RAJA SAEED AKRAM KHAN, J. -- This appeal by leave of the Court arises out of the judgment of the High Court, dated 18.11.2017, whereby Writ Petition No, 513/2017, filed by the appellants, herein, has been dismissed.
2. The facts giving rise to the filing of the instant appeal are that an application was filed by Mst.
Shakeela Bibi, respondent No, 3, before the SHO, Police Station Neelum, respondent No, 2, for registration of a murder case, against the appellants, herein, but the case was not registered. On 31.12.2016, she moved an application under Section 22-A, Cr.P.C., 1898, before the Justice of Peace, respondent No, 1, stating therein that she is the resident of village Rawata, Tehsil Athmuqam, District Neelum. On 5.7.2016, her husband namely Attaullah Mir s/o Abdul Sattar, aged 60 years, soon after offering the Fajr prayers, left for irrigating the crops. After sometime, one Adalat Mir s/o Mangta informed the complainant that dead-body of her husband is laying in the nearby stream. She approached the police agency for registration of the case, which was not registered. She moved an application before the Justice of Peace, District Neelum, respondent No, 1, herein. The learned Justice of Peace, vide judgment dated 21.3.2017, accepted the application and ordered the SHO, Police Station Neelum, respondent No, 2, herein, for registration of the case, accordingly. Feeling aggrieved from the judgment of the Justice of Peace, District Neelum, dated 21.3.2017, the appellants, herein, filed a writ petition before the High Court, which has been dismissed, through the impugned judgment dated 18.11.2017, hence this appeal by leave.
3. Ch. Amjad Ali, advocate, counsel for the appellants, submitted that the impugned judgment is against law and the record, which is liable to be vacated. He submitted that the learned High Court while dismissing the writ petition in limine has not taken into account that the Justice of Peace illegally ordered for registration of the case while exercising powers under Section 22-A, Cr.P.C. He forcefully argued that the learned Justice of Peace was not equipped with such powers, when the matter was being investigated under Section 174, Cr.P.C. He added that when the proceedings under Section 174, Cr.P.C., were under process, no order for registration of the case under Section 154, CrP.C., can be passed. In, continuation of the arguments, the learned counsel submitted that respondent No,.2, for the purpose of investigation, visited the spot and found that a dead-body has been taken by the heirs to their home, which was later on taken into custody for post-mortem. After conducting, the post-mortem, parcel was sent to the forensic laboratory for examination and a report under Section 174, Cr.P.C., was submitted.
He added that a complaint on behalf of respondent No, 3 was also forwarded to the concerned Magistrate. In this scenario, there was no occasion for passing the order for registration of the case, which amounts to frustrate the proceedings being conducted under Section 174, Cr.P.C. The learned counsel further submitted that both the Courts below have not taken into account that the false affidavits were submitted while taking a new and altogether different version, which is not warranted under law. In this way, both the Courts below have failed to apply independent mind, while deviating from the statutory provisions of law. The learned counsel submitted that the High Court has also not considered this important aspect of the case that the application under Section 22-A, Cr.P.C., was lodged after four months' delay and no such explanation has been brought on the record, which shows that the application has been moved after deliberation. The learned counsel lastly, argued that it has escaped the notice of the High Court that according to the provisions of Section 154, Cr.P.C., the mandatory condition is prima facie establishment of cognizable offence, which is missing in the case in hand, even then the order of the Justice of Peace was upheld. The learned counsel referred to and relied upon a plethora of judgments, which are part of the record, a few of which are referred herein-below:---
(i) Muhammad Ayub v. SHO of Police Station & 2 others [PLJ 2012 Cr.C. (Quetta) 581],
(ii) Safia Sultana v. Station House Officer Police-Station Nawan Kot, Lahore [PLD 1988 Lahore 714],
(iii) Khuda Bakhsh v. Province of West Pakistan & another [PLD 1957 (W.P.) Lahore 662],
(iv) Riaz Ahmed & 3 others v. The State [PLD 1994 Lahore 485], Agha Qais v. The State [PLJ 2010 Criminal Cases 511], and
(vi) In re: Laxminarayan 7immanna Karki (AIR 1928 Bombay 390).
4. On the other hand, Mr. Muhammad Noorullah Qureshi, advocate, while representing respondent No, 3, strongly controverted the arguments raised on behalf of the appellants and submitted that the judgment passed by the High Court is perfectly legal, which is not open for interference by this Court. He added that the provisions of Section 174, Cr.P.C., and Section 154, Cr.P.C., are distinct in nature and both provide different remedy. The learned counsel added that respondent No, 3 ran from pillar to post for the registration of murder case of her husband, but the police failed to discharge its duty and she was constrained to approach before the Justice of Peace while invoking the provisions of Section 22-A, Cr.P.C. for seeking a direction for registration of the case in a cognizable offence. He added that from the day first, the case of respondent No, 3 is that a cognizable offence has been committed but the Police is not performing its duty under law, as the SHO concerned is under obligation to register the case. He added that the material collected by the Police sufficiently connects the accused with the commission of offence of murder, as the cause of death of the deceased is head injury, which resulted into vomiting resulting in inhalation, causing chocking and thus the death of deceased occurred. He further submitted that the findings of the Medical Officer further corroborate the nature of injuries entered in the post-mortem report, which, too, prove that the deceased has been murdered. He forcefully argued that the Police officials have admitted that they remained waiting for the Medical report, which was received during pendency of the case before respondent No, 1 and after receiving the same, there was no excuse except to register the case. He added that after passing the order for registration of the case under Section 154, Cr.P.C., the proceedings under Section 174, Cr.P.C.; have become redundant.
The learned counsel referred to and relied upon the cases reported as Ashiq Hussain v. Justice of Peace, Alipur & 2 others [2010 YLR 774], Mst. Nazeeran v. SHO Police Station Daharki & another [2013 YLR 268], Tasaddaq Hussain v. DPO & others [2007 P.Cr.L.J. 145] and Muhammad Fazul v. The Province of Sindh through Home Secretary, Karachi & another [2013 P.Cr.L.J. 168].
5. Mr. Zubair Ahmed Raja, the learned Additional Advocate General, adopted the arguments of the counsel for the complainant while adding that the police is under obligation to proceed under Section 154, Cr.P.C., in a case of cognizable offence.
6. We have heard the learned counsel for the parties, the learned Additional Advocate-General, and perused the record made available.
7. After remaining unsuccessful to get the case registered against the accused-appellants, the complainant, respondent No, 3 herein, approached the Justice of Peace, District Neelum, under Section 22-A, Cr.P.C., for a direction for registration of the case, which was issued accordingly.
Feeling aggrieved, the appellants, herein, challenged the order of the Justice of Peace by way of writ petition before the High Court, which was dismissed in limine. The argument of the counsel for the appellants is that after initiating the proceedings under Section 174, Cr.P.C., application under Section 2Z-A, Cr.P.C., is not competent, as no cognizable offence was committed. To appreciate the argument, we have examined the medico-legal report, as well as the opinion of the doctor. It is relevant to reproduce the same, which read as under:--- " "However, the provisional cause of death according to the finding during post-mortem and nil report of poison detection.
'Head Injury leading to vomiting resulting in inhalation causing "chocking" resulting as a cause of death of victim.' --Detection of Poison-Nil Death due to Natural disease like heart attack and brain Haemorrhage could not be ruled out without histopath report.
After going through the supra-reproduced findings, it appears that the cause of death of the deceased was recorded as 'head injury'. In this scenario, the proceedings under Section 174, Cr.P.C., were not warranted, as after going through the said provision, it postulates that the same comes into play only when the cause of death is unknown. Admittedly, after the occurrence, the complainant, respondent No, 3, approached the concerned authority for registration of the case but the needful was not done in spite of the fact that reliable evidence was brought on the record.
The provisions of Section 154, Cr.P.C., are mandatory in nature, which postulate that every information relating to the commission of a cognizable offence, if furnished orally or written to an officer-in-charge of a police station, shall be reduced to writing by him but in the case in hand, the concerned officer in-charge' police station failed to discharge the statutory duty and proper course has been adopted by the respondent by approaching the proper forum i,e, die Justice of Peace. The purpose of registration of case is to set the law into motion and to obtain first hand spontaneous information of occurrence, in order to exclude possibility of fabrication of story or consultation or deliberation or complainant has time to device or contrive anything to his advantage and to the disadvantage of others and to safeguard the accused of such-like happenings/occurrence in F.I.R. In the case reported as Mushtaq Hussain v. State [2011 SCMR 45], it has been observed as under:-- ".,.. The purpose of the F.I.R. is to set the criminal law in motion and to obtain the first hand, spontaneous information of occurrence in order to exclude the possibility of fabrication of story or consultation or deliberation or the complainant has had time to devise or contrive anything to his advantage and to the disadvantage of others and to safeguard the accused of such-like happenings/occurrences in the F.I.R., as the spontaneity is the guarantee of truth to a great extent."
8. Another argument of the counsel for the appellants that the proceedings under Section 174, Cr.P.C., were already initiated by the police, as no cognizable offence was committed and in the presence of such proceedings, the order passed by the Justice of Peace under Section 22-A, Cr.P.C., was not warranted, is not convincing in nature. A careful study of Section 174, Cr.P.C., postulates that three eventualities are provided under the relevant provision of law. The officer-in-charge of a police station or some other police-officer specially empowered so, on receiving information that a person (i) has committed suicide, (ii) has been killed by another, or by an animal, or by machinery, or by an accident, or (iii) has died under the circumstances raising a reasonable suspicion that some other person has committed an offence, shall immediately give intimation thereof to the nearest Magistrate empowered to hold inquest, whereas in the case in hand, the position is quite different. From the record, it appears that respondent No, 3 has moved a number of applications for registration of the case of murder of her husband and after being unsuccessful, she was left with no option except to move application under Section 22-A, Cr.P.C. The purpose of investigation under Section 174, Cr.P.C. or inquiry under Section 176, Cr.P.C. into the cause of death was only to ensure that no offence had been committed in connection with the death of a person and such investigation or inquiry could not be carried out for the purpose to determine the crime weapon used in commission of offence or seat of injuries on the person of deceased. The inquiry/investigation can only be allowed if the cause of death was shrouded in mystery or that it falls in the eventualities provided in Section 174, Cr.P.C., whereas no such eventuality is brought on the record, as we have observed in the preceding paragraph that respondent No, 3/complainant has been pursuing for registration of the case with the allegation that it is a case of murder and not a suicide but the Police failed to register the case. Moreover, from the record it appears that the police was reluctant to proceed under Section 154, Cr.P.C. as they were waiting for the medical report and the same was received during pendency of the matter before the Justice of Peace.
9. In brief, it may be observed that the purpose of investigation under Section 174, Cr.P.C., is only to ensure that no offence has been committed in connection with the death of a person when the cause, of death is unknown, whereas the case established by the complainant is that it is a case of murder and a cognizable offence has