' QAISAR AHMED HAMIDI, J.-- It is desirable to state briefly certain facts giving rise to this Constitutional petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
2. On 29-10-1989 some dacoits abducted Dr. Shafi Muhammad Soomro and 2 others. A case being Crime No,32 of 1989, under section 365-A/34, P.P.C. Was registered at Mahboob Kalhoro Police Station. It is alleged that a police party headed by Nazir Ahmad Jagirani, D.S.P. Ransacked the village of petitioner Wazir Ahmed Narejo.They abducted and wrongfully confined number of persons including womenfolk and during this process looted valuables and took away cattle with them. On 31-10-1989, the petitioner approached S.H.O., Mehboob Kalhoro, Police Station the respondent No,1 for lodging the F.I.R., but he refused to do so. The Superintendent of Police, Khairpur was also contacted, but with no result. The petitioner has, therefore, invoked the Constitutional jurisdiction of this Court.
3. Section 154, Cr.P.C., which relates to information in cognizable cases provides as follows:-- "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 he 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."
4. Rule 24.4 of the Police Rules, 1934, which deals with actions to be taken when reports arc doubtful lays down as follows:-- "24.4. Action when reports are doubtful.-- (1) If the information or other intelligence relating to the alleged commission of a cognizable offence, is such that an officer in charge of a police station has reason to suspect that the alleged offence has not been committed, he shall enter the substance of the information or intelligence in the station diary and shall record his reasons for suspecting that the alleged offence has not been committed and shall also notify to the informant, if any, the fact that he will not investigate the case or cause it to be investigated.
(2) If the Inspector or other superior officer, on receipt of a copy of the station diary, is of opinion that the case should be investigated, he shall pass an order to that effect, and shall, in any case, send on the diary or an extract therefrom to the District Magistrate for his perusal and orders.
5. This rule was examined in the case of Ch. Shah Muhammad v. S.H.O., Rahimyar Khan and 2 others, reported in 1977 P Cr. L J 2, and the following observations were made by a single Judge:-- "From the averments in the petition, it appears that the petitioner made a report of the alleged incident to the Police, but they refused to register the case or make any investigation in that respect and simply made an entry in the daily diary of the police station. According to rule 24.4 of the Punjab Police Rules" if the information or other intelligence relating to the alleged commission of a cognizable offence, is such that an officer-incharge of a police station has reason to suspect that the alleged offence has not been committed, he shall enter the substance of the information or intelligence in the station diary and shall record his reasons for suspecting that the alleged offence has not been committed and shall also notify to the informant, if any, the fact that he will not investigate the case or cause it to be investigated". In sub-rule (3) of Rule 24.4, it is further written that "when reasonable suspicion of such commission arises a First Information Report shall be recorded in the police station concerned and investigation under section 157, Criminal Procedure Code, shall be made". To the same strain is Rule 24.1 of the Punjab Police Rules. These Rules are in line with the proviso to section 157 and section 154 of the Cr.P.C. In that view of the matter, if the Police, suspecting that there was no reasonable ground for recording the F.I.R. Or making the investigation, has refused to proceed in the matter, the action of the police cannot be said to be without lawful authority."
6. This view was reiterated by Karam Elahee Chauhan, J. (as he then was) in the case of Haji Muhammad Khan v. Ch. Khizar Hayat Khan and 3 others, reported in PLD 1976 Lahore 1348.
7. In Jandodah v. S.H.O., Police Station Khairpur, Bahawalpur, reported in 1988 P Cr: L J 915(1), a Single Judge of the Lahore High Court observed as follows:-- "A case has been registered against the petitioner under section 307/148/149, P.P.C. And they have been challancd. As a counterblast, they also moved this Writ Petition to register a case against the complainant party, alleging that their crops had been damaged and the other party had also resorted to firing. Nobody has been injured in the latter case. The police has reported that the application of the petitioner is wrong and suspicious. In the circumstances, the efficacious remedy for the petitioner is to lodge a private complaint. This Writ Petition is, therefore, not maintainable and is dismissed."
8. A contrary view was, however, taken in Sawant v. S.H.O., Police Saddar Kasur and another, reported in PLD 1975 Lah. 733, and it was held by a Singl Bench that:-- "I also say with great respect that the language of section 154, Cr.P.C. Is imperative and a police officer cannot dub the counter-version as false without first investigating the matter. His duty is to make investigation. I, therefore, allow both the petitions and direct the S.H.O. To register a report at the instance of Sawant petitioner and to make investigation therein according to law."
9. The view taken in Ch. Shah Muhammad v. S.H.O., Rahimyar Khan and 2 others, reported in 1977 P Cr. L J 2, however, did not find favour with a Division Bench in Intra-Court Appeal (Ch. Shah Muhammad v. S.I-1.0., Police Station, City Police Station, 1 ahimyar Khan and 2 others, reported in PLD 1976 Lah. 1412), wherein it was held that where allegations as raised do spell out the commission of a cognizable offence, the police officer is obliged to register a case. It was further noted that any police officer who neglects or refuses to register a case if the information supplied to him does reveal the commission of a cognizable offence eXposes himself to an action under section 29 of the Police Act, 1861.
10. The view taken in Haji Muhammad Khan v. Ch. Khizar Hayat Khan and 3 others, reported in PLD 1976 Lah. 1348 it was also not approved by a Division Bench consisting of Sardar Muhammad Iqbal, C.J. And Aftab Hussain, J, in IntraCourt Appeal (Haji Muhammad Khan v. Ch. Khizar Hayat and 3 others,. Reported in PLD 1977 Lah. 424, wherein it was held:-- "The first question is whether the police officer can refuse to record an F.I.R. Even if it discloses a cognizable offence. The answer to this question is furnished by the mandatory provisions of section 154 of the Cr.P.C. Which provides "that 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 an0 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." This provision mandatory as it is, leaves no scope for exercise of any discretion by the police officer concerned in recording the First Information Report or in refusing to record the same."
11. The latter view gets further support from a judgment of Division Bench of our own High Court reported as Muhammad Ilyas v. Senior Superintendent of Police and another 1989 P Cr. L J 1129, in which following observations were made:-- "The controversial point involved in this petition is whether it is mandatory for S.H.O. Or any other officer at police station authorized in this behalf to register F.I.R. Of the complainant or it is open to him to refuse registration on the ground that no offence is made out. In this context reference can be made to sections 154 and 155, Cr.P.C. As they both relate to registration of F.I.Rs, Section 154, Cr.P.C. Relates to information in cognizable cases and section 155, Cr.P.C. Relates to information in non-cognizable cases. Perusal of section 154, Cr.P.C. Clearly shows that it is mandatory in nature and in the said section at three places word "shall" is used by Legislature to emphasise the fact that officer at police station is mandatorily bound by law to register the F.I.R. In coginiable cases and he cannot refuse registration on any ground. Reading of this section clearly shows that every information relating to the commission of a cognizable offence, if given orally to an officer incharge of police station shall be reduced to writing by him or under his direction and be read over to the informant. First "shall" as stated above very clearly in unequivocal terms requires the Police Officer to reduce into writing information with regard to the cognizable offence. He cannot wriggle out of it on any ground and cannot say that offence is not made out. Second "shall" is used in that section, when it goes on further to read that such statement shall be signed by the person giving it, which makes it compulsory for the Police Officer to get that information or complaint signed by the complainant and the third "shall used in the same section is to the effect that such report shall be entered in a book to be kept by such officer in such form as Provincial Government may prescribe in this behalf. The third "shall" contemplates maintenance of register under section 154, Cr.P.C. At police station. Section 154 is very clear and leaves no room at all for doubt or dispute about the fact that it is mandatory for Police Officer at police station to register report of the complainant in a congizable offence and not only that but the procedure is also prescribed that report is to be reduced into writing and is to be signed by the complainant and is to be entered in 154, Cr.P.C.
Register."
11. The latter view gets further support from a judgment of Division Bench of our own High Court reported as Muhammad Ilyas v. Senior Superintendent of
12. We had the advantage of full arguments on this subject at this preliminary stage, and on a careful review of the case-law on the point, we are clearly of the view that it is almost well settled that a police officer cannot refuse to register a case where a cognizable offence is made out. He cannot refuse to register a case even if he considers the version as false. In that exigency, the law empowers him to prosecute the complainant, if the result of investigation discloses that a false information in respect of a cognizable offence was given. It is well settled that where powers or rights are granted with a direction to comply with the same in a specified manner, it is not unjust to expect rigid observance of the same.
13. The matter, however, does not end here. The petitioner had filed C.P. No,D-264 of 1989 on 12-11- 1989, which was withdrawn by him on 21-11-1989, with permission to refile the same. In the earlier petition the petitioner and his witnesses, namely, Ali Sher, Allah Bux and Ghulam Abbas had sworn affidavits stating therein that they had gone to S.H.O. Gambat Police Station who refused to register the F.I.R. They took a complete somersault in this petition by stating on oath that they had gone to S.H.O. Mehboob Kalhoro Police Station, who refused to register the F.I.R. The relief under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, being discretionary relief, the writ cannot be issued as of right or in routine. In order to seek a relief of this nature, a petitioner must come to Court with clean hands and if he is found to have suppressed a material fact such relief should be refused. The cases reported as Saifullah Khan and another v. Settlement Commissioner, Punjab Lahore and 5 others, 1982 SCMR 853, Muhammad Siddiq and 2 others v. Settlement Commissioner, Punjab and others 1985 CLC 1897, and Abdul Rahim Khan v. Town Committee, Makhdoompur Pahooran and others 1985 CLC 2805 are relevant in this behalf.
14. Again an alternate remedy is available to petitioner who can file direct complaint for seeking redress. Although it has been held in number of cases that the existence of alternate remedy does not affect the writ jurisdiction, yet it is an important circumstance. In both the cases reported as Ch. Shah Muhammad v. S.H.O., City Police Station, Rahimyar Khan and 2 others PLD 1976 Lah. 1412 and Haji Muhammad Khan v. Ch. Khizar Hayat Khan and 3 others PLD 1977 Lah. 424, referred to above writ was refused mainly on the ground that an alternate remedy which was equally efficacious was available to the complainant. The following course suggested in the latter citation appears to be more appropriate and with respect, we approve the same:-- "The principle of law that has been enunciated in the Intra-Court Appeal No,31 of 1976, is, however, unexceptionable. The exercise of power under Article 199 of the Constitution is subject to the condition that there is no adequate remedy provided by law. Such an adequate remedy is provided to a complainant under section 190 read with sections 200 to 203, Cr.P.C. Section 190 provides that a Magistrate may take cognizance upon receiving a complaint of facts which constitutes such offence. The procedure for dealing with such complaints is provided in sections 200 to 203, Cr.P.C. There may be cases where the evidence to prove the commission of an offence cannot be collected except through the police agency. Similarly there may be cases where the entire evidence to prove the commission of such offence, is with the complainant. In the second category of cases it cannot be doubted that the complaint before the Magistrate is an adequate remedy. In such case the High Court refuses to exercise in writ jurisdiction under Article 199 of the Constitution. The advisability of exercising a discretion in favour a petitioner can be considered only in a case where the evidence can be collected through the agency of the police."
' We are also fortified in our view by the case of Muhammad Ijaz v. The S.H.O., Police Station, Rajana, Faisalabad, reported in 1979 SCMR 490.
15. In the case under review the petitioner has got all the evidence which is material, available with him. He can get the relief by filing a complaint before the Court having jurisdiction. The fact that the petitioner and his witnesses in their abovesaid affidavits have made inconsistent and self- contradictory statements also show that they have not come to the Court with clean hands. In such circumstances we do not consider it a fit case for the exercise of constitution jurisdiction.
16. The petition has got no merits and is accordingly dismissed in limine.