The captioned writ petition has been addressed under Section 44 of the Azad Jammu & Kashmir Interim Constitution Act, 1974, whereby following prayer is made by petitioner:-- "It is, therefore, very humbly prayed on behalf of petitioner that the Hon'ble Court may very graciously be pleased to issue an appropriate writ against the official respondents by directing them to lodge F.I.R. against private respondent and to initiate the legal proceedings against him.
Any other relief which the Hon'ble Court deems it may also kindly be granted."
2. The precise facts culminating into filing of the instant writ petition are that petitioner is Regional Manager of Utility Stores under the Federal Government and is contributing in the welfare of peoples of AJK by providing daily house hold and food stuff on subsidiary basis. It is averred that private Respondent No, 3, was appointed in USC as Store Incharge on daily wages through order dated 15th August, 2007, who was later on inducted on contract basis in BPS-2, through order dated 27th October, 2007. It is maintained that during posting of private Respondent No, 3, at Utility Store, Hattain Bala, MZD-66, he embezzled Govt. money of Rs, 2,94,915.50/- which fact was deducted through Surprise Audit by the Audit Team and it was also found that the aforesaid respondent submitted forged bank receipts contrary to bank statement, who after inquiry was terminated from service. The petitioner referred the matter to official Respondent No, 2, to lodge an F.I.R. against private Respondent No, 3, due to the embezzlement of Government money, however, the aforesaid official respondent failed to take any cognizance. The petitioner thereafter moved an application to Respondent No, 1, for issuance of order of lodging an F.I.R. against Respondent No, 3, who referred it to Respondent No, 2, however, needful was not done. The petitioner then made request to Inspector General Police, who also issued order for registration of F.I.R. against Respondent No, 3, within week time to Respondent No, 2, however, the said respondent even failed to obey the command of Inspector General Police, hence, petitioner constrained to file the instant constitution petition.
3. The official Respondents Nos,1 and 2 have controverted the contents of writ petition through comments which were treated as written statement, however, the contents of misappropriation and moving repeated applications and orders of high-ups of Police Department have not been repudiated.
4. The writ petition, however, has been resisted by private Respondent No, 3, through written statement filed on 21st June, 2013. It is stated that applications moved by petitioner were based on malice, therefore, F.I.R. was not liable to be registered against him. It is alleged that matter pertained to rendition of accounts, hence, the answering respondent did not commit any criminal offence nor misappropriated the amount in question. It is further stated that answering respondent has filed a suit for rendition of accounts before Senior Civil Judge, Muzaffarabad, which is subjudice before the concerned Court, therefore, criminal proceedings cannot be initiated against the said private respondent, hence, craved for dismissal of writ petition.
5. Syed Asim Masood Gillani, the learned counsel for petitioner while reiterating the grounds of writ petition submitted that petitioner moved an application to S.H.O. Police Station Chinarj, on 24th September, 2009, (Annexure-"PC"), however, no F.I.R. was registered against private respondent despite cognizable offences asserted in the application. He contended that petitioner moved subsequent application to Senior Superintendent Police, Hattian Bala, on 07th April, 2010, upon which S.H.O. concerned was directed to lodge however, order of S.S.P. was not acted upon. He further argued that even despite order of Inspector General of Police, Respondent No, 2, failed to register F.I.R. against Respondent No, 3, for malafide reasons. The learned counsel pressed into service that as per Section 154 of Criminal Procedure Code, 1898, it was Binding obligation of S.H.O. respondent to register F.I.R. against private Respondent No, 3 and submitted for acceptance of writ petition.
6. Mr. Akhlaq Hussain Kiani, Additional Advocate General, appearing on behalf of official respondents submitted that in support of application no proof was provided by petitioner, hence, the instant writ petition is accordingly bad in law. The learned Additional Advocate General, on Court query, however, admitted that F.I.R. was not registered by S.H 0 concerned as per applications.
7. I have perused the contents of writ petition and examined the appended documents made available with utmost care.
8. A contemplate perusal of record reveals that p petitioner moved an application to S.H.O. Police Station Chinari-Respondent No, 2, for registration of F.I.R. against private Respondent No, 3, on 24th September, 2009. In the aforesaid application, it was specifically mentioned that during handing/taking of charge, an amount of Rs, 145915.50 was found short from Utility Store, Hattian Bala, which was allegedly misappropriated by private respondent. It was further inserted in application that transited amount of Rs, 1,49,000/- was also found embezzled by private Respondent No, 3, through fictitious amendment in bank deposit slips. The needful was not done by the concerned S.H.O., hence, petitioner constrained to file second application before Senior Superintendent of Police, Hattain Bala, for registration of F.I.R., against private respondent, on 071h April, 2010. It appears from record that even direction passed by S.S.P. concerned was not followed by Respondent No, 2, who did not bother to lodge an F.I.R. against the private respondent. As per pleading S.H.O. Respondent was also directed by Inspector General Police to register F.I.R. against private Respondent No, 3, within a week period which command was brushed aside. As per Section 154, Cr.P.C. 1898, it was mandatory for S.H.O. concerned to register F.I.R., which speaks as follows: "154. 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 "
9. A reading of Section 151, supra, makes it abundantly clear chat every information relating to the commission of a cognizable offence given to an Officer Incharge of a Police Station shall be reduced to writing by him or under his direction .However, an Officer Incharge of a Police Station. cannot declined to reduce to writing, the F.I.R. on the basis of information pertaining to commission of cognizable offence. The aforesaid view is fortified from leading/ precedent of this Court, in case titled "Sabar Hussain etc. vs. Inspector General of Police, AJ&K & others- [PLJ 2014 AJ&K 393], wherein, at page 398, of the report, it was held as under.- "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."
The aforesaid proposition also came under consideration before the Peshawar High Court in case titled "Shafi-ur-Rehman vs. Jan Bahadur Khan, S.H.O. Zaida and 6 others- [1998 M LD 11611, wherein, at page 1165, it was opined as follows.
"5. Section 154, Cr.P.C. provides that every information relating to the commission of. the cognizable offence given to Officer Incharge of the Police Station shall be reduced into writing by him. The language used in the aforesaid section is mandatory and as such, S.H.O. was legally bound to record the information regarding commission of cognizable offence into writing and its refusal, amounted to denial of the lawful duty conferred on him by law."
The same view was reiterated by the Lahore High Court, Lahore in case titled "Muhammad Yousaf vs. Inspector General of Police and 4 others" [PLD 1997 Lahore 1351, wherein, at page 138, it was observed as under:-- "4. As regards the allegations of the non-registration of cases by the police, I may state that under the law if there is any information relating to the commission of a cognizable offence, a police officer is under the statutory obligation to enter it in the prescribed register. The condition precedent is two-fold; first that it must be an information and secondly it must relate to a cognizable offence on the fact of it. The purpose of F.I. R is to set the legal machinery into motion and it does not envisage any preliminary inquiry before formal registration of the case. A police officer who neglects or refuses to register a case, exposes himself to an action under Section 29 of the Police Act. The police officer should be mindful of the penalties provided by law for the neglect of duty by them. Section 29 of the Police Act says that a police officer who is guilty of any violation of any duty of willful breach or neglect of any rule or regulation or lawful order made by competent authority or offers any unwarrantable violence to any person in his custody, shall be liable to 3 months imprisonment, besides being proceeded against departmentally."
The similar point was expressed by the Peshawar High Court in case titled "Haji Sardar Bahadur Khan and another vs. Zia Masoom, D.I.G. Police, Hazara Range, Abbottabad and others" [1992 PCr.LJ 1989], wherein, at page 1991, it was held as under: "The law requires the officer incharge of the police station to reduce into writing the information given to him in the event of commission of a cognizable offence. In the present case written report was made by the petitioners which discloses the commission of the cognizable offence, therefore, Respondent No, 3 under the law was bound to record the report."
An identical point came under consideration before the Lahore High Court, Lahore in case titled "Manzoor Ahmed vs. S.H.O. and others" [1992 PCr.LJ 2236], wherein, at page 2237, it was opined as under: "3. The apprehensions and the grievance of the petitioner do disclose the commission of cognizable offences and if any such information had been conveyed to the respondent S.H.O. which he does not deny having reached him through the S.P. of the District, the S.H.O. was then obliged by the mandatory provisions of Section 154, Cr.P.C. to record an F.I.R. and then to proceed with the same in accordance with law.
4.No reasons have been shown which could persuade me against issuing a writ as prayed.
5.Consequently, this petition is allowed and the respondent S.H.O. is directed to act in accordance with law as laid down by the provisions of Section 154, Cr. P.C."
The aforesaid proposition came under consideration before the Karachi High Court in case titled "Wazir Ahmad vs. S.H.O. Police Station, Mehboob Kalhoro and others" [1990 P Cr. L J 2006], wherein, at page 2011, it was observed as under: "12. We had the advantage of full arguments on this subject at this preliminary stage, and on a careful review of the case-law on the point, we are clearly of the view that it is almost well settled that a police officer cannot refuse to register a case where a cognizable offence is made out. He cannot refuse to register a case even if he considers the version as false. In that exigency, the law empowers him to prosecute the complainant, if the result of investigation discloses that a, false information in respect of a cognizable offence was given."
10. After detailed deliberation, I have no hesitation to hold that Section 154, Cr.P.C. is mandatory provision and whenever an information disclosing prima facie commission of a cognizable offence is made, the concerned Police Officer is bound under law to enter it in the prescribed book and then can proceed in accordance with law.
11.The upshot of above discussion is that by accepting the instant writ petition, S.H.O. Chinari- Respondent No, 2, is directed to register F.I.R. against Respondent No, 3, forthwith. The aforesaid private Respondent No, 3, is however, will be at liberty to put his defence before the S.H.O. as per law. The writ petition is accepted in the manner as indicated herein above with costs.