1. AHMAD RAZA GILANI, J. --- Through this petition instituted under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, petitioner Abdul Hameed is seeking reversal of order dated 15.07.2017 passed by the learned Justice of Peace whereby learned Justice of Peace had declined to issue direction for registration of criminal case against proposed accused persons and dismissed application of the petitioner filed u/s. 22-A(6), Cr.P.C. Learned Justice of Peace while passing the said order relied on the report submitted by the DSP Circle. police station Factory Area Kot Abdul Malak. Sheikhupura, according to which the petitioner, and proposed accused were close relatives; over stoppage of drainage system, dispute was going on between them and no cognizable offence was committed as was being agitated by the petitioner. It has been argued that Officer lncharge of Police Station has no other choice except to discharge the statutory duty to register criminal case on receipt of information regarding commission of cognizable offence under Section 154, Cr.P.C.
2. It has been further contended that there is no concept of carrying out investigation before the registration of criminal case, thus report submitted by the police officer in compliance of order of learned Justice of Peace carried no legal sanction and should not have been considered by the Justice of Peace while disposing of applications filed u/s. 22A(6), Cr.P.C. for the registration of criminal cases.
3. To answer and remove the above confusion and ambiguity, it may be relevant to reproduce here the provisions of Section 157, Cr.P.C. which falls under the Chapter XIV that relates to the Information to the police and their power to investigate".
4. Section 157. Procedure where cognizable offence suspected.
(1) If, from information received or otherwise an officer in charge 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 sport, 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.
5. 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 in charge of a police-station need not proceed in person or depute a subordinate officer to make an investigation on the spot; (b)Where police officer incharqe sees no sufficient ground for investigation.if it appears to the officer in charge 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 sub-section (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 sub-section, 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.
6. Before dilating upon the powers and limits of the police in the matter of investigation, the duties of the police officials under the Police Order, 2002 are being highlighted which are as under:--- (i)To protect life, property and liberty of citizens; (ii)To preserve and promote public peace; (iii)To prevent the commission of offences and public nuisance; (iv)To collect and communicate intelligence affecting public peace and crime in general; (v)To detect and bring offenders to justice; (vi)To apprehend all persons whom he is legally authorized to apprehend and for whose apprehension, sufficient grounds exist: (vii)To enter and inspect without a warrant on reliable information any public place, shop or gaming house where alcoholic drinks or narcotics are sold or weapons are illegally stored and other public places of resort of loose and disorderly characters: (viii)To aid and cooperate with other agencies for the prevention of destruction of public property by violence, fire, or natural calamities: (ix)To prevent harassment of women and children in public places.
7. However, a police officer is equally responsible to ensure that fundamental rights of a citizen as to the life, liberty, dignity etc. guaranteed under the Constitution of islamic Republic of Pakistan, 1973 be protected.
8. Section 157, Cr.P.C. empowers officer incharge of a police station to investigate if "from information received or otherwise" he has reason to suspect the commission of a cognizable offence. The words "or otherwise" after "from information received" leave no confusion or ambiguity that the legislature had left it to the discretion of the Incharge Station House Officer to ensure the credibility or authenticity of the information received regarding the commission of cognizable offence before registration of criminal case, of course to be exercised fairly and transparently. Powers of Officer Incharge of a Police Station to investigate "from information received" deals with the situation where F.I.R. has already been registered and thereafter process of investigation is being carried out by him. In case reported as "Nandamuri Anandayya (AIR. 1915 Madras 312)" it was observed that:-- "Most investigations are initiated on information recorded u/s. 154, Cr.P.C. But the police must frequently hear of alleged offences from less reliable sources, e.g. village gossip, or the receipt of telegram which, so far as authenticity goes, stands in no better position. In such cases it is discretionary with the officer to take action or not and, before deciding as to the course to adopt, he may frequently deem it well to make a few preliminary and informal inquires as to whether there is anything in what he has heard to render a formal investigation desirable. This is what, as it seems to us the Inspector has done in the present case and we have no hesitation in holding that his action did not amount to an investigation under S. 157, Cr.P.C."
9. To illustrate brief facts of the said case are being reproduced as under - "A telegram Ex-A reached the Bezwada Police Inspector, PW-1 containing words, "Dacoity, Kalavapamula, property lost, Kindly come immediately. Nandamuri Anandayya."
10. "What the Inspector, P.W. 1, actually did is clear from his own evidence and the endorsement on Ex-A. The day after receipt of the letter he went to Kalavapamula, questioned the village officers and others and ascertained that no one had heard of a dacoity and that no one named Nandamuri Anandayya was known in the village. He then sent the telegram to the Gudivada Inspector, Gudivada being the place from which it had been despatched with a request to have inquiries made "as to who is the sender of the message and if it is true." The Gudivada Inspector referred the telegram for report to the station house officer of Gudivada, P.W. 4, and while it was pending with him, appellant pre-sented himself before him and gave the statement Ex-B. (First Information Report)."
11. In case reported as "Emperor v. Khwaja Nazir Ahmad (1945 AIR (PC) 18), it was held that:--- "No doubt in the great majority of cases, criminal prosecutions are undertaken as a result of information received and recorded in this way but their Lordships see no reason why the police, if in possession through their own knowledge or by .means of credible though informal intelligence which genuinely leads them to the belief that a cognizable offence has been committed, should not of their own motion undertake an investigation into the truth of the matters alleged. Section 157, Criminal PC, when directing that a police officer, who has reason to suspect from information or otherwise that an offence which he is empowered to investigate under Section 156 has been committed shall proceed to investigate the facts and circumstances, supports this view. In truth the provisions as to an information report (Commonly called a first information report) are enacted for other reasons. Its object is to obtain early information of alleged criminal activity, to record the circumstances before there is time for them to be forgotten or embellished, and it has to be remembered that the report can be put in evidence when the informant is examined if it is desired to do so."
12. In view of the above, it is held that comments submitted by the police officials in compliance of the order of learned Justice of Peace come within the meaning of an informal inquiry preliminary to a formal investigation and provisions of Section 157, Cr.P.C. place no restriction in this regard.
13. The Hon'ble Supreme Court in case report as "Younas Abbas and others v. Additional Sessions Judge, Chakwal and others (PLD 2016 SC 581), laid down guidelines to be observed by the Ex-Officio Justice of Peace before issuance of a direction on complaint for non-registration of a criminal case and in this regard it was observed that.-- (i)The Ex-Officio Justice of the Peace, before issuance of a direction on a complaint for the non- registration of a criminal case under sub-section (6)(i) of Section 22-A, Code of Criminal Procedure must satisfy himself that sufficient material is available on the record, such as application to the concerned SHO for registration of the criminal case and on his refusal or reluctance, complaint to the higher police officers i,e, DPO, RPO, etc., to show that the aggrieved person, before invoking the powers of Ex-Officio Justice of the Peace, had recourse to the high ups in the police hierarchy.
14. The Hon'ble Supreme Court noticed that though provisions of Section 22-A(6), Cr.P.C. had provided in some cases very prompt response from the police officials on the complaint for non-registration of criminal cases but also found frequent abuse and misuse of the said provision. The parties to humble and harass the opponents, present distorted and fabricated facts to succeed in obtaining direction from the Ex-Officio Justice of Peace for registration of a criminal case. In Section 22-A(6).
15. Cr.P.C: the word "appropriate" is significant and has been used by the legislature to discourage the parties from abusing the said provision: thus requires Justice of Peace to pass order after appreciating all the material brought on record by the parties and concerned police officials, in accordance with settled norms of justice.
2. Article 199(1) of the Constitution of Islamic Republic of Pakistan, 1973 contains three distinct Sub- Clauses a, b and c, conferring thereby specific powers on High Court to make orders of different kinds in different situations and it is not approved for the High Court to go into the complicated factual controversies while exercising such powers. To obstruct or divert the ordinary course provided under the law has never been recommended under the said provisions. Constitutional powers of High Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 are also not meant to usurp the jurisdiction of other constitutional and statutory organs of the State.
16. These all are principles laid down by the Hon'ble Supreme Court from time to time to be observed by the High Court while exercising its powers under Article 199 of the Constitution of Islamic Republic of Pakistan. 1973.
17. To invoke the jurisdiction of the High Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, there is prerequisite prescribed by the said Article that the petitioner for the redress of his grievance has no other alternate or efficacious remedy. In this regard, it would be relevant to discuss the provisions of Section 190 of Cr.P.C. which relate to the condition requisite for initiation of proceedings. In view of the said provision, all Magistrates of First Class or any other Magistrate specially empowered by the Provincial Government on the recommendation of the High Court may take cognizance of any offence:-- (a)Upon receiving a complaint of facts which constitute such offence.
18. (b)Upon report in writing of such facts made by any police officer.
19. (c)Upon information received from any person other than police officer or upon his own knowledge or suspicion. that such offence has been committed which he may try or send to the Court of Sessions for trial.
20. The word 'taking cognizance of offence' has not been defined in the Code of Criminal Procedure, however, it was discussed and defined in case report as "Muhammad Nawaz v. Noor Muhammad. etc." (PLD 1967 Lahore 176) which is as follows:-- The expression taking cognizance of an offence means the Court deciding to proceed against the offender with a view to determine his guilt."
21. Reading the above provision makes it clear that under the scheme of Code of Criminal Procedure, two remedies, placed on a parallel footing, have been provided, one by lodging a report with police in respect of commission of cognizable offence in terms. of Section 154, Cr.P.C. and other by filing a complaint under Section 200, Cr.P.C. Chapter XVI of Code of Criminal Procedure, 1898, deals with taking cognizance of offence on complaint. Under Section 202, Cr.P.C, the Court has been conferred power to direct an inquiry or investigation to be made by the learned Justice of Peace or by a police officer or by such other person as it thinks fit for the purpose of ascertaining the truth or falsehood of the complaint. Provisions of Section 202(3), Cr.P.C. further confer the Investigating Officer deputed in this regard by the court, the same powers given to an officer In charge of a police station except that he shall not have power to arrest without warrant. After analyzing the said provisions it can safely be concluded that even if one is not successful in getting a criminal case registered under Section 154, Cr.P.C., which though is mandatory on part of officer in charge of a police station to register a case, if from the facts and circumstances of the case, a cognizable offence is made out, even then, aggrieved person is not left remediable and equally efficacious remedy in form of filing compliant in terms of Section 200, Cr.P.C. has been provided. F.I.R. is meant to move the State machinery for the purpose of collecting evidence when commission of a cognizable offence is reported and in case no private person coming forward with such information despite having in possession such knowledge, it is the duty of the police to move on its own to eradicate the crime. Under the constitution, it is obligation of State to protect life and liberty of a person and individuals are required to be loyal to the State. Of course delinquent police official additionally can be proceeded against for failing to discharge statutory duty in terms of Section 154, Cr.P.C.
22. 3.For what has been noted and discussed above in particular the auidelines provided by the Hon'ble Supreme Court in above-referred case titled as "Youngs Abbas and others v. Additional Sessions Judge, Chakwal and others (PLD 2016 SC 581) order of the learned Justice of the Peace dated 15.07.2017 being challenged now, is found "appropriate direction" as envisaged u/s. 22(6)(i)
23. Cr.P.C. in view of the material brought on record, thus, does not call for interference. The petitioner has been provided equally efficacious remedy under the law. It is also not approved for the High Court to go into the disputed and contested matters between the parties when it is exercising constitutional powers under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
24. Therefore, this petition devoid of any force is dismissed.