' MUHAMMAD IQBAL KALHORO, J.---By this order the instant application filed by the applicant under section 561, Cr.P.C. Seeking following relief(s) is disposed of.
(a) To direct the respondent No.1 to record the statement of applicant at his verbatim and if from his statement a cognizable offence is made out same may be incorporated under section 154, Cr.P.C. Book.
(b) To grant any other alternate relief which this Court deems fit and proper in the circumstances of the case.
2. The succinct facts of the case are, that an application was filed by the applicant under section 22-A & B, Cr.P.C. For registration of FIR for an incident which took place on 2-2-2014 at about 11:00 a.m. Allegedly accused namely Kamal Din, Jalal Din, Bilal Din all sons of Jamal Din, Muhammad Nawaz, Ali Dino, Sahib Dino and Zahid Ali had attacked upon the complainant party on account of some dispute over Akra Parchi on the instigation of Allah Bux, as a result of which Barkat Ali, Sajjad Ali and Sahib Dino were injured at the shop of complainant. The accused Muhammad Sharif had fired upon the complainant party from the SBBL gun thrice but it did not hit any person. They raised cries which attracted the people from the locality who saved them. Subsequently all the injured were referred for the medical treatment by the police. Thereafter the applicant tried his best to get his FIR lodged at police station concerned but could not succeed, ultimately he filed the above application which was dismissed vide impugned order dated 27-5-2014.
3. Learned counsel for the applicant in support of instant application has contended that the impugned order is not in accordance with law as the provisions of Section 154, Cr.P.C, are very clear which do not leave any room for the Incharge Police Station to refuse registration of FIR and he is bound to record the statement of the applicant in case it discloses the commission of a cognizable offence. He further contended that the medical certificates which he has filed along with the present application are sufficient to establish the occurrence of the incident during which complainant party was injured. Per learned counsel an FIR by the proposed accused has already been registered against the complainant party as such the applicant has also right to get his cross version of the incident registered.
4. While opposing him, counsel for the proposed accused has argued that in fact the applicant had approached the police for registration of FIR where his statement was recorded but since it did not disclose the commission of any cognizable offence, the FIR was not registered. He further contended that the medical certificates relied upon by the applicant show that only minor injuries were caused to them which, besides being bailable, are non-cognizable as such FIR could not have been registered by the Incharge Police Station for such injuries.
5. The learned A .P.G. Appearing on behalf of the State has stated that in case of a commission of non-cognizable offence certain procedure is provided under section 155, Cr.P.C. Which should have been followed by the police instead of non-suiting the applicant at the initial stage.
6. I have heard the learned counsel for the parties and perused the material so made available to me. For the convenience of reference, the impugned order is reproduced herewith:-- "Heard counsel for applicant, perused the case file and I also gone through the report of SHO concerned.: ' As per report submitted by concerned SHO it appears that no any cognizable offence is made out against the accused, only applicant wants to file the application under sections 22-A and 22- B, Cr. P.C. To pressurize the other party to withdraw the case against the applicant, which is already pending before 1st. Civil Judge/J.M. Rohri.
' In view of above position, I find that the applicant has not come with clean hands, therefore, the application stands dismissed.
7. The bare perusal of impugned order establishes that the same has been passed on the basis of some report submitted by the concerned SHO that no cognizable offence was made out against the accused without attending to the medical certificates of the complainant party which show, prima facie, occurrence of an incident.
8. The medical certificates filed by the applicant in support of his application tend to depict that injured Deedar Ali has sustained minor injuries viz, contusion and bruises, whereas injured Sajjad Hussain is shown to have received one lacerated wound which falls within the purview of section 337-A(i), P.P.C. (a non-cognizable offence), whereas remaining injuries on his person were either bruises or abrasions. The medical certificate of. Injured Barkat speaks of the injuries which are minor in nature i.e. Abrasions, bruises and contusions.
9. The injuries as discussed above received by the injured do not establish commission of a cognizable offence which means an offence which a police officer, in accordance with the second schedule (provided under the Cr.P.C.) or under any other law for, the time being in force, may arrest without warrant, where as in non-cognizable offence .The police officer is not empowered to arrest the accused without obtaining the order of Magistrate competent to try such offence. The procedure which is to be followed in case commission of a non-cognizable offence is reported to the police officer incharge police station is provided under section 155, Cr.P.C. It is pertinent to reproduce here section 155, Cr.P.C:--
155. Information in non-cognizable cases:---(1) When information is given to an officer incharge of a police- station of the commission within the limits of such station of a non-cognizable offence, he shall enter in a book to be kept as aforesaid the substance of such information and refer the information to the Magistrate.
(2) Investigation into non-cognizable cases: No police-officer shall investigate a non-cognizable case without the order of a Magistrate of the First or Second Class having power to try such case [or send the same for trial to the Court of Session].
(3) Any police-officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer incharge of a police- station may exercise in a cognizable case.
10. As soon as an information regarding non-cognizable offence is received by the police officer incharge of the police station, he under the law is required to enter it into a book kept for such purpose which is usually known as roznamcha or station diary, and then he has to refer the informant to the Magistrate having jurisdiction to try such case or offence. In the present case it appears that the above procedure has not been followed as despite the information of injuries made to the officer incharge of police station Rohri, the same was not incorporated in daily diary or Roznamcha nor the applicant was referred to the Magistrate concerned for obtaining an order for the purpose of investigation. The information in relation to the commission of a non-cognizable offence does not mean that no offence at all has been committed or the accused who have committed such offence cannot be taken to the task or made to go through the trail of trial. The difference between the cognizable offence and non-cognizable offence is that of a procedure, in cognizable offence the police has the authority to investigate the case without permission of Magistrate and could arrest the accused without warrants but in non-cognizable offences no such powers are provided to the police officials. After having received an order as contemplated subsection (2) to Section 155, Cr.P.C, any police officer can exercise the same powers in respect of the investigation which are available to an officer conducting investigation in a cognizable case.
11. The facts alleged in the instant application however, do not establish convincingly that proposed accused Muhammad Sharif had fired upon the complainant party as alleged by the applicant because the learned counsel for the applicant has not been able to refer to any reliable material which may point out to that part of the story.
12. The record also reflects that alleged incident had taken place on 2-2-2014, whereas the application for registration of FIR was filed by the applicant on 11-4-2014. Though the explanation for such delay has not been forwarded by the applicant which, however does not mean that no incident has taken place as alleged in the instant application.
13. Consequent upon such discussion, I am of the view that applicant has not been able to disclose any information with regard to the commission of a cognizable offence for registration of the FIR.
Nevertheless the presence of medical certificates of the injured namely Deedar Ali, Sajjad Hussain and Barkat Ali cannot be lost sight of therefore while dismissing the instant application, I direct the SHO of Police Station Rohri distinct Sukkur to follow the provisions of section 155, Cr.P.C. In case the applicant approaches him with the information disclosed by him in the application in hand.
Notwithstanding the above, the remedy of direct complaint is also provided to the applicant under the law which is equally efficacious for the redressal of his grievances which he may avail if so advised.