The relevant facts are that Muhammad Yousaf petitioner got a case registered with Shahpur Saddar Police about the murder of his son, namely Muhammad Saeed with a fire-arm on 4-5-1996.
Neither anybody was named as assailant in the F.I.R. Nor, suspicion raised against anyone. As a result of the private inquiry conducted by Muhammad Yousaf petitioner, he learnt about the details of murder of his son which he brought to the notice of the Investigation Officer but he did not care to investigate the case on those lines. According to the petitioner, he made several applications to the higher police officers and the District Administration but with no result.
2. So far as the grievance of the petitioner about the lack of interest on the part of administration is concerned, I may state that under the law it is the collective responsibility of the police and the District Magistrate to have effective control over the Local Police so that they perform their duties within the four corners of law. Under the police rules, the District Magistrate can even direct the Superintendent of Police to take suitable measures for the protection and detection of crime. Rule 1.15, Chapter I of the Police Rules, 1934 says that the District Magistrate is the head of the criminal administration of the district and the police force in a district is placed by law under his general control and direction with a view to affording effective protection to the public against lawlessness and disorder. This rule also requires the District Magistrate to inspect police stations. His authority extends to all matters except the internal administration and training of the force and disciplinary matters. But unfortunately, the District Magistrates are not giving proper attention to this aspect of the matter. It has been asserted by the learned counsel that the District Magistrates preferred to continue to maintain harmonious relations with the Superintendent of Police instead of urging them to impress upon their subordinates to attend to their duties effectively. They fear that such an advice may have an adverse bearing on their relations with the Police Chief who may not be happy over their interference in their sphere of authority. This apathy on the part of District Magistrates cannot be approved as it ultimately affects the law and order situation in the district.
The police is also under legal obligation to keep the District Magistrates informed about the crime situation and the steps taken by them for detection of crime which currently is not being done.
3. A large number of petitions are being filed in the High Court against the police complaining against non-registration of cases, lack of interest by the police in investigations, repeated reopening of the investigations, failure to apprehend culprits, particularly absconders and their failures to complete the investigation within the specified time. Allegations of harassment of the womenfolk of the wanted criminals, fake police encounters, failure to take prompt remedial measures to check crime even when information in that respect is provided to them beforehand and their alleged connivance in the crime, besides other malpractice and corruption.
4. As regards the allegations of the non-registration of cases by the police, I may state that under the law if there is any information relating to the commission of a cognizable offence, a. Police officer is under the statutory obligation to enter it in the prescribed register. The condition precedent is twofold; first that it must be an information and secondly it must relate to a cognizable offence on the face of it. The purpose of F.I.R. Is to set the legal machinery into motion and it does not envisage any preliminary inquiry before formal registration of the case. A police officer who neglects or refuses to register a case, exposes himself to an action under section 29 of the Police Act. The police officer should be mindful of the penalties provided by law for the neglect of duty by them. Section 29 of the Police Act says that a police officer who is guilty of any violation of any duty of wilful breach or neglect of any rule or regulation or lawful order made by competent authority or offers any unwarrantable violence to any person in his custody, shall be liable to 3 months imprisonment, besides being proceeded against departmentally. Refusal to record first information report was held to be violation of mandatory provision of Chapter XVI of the Cr.P.C. And of section 23, Police Act, 1861 on the part of police officer by a Full Bench of Lahore High Court in Ghulam Abbas v. The State (PLD 1968 Lahore 101).
5. As regards the poor standard of investigation, I may state that this is mainly because of the lack of interest on the part of the supervisory authorities. Reference may be made to Rule 2.5, Chapter XX which requires a gazetted officer to inspect every police station and post in the district at least twice a year, They are also required to examine registers concerning current crimes and to check the investigations by looking into the case, diaries and paying visits to the scene of the crime and interviewing the complainant and witnesses and other persons who may be expected to know about the details of the occurrence but unfortunately they appear to be paying little attention to this aspect and have left the matter to the entire discretion of the subordinate officers and the only thing which they do gladly is to change the investigation from one officer to another under some covert or overt pressure.
6. As regards re-opening of the investigation, I may refer to a Supreme Court judgment titled Riaz Hussain and others v. The State (1986 SCMR 1934), wherein the Court observed that the system of re-investigation in criminal cases is a recent innovation always taken up at the instance of influential people to obtain favourable reports which in no way, assists the Courts in coming to a correct conclusion, it rather creates more complications to the Courts administering justice.
7. On account of the persistent failure of the police and the District Administration to come to the rescue of the aggrieved persons, people rush to the Courts and although the Courts cannot assume the role of investigator, they have to summon the concerned police officers to find out the veracity of the allegations levelled against them and to remind them to perform their duties in accordance with law. This is being done by the Courts with a view to strengthening the confidence of public in the system so that they do not take law into their own hands for securing justice.
8. As regards the powers of the High Court to interfere under its discretionary jurisdiction conferred on it under Article 199 of the Constitution, a reference may be made to the provisions of Article 4 of the Constitution of Islamic Republic of Pakistan, 1973 which says that every citizen has an inalienable right to be treated in accordance with law and to enjoy the protection of law. Under Article 9 of the Constitution, no person shall be deprived of life or liberty save in accordance with law. Article 10 of the Constitution provides safeguards against arrest and detention. It provides that no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest and every person who is arrested and detained in custody shall be produced before a Magistrate within 24 hours of such arrest excluding the time necessary for journey from the place of arrest to the Court of nearest Magistrate and that he shall not be detained in custody beyond the said period without the authority of a Magistrate. Article 14 of the Constitution provides that the dignity of man and subject to law, the privacy of home shall be inviolable. It says that no person shall be subjected to torture for the purpose of extracting evidence. The aforementioned fundamental rights of a citizen whenever violated and brought to the notice of the High Court, it should step in to investigate such facts under its discretionary jurisdiction conferred by Article 199 of the Constitution and pass such order as may be found just, legal and equitable taking into consideration the facts and circumstances of each case. This principle of law was enunciated in Government of Sindh through the Chief Secretary, Karachi and 4 others v. Raeesa Farooq and others (1994 SCMR 1283). The Supreme Court further held that "where the liberty of a citizen is involved and the action initiated by the police/prosecution is found to be mala fide and intended to extract evidence or information from the detenue, the superior Courts should not be reluctant to step in and grant relief to the citizen". It was further observed in the said judgment that the Courts have to safeguard the fundamental rights of the citizens and to protect their lives and property from the illegal, unauthorized and mala fide acts of omission and commission by any authority or person. The High Court has the jurisdiction to examine the facts and information's laid before it to determine prima facie that it does not lack bona fides, is not a cooked up or manipulated affair, the detenue has not been illegally detained without a proper and legal remand order. And this can be achieved only when the Court examines the information, reasons, facts and causes leading to detention. It was further observed in the case cited above that while examining, the High Court will not act as an Appellate Court nor will it make shifting investigation in such Constitutional petitions. If the police and administration perform their duties in accordance with law, there would hardly be any occasion for the judiciary to interfere in the matters which fall within their Province because continued control over the investigation exercised by the Courts may be prejudicial to the accused and detrimental to the fairness of the procedure.
A recent judgment delivered by the Supreme Court in Anwar Ahmad Khan v. The State and another reported in 1996 SCMR 24 may be usefully referred to where it was held that where investigation is mala fide or without jurisdiction, the High Court, in exercise of its Constitutional jurisdiction, under Article 199 is competent to correct such proceedings and pass necessary order to ensure justice and fair play and that the investigating authorities do not have entire and total authority of running investigation according to their whims and the Court may direct the concerned authorities to finalize their reports within a reasonable time.
9. Since the command of the police force vests in the Inspector-General of Police he, being Head of the Police Department, is responsible for supervision and control of the police force working in the Province by issuing necessary directions to them as and when required. His charter of duty requires him to check and control crime and to see that all the officers subordinate to him perform their duties in accordance with law and that the gazetted officer personally supervise the investigations to ensure that it is faithfully carried out and whether or not they check the case diaries and make inspections of the police stations and post falling under their jurisdiction. I.G.P. Should bring these directions to the notice of his subordinate as also rule 14.4, Chapter XIV of the Police Rules, 1934 which requires that every police officer shall keep his temper thoroughly under control, shall act with courtesy on all occasions and shall not allow his composure to be disturbed by the behaviour of others towards him and while defending himself or lawfully enforcing his authority, shall act with calmness and shall use as little violence as possible.
10. Extra-judicial killing carried out by the police is highly condemnable because it adversely affects faith in the system. It is not only violative of law but also a brutal and inhuman act on the part of the police. Such incidents also tend to shake the legal framework of our society which in turn loses its trust in the judicial system. Under the law, police is to arrest the criminals and to investigate the crime but they cannot exceed their limits. They can use reasonable force to arrest a criminal but killing of a person after arrest is not only illegal but also highly inhuman act. Sometimes it is alleged that such killings are made for their hidden motives. Fake encounters are indulged into to conceal the truth.
11. Police should be used strictly for the purpose for which it is established and the law should be enforced in its real spirit. Such killings are a disgrace of law and cannot be condoned. The police if itself violates the law have no right to be described as custodian of law. It is alleged that whenever any complaint is made to the higher police authorities about excessive use of force by it they try to shield and protect their subordinates with the result that people lose all confidence in the departmental enquiries. On the other hand it is a mockery of justice that cash rewards are announced for the police officers indulging in extrajudicial killings. Hardly any serious enquiry appears to be conducted by the police to find out the truth behind the extra-judicial killings.
12. There is yet another serious complaint against the police i,e, making fake recoveries of incriminating material, exaggerating their number to show their Kargozari and later misappropriating the same from Police Malkhana. It is invariably seen that after recovering stolen vehicles they do not inform their owners and continue to have them under their personal use.
Sometime they replace the valuables with the old ones. It has also come to our notice that in order to fleece the affluent the police falsely introduce their names in the statements of the accused and when their object stands realised they exclude their names on the plea that no corroboration could be found of the version of the accused. Allegations of their mixing up with the criminals are also very common. Instead of laying hands on the real suspects they involve absolutely innocent persons in the investigation and challan them after fabricating evidence against them. This is being done to show to the higher authorities that they have traced the crime and challaned the criminals and when such persons are acquitted for want of proper proof blame is thrown on the Courts.
13. I may usefully reproduce the observations made by this Court in Ghulam Shahbaz v. S.H.O., P.S. Saddar, Kehror Pacca, Multan and another reported in PLD 1991 Lahore 241, "our State is Federal Islamic Republic; our Governments are not the Government of dynasties, individuals or few privileged. Our Governments are of laws with orientation of golden principle as enshrined in the Holy Qur'an and Sunnah. The various, departments of Government are charged with execution of their duties as a repository of State. These powers flow from the Constitution. The police is the branch of the Government which is assigned with the duty of preservation of public order, prevention/detection and punishment of crimes. The police station is the lowest unit for the exercise of criminal jurisdiction by police officials. Its limitations are fixed by Provincial Government under section 4(1)(s) of the Criminal Procedure Code. These posts/stations are of extreme significance. The in charge of these police stations are concerned with the enforcement of laws and regulation of commission of fraud, crime, preservation of public order, prevention of conflicts of rights and insuring to each an uninterrupted enjoyment of rights under law. Should these police stations become vehicle of oppression and torture? Should these places become congenial soil for breeding of crimes/breaches of law? Can such police officers be termed as the preservers of laws?
I am clear in mind that no civilized society will countenance such a situation".
14. There is yet another common complaint against the Police i,e, of Nakas particularly held on the Highways. Nearly half or more of the Highways is blocked by the temporary barriers set up by the Police posing a serious threat to the lives of road-users particularly at night time because there is never any indication requiring the drivers to stop for checking. Quite often the drivers are forced to apply brakes suddenly to avoid serious accidents. In cities also the utility of Naka is seriously questioned. Instead of checking traffic violations and crime, they are found demanding copies of Nikahnamas from the married couples.
15. Under the prevailing practice, copy of the F.I.R. Is not supplied to the accused making it difficult for them to seek their legal remedies. They cannot even apply for bail without it because they are not in a position to instruct their counsel or attorney about the details of the cases registered against them. In order to overcome this problem, it will be more appropriate if copies of the F.I.Rs, are made available to the accused from the police stations concerned on payment of the prescribed fees.
16. No confidentiality is maintained about the case diaries. Invariably these come into the hands of the criminals even before the same are placed before the S.Ps. Concerned or the Courts. The criminals are thus able to destroy evidence that may be gathered against them involving them in the crime. Senior police officers should ensure secrecy of their record so that the accused are not in a position to forestall the line of action that may be adopted to procure. Incriminating material/evidence against them.
17. The Investigating Officers are generally seemed to be lacking proper training about the method of investigation as also legal requirements of obtaining the best evidence. Although it has been repeatedly impressed upon them by the Courts to associate public witnesses in the recoveries, they ignore it with impunity. At times it is alleged that the investigations are conducted by unauthorised officers. Though the relevant laws confer powers of search and investigation on officials of a particular rank, these are generally flouted and the cases are registered and investigated by officers not authorised by law to do so which multimately either result in the quashment of proceedings or acquittal of the accused. The Police authorities should ensure necessary arrangements for the proper education and training of their subordinates in this regard.
18. People have great expectations from the police to come to their rescue whenever there is a threat either to their life or property. But unfortunately our police is not so trained and instances are not lacking when the police shows little concern about performing its duties earnestly. Sometimes robberies and dacoities occur close to the police stations but police reaches the spot very late with the result that culprits escape with booty at their convenience. Blasts take place but police seldom reaches the spot promptly. It is said that police is not trained enough to meet these situations and they also take considerable time in deciding about jurisdiction of the particular police station.
There is thus a great need of clearly determining the responsibilities of each police station, so that no time is wasted in this respect.
19. The standard of investigating has suffered on account of varied duties which the police has to perform. They have not only to perform protocol duties, conduct investigations and apprehend the culprits but also take preventive measures for maintaining law and order. In other countries the police force has been assigned particular duties on which they concentrate fully. It is, therefore, suggested that appropriate measures be taken to clearly specify the duties of the police force so that it can devote its full attention to attending such of the above noted and allied duties.
20. As regards the grievance of Muhammad Yousaf petitioner in the instant case, I would like the matter be referred to the District Magistrate and the Superintendent of Police concerned for looking into it and issuing direction to the concerned police officers to carry out faithful investigation of the case and by affording full opportunity to the parties to produce their witnesses in support of their respective versions. Result of the investigation shall be intimated to the Court.
' Disposed of with the above direction.