MUHAMMAD SHAN GUL, J.---This judgment shall decide-W rit Petition No. 9086 of 2021 filed by the petitioner against an order , dated 08.06.2021, passed by a Justice of Peace, whereby , on the basis of an application disclosing the commission of a cognizab le offence, he proceeded to direct the SHO to register a criminal case under section 489-F , P.P.C.
2. The counsel for the petitioner has challenged this order , even though the order contains safety valves for the petitioner , inasmuch as the Investigation Officer has been directed to associate both parties, hear them properly , and bring their separate versions on the record, before finalizing investigation.
3. The counsel for the petitioner submits that no offence was made out from the contents of the application since the cheque had been given by way of guarantee and not with the intent to defraud any one. He submits that the petitioner has been condemned unheard inasmuch as, FIR is an adverse action that has been lodged against him without offering him an opportunity of being heard. He submits that the trauma and hard treatment, not to forget the stigmatization resulting out of the registration of FIR clearly means that a person against whom FIR is being registered should be heard in the matter , prior to registration of FIR. That, to leash and nip unscrupulous complainants, it was desirable and in consonance with due process of law that a preliminary inquiry or even a right of hearing should precede the registratio n of FIR. That there may be specific matters such as matrimonial and commercial offences where on account of the peculiarity of the subject matter , a right to be heard should be read into section 154, Cr.P.C. He also submits that such a course will eliminate rampant misuse of the process contemplated by section 154, Cr.P.C. That registration of FIR serves as a serious obstacle against a person in the enforcement and enjoyment of his fundamental rights such as gaining employment, becoming a member of an institution or club or even free movement. He further submits that giving a literal interpretation to section 154, Cr.P.C. reduces the registration of FIR to a robotic act. In the end, he submits that the entire process whereby FIR is registered suffers from arbitrariness, unfairness and is certainly disproportiona te. Adds that the FIR leads to arbitrary arrest which is in derogation of Articles 9 and 14 of the Constitution of Islamic Republic of Pakistan, 1973.
4. On the other hand, learned AAG has defended the order passed by the Justic e of Peace and submits that a Division Bench of this Court in "Malik Sohail Aslam v. Superintendent of Police (Operation), Lahore and 3 others" (2017 YLR 1548 ), has held that dishonoring of a cheque is a cognizable offence in terms of section 489-F , P.P.C. and that there are only two things that an SHO has to see in terms of section 154, Cr.P.C. and these are that an application conveying certain information is placed before him and that the information pertains to commission of a cognizable offence. He submits that there are no other considerations statutorily prescribed for the registration of FIR and it is legal anathema to read words into a statute. Relies on the famous quote of Viscount Simmonds, "if a gap is disclosed in a statute, the remedy lies in an amending Act and not in judicial guess work." He also submits that even historically , no right of hearing has ever been associated with, or envisaged for, the registration of FIR since a crime report per se is not an adverse action by any stretch of imagination.
5. I have heard both, the counsel for the petitioner as also the A.A.G., and propose to decide this matter as a regular case.
6. At the outset, it may be noted that section 489-F , P.P.C. does not distinguish or categorize reasons for creating the offence of issuance of a cheque that has been dishonoured. It does not create a classification of cheques. Only that a cheque issued in respect of an obligation is dishonoured. Since section 489-F, P.P.C. does not allow for any extraneous considerations to be taken into account before it can be triggered, it is in the nature of a self-executory provision, so to speak, and as long as a cheque in respect of an obligation is dishonoured upon presentation and an endorsement to this effect is provided by the bank, the offence is complete and the application narrating such an occurrence has to be acted upon in terms of section 154, Cr.P.C. What was placed before Justice of Peace in the present matter was a cheque and a slip provided by the bank showing that the cheque had been dishonoured. A Division Bench of this Court in "Malik Sohail Aslam v. Superintendent of Police (Operation), Lahore and 3 others" (2017 YLR 1548 ) has adequately addressed this issue and has held that an offence contemplated by section 489-F , P.P.C. is complete when a cheque in respect of an obligation is dishonoured and an endorsement from the bank is forthcoming. Whether the obligation is 'existing' or futuristic so as to attract the law laid down in "Mian Allah Ditta v. The State and other s" (2013 SCMR 51) will, of course, be seen by the Investigation Officer during the course of investigation and in this respect the order passed by Justice of Peace which is under challenge is very fair and he has provided ample safety valves to the accused. In "Rana Shahid Ahmad Khan v.
Tanveer Ahmad and others" (2011 SCMR 1937 ) wherein an order of the High Court quashing an FIR under section 489-F , P.P.C. on the basis that the cheque had been issued as guarantee had been challenged, the Hon'ble Supreme Court of Pakistan set aside the order quashing the FIR and ruled that such a plea could only be decided during the course of investigation and not otherwise.
7. In order to address the other argum ents raised by the counsel for the petitioner , it is necessary to first understand the terminology employed in section 154, Cr .P.C.:- "154. Information in cognizable cases. --Every information relating to the commi ssion 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, 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. "
8. It is clear from a reading of section 154, Cr.P.C. that the word `shall' which carries a mandatory connotation has been used and is clearly indicative of the intent of the legislature. There is no subjective or even objective discretion left to the police officer by this section. The strict statutory prescription makes this provision a self- executory mechanism. Furthermore, the term `information' appearing in section 154, Cr.P.C. is not qualified or conditioned upon any prefixed terms such as reasonable, credible, believable, truthful etc. It is evident that an SHO has no discretion or authority whatsoever to ascertain the veracity of such information before deciding to act upon it. Even when a police officer proceeds to the spot of occurrence on the basis of a source information, he has to, on gathering information relating to the commission of cognizable offence send a report to police station so that the same can be registered as FIR. It is also evident that what is required and necessary is only that the information given to the police must disclose commission of a cognizable offence. The intent of the legislature is unequivocally clear in this respect and mere information relating to commission of a cognizable offence is sufficient to register an FIR. Furthermore, when the statutory provision in question, Section 154, Cr.P.C., is clear and unambiguous it would be legally impermissible to C allow the police to read the term 'preliminary inquiry' or 'prior hearing' into the provision before registering an FIR. It may be mentioned in this connection that the literal rule of interpretation is nearly biblical when it comes to interpreting a statute. The other rules i.e. purposive, teleological or mischief rule can only be resorted to when no intelligible result can be arrived at from a literal reading. Kindly see 'B. Premanad v. Mohan and others' (2011) 4 SCC 266.
9. Consequently , the condition that is sine qua non for recording an FIR under section 154, Cr.P.C. is that there must be information and that information must disclose commission of a cogni zable offence. The provision is mandatory and the concerned officer is duty bound to register an FIR on the basis, of information disclosing the commission of a cognizable offence. The plain words appearing in section 154, Cr.P.C. of the Code have to be given their literal meaning. In "M. Anwar , Barrister-at-Law v. The Station House Officer, Civil Lines, Police Station, Lahore and another" (PLD 1972 Lahore 493 ) it has been held as follows:- "If there is an information relating to the commission of a cognizable offence, it falls under section 154 of the Code of Criminal Procedure, and a police officer is under a statutory obligation to enter it in the prescribed register . The condition precedent is simply two fold; first, it must be an information and secondly , it must relate to a cognizable offence on the face of it and not merely in the light of subsequent events. A police officer is bound to receive a complaint when it is preferred to him or where the commission of an offence is reported to him orally , he is bound to take down the complaint. If he does not incorporate in the register a complaint so made, he fails to perform a statutory duty as a public servant and, therefore, renders himself to be dealt with by his superior officers for neglect of duty . Thus, it does not depend on the sweet will of a police officer who may or may not record it. "
A Division Bench judgment of the Lahore High Court reported as "Saeed Ahmad v. Naseer Ahmad" (PLD 2000 Lahore 208) holds to the same effect and approves the earlier judgment in the case of "M. Anwar , Barrister-at- Law v . The Station House Of ficer, Civil Lines, Police Station, Lahore and another" (PLD 1972 Lahore 493 ).
10. In "Sana Ullah v. SHO, Police Station Civil Lines, Gujrat and 3 others" (PLD 2003 Lahore 228), it has been held at page 236 as follows:- ".........the words "every information relating to the commission of a cognizable offence" appearing in section 154, Cr. P. C., pertain only to the information so supplied and do not pertain to actual commission of a cognizable offence. These provisions are universally accepted to mean that the information supplied should be about an alleged commission of a cognizable offence irrespective of the fact whether such information is ultimately proved to be correct or not and also irrespective of the fact whether ultimately such an offence is found to have been actually committed or not. All that a Station House Officer is to be satisfied with at such a stage is that the information is in respect of an offence which is cognizable. The argument of the learned counsel for the petitioner that a Station House Officer is to form an opinion at such a stage whether any cognizable offence has actually been committed or not does not fit into the scheme of Code of Criminal Procedure as is evident from the provisions of sections 154, 155, 157, 167, 169 and 170, Cr.P.C., which highlight a clear distinction between an "information" and an "investigation" during which the information received earlier on may or may not be found to be correct."
11. Having laid tl.t. basis that section 154, Cr.P.C. does not permit for any other consideration but for those mentioned in the section itself to be taken into account for the purpose of recording of FIR, it is now time to address other arguments raised by the counsel for the petitioner .
12. The context in which the word 'shall' appears in section 154, Cr.P.C., the object and purpose in which it has been so used and the ensuing consequence clearly show that the word 'shall' has only been used in the mandatory sense. The mandate of section 154, Cr.P.C. reveals that at the stage of registration, on the basis of information disclosing commission of a cognizable offence, the police officer concerned cannot initiate an inquiry as to whether the information brought in by the first informant is reliable or genuine or otherwise and refuse to register a case on the basis that the information is not credible. The reliability , genuineness, credibilit y, reasonableness, veracity nee any opinion pertaining to the information so received has never remained a relevant precedent fact for registering a case under section 154, Cr .P.C.
13. The counsel for the petitioner has laid great emphasis on the proposition that FIR is an adverse action and that a person against whom an FIR is being registered should, therefore, be heard before its registration. This argument is absolutely baseless. Our own Hon'ble Supreme Court of Pakistan in a celebrated judgment reported as"Muhammad Bashir v. Station House Officer, Okara Cantt and others" (PLD 2007 SC 539) has held at paragraphs Nos. 21, 22 and 24 that "it could be said that if the FIR were permitted to be recorded without gauging the veracity thereof then floodgates would be opened......... a layman and not by a law knowing person because any one acquainted with the relevant law was expected to know that registration of an FIR was only a mode of recording or preserving information and was one of the means to set criminal law machinery into motion." The Hon'ble Supreme Court of Pakistan went on to say that the notion is unfounded that it was an FIR which authorized a police officer to commence an investigation. After quoting sections 54(1), 155(2), 156(1), 156(3), 157(1) and 202, Cr.P.C., the Hon'ble Supreme Court of Pakistan noted that an FIR was never a condition precedent for commencement of or holding an investigation. The said judgment further explains that registration of FIR did not always translate into an investigation into an offence because there was no provision of law which commanded or even envisaged that whenever an FIR was registered, a police officer was obliged to go through the entire length of investigation since he was permitted by section 157(1)(b) of Criminal Procedure Code read with Rule 24.4 of Police Rules, 1934 to refuse to investigate a case.
14. The Hon'ble Supreme Court of Pakistan after 13 years of this judgment having been handed down, in the case of "Abdul Rehman Malik v. Synthia D. Ritchie, Americans National and others" (2020 SCMR 2037 ) has followed, approved and reiterated the law laid down by the Court itself. The same judgment i.e. "Muhammad Bashi,- v. Station House Officer, Okara Cantt and others" (PLD 2007 SC 539) at paragraph No.24 unequivocally holds that FIR is not an adverse order , `it must, therefore, be kept in mind that mere registration of FIR could bring no harm to a person against whom it has been recorded." The above is indeed true because an FIR does not always end up in a report under section 173, Cr.P.C. because some FIRs are cancelled, some are declared to have been lodged without lawful authority , some are compromised or not pursued and some are simply not investigated in terms of the powers available with the police under section 157 of the Code of Criminal Procedure, 1898 and Rule 24.4. of Police Rules, 1934.
15. Having established that FIR is not an adverse order , the argument raised by the petitioners' counsel about section 154, Cr.P.C. being in derogation of the principle of audi alteram partem need not detain us any further . In view of the unequivocal ratio decidendi of the Hon'ble Supreme Court of Pakistan, any argument based on Article 10-A of the Constitution may not be receiv ed well any more. If an FIR is not an adverse order or action then Article 10-A of the Constitution has no applicability especially because it only speaks about a fair trial and the minute an FIR is registered, a whole volley of opport unities of hearing surfaces and remains till the time a challan is submitted in terms of section 173, Cr.P.C. Even during the trial an accused is blessed with numerous opportunities bringing the entire exercise in accord with Article 10-A of the Constitution.
16. The above should be read in the light of the fact that section 154, Cr.P.C. does not envisage a right of hearing in the provision itself, therefore, even posth umous, post-event hearing suffices. The fact that the initial action was taken without hearing or notice does not necessarily mean that the action was to be set aside if subsequently at the inquisitorial, investigative, trial, appellate or revisional level a proper , meaningful and unbiased hearing is provided.
Naturally this is so because there is no statutory requirement of hearing. As has been noted in "Sindh Employees Social Security Institution and another v. Dawood Cotton Mills Ltd." (PLD 1977 SC 177) at page 180, "where there is no specific statutory provision and reliance is placed on the principle of audi alteram partem , then, if at some stage or the other , the person aggrieved has been given a fair opportunity of representing his side, then the defect, if any, in the initial action may be deemed to have been cured." The Hon'ble Supreme Court of Pakistan went on to hold that if there be no provision for hearing, then, whenever violation of right of hearing is alleged, it shall have to be supported by some prejudice caused and, "such prejudice would obviously not be there if it is found that the party had been actually given a full hearing by the appellate or revisional authority ." In "Munawar Malik v. The State and 3 others" (2000 YLR 3027 ) it has been held at paragraph 8 that "there is no dearth of precedents wherein availability and utilization of subsequent opportunity of hearing has washed away the initial lack of hearing."
17. The counsel for the petitioner then complained that an FIR invariably resulted in arrest of a person and that, therefore, a hearing was necessary . That the mandatory registration of FIRs leads to arbitrary arrests. This argument is indeed nave because as has been held in the case of "Khizar Hayat and others v. Inspector General of Police (Punjab), Lahore and others" (PLD 2005 Lahore 470) (Full Bench of Lahore High Court) arrest of a person accused in an FIR is not a natural or obvious consequenc e of registration of FIR. While registration of FIR may be mandatory , arrest of accused immediately after registration of FIR is not at all mandatory . In fact registration of FIR and arrest of accused person are two different concepts under the law. There are, moreover , numerous safeguards available to an accused in this respect, conspicuous amongst which is the right to apply for anticipatory bail and even pre-arrest bail. No arrest can be made in a routine manner . There must be some reasonable justification in the opinion of the investigation officer so as to nudge him into arresting an accused. Therefore, it is not correct to say that simply because an. FIR is registered, an arrest automatically follows. It is indeed a figment of imaginati on rooted in fear that just because an FIR has been registered, an arrest would automatically follow and loss of reputation, blameworthiness and hard treatment, nay all kinds of inconveniences, shall result.
18. At this point, a brief history of section 154, Cr.P.C. as it appears in the Criminal Procedure Code may be relevant. Before Criminal Procedure Code, 1898 was brought into force, the provisions about registration of a case and the ensuing investigation were not as chronologically listed or arranged as these are now. However , one thing transpires from a reading of section 139 of Criminal Procedure Code, 1861, section 112 of Code of Criminal Code, 1872, section 154 of Code of Criminal Procedure 1882 and section 154 of Criminal Procedure Code, 1898 (Section 154, Cr.P.C. as numbered in the previous Codes ) that the provision contained in all these Codes clearly revealed compulsory registration of FIR in case of cognizable offence without conducting any preliminary inquiry . When the present Criminal Proce dure Code, 1898 was brought into force, it brought with it a significant change with respect to placement of section 154 in the statute book. It was consciously located prior to section 156, the provision empowering police to investigate a cognizable offence. It is crystal, therefore, that the objective of such placement of a provision was clear and it was to ensure that the recording of FIR should be the starting point of investigation by the police and not the other way around.
19. Having taken care of the arguments raised by the counsel for the petitioner and having explained the rationale and ethos of section 154, Cr.P.C., it is now necessary to state that it is not as if an accused person is left helpless even if the charges contained in an FIR are trumped up, fantastic or unbelievable. The Hon'ble Supreme Court of Pakistan in the case of "Abdul Rehman Malik v. Synthia D. Ritchie, Americans National and others" (2020 SCMR 2037 ) has very aptly summed up the position by relying upon "Mst. Sughran Bib( v. The State " (PLD 2018 SC 595) and holding that an investigation officer is not to be controlled or guided by the contents of FIR or that the investigation to be conducted by him is driven by any duty to establish the truthfuln ess of the story contained in the FIR. While referring to Rule 24.4 of Police Rules, 1934 it has been held that Rule 24.4 does not tyrannically foreclose doors to a complainant to voice his/her grievance nor it dogmatically empowers an Officer Incharge to terminate a prosecution before its inception on his subjective belief of it being false ; its application is subservient to the scheme laid down in Part V of the Code ibid and, thus, has to be essentially read in conjunction with section 169 thereof. Therefore, an Officer Incharge can possibly invoke the Rule, that too, for reasons strong and manifest after registration of First Information Report.
"View taken by a learned Division Bench of Lahore High Court in the case of Zulfiqar Ali alias Dittu and another v. The State (1991 PCr.LJ 1125) holding that "The law requires that a police officer should first register a case and then form an opinion whether the facts stated in the FIR are true or not. In the present case, police officer has not acted in accordance with law; rather he has put the horse before the cart " commends our approval. However , the said Rule certainly empowers the Officer Incharge to decline to take adverse action against an accused whom he justly and fairly considers, being hounded on a trump up charge for motives, obliquely calculated."
20. That likewise, in "Muhammad Bashir v. Station House Officer, Okara Cantt and others" (PLD 2007 SC 539) it has been clearly held that the remedy against registration of a false FIR is not to refuse the registration of FIR but to proceed against a delinquent informa nt under section 182, P.P.C.. Section 182, P.P.C. is intended to be a deterrent against registration of false cases against innocent persons.
21. After having dealt with the arguments raised by the counsel for the petitioner , it may be added here that it would be extremely unreasonable to suggest that while all law abiding citizens of the state have a duty to relay information about commission of an offence if committed in their presence, it is not obligatory for a SHO to register the report. This will indeed come across as an oxymoron.
22. In neighboring India, the same position obtains and which is that if any informa tion disclosing commission of a cognizable offence is laid before an officer incharge of a police station satisfying requirements of section 154 of the Code, the said police officer has no other option except to enter substance thereof in the prescribed form i.e. to register a case on the basis of such information. See the case of "Lallan Chaudhry v. State of Bihar " ((2006) 12 SCC 229).
23. Even in Bangladesh, section 154 of the Bangladesh Criminal Procedure Code, 1898, pari materia, presents the same picture and is in fact reinforced by Regulation 243(F) of the Police Regulations, Bengal, 1943, "Police Officers shall not defer drawing up the information report until they have tested the truth of the complaint."
This clearly prohibits any inquiry before registration of FIR.
24. Seen from whatever angle, the registration of FIR neither requires a prior hearing or precedent inquiry , nor is an FIR an adverse action and the provision of section 154, Cr.P.C. has to be literally construed. The position of the law today is still the same as it was 49 years ago when the judgment in the case of M. Anwar (supra) was handed down.
25. This petition is, therefore, found to be without any merit and certiorari is refused.