Through this petition filed under Article 44 of the Azad Jammu and Kashmir Interim Constitution, 1974, following relief is prayed for: "It is, therefore, very humbly prayed that by accepting the writ petition, read with Section 561, Cr.P.C. order of the Justice of Peace, District Neelum in criminal Miscellaneous No. 8, decided on 20.01.2018, may very graciously be set aside and Respondent No. 3 may very kindly be directed to register a criminal case against the culprits in accordance with contents of the applications, submitted by the petitioner and relatives of the petitioner , for registration of criminal case."
Precise facts of the case are that Khateeb-ur-Rehman, grandson of petitioner herein, died on 28.05.2016 and his dead body was found lying at the bank of Chanjat water channel. Muhammad Riafat reported the matter to the police, whereupon the police started proceedings under Section 174, Cr.P.C. Postmortem was conducted and necessary items were sent to Forensic Science Laboratory . After obtaining report from Forensic Science Laboratory and the report of doctor who conducted the postmortem of deceased and declared the death of decease as natural, submitted report before the concerned Magistrate who consigned the proceeding to the record.
Thereafter , on 06.06.2019, Bashir Ahmed, father of the deceased filed application before SSP Neelum for initiation of the proceedings against the accused mentioned in the application. Bashir Ahmed, father of the deceased also approached to IG Police for registration of the case and when the police did not register the case, Mst. Qasim Jan, petitioner herein, filed an application under Section 22-A, Cr.P.C. for registra tion of F.I.R. before Sessions Judge/Justice of Peace, Neelum on 28.08.2017, stating therein, that Khateeb-ur-R ehman was in fact murdered but the police has failed to perform his duties and registered the F.I.R. The other side filed objections on the application. After hearing the parties, the learned Sessions Judge/Justice of Peace rejected the application vide impugned order dated 20.01.2018 hence, the captioned writ petition.
Syed Hazoor Imam Kazmi, learned Advocate appearing for the petitioner reiterated the contents of the application filed by Muhammad Riafat that the applicant was resident of Lehri Mangal. His real nephew Khateeb-ur-Rehman on 25.05.2016 went with Abid Forest Guard, R/o Kaiyan Shareef for earning and came back to home at night. On 27.05.2016, as usual Abid went towards Jungle and did not come back. On 28.05. 2016, they found the dead body of Khateeb-ur-Rehman lying in the jungle. The learned Advocate further argued that postmortem of the deceased was conducted and as per Column No. 23 of autopsy report, a rope was also found from near the dead body and as per Column No. 13, there was swelling on the neck of the deceased which clearly suggested that he has been murdered but the doctor who conducted the postmortem without any medical investigation declared the death of the deceased natural due to disease of epilepsy . The learned Advocate contended that the doctor who conducted postmortem was close relative of suspected accused, therefore, the suspected accused in connivance with the doctor and the police maneuvered the murder as natural death.
The learned Advocate appearing for the respondents contended that no cognizable offence seemed to have been committed after taking into consideration the allegation and the facts narrated in the applications. It is also stated that at no stage during the inquiry proceedings it could be found that death was due to any act of any person. The learned Advocate submitted that the police proceeded in the matter under Section 174, Cr.P.C. and when they found the death of deceased as natural, presented the report before the concerned Magistrate, therefore, Justice of Peace rejected the 'application filed under Section 22-A, Cr .P.C.
I have heard the learned counsel for the parties and gone through the record of the case.
Keeping in view the facts and circumstances of the case, it would be appropriate to reproduce the relevant provisions of the Code of Criminal Procedure, 1898 which reads as under:
154. Information in cognizable cases . Every information relating to the commission of 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 entere d in a book to be kept by such officer in such form as the Provincial Government may prescribe in this behalf.
156. Investigation into cognizable cases. [1] Any officer incharge of a police-station may, without the order of, a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XV relating to the place of inquiry or trial.
(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one, which such of ficer was not empowered under this section to investigate.
(3) Any Magistrate empowered under Section 190 may order such an investigation as above mentioned.
[[4] Notwithstanding anything contained in sub-Sections (1) (2) or (3), no police-of ficer shall investigate an offence under Section 497 or Section 498 of the Pakistan Penal Code, except upon a complaint made by the husband of the woman, or, in his absence, by some person who had the care of such woman on his behalf at the time when such of fence was committed.]
157. Procedure where cognizable offence suspected. (1) If, from information received or otherwise an officer incharge 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 perso n, 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 spot, to investigate the facts and circumstances of the case, and, if necessary to take measures for the discover and arrest of the of fender: provided as follows:
(a) Where local investigation dispensed with. When any information as to the commiss ion of any such offence is given against any person by name and the case is not of a serious nature, the officer incharge of a police-station need not proceed in person or depute a subordinate of ficer to make an investigation on the spot.
(b) Where police officer incharge sees no sufficient ground for investigation . If it appears to the officer incharge 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."
174. Police to inquire on suicide, etc. (1) The officer incharge of a police-station or some other police-of ficer specially empowered by the Provincial Government in that behalf on receiving information that a person:
(a) has committed suicide, or
(b) has been killed by another , or by an animal, or by machinery , or by an accident, or
(c) has died under circumstances raisin g a reasonable suspicion that some other person has committed an offence, shall immediately give intimation thereof to the nearest Magistrate empowered to hold inquests, and, unless otherwise directed by any rule prescribed by the Provincial Government, shall proceed to the place where the body of such deceased person is, and there, in the presence of two or more respectable inhabitants of the neighbourhood, shall make an investigation and draw up a report of the apparent cause of death describing such wounds fractures, bruises and other marks of injury as may be found on the body , and stating in what manner , or by what weapon or instrument (if any), such marks appear to have been inflicted.
(2) The report shall be signed by such police officer and other persons, or by so many of them as concur therein, and shall be forthwith forwarded to the Magistrate.
(3) When there is any doubt regarding the cause of death, or when for any other reason the police officer considers it expedient so to do, he shall, subject to such rules as the Provincial Governme nt may prescribe in this behalf, forward the body , with a view to its being examined, to the nearest Civil Surgeon, or other qualified medical man appointed in this behalf by the Provincial Government, if the state of the weather and the distance admit of its being so forwarded without risk of such putrefaction on the road as would render such examination useless."
The First Information Report sets into motion the process of criminal machinery . Hon'ble Supreme Court of Azad Jammu and Kashmir and Pakistan through various authoritative judgments have time and again taken an unequivocal view that where complaint is made to the concerned police officer which disclose commission of cognizable offence, it is the statutory duty of police to register the F.I.R. and then proceed to hold investigation in the complained offence but unfortunately voice of Hon'ble Supreme Court and this Court fallen in deaf ears. It is experienced and observed that not only the police officials of lower rank but also of the higher ranks ignores the statutory law and directions of the Courts consistently , hence, reminder of the same to the Azad Jammu and Kashmir police and other concerned investigating agencies once again is necessary . The leading judgments of the Hon'ble Supreme Court on the subject are reproduced as under:-
(i) Case titled "Muhammad Rashid Rathore vs. S.H.O. City Police Muzaf farabad & 2 others" (1996 SCR 107), wherein, Supreme Court of Azad Jammu and Kashmir has observed as under: "It may be pointed out that if report made to a police officer is ambiguous and merely based on a doubt, the officer concerned is not bound to register a case straightaway without probing into the matter . However , we would like to make it clear that if any such report clearly indicates the commission of a cognizable offence, police officer cannot refuse to register a case on the ground that first he would satisfy himself about the truth of allegations made and then register a case; in such an eventuality , he is bound to register a case forthwith."
(ii) Case titled "Liaqat Ali and 2 others vs. Raja Sh&hid Nawaz and 2 others" (2006 SCR 365), wherein, Supreme Court of Azad Jammu. and Kashmir has opined as under: "No doubt investigation must follow F.I.R. and registration of a case after preliminary investigation is not only illegal act but it also creates serious doubts. However, in the present case according to statement of Syed Zaffar Hussain Gardezi, who was Incharge Chowki Police Mangla, he received information on 23.9.1984 that the parties are fighting with each other . On this information he rushed to the place of occurrence along with the police where he recorded the statement of complaint, Liaqat Ali S/o Muhammad Alam. In his opinion the offence was committed, under Sections 307/447, APC read with Sections 14/15 IPL Act. He sent the statement so recorded by him to the police station for registration of case. He never admitted anywhere that any investigation was conducted by him except recording the statement of complainant. In our view, a prosecution case cannot be thrown merely on the ground that F.I.R. was recorded after preliminary investigation. However , it is a serious irregularity which creates doubt. It would however not vanish the sanctity attached to Section 154, Cr .P.C."
(iii) Case titled "Kh. Muhammad Naheem and 4 others vs. Justice of Peace and 5 others" (2014 SCR 1049), wherein, Supreme Court of Azad Jammu and Kashmir has held as follows: "The provisions of Section 154, Cr.P.C. are mandatory . The S.H.O. has no option except to register the said information and if any cognizable offence is made out from the contents of the application, he shall start the investigation in the matter ."
(iv) Case titled "Shan Muhammad vs. Muhammad Younis and 4 others" (2014 SCR 183), wherein, Supreme Court of Azad Jammu and Kashmir has observed as under: "8. Part V of the Criminal Procedure Code relates to the information to the Polic e and its powers to investigate.
Under Section 154 of Cr.P.C. every information relating to the commission of a cognizable offence, if given orally to an officer in charge 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."
(v) Case titled "Muhammad Nazir vs. Justice of Peace and 2 others" (2018 SCR 273), wherein, Supreme Court of Azad Jammu and Kashmir has observed as under: "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. the 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 .LR."
Legislature clearly and cautiously used the word "information" in Section 154 of Cr.P.C. without qualifying the same as used in other provisions of the Code wherein the expressions "reasonable complaint" and "credible information" are used. The intent of legislature to use the word "information" was for the reason that police officer should not refuse to record the information relating to the commission of a cognizable offence and to register thereon, on the ground that he is not satisfied with reasonableness or credibility of information. In other words "reasonableness" or "credibility" of the said information is not a condition or requirement for the registration of a case. Intention of legislature is very much clear by using the word "Ever information relating to the commission of 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 Provincia l Government may prescribe in this behalf", so the police officer In-charge of a police station satisfying the requirement of Section 154, Cr.P.C. has no other option except to register a case on the basis of such information and there can be no departure after plain reading of the provision of 154, Cr.P.C. that there is an inviolable duty cast upon the police of ficer In-charge of a police station or register an FI.R.
Turning to the facts of the present case, a perusal of the record reveals that on the death of deceased one Muhammad Riafat filed application before City Police Station Authmaqam. Thereafter , Bashir Ahmed, father of the deceased filed application before the S.P . District Neelum, which is reproduced as under: {{URDU TEXT}}