The petitioner has filed instant constitutional petition with the following prayer: "It is therefore, respectfully prayed that the acts of the Respondents No. 1 to 3 may very kindly be declared as illegal unlawful, without jurisdiction and they may very kindly be restrained from holding any kind of inquiry or further proceedings in this regard.
It is further prayed that the respondents may also very kindly be restrained from causing any kind of illegal harassment or humiliation to the petitioner in any manner."
2. Brief facts of the case are that Ali Javed Respondent No. 4 moved an application before SHO P.S. Mochi Gate, Lahore, for registration of criminal case against the petitioner upon which petitioner was summoned and after hearing both the parties, it was opined by SHO that no offence was made out from the contents of said application. Thereafter, SHO referred the matter to DSP Gawalmandi Circle Lahore who again summoned both the parties and opined that no offence is made out from the contents of said application. After reports of SHO and DSP, S.P. City Division, Lahore/Respondent No. 2 agreed with the reports of SHO and DSP. After lapse of two months, Respondent No. 4 again approached Respondent No. 2 on the same subject who ordered to re- inquire the matter and in compliance of said order, Respondent No. 3 is calling the petitioner time and again and as such causing illegal harassment to him.
3. Vide order dated 26.08.2021, report and pararwise comments were called for from respondents, which have been submitted. According to the comments, neither any proceedings have been intuited against the petitioner nor he has been harassed illegally by the police.
4. Arguments heard. Record perused.
5. It has been noticed that Respondent No. 4 filed an application/for registration of FIR against the petitioner before SHO P.S. A Mochi Gate, Lahore with the allegation that for the last 10 years Respondent No. 4 was importing stationary and sports items from China and selling at different places; Respondent No. 4 engaged the petitioner as commission agent at his office and after some time when Respondent No. 4 checked accounts, it transpired that petitioner misappropriated an amount of Rs. 9/10,00,000,00/, The said SHO summoned the petitioner; inquired into the matter, heard both the B parties and opined that the parties were running joint business from 2015 to 2018 and afterwards they separated their business and there was money dispute between the parties; Respondent No. 4 could not produce any documentary proof in support of his claim and the matter, between the parties is that of civil nature. With the aforesaid report, SHO referred the matter to Respondent No. 3/DSP who again summoned the parties and after hearing them, endorsed the findings of the SHO concerned. Thereafter, Respondent No. 2 after perusing the case as well as reports of SHO and DSP agreed with their findings and the file was consigned. After lapse of period of two months, Respondent No. 4 again filed application on the subject leveling same allegation, before Respondent No. 2/S.P. Respondent No. 2 ordered for re-inquiry and in compliance of said order, Respondent No. 3 is calling the petitioner time and again. The claim of the petitioner is that all the proceedings conducted by the Respondents No. 2 & 3 are illegal and unlawful as no inquiry can be conducted prior to registration of FIR and as such by calling the petitioner at police station, Respondents No. 2 & 3 are causing illegal harassment to him and their act is liable to be set aside.
Prior to discussing the matter in hand, it would be beneficial to refer the definition of inquiry and investigation. The term inquiry is defined in Section 4(k) of, Cr.P.C. which is reproduced as under: "Inquiry includes every inquiry other than trial conducted under Code by a Magistrate or Court."
The term investigation is defined in Section 4(1) of Cr.P.C. which is reproduced as under: "Investigation includes all the proceedings under this Code for the collection of evidence conductive by a police officer or by any, person (other than a Magistrate) who is authorized by a Magistrate in this behalf. "
When a complaint is filed by a person before SHO, he has to proceed with the same under Section 154, Cr.P.C. if commission of cognizable offence is made out from the contents of the same or under Section 155, Cr.P.C. if commission of non-cognizable offence is made out. Section 154, Cr.P.C. is reproduced for ready reference as under: "154. Information in cognizable cases.--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, 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"
Section 155, Cr.P.C. is also reproduced for ready reference as under: "155. Information. in non-cognizable cases.-(1) When information is given to an officer incharge of a police station of the commission within the limits of such station of a non-cognizable offence, he shall enter in a book to be kept as aforesaid the substance of such information and refer the informant to the [Magistrate.]
(2) Investigation into non-cognizable cases.--No police officer shall investigate a non-cognizable case without the order of a Magistrate of the First or Second Class having power to try such case [or send the same for trial to the Court of Session].
(3) Any police officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer-in-charge of a police station, may exercise in a cognizable case."
A perusal of the aforementioned Sections reflects that no inquiry in any case is permissible prior to registration of case. If from the contents of the application/complaint SHO makes up his mind that no cognizable offence is made out, he should straight away refuse to register the case. Under Section 154, Cr.P.C., it is the statutory duty upon SHO to enter information regarding commission of cognizable offence, but if he has refused to register it, that cannot be inquired by the higher officer, in any way. No such authority is vested in the other officer, than SHO to deal with the information of a cognizable offence. Even if the offence which is non-cognizable in nature is conveyed to the police; police may lodge Rappt under Section 155, Cr.P.C. and the procedure is provided that with the order of the Magistrate competent. to try the same, the investigation can be carried out by the police. In the present proposition when the SHO refused to register the case, no other authority in the police hierarchy has a right to inquire into the matter and pass the order for registration of case. With the refusal to register the case by SHO concerned, the complainant/respondent has a statutory right to file petition under Sections 22-A/22-B, Cr.P.C. before Ex-Officio Justice of Peace (concerned). Respondent No. 4 filed aforesaid application before SHO who inquired into the matter after hearing both the parties and opined that the parties were running joint business from 2015 to 2018 and afterwards separated their business and there was money dispute between them; Respondent No. 4 could not produce any documentary proof in support of his claim and that the matter between the parties was that of civil nature and Respondents No. 2 & 3 agreed with his findings, Respondent No. 4 did not file petition under Section 22-A, Cr.P.C. before Ex-Officio Justice of Peace (concerned). Likewise, Respondent No. 4 also had an opportunity to file a private complaint before the appropriate forum but this was also not done for the reasons best known to him. Rather he again approached Respondent No. 2 by filing an application for registration of FIR with the same allegations, which matter had already been thrashed out, and closed; but Respondent No. 2 again ordered for re-inquiry which is not warranted under the law. The law does not authorize any other police officer to hold an inquiry with regard to correctness or falsity of an information/complaint prior to registration of FIR rather only SHO is authorized under law to decide whether from the contents of a complaint commission of cognizable offence is made out or otherwise.The Police Order, 2002, also provides a procedure for registering a complaint when brought before SHO (concerned). The procedure is provided in Code of Criminal Procedure 1908, for summoning the parties. SHO is not competent even to investigate the case prior to registration of FIR, however to satisfy himself, SHO may inquire regarding contents of a complaint from the complainant only. There is no provision for conducting inquiry or re-inquiry after filing of a complaint/application by a person, before registration of FIR. Reliance is placed on the case law reported as Mst. Asia Bibi vs. The State and others (PLD 2019 Supreme Court 64) where it has been held as under:- "S.154---First Information Report (FIR) lodged after conducting an inquiry-Such FIR lost its evidentiary value."
"Furthermore, FIR lodged after conducting an enquiry loses its evidentiary value"
Further reliance is placed on the case of Abdul Rehman Malik vs. Synthia D. Ritchie Americans National and others (2020 SCMR 2037) where it has been held as under: "Law requires that a police officer should first register a case and then form an opinion in terms of R.24.4 of the Police Rules 1934, as to whether the facts stated in the FIR were true or not."
Therefore, the Officer Incharge can possible invoke the Rule, that too, for reasons strong and manifest after registration of First Information Report. View token by a learned Division Bench of Lahore High Court in the case of Zulfiqar Ali alias Dittu and another vs. The State (1991 P.Cr.L.J 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 cart ..."
After registration of case, investigation is to be conducted by the police with regard to truthfulness or otherwise of a complaint filed by the complainant. If he/she is not satisfied with the proceedings of the investigation, he/she may file an application for change of investigation before appropriate forum. If cognizable offence is made out then the matter will be proceeded under Section 154, Cr.P.C. and if non-cognizable offence is made out then procedure will be initiated under Section 155, Cr.P.C. otherwise, no other proceedings are to be initiated in this regard. The Constitution guarantees every citizen protection of life, liberty and property. No one can be harassed illegally in any way. Reliance is placed on the case law reported as Muhammad Suleman and others v. Malik Waheed and others (1994 P.Cr.L.J. 1824) where it has been held as under: "Needless to say that respondent, Police Officer is bound to protect life, liberty and property of the citizens including A the petitioner. In other words, the police shall not be permitted to take law into their own hands by causing undue harassment to the petitioners"
Reliance is placed on the case law reported as Akber v. Province of Sindh through Chief Secretary Karachi and others (PLJ 2019 Karachi 47) where it has been held as under: "The term harassment means a course of conduct which annoys, threatens, intimidates, alarms, or puts a person in fear of his safety. Police officials being bound by law, are never supposed to adopt such a course rather their every action is expected to be well within strictly drawn four corners of law".
6. Law has provided procedure for lodging report under Section 154, Cr.P.C., private criminal complaint and no such inquiry is allowed in these. After registration of case under Section 154, Cr.P.C., the investigation is be conducted under Section 156, Cr.P.C. and if Rappt is lodged under Section 155, Cr.P.C., regarding non-cognizable offence, the investigation may be ordered by the concerned Magistrate. When inquiry is not required prior to registration of case then no question of re-inquiry of a matter arises. The SHO concerned has given his view with the refusal. All the subsequent proceedings i.e. inquiry by DSP/SDPO and order of S.P. to re-inquire the matter is totally illegal, against the wisdom of statutory provision of Section 154, Cr.P.C. and such inquiry is not permissible under law and comes within the definition of harassment. In Black's Law Dictionary the definition of harassm ent has been mentioned as under: "Words conduct, or action that, being directed at a specific person, annoys, alarms, or causes substantial emotional distress to that person and serves no legitimate purpose, purposeful vexation. Harassment is actionable in some circumstances, as when a creditor uses threatening or abusive tactics to collect a debt."
In legal terms and phrases (Judicially defined) by M. Ilyas Khan Advocate Supreme Court of Pakistan, the definition of harassm ent is mentioned as under: "Harassment-The words (both in slander and libel) body, language, gestures and actions which tend to annoy, alarm and abuse' (verbally) another person".
In Words and Phrases permanent edition) Volume 19, H-Helanca (updated by cumulative and annual pocket parts), by Thomson West, the definition of harassment is mentioned as under: "Harassment, in context of Title VII, involves, conduct that unreasonably interferes with person's work performance or creates intimidating hostile or offensive work environment."
The inquiry prior to registration of case is permissible only in criminal cases of special law where after filing of a complaint, inquiry is ordered by the authority, and thereafter on the basis of said inquiry, formal FIR is registered.
7. In view of what has been discussed above, instant writ petition is allowed and act of Respondent No. 2 for re-inquiring the matter is set aside. SHO P.S. Mochi Gate, Lahore, Respondents No. 2 and 3 are directed to remain within the ambit of law. They are further directed not to cause illegal harassm ent to the petitioner and to act and proceed strictly in accordance with law. However, this order shall not be operative against any legal proceedings.