAISALABAD and 7 others" (PLD 2002 Lahore 78).
4. On the contrary, the learned AAG assisted by the learned counsel for the respondents No, 2 to 7 have vehemently opposed this writ petition and have supported the impugned order while maintaining that the same is strictly in accordance with law and according to the facts of the petitioner's case as it has been observed by the learned Ex-Officio Justice of Peace in the order dated 05.7.2013 that the petitioner may file a private complaint and it was on the said stance that the learned Ex-Officio Justice of Peace disposed of the application of the petitioner. Adds that since the judicial inquiry has been finalized wherein all the police officials have been exonerated, therefore, no fruitful purpose will be served so as to initiate any criminal proceedings against respondents No". 2 to 7 who are all Police officials. There are 34-cases registered against Muhammad Tariq. Relied on "MUHAMMAD MASOOD v. S.S.P., RAILWAYS, RAWALPINDI and others"
(2000 P.Cr.LJ 67), "KHIZER HAYAT and others v. INSPECTOR GENERAL OF POLICE (PUNJAB), LAHORE and others" (PLD 2005 Lahore 470) "MUHAMMAD RAMZAN v. ADDITIONAL . SESSIONS JUDGE/JUSTICE OF :PEACE, KABIRWALA, DISTRICT KHANEWAL and 6 others" (2005 P.Cr.LJ 1579), "ASMA JAHANGIR, CHAIRPERSON HUMAN RIGHTS COMMISSION OF PAKISTAN v. SENIOR SUPERINTENDENT OF POLICE (OPERATIONS). LAHORE and 3 others" (2005 P.Cr.LJ 1517) and "RIAZ AHMED v. THE STATE" (2012 YLR 1260).
5. Heard the learned counsel for the parties and perused the record.
6. It is an admitted fact that the son of the petitioner died in a police encounter after which case F.I.R. No, 108/2013, dated 13.5.2013 was lodged and resultantly on the order of the learned Sessions Judge concerned, judicial inquiry was ordered to be conducted which was done by the learned Magistrate/Inquiry Officer at Khanpur who exonerated all the police officials by holding that both the deceased in the police encounter namely Muhammad Nadir and Muhammad Tariq alongwith three others committed dacoity at the night of 12.5.2013 and looted gold ornaments, cash, motorbike and fled away. The police party on information chased them and when they reached near the said accused they (accused) started firing at the police party. In this scenario the police was left with no other option except to act in accordance with law which needful was done and resultantly both Muhammad Nadir and Muhammad Tariq died in the police encounter which was altogether lawful. It is the case of the petitioner that her stance was not considered by the learned Magistrate who sided with the police party and resultantly exonerated them.
7. In the impugned order, the learned Ex-Officio. Justice of Peace has observed as under:- ' "2. Report of SHO received, which disclosed that -her son has been murdered in case F.I.R. No 108/2013 under Section 324/353/148/149 PPC at police Station Sehja. In this regard judicial inquiry is in progress. Therefore, the petition in hand is not maintainable. However, the petitioner may file a private complaint, if so advised. With this .Observation, the petition -stands disposed of. File be consigned after its completion."
' In the case of "Noor Ahmad v. D.I.G., Police, D.G. Khan Division and 7 others" (2005 YLR 1545) wherein it has been held by this Court that "purpose of judicial inquiry was to find out facts and mere pendency, of the same was no bar to register a criminal case." ,In another . Case reported as "MUHAMMAD SAEED (RANA SAEED.-AHMED) v. HOME SECRETARY, PROVINCE OF PUNJAB: and 7 others"
(2000 YLR 1607), wherein it has been held that holding of judicial , inquiry _under S. 176, Cr.P.C. Was no bar for registration of second FIR., under S. 154, Cr.P.C.
8. In light of the above-said judgments of this Court, the impugned order cannot hold field as mere pendency of judicial inquiry was no bar to the registration of a criminal case if otherwise a cognizable offence is made out from the information passed on to the SHO, therefore, the learned Ex-Officio Justice of Peace did not pass a just order in accordance with law as there was no bar to register a criminal case against the concerned even if judicial inquiry was pending while following the above two precedents of this Court.
9. It is an admitted position that judicial inquiry conducted by the Magistrate/Inquiry Officer is a quasi-judicial proceedings and any aggrieved person can get his or her grievance redressed against police officials, if dissatisfied with the said proceeding in accordance with law. The report in this regard is not binding on the aggrieved person, it is rather an independent right available to every citizen of Pakistan to knock the door of law i,e, by approaching the police official concerned who on receiving information is bound to proceed under Section 154, Cr.P.C., only if a cognizable offence is made out and investigate the matter independently and strictly in accordance with law.
The right to get an F.I.R. Lodged in such a situation is an independent right available to every citizen who is aggrieved in such a situation. In the case in hand, the report of the judicial inquiry has even otherwise not considered the stance of the petitioner as required but the right of the petitioner cannot be laid to rest at this stage as her son has been done to death by the police in an unlawful manner according to her stance raised in her application. On this point this Court is guided by the case of "RAHAT NASEEM MALIK v. PRESIDENT OF PAKISTAN and others" (2003 PLC (CS) 759), in which it has been held that Inquiry officer performs, quasi judicial functions and is not supposed to pronounce a judicial verdict, as Judge of a Court of law is required to do so under recognized procedure laid down for conducting, legal proceedings. In another important case reported as "SAKHI MUHAMMAD v THE STATE" (2004 MLD 1609) in which it has been held that respondents alleged that in judicial inquiry it was found that incident was a genuine police encounter and deceased were rightly killed by police---One of deceased persons was not involved in any case in whole of his life whereas other one was a proclaimed offender--- F.I.R. And police Karwai had not mentioned that a pistol was also recovered from dead-body of deceased was not involved in any case---F.I.R. Further mentioned that rifle was lying besides the dead-body of other person who was proclaimed offender---Both deceased were gun-downed from a distance of 1-1/2 miles away--- Was neither argued nor brought on record that occurrence had taken place in the shop and the shots fired by the police also hit on the wall or shutter of said shop---Not a single scratch was found on any of police officials who were 17 in number---Crime empties taken from the spot were not sent to fire-arm expert alongwith rifle and pistol of both deceased to ascertain whether they made a fire or not---Prima facie a case was made out against respondents and they would be given sufficient opportunity to produce their evidence before the Trial Court---Order passed by Sessions Judge was set aside, in circumstances. In another similar case reported as "ASLAM JAN KHAN v. THE STATE through Additional Advocate-General, Bannu and 8 others" (2012 P.Cr.LJ 1797), wherein it has been held that registration of criminal case against the police---petitioners had sought issuance of a writ to District Police Officer and S.H.O. Police Station concerned, directing them to register a case against the Police/Raiding party---Counsel for the police raised preliminary objection on the maintainability of the constitutional petition on the ground that petitions were not maintainable as alternate remedy of complaint by virtue of Chapter XVI of the Cr.P.C., was available to the petitioners, which was not only adequate, but efficacious, as well-- Validity---Said preliminary objection, qua the maintainability of the constitutional petition, was not sustainable in view of peculiar circumstances of the case---Allegation had been made by S.H.O.
Against the petitioners and the deceased that they had made firing on the Police party, but none from the raiding party had sustained a single injury, while all the injuries were on the persons of the petitioners and his brother and one person had lost his life in the same incident---Constitutional petition was allowed." The same view has been taken in case reported as "MUMTAZ HUSSAIN v.
DEPUTY INSPECTOR-GENERAL, FAISALABAD and 7 others" (PLD 2002 Lahore 78), in which it has been held that mere fact that inquiry was conducted by a judicial Magistrate regarding cause of death would not bar registration of criminal case u/s. 154 Cr.P.C.---Registration of criminal case is independent right of aggrieved person---Such person can report the matter to incharge of concerned police station, who is bound under S. 154 Cr. P. C. To record the report and conduct investigation in accordance with law---Opinion qua the cause of death is not binding on police officer holding investigation under Chap. XIV, Cr.P.C. Or Court of law holding trial of accused person-Inquiry report may be relied upon by prosecution or defence and may be given due weight if the conclusion arrived at by the Magistrate are consistent with the evidence brought on record-- -During investigation or trial. Police officer or Court of law, as the case may be, can legitimately arrive at a contrary finding in the light of evidence brought on record---Police torture---Death in police custody---Judicial inquiry exonerating accused person from charge of murder of the person who died in police custody---Complainant and eye-witnesses had seen police giving Chhitter blows on buttocks of the deceased---Effect---Cause of death was relevant qua the offence under S.302, P.P.C. But it had no bearing qua other offences of illegal arrest and confinement of deceased and injuries caused to him during police custody---Criminal case, in the present case ought to have been registered by police under the relevant provisions of Penal Code, 1860, including Ss. 302 & 342, P.P.C.---High Court directed Senior Superintendent of Police to register criminal case against accused police officials-Constitutional petition was allowed in circumstances.
10. The application of the petitioner was carefully examined, a perusal of which shows that a cognizable offence is made out against the concerned. Now, the question which comes to light is what ought to be done on the application of the petitioner. In another landmark judgment of the Hon'ble Supreme Court of Pakistan reported as "MUHAMMAD BASHIR v. STATION HOUSE OFFICER, OKARA CANTT and others" (PLD 2007 Supreme Court 539) in which it has been held by the Hon'ble Supreme Court of Pakistan that no authority vested with an officer In-charge of the police station or with anyone else to hold an inquiry into the correctness or otherwise of the information which was conveyed to the SHO for the purpose of recording of an FIR. Further the Hon'ble Supreme Court has observed "any F.I.R. Registered after such exercise i,e, determination of the truth or falsity of the information conveyed to the SHO would get hit by the provisions of Section 162, Cr. P. C. Existence of an F.I.R. Was no condition precedent for holding an investigation nor was the same a prerequisite for the arrest of a persons concerned with the commission of cognizable offence: nor does recording of an F.I.R. Mean that the S.H.O. Or a police office 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. Persons nominated therein must be arrested---Check against lodging of false F.1.Rs, was not refusal to record such F.I.Rs,, but punishment of such informants under S.
182. P.P.C. Etc. Which should if enforced, a fairly deterrent against misuse of the provisions of S.154, Cr.P.C." Further the Hon'ble Supreme Court in the said judgment in Para No, 27 observed and held as under.- "The conclusions that we draw from the above, rather length discussion, on the subject of F.I.R., are as under:- going of false F. I. Rs, was
(a) not refusal to record such F.1. Rs, but punishment of such informants under S.182, P.P. C. Etc. Which should bno authority vested with an Officer lncharge of a Police Station or with anyone else to refuse to record an F. I. R. Where the information conveyed, disclosed the commission of a cognizable offence,
(b) no authority vested with an Officer lncharge of 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.1. 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 nominated therein must be arrested: and finally that,
(t) the check against lode, in enforced, a fairly deterrent against misuse of the provisions of S.154, Cr.P.C."
' In the light of above discussion, the Incharge Police Officer of a police station is duty bound to register a criminal case against the person complained under Section 154, Cr.P.C. As report of judicial inquiry is no bar in the way for lodging of an F.I.R. And after registration of case, conduct fair investigation independently in accordance with law. With utmost respect the judgments referred to by the learned counsel for respondents No, 2 to 7 do not attract to the facts of the petitioner's case as the said precedents have no nexus with the lodging of F.I.R. In presence of judicial inquiry against the police officials on behalf of a person who is dissatisfied with the same.
11. Pursuant to above discussion and while relying on a judgment of the apex Court "MUHAMMAD BASHIR (supra)", this writ petition is allowed and the District Police Officer, concerned is directed to register a criminal case against respondents No, 3 to 7, immediately under intimation to the Deputy Registrar (Judicial) of this Bench within a week positively.