MOHAMMAD SHERAZ KIANI, J.---Through this petition filed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, l974, petitioner has implored the following relief:-- "It is therefore, humbly prayed that this writ petition may kindly be allowed and the following writs may kindly be issued; i. The impugned Decision/ order dated 25.08.2016 may very kindly be set-aside after declaring null and void, being contrary to law and facts. ii. The FIR under No.90/ 16 dated 01.09.2016 may very kindly be quashed/set aside being contrary to law and facts. iii. The respondents Nos.2 and 4 may very kindly be restrained to arrest the petitioner in compliance of the baseless impugned FIR under No.90/ 16 dated 01.09.2016. "2.Precise facts of the case are, petitioner is a first class State subject of Azad Jammu and Kashmir hails from District Bagh. Respondent No.4 moved an application against the petitioner before respondents Nos.2 and 3 for registration of a criminal case against the petitioner. It is further averred in the petition that respondents Nos.2 and 3 forwarded a baseless complaint under section 337/F-1 to Tehsil Court of Criminal Jurisdiction/Judicial Magistrate Dhirkot. It is submitted that SHO in its inquiry reached at the conclusion that from the contents of application and the statement of respondent No.4, no cognizable offence has occurred, hence by relying on the application and statement of respondent N. 4 a criminal case cannot be registered. It is averred that respondent No.4 invoke the jurisdiction of respondent No.1 by filing an application under section 22-A of Cr.P.C. and thereafter respondent No.1 wrongly ordered for registration of the case against the petitioner.
3. Pre-admission notices were issued to the respondents for filing parawise comments, but despite availing numerous opportunities respondents except respondent No.2 failed to file the same.
Respondent No.2 filed parawise comments on 08.11.2016. Writ petition was admitted for regular hearing on 10.02.2017 and respondents were directed to file written statement, documents and affidavit, however, the respondents failed to appear before the Court despite notices and proclamation.
4. The learned counsel for the petitioner submitted that the case against the petitioner is false and fabricated. No such incident mentioned in the application filed by respondent No.4 to concern police has occurred and respondents Nos.2 and 3 after necessary action wrongly forwarded a baseless complaint under section 337/F-1,APC to trial Court and in the same matter FIR cannot be registered and thus according to the version of the learned Advocate a direction under section 22/A, Cr.P.C. for registration of case is not warranted by law.
5. I have heard the learned counsel for the petitioner and gone through the record of the case with utmost care.
6. Under section 154 of Cr.P.C. when information is received by concerned Police Officer/SHO, the concerned Officer is bound to register a case and obviously after registration of the case he can investigate the matter and if any offence is not committed the Investigating Officer has the authority to delete any offence, but he is not authorized to order for further inquiry. There are plethora of judgments wherein if was held that under section 154, Cr.P.C. it is mandatory requirement under law for registration of the case. Reference can be made from 2000 PCr.LJ 320 titled "Mst. Malka Jan v. Inspector General of Police, N. W. F. P, Peshawar and 2 others, wherein it was held as under:-- "The perusal of the above mentioned sections of law clearly shows that the requirement of law is that Police Officer has to record the FIR mandatorily of a cognizable case under section 154, Cr.P.C. but if it is a non-cognizable case then substance of such information is to be entered in the relevant register but in each case the refusal is out of question. The Incharge of a police station is duty bound and it is his statutory obligation that on receipt of information whether orally or in writing he has to record the same in the book prescribed for that purpose and no option or discretion is left with him in this regard."
7. In the present case, it is clearly mentioned in the application given by the private respondent at police Sahliyan/Choki Officer Sahliyan Tehsil Dhirkot District Bagh in the following words:-- {{URDU TEXT}}
8. So from allegation made in the application filed by the private respondent, prima facie constitute an offence to register a case under section 341, APC which is cognizable offence. So in the aforementioned provision of law police has no authority to proceed further inquiry. It was obligatory for them to register a case and it is a clear violation of statutory law and the learned Sessions Judge/Justice of Peace has rightly directed to register a case. In charge of police station is duty bound and it is a statutory obligation of such Officer that on receipt of information whether orally or in writing he has to record the same in the book prescribed for such purpose and no option or discretion is left with the Officer in that regard.
9. So far as the contention of the learned counsel for the petitioner that because as the complaint has been filed in the trial Court thus in presence of the complaint the registration of the case could have not been ordered by the Court below, this contention of the learned counsel has no substance due to the simple reason that in cognizable offences to get the case registered is the right of a citizen which cannot be denied by filing a complaint that the same is not cognizable.
Under law police has the authority to take cognizance of the offence, investigate the matter, collect the evidence and then place it before the magistrate/trial Court and it cannot give its final finding or opinion with regard to offence or exonerate an accused. It is the solitary and mandatory duty of the trial Court to decide whether the offence has been committed or not and the police after necessary investigation has to submit report under section 173, Cr.P.C. Thus, the plea of the learned counsel for the petitioner that police through an inquiry found that offence under section 341, APC was not committed is devoid of any force. Before registration of the case, when a cognizable offence is made out from the contents of information, any preliminary inquiry by police is not a legal course. However, after registration of FIR and during investigation any wrong application of any penal section can be rectified.
10. It has been noticed in many cases that after receiving applications/ information of cognizable offence without registering the case on prescribed form, the police embark upon a preliminary inquiry and sometimes plays a role of arbitrator and adjudicator between the parties which is not in the legal domain of the police. It should avoid such roles which are not bestowed upon it by any law. The law has determined the limits and powers of all the State functionaries/ public servant.
Overstepping and transgression in the zone of others, causes serious legal complications and weaken the criminal justice system as well.
Crux of the above discussion is that, finding no force in this writ petition, it is hereby dismissed with no order as to costs.