' This petition filed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, seeks direction of this Court against respondent No,15 the S.H.O., Police Station, Afzalpur, District Mirpur, for registration of a case against respondents Nos.1 to 13.
2. The facts forming the background of this writ petition as stated therein, are that the petitioner received an information that Khurshid Ahmed, the real brother of his father-in-law, namely, Abdul Rehman, received fire-arm injuries and was admitted in the hospital. The petitioner further disclosed that he met Khurshid Ahmed who narrated that'on August 6, 1995 at 3 p.m. In the area of Village Ghaseetpur, Tehsil Mirpur, the cattle belonging to respondents Nos. I to 13 were intentionally let loose in the "Bajra" crop of Khurshid Ahmed and damaged it. It was also disclosed that Mst.
Begum Jan, Naushia Begum (since deceased), Mst. Lal Begum, Mst. Jewani Begum, Mst. Iqbal Begum and Mst. Khalida Begum, came there and assaulted the son of Khurshid Ahmed and also abused his wife. On forbidding the abovementioned ladies, Muhammad Ashraf, Khuda Dad, Imtiaz Khan, Sajid Mahmood, Imtiaz son of Sajawal Khan, Ashfaq Ahmed, Muhammad Fayyaz, respondents, all armed with weapons, in furtherance of their common object, launched a murderous assault on Khurshid Ahmed and his family members. They fired on them and also caused damage to his residential house. Respondents Nos.1 to 7 then entered into his courtyard causing fire-arm injuries to him and his son, Iftikhar Ahmed. Sajid Mahmood, respondent also fired at Khurshid Ahmed. Iftikhar Ahmed and his father were also given beating by respondents Nos.1 to 4 and 6. The wife of Khurshid Ahmad was also beaten. At the time of occurrence, Allah Ditta, respondent was armed with a pistol and Muhammad Fayyaz and other respondents Nos.1 to 4 were also armed with rifles. In the occurrence, the accused-respondents also received fire-arm injuries. The petition further disclosed that instead of registration of a case against the respondent, a false case under sections 302, 148, 324, 149, 147, 324, A.P.C. Was registered against Khurshid Ahmed and 5 others vide F.I.R. No,77/95 at Police Station Afzalpur, Tehsil Mirpur. It was also disclosed that a petition for registration of a case against the respondents was moved before the S.S.P., Mirpur on behalf of Khurshid Ahmed but no action has so far been taken.
3. The petition was admitted for regular hearing on October 21, 1995. The respondents in response to the notice issued to them, appeared through their counsel and filed their written statements, affidavits and documents, asserting there in that on the basis of investigation made by the local police, a challah has been submitted before the District Criminal Court, Mirpur against Khurshid Ahmed and 5 others. It was also added that the version put forth by Khurshid Ahmed through an application moved before the S.S.P., Mirpur, including an application submitted on behalf of Mst. Lal Begum, wife of Raja Rehman Khan, was found incorrect and false during the investigation. The petition was repudiated on the ground of same being filed after a considerable delay, without availing the alternative remedy available to them, apart from the ground that the petitioner is not an aggrieved person, was also taken.
4. Malik Muhammad Nawaz Khan, the learned counsel for the petitioner has raised the following points in support of the writ petition:--
(i) That Khurshid Ahmed and his family received injuries at the hands of accused-respondents armed with fire-arms, in an occurrence held on August 6, 1995 at 3 p.m. When a murderous assault in furtherance of their common object, was launched;
(ii) that the accused-respondents were aggressors against whom a case was legally required to be registered but instead, the case was registered against Khurshid Ahmed and 5 others;
(iii) that the police was bound to register a case in the instant case which disclosed cognizable offences under section 154, Cr.P.C. The learned counsel referred to PLD 1975 Lah. 733, PLD 1972 Lah.
493, 1993 SCMR 550 and 1990 PCr.LJ 1811, in support of his assertions.
5. On the other hand, Mr. M. Akram Mughal, the learned Additional Advocate-General, Ch. Ali Muhammad and Mr. Riaz Alam, the learned counsel representing the respondents, maintained that the petition is hit by the doctrine of laches which has been filed by a person who is not aggrieved in the matter. The learned counsel also argued that the application moved on behalf of Khurshid Ahmed, accused-petitioner along with the application moved by Mst. Lal Begum wife of Abdul Rehman, accused, was investigated upon by the local police. The version put forth by Khurshid Ahmed and Mst. Lal Begum, was held to be false, based on incorrect facts supported by no evidence. The challah on the basis of investigation made in the case, has already been forwarded to the Court of competent jurisdiction which is pending there. The petition, on the ground of alternative adequate remedy in the shape of private complaint available to the petitioner, was seriously attacked. The learned counsel referred to 1988 PCr.LJ 41 and 1995 PCr.LJ 351, in support of their assertions.
6. I have heard the learned counsel for the parties and also gone through the record. The controversy raises the following legal points to be resolved first before coming to the facts of the case in hand:--
(i) Whether every information relating to the commission of cognizable offence given to an Officer In charge of the Police Station shall be entered in a book to be kept for the purpose?
(ii) Whether a second report in any case can be registered in presence of information registered earlier?
(iii) Whether a necessary direction can be issued by this Court in case of refusal by the concerned Police Officer for registration of a case disclosing cognizable offence?
(iv) Whether the remedy in the shape of private complaint is adequate alternative remedy?
7. To appreciate the proposition, the relevant law, i,e, section 154 of the Code of Criminal Procedure is usefully reproduced:-- "Every information relating to the commission of a cognizable offence if given orally to an officer in charge of 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 Government may prescribe in this behalf."
' The information relating to a cognizable offence falls under section 154 of the Criminal Procedure Code and a Police Officer is under statutory obligation to enter it in the prescribed register. The condition precedent is simply that it must be an information, secondly, it must relate to a cognizable offence on the face of it and not merely in the light of subsequent events. The Police Officer is bound to receive a complaint when it is preferred to him or where the commission of offence is reported to him morally, is bound to take down the complaint. If he does not incorporate in the register a complaint so made, he fails to perform the statutory duty as a public servant. Thus, it does not depend on the sweet-will of the Police Officer who may or may not record it. The information referred in section 154 of Code of Criminal Procedure, appears to be something in the nature of complaint or accusation or at least information of crime given with the object of putting the police in motion, in order to investigate, as such there remains no ambiguity of a case disclosing cognizable offence to be registered.
8. Next, the question arises whether in a case where a case has already been registered, a second F.I.R. Also disclosing the information of cognizable offence about the same occurrence, is permissible in law. Plethora of law for and against the proposition is available, such as case of Abdul Ghani v. S.H.O., Police Station Saddar, Sheikhupura and others 1983 PCr.LJ 2172, Mirza v. S.H.O.
1982 PCr.LJ 171, Ikram Ali Shah v. S.H.O. Police Station Kotwali, Kasur and 2 others PLD 1979 Lah. 320 and PLD 1975 Lah. 733, can be referred in support of the proposition that the second F.I.R. Can be recorded by way of counter-version. Similarly, the cases reported as 1984 PCr.LJ 1454 and 1985 PCr.LJ 1342 lay down that registration of fresh case is not called for in presence of a case already registered.
9. A critical survey of the statutory law laid down in section 154, Cr.P.C. Analysis of the authorities referred to above and the consensus of the authorities reveals that the second F.I.R. Is not barred in appropriate cases disclosing e cognizable offence, particularly the cases of counter-versions. The argument that there shall be no end of registration of F.I.Rs, in one occurrence, can be successfully met by a guarantee provided in section 182, A.P.C., ensuring the correctness of the information in an investigation conducted by a Police Officer under section 157, Code of Criminal Procedure. If any person gives the First Information Report/statement to a Police Officer turning to be false, the informant can be liable to punishment under the above section. But in case of refusal there can be greater hardships for the informant against whom a case has been registered against the facts.
Therefore, in my view, the correct legal procedure for the police is to record the F.I.R. Containing the information with C regard to the counter-version and to investigate it. If they find that the evidence adduced by the informant did not sustain the charge, they can submit the report to the Magistrate for cancellation of the case. Reliance is placed on PLD 1975 Lah. 733, wherein following observation was made on the basis of an authority reported as 1973 PCr.LJ 69:--
(a) Criminal Procedure Code (V of 1898), S.154---F.I.R.---Registration of a case based on counter- version of accused---Cannot be refused on grounds that (i) Police consider accused's version as false, (ii) It is open to accused to file a complaint---Provisions of S.154---Oblige an S.H.O. To register a case as and when information is laid before him."
' It may be stated that most of the cases referred to by the learned counsel for the respondents are not relevant and in view of their distinct facts are not applicable to the facts of the present case, except the case reported as 1988 PCr.LJ 41, which, strictly speaking, also does not support the proposition advanced by the learned counsel for the respondents: The observation made in ' the abovementioned case is reproduced which also does not debar the registration of a case:--- "----S. 154---Counter-version---Registration of second F.I.R.--Direction for---Petitioner and others challenged incase and prosecution evidence had been summoned---Counter-version stated by petitioner had already been investigated by Police---Held, private complaint being efficacious remedy, second F.I.R. Would not serve any useful purpose."
10. Now, it is to be determined whether a private complaint is an adequate alternative remedy available to the informant in case of refusal to register his case. It may be mentioned that under law, a statutory right is available to the aggrieved person to get a case registered, and it is imperative for the Police Officer to register the same as discussed above. Therefore, the remedy of filing a private complaint cannot be termed a substitute of statutory right available to the petitioner and as such, the relief of registration of a case through the intervention of this Court in writ jurisdiction, on the basis of above remedy, cannot be refused. The proposition has also been discussed in PLD 1975 Lah. 733, reproduced above. It may also be added that in suitable cases, the exercise of Constitutional jurisdiction can be made. Reliance can be placed on PLD 1971 SC 677 and PLD 1972 Lah. 493, wherein it was observed:-- "(a) Letters Patent (Lahore), c1.22 read with Criminal Procedure Code (V of 1898), S.154---Station House Police Officer under statutory obligation to enter into prescribed register complaint lodged with him---Failure of Police Officer to do so---High Court has jurisdiction under c1.22, Letters Patent (Lahore) to order preliminary investigation into offences mentioned in complaint provided investigation not already commenced."
11. Coming back to the facts of the case in hand, it is disclosed in the writ petition that Khurshid Ahmed and some of his family members have been injured in the occurrence. It is also disclosed that some of them have been injured by fire-arms. The petition moved by the petitioner earlier and Mst. Lal Begum wife of Abdul Rehman were not registered . However, an inquiry in this regard is reported to have been made by the Officer In charge Police Station, Afzalpur. It may be observed that the Incharge, S.H.O. Police Station, Afzalpur was obliged to register such applications in the register provided by the Government for the purpose and then make an investigation under law as provided under section 157 of the Code of Criminal Procedure. The officer concerned has failed to discharge his legal duty in registering a case which otherwise, prima facie, disclosed a cognizable offence. Therefore, it is safely concluded that the S.H.O. Police Station, Afzalpur, Tehsil Mirpur was bound to register a case and then investigate the same according to law.
12. The ground raised with regard to laches, in particular circumstances of the case when the accused were arrested and consistent efforts have been made by them for registration of a case, has no substance, particularly when the occurrence took place on August 6, 1995. The application on behalf of Mst. Lal Begum wife of Abdul Rehman was preferred on August 9, 1995 and the other application on behalf of the petitioner was moved on August 22, 1995 which, according to the petitioner, awaited disposal at the time of filing the writ petition. The writ petition, in the circumstances, filed on August 31, 1995, cannot be held to be hit by the doctrine of laches. Similarly, the question raised with regard to the petitioner for not being an aggrieved person, is also devoid of force as the case relating to cognizable offence can be registered at the instance of any person, as such the petition could also be filed by a person having such grievance.
13. In view of the above discussion, the writ petition is accepted. Necessary direction, to register a case on the application moved by the petitioner to the S.S.P., Mirpur, shall issue against respondent No,15 and the same shall be investigated in accordance with law.