The supra titled writ petitions have been addressed under Section 44 of the Azad Jammu & Kashmir Interim Constitution Act, 1974.
2. As common questions of facts and law are involved in the instant writ petitions, therefore, I proposed to decide the same through this single judgment.
3. Precise summary of averments made in Writ Petition No. 1915/2012 are that petitioner Sabar Hussain is First Class State Subject who is resident of village Sokasan, District Bhimber. It is averred that a protest was held on call of local member of Legislative Assembly and a rally was moving towards office of Deputy Commissioner, Bhimber, which was completely peaceful however, Deputy Commissioner and Superintendent of Police Bhimber, Respondents No. 5 and 6, ordered to fire on the said rally. It is alleged that Respondents No. 6 to 9 along with other police men started tiring on the rally and even Respondent No. 6, Superintendent of Police Bhimber, also fired on it. The Deputy Superintendent Police Respondent No. 7, who was leading another police party fired at Abdul Hameed nephew of the petitioner who passed away on spot and injured one Waheed Arif. It is maintained that S.H.O. Bhimber also fired Muhammad Rafique s/o Shah Muhammad who was seriously injured. The petitioner Sabar Hussain preferred an application on 18.09.2012 before S.H.O.
Respondent No. 4 for lodging FIR against Respondents No. 5 to 9, however, needful was not done. It is claimed that petitioner under compelling circumstances moved application before the learned Sessions Judge Bhimber, under Section 22-A of Criminal Procedure Code, for registration of FIR, however, despite order dated 19.09.2012, issued by the learned Sessions Judge, was not lodged, therefore, petitioner constrained to file the instant constitution petition.
4. The writ petition has been resisted by respondents through written statement dated '13,03.2013. A perusal of the same reveals that moving of application on the part of petitioner and order of Sessions Judge dated 19.09.2012 have not been controverted.
5. Precise facts of Writ Petition No. 2251/2012 are that petitioners are S,P. and S.H.O Bhimber respectively. It is claimed that an unpleasant incident took place on 18.09.2012 due to strike of public mass and ultimately an FIR No. 167/2012 on the same day was lodged on the estimation of Deputy Commissioner Bhimber. It is stated that private Respondent No. 2 viz. Sabar Hussain, moved an application to Respondent No. 1 and latter, directed the petitioners to lodge an FIR vide order dated 19.09.2012, hence, they solicited quashment of the aforesaid order.
6. The writ petition filed by petitioners, Jameel Ahmed Jammeel, S.P. and S.H.O. Bhimber, has been controverted by the contesting Respondent No. 2 through written statement wherein it is stated that petitioners have got no locus standi to file the captioned writ petition. It is maintained that impugned order dated 19.09.2012 issued by Sessions Judge Bhimber, is in accordance with statutory law against which writ petition is not maintainable. It is further claimed that Azad Government of the State of Jammu and Kashmir, regarding incident in question, constituted a Judicial Commission of inquiry consisting of Mr. Justice Abdul Rashid Sulehria, who after due process also recommended to lodge an F.I.R. upon the application of contesting respondent and prayed for dismissal of writ petition.
7. Mr. Sadaqat Hussain Raja, the learned counsel for petitioner Sabar Hussain, vehemently argued that under Section 154 of Criminal Procedure Code,. the S.H.O concerned was bound to lodge FIR on the basis of application moved by his client. The learned counsel submitted that even cross FIR can be directed to be registered against the concerned culprits as per law. He further argued that despite order of Sessions Judge and Commission constituted by the Government concerned S.H.O. failed to do the needful, hence, craved for issuance of solicited writ. The learned counsel in support of his contentions referred to and relied upon the following case, law:-- (i)Wajid Ali Khan Durani and others Vrs. Government of Sindh and others (2001 SCMR 1556); (ii)Mst. Anwar Begum Vrs. S.H.O., Police Station Kalri West, Karachi and 12 others (PLD 2005 SC 297); (iii)Muhammad Uris Vrs. S.H.O, Police Station Dokri and 2 others (2004 MLD 1156); (iv)Jamshed Khan and another Vrs. Government of Sindh and 2 others (1999 P.Cr.L.J. 512); (v)Turabul Hassan Vrs. District Officer Revenue, Toba Tek Singh and 7 others (2006 YLR 61).
(vi)Muhammad Anwar Sub-Inspector Railway Police Lahore Vrs. S.H.O. Railway Police Kasur and 2 other (PLJ 1999 Lahore 157); In case of Wajid Ali Khan Durani and others, supra, it was held by the apex Court of Pakistan that true facts in respect of an occurrence were not reflected by two earlier F.I.Rs., hence, the refusal to record a genuine version of the same occurrence would not be justified Alternate remedy though was provided to an aggrieved party under law by way of lodging complaint, but mere fact that an alternate remedy had been provided for could not debar the Court from giving direction to the police to record another F.I.R in an appropriate case.
In case of Mst. Anwar Begum, ibid, it was held by the Hon'ble Supreme Court of Pakistan that accused mentioned in the first F,I.R. lodged by manager of deceased were unknown and untraceable, hence, refusal of police to record second F.I.R. as per widow's version and also failure of High Court to issue necessary direction was unlawful. The Supreme Court accepted the appeal with direction to police to register second F.I.R. on the basis of widow's version within a week and report its compliance to Officer-in-charge of Court.
In case of Muhammad Uris, supra, it was held by the Karachi High Court that there is no restriction on recording of second F.I.R. in respect of same offence.
In case of Jamshed Khan and another, it was observed by the Karachi High Court that if a counter- version containing different facts with regard to commission of cognizable offence was brought to notice of incharge of a Police Station, he was duty bound and obliged under law to record same and he could, in no way, refuse to do so.
In case of Turabul Hassan, supra, it was held by the Lahore High Court that second FIR can be registered regarding the same transaction.
In case of Muhammad. Anwar Sub-Inspector Railway Police Lahore, ibid, it was held by the Lahore High Court that ordinarily second FIR with regard to same incident or offence would not be recorded where once FIR was lodged under Section 154, Cr.P.C.. where investigation was set into motion and all subsequent statements were recorded. However, it was observed that counter- version was given by other party, which disclosed distinct and separate offence, another FIR would have to be registered and investigated. It was laid down that as version disclosed by petitioner being separate and distinct offence, therefore, police illegally refused to register case. S.H.O. was therefore, directed to register FIR and conduct investigation.
8. Sardar M.R. Khan, Additional Advocate General and Raja Aftab Ahmed Khan, Legal Advisor, for Police Department while controverting arguments of the learned counsel for petitioner, submitted that on the basis of facts enlisted in the application an FIR Bearing No. 167/12 was already lodged, hence, there was no justification to lodge second FIR regarding the same incident. The learned counsel further submitted that petitioner can put his claim before the concerned police, however, registration of cross FIR will be a futile exercise. The learned Legal Advisor for respondents further submitted that before passing order by Sessions Judge petitioners i.e. S.P. and S.H.O. Bhimber were not provided an opportunity of hearing, hence, urged for dismissal of writ petition filed by Sabar Hussain arid acceptance of writ petition filed by Jameel Ahmed Jameel S.P. Bhimber and another.
The learned Legal Advisor referred to and relied upon case titled Muhammad Hassan Vrs. Station House Officer Sukkur and 2 others [2009 YLR 1036].
In case of Muhammad Hassan, supra, it was held by the Karachi High Court that on the basis of information supplied by applicant, FIR was registered and then matter was duly investigated by the police. However, if an applicant felt aggrieved with investigation of the police with regard to contents of FIR then he can pursue proper remedy before the competent Court under the relevant provisions of law. The aforesaid authority is not helpful to respondents (co-petitioners) as having no nexus with the given case.
9. After hearing the learned counsel for parties at great length, I have perused the contents of writ petitions, examined the appended documents and have given my earnest thought to the points raised by the learned counsel for parties.
10.A glance perusal of record reveals that petitioner Sabar Hussain, moved an application to S.H.O. Bhimber, stating therein that on 18.09.2012 at 09:00 a.m., he along with his nephew Abdul Hameed s/o Noor Hussain was going to District Headquarter PML (N) Bhimber, due to registration of a fabricated F.I.R. en sweet will of former Speaker Anwar-ul-Haq, to participate in a peaceful rally headed by Ch. Tariq Farooq M.L.A. where numerous persons were gathered. It was maintained that at 11:00 a.m. when rally was passing through. Court premises, main gate of Deputy Commissioner Office, when Khawaja Naeem, Deputy Commissioner Bhimber, directed to S.P., Jameel Ahmed Jameel, for firing on 'rally, hence, the said S.P. ordered Inspector Bhimber along with another constable including gunman, Waheed Arif, to start firing and tear gas shelling on the rally. It was alleged that petitioner and his nephew Abdul Hameed and other participants.of rally ran away towards Sub-Divisional Office of electricity department to save their lives, however, Naseer Ahmed, S.H.O. Bhimber, with mala fide intention to kill his nephew Abdul Hameed, fired upon him, which hit his stomach and he died on spot. It was further alleged that meanwhile D.S.P., Mirza Shoukat Hayat, who was leading another police party also fired at Muhammad Akram, which was struck on his thigh, hence, he was seriously injured. Another gunman alongwith S.H.O, Bhimber, namely Waheed Arif, also fired at Muhammad Rafique s/o Shah Muhammad, which was struck on his left hand who was also injured. It reflects from record that on the basis of application supra no P.I.R. was lodged by. S.H.O. Bhimber and in this respect version of the concerned S.H.O. and S.P. is that as F.I.R. bearing No. 167/2012 dated 18.09.2012 -regarding the same incident was already lodged, hence, there was no justification to lodge second F.I.R. regarding the same incident. The facts inserted in F.I.R. supra are altogether separate and distinct from the application moved by petitioner Sabar Hussain. As per Section 154 of Criminal Procedure Code, 1898, on receiving an information relating to commission of cognizable offence, the Station House Officer is under statutory obligation to enter into' prescribed register complaint lodged with him. It will be appropriate to reproduce Section supra as under:-- "Information in cognizable cases. 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, and the substance thereof shall be entered in a book to be kept by such officer in such form as the Provincial Government may prescribe in this behalf."
After deep deliberation to the matter, I have reached at the conclusion that Section 154, Cr.P.C.. reproduced herein-above is mandatory provision and whenever an information disclosing prima facie commission of a cognizable offence is made the concerned Police Officer is bound to enter it in the prescribed book and then proceed in accordance with law. A bare reading of Section 154 Cr P.C. reveals that phrase "First Information Report" is not postulated in the said provision. It is specifically stated in section "every information" has to be entered in the relevant book, therefore, I am unable to subscribe to the view that police is only bound to register "First Information". The words "every information" indicates that subsequent report, if any, must also be registered. Another reason which supports the aforesaid view is that power to investigate a non-cognizable case is vested under law in the police officer, however, cancellation of case could only be ordered by Magistrate. If Section 154, Cr.P.C.. is not construed as a mandatory provision then powers of a Magistrate whether to cancel a case or not would become redundant. It is therefor?, held that whenever a person lodges an information, the police is bound to record it notwithstanding the fact that a case has already been registered. It follows that even if a person wants to give counter- version of the case, the same can be registered providing an information prima( facie discloses the commission of a cognizable offence. It also follows that if one set of accused has already been nominated in FIR, another report lodging that another set of accused person was responsible for the offence can also be registered. The contention of the learned counsel for respondents that no subsequent/cross FIR can be lodged in respect of same incident is, therefore, against spirit of statutory law, which is accordingly repelled. The same point came under consideration before Full Bench of the Lahore High Court in case titled M. Anwar vs. S.H.O., Civil Lines, Police Station, Lahore and another [PLD 1972 Lahore 493], wherein at page 496 of the report it was held as follows:- "Before parting with the case, we would like to observe that if there is an information relating to the commission of a cognizable offence, it falls under. Section 154 of the Code of a statutory obligations to enter it in the prescribed register. The condition precedent is simply two-fold; first, it must be an information and secondly, it must relate to a cognizable offence on the face of it and not merely in the light of subsequent events. A police officer is bound to receive a complaint when it is preferred to him, or where the commission of an offence is reported to him orally he is bound to take down the complaint. If he does not incorporate in the register a complaint so made, he fails to perform a statutory duty as a public servant and, therefore, renders himself to be dealt with by his superior officers for neglect of duty. Thus, it does not depend on the sweet will of a police officer who may or may not record it. The information referred to in Section 154 of the Code of Criminal Procedure appears to us to be something in the nature of a complaint, or accusation, or at least information of a crime, given with the object of putting the police in motion in order to investigate.
In the case of a first information, it is not required by law that the police officer is to receive it only if it is given in writing and to record it only if in his opinion it is correct. The question, whether or not it is correct depends on the investigation which a police officer is to conduct under Section 157 of the Code of Criminal Procedure. The guarantee of the correctness of the first information is ensured by Section 182 of the Pakistan Penal Code under which if any person gives the first information statement to a police officer which is recorded under Section 154 of the Code of Criminal Procedure, and if it ultimately turns out to be false, the informant shall be liable to punishment."
The aforesaid view was reiterated in Sawant v. S.H.O. Sadar, Kasur (PLD 1975 Lah. 733) by laying down that Section 154 is imperative and police officer cannot refuse to register a case on the ground that on the basis of information, a case has already stands registered and the counter- version being put forward in the second report is false.
In case of Tassaduq Hussain v. Inspector/S.H. 0. Race Course (1983 CLC 197), the above mentioned view was followed by the Lahore High Court.
The Division Bench of the Peshawar High Court, in case of Ibrahim v. S.H.O. Mansehra (PLD 1983 Pesh. 229), took the same view, that a police officer was duty bound to register a case when an information regarding commission of cognizable offence was conveyed to him.
The view of the Karachi High Court is same as that of the Lahore High Court and it was held in Muhammad Ilyas v. Senior Superintendent of Police (1989 P.Cr.L.J. 1129), that Section 154, Cr.P.C. is mandatory in nature and it makes compulsory for the police officer to record every information furnished to him.
The aforesaid view laid down in Muhammad Ilyas's case was followed by Division Bench in case titled Wazeer Ahmed v. Police Station Mehboob Kahoro (1990 P.Cr.L.J 2006). It was held that it is almost well settled law that a police officer cannot refuse to register a case when a cognizable offence is made out. It was further opined that police officer cannot refuse to register a case even if he considers the version as false.
9. A perusal of record reveals that even counter-version as enlisted in application of petitioner Sabar Hussain; was neither considered nor investigated by the police. The peculiar facts incorporated in FIR Bearing No. 167/2012 dated 18.09.2012 were altogether different, hence, according to my humble view, registration of case on the application of petitioner-complainant is demand of law and justice.
10.The crux of above discussion is that Writ Petition No. 1915/2012 titled Sabar Hussain Vrs. I.G.
Police and others is accepted and S.H.O. Bhimber is directed to lodge FIR on the basis of facts enlisted in the application and investigate the case in accordance with law. Consequently, Writ Petition No. 2251/2012 titled Jameel Ahmed Jameel & another v. Justice of Peace & another is dismissed. The costs shall follow the eventuality.