' MIAN ALLAH NAWAZ, J.---This judgment will govern twenty two Constitution Petitions bearing No,4332, 4385, 4390, 4411 to 4414, 4423, 4427 to 4431, 4433, 4434, 4450, 4458 to 4462 all of 1998. All of these petitions have been filed under Article 199 of the Constitution with prayer that a direction be given, in the form of mandamus, to the Station House Officers of various police stations/commanding them to record statements of ,the petitioners in the first information registers and thereafter, proceed with the investigation of the reported occurrence.
2. Factually, all these petitioners fall in the same category which was dealt with by one of us (Mian Allah Nawaz, J.) while deciding Writ Petition No,1689 of 1996 vide order dated 1-8-1996. It is necessary to note at this stage that inflow of such petitions in this Court had assumed unprecedented magnitude. The record of this (Bahawalpur) Registry reveals that 2181 Constitution petitions were filed in 5 months/from 1-1-1996 to 30-6-1996; that out of. These Constitution petitions. 602 were against the S.H.Os. Who had declined to record the statements of the petitioners in the first information registers and 198 petitions related to acts of police excesses. Clearly 1/3rd of petitions, so filed, were directed against the functionaries of police establishment. Faced with such petitions, one of us (Mian Allah Nawaz, J.) heard all those petitions together and attended to interaction between various relevant provisions/sections 154 to 173, Cr.P.C. Along with relevant rules.
Mr Jaffar Hashmi, Advocate, Mr. M. Mahmood Bhatti. Advocate, were associated as amicus curiae, while the learned counsel for the petitioners argued on behalf of their clients. Deputy Inspector- General, Bahawalpur Range, was also associated who submitted written note.
3. On the consideration of contentions of the learned counsel for the parties, written note presented by the Deputy Inspector-General, Police, Bahawalpur Range, and argument of Assistant Advocate- General, Court laid down following rules:- "Firstly: That Magistrate, under section 156 (3) of Cr.P.C. Has ample powers to order the investigation of the case if he receives the complaint/disclosing commission of cognizable offence. After the separation of judiciary from Executive, the Judicial Magistrates have become wholly free from any influence by the Executive. This Court has, therefore, no room to entertain any doubt that the Magistrate will not exercise his authority under section 156(3) of Cr.P.C. Fearlessly and without extraneous influences. The power under section 156(3) resides in the Magistrate having power to take cognizance of the case under section 190 of the Cr.P.C. The moment, the concerned Magistrate receives complaint, he may, forward it to the concerned police station for investigation of the case or he may record the statement of the complainant under section 202 and further proceed under sections 202, 203 and 204 of Cr.P.C. In my considered opinion, remedy embodied in section 156(3), Cr.P.C. In the changed scenario, is quick, convenient and effective for all intents and purposes within the terms of Article 199 of the Constitution.
' Secondly: The remedy prescribed in Section 200 of Cr.P.C. Is effective and alternative in nature. In the words of his Lordship Aftab Hussain, J. '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 the writ jurisdiction under Article 199 of the Constitution. The advisability of exercising a discretion in favour of a petitioner can be collected only through the agency of police.' In short, the remedy provided under sections 202 and 203 cannot be described as ineffective and inadequate within the terms of Article 199 of the Constitution. The power of the High Court to issue writ, however, is extraordinary and can be exercised in cases which fall within the category mentioned by my brother Aftab Hussain, J; ' Thirdly: Although no hard and fast rule can be prescribed for dealing with such petitions, with mathematical exactitude and facts of each case will have to be examined for reaching the conclusion as to whether the petitions can be entertained without availing of the afore stated remedies, yet it can be safely said that doctrine of alternative remedy/exhauster prescribes the healthy and orderly mechanism of filtration; a person, who wants to avail of a Constitutional remedy, is bound to show that either he has no other alternative remedy or he had tried to avail such remedy but in vain or he must show that the action on the part of the functionary of the State is so illegal and without jurisdiction and that it would be useless to approach the concerned authorities on account of their bias. Seen from these angles, it is quite clear that a person who wants to file such petition must, in the first instance, approach the superior police hierarchy constituted under the Police Act, i,e, the D.S.P., S.P., S.S.P., D.I.-G. And I.-G., then he should move the Magistrate concerned under 156(3) of Cr.P.C. If he fails, he still is well within his right to file complaint. No doubt, this Court may exercise its power of mandamus in exceptional cases or in category case noted above."
4. However, the coming of such petitioners remained unabated. On 14-9-1998, 22 petitioners came up for hearing before one of us (Mian Allah Nawaz, J.). The learned counsel for the petitioners submitted that the rules enunciated in the judgment dated 1-8-1996 in W.P. 1689 of 1998 titled "Nazir Ahmed Siddiqi v. S.S.P. Etc." were not being followed by the District Complaint Committee; that therefore, the ratio laid down in Nazir Ahmed Siddiqi's case was not correct and needed re- examination. In the context of the aforesaid circumstances, one of us (Mian Allah Nawaz, J.) requested our lord the Chief Justice to constitute a larger Bench for examination of ratio of Nazir Ahmed Siddiqi's case. The Hon'ble Chief Justice was pleased to accede to his request and by telephonic order, constituted Division Bench comprising of ourselves. In this background, all these petitions were laid before Division Bench on 16-9-1998. The learned A.A.-G. Entered appearance along with the Deputy Inspector-General of police Bahawalpur Range, Bahawalpur who had entered appearance on Court's call.
5. Mr. Abdur Rehman Tayyib, Advocate opened the debate on behalf of the petitioners. He contended that the Complaint Committee, constituted by the Inspector-General, Punjab in various Districts were not lawful entities that these committees were not provided by any statute or by any rule and so they were devoid of any legal authority. On the strength of the above arguments, he suggested that the decision of this Court in Nazir Ahmed Siddiqi's case be modified and petitions be sent to the concerned S.S.Ps./S.Ps. Of each District to deal with the grievance of the petitioners.
6. The arguments submitted by Malik M. Farrukh Mahmood, Advocate, who entered next in the debate can be summarised as below:
(i) That the language of section 154 of Cr.P.C. Clearly shows that it is compulsory in nature and the S.H.O, has no authority, whatsoever, to refuse to record the statements of the complainants in the register if it discloses commission of cogniazble offence. According to him, if he does not do so, this Court has ample power under Article 199 of the Constitution to direct him to record the statement of the complainant and thereafter, proceed in the matter in accordance with law. Reference was made to Muhammad Hanif v. The State (1977 PCr.LJ 425), Dilawar Ali v. S.S.P. District East Karachi (1989 PCr.LJ 814) and Haji Muhammad Khan v. Ch. Khizar Hayat (PLD 1977 Lah. 424).
(ii) That the remedies provided under sections 156(3) and 202, Cr.P.C, are neither adequate, nor efficacious. Reliance was placed upon Capt. (Retd) Naqiullah v. Chairman State Engineering Corporation Ltd (1989 CLC 2384), Muhammad Yousaf v. Collector of Sea Customs, Karachi (PLD 1969 Supreme Court 153) and Liaquat Ali and two others v. State and another (PLD 1989 Karachi 481).
(iii) That this Court had no power to give any direction to police authorities to provide machinery for the purpose of dealing with such complaints. He relied upon State of Behar v. J.A.C. Saldanna (AIR 1980 SC 326).
(iv) That sections 154 and 156(3) of Cr.P.C. Cater for different situations. According to him, first section mandates the Station House Officer to record the statement of the aggrieved person, if it discloses commission of cognizable offence and thereafter, proceed strictly in accordance with law, while the latter section empowers the Magistrate to order investigation of any offence having occurred within his territorial jurisdiction. On this line of argument, it was canvassed that this Court must intervene directly in order to come to rescue of the aggrieved person. That in the alternative, the learned counsel suggested that a mechanism be evolved which can ensure that superior police hierarchy/complaint committee has attended to the complaint of the aggrieved person against subordinate police hierarchy so that the aggrieved persons can come to the Court in circumstances in which his voice has not been attended.
(vi) That the Police is constituted under the Police Act, 1861; that this Act provides a centralized model of police organization; that the police establishment constituted under section 2 of Police Act, is controlled by the I.-G. Police appointed under section 12 of the Act; that this Act is wholly outdated and does not take into consideration the centrifugal forces; that the police constituted under this Act comprises of two layers, namely the superior hierarchy and subordinate hierarchy.
The S.H.O. Is on the bottom of this police organization; that he is invested with awesome powers; that the superior hierarchy comes' from three sources namely rankers, central superior services and the armed forces. On the strength of the above structure of this organisation it was stated that the constituted units of this force remain almost at logger head with each other and this does not inspire confidence, discipline and healthy orientation. The learned counsel so strongly submitted that it was time that the Scheme of police organization as laid down in the Police Act, 1861 be debated and this Act be improved to meet the changing need of the time;
(vii) that the Corruption has become so rampant in all walks of life that it is not possible for an ordinary citizen to breathe in the ,air without it. The first information reports, according to the learned counsel, cannot be lodged without greezing palms of the S.H.Os. Who are in charge of basic unit of police organisation. The superior hierarchy of police has become sluggish, inefficient and functions under the vitious influence of political leaders.-- This being the position the only remedy, according to the learned counsel, available to a citizen is the relief under Article 199 of the Constitution. On the basis of above circumstances, it was pleaded that this Court should not provide any barrier for filing petitions of this nature in the High Court. Continuing the learned counsel said that the District Complaint Committees so constituted were not competent to deal with complaints of the petitioners.
6. Mr Abdur Rasheed Rashid, Advocate then Submitted his arguments. According to him, remedies provided under section 156(3) and section 202, Cr.P.C. Were neither sufficient nor were alternative and so the Court should not send these cases to S.S.Ps./Complaint Committees and must issue writ to the concerned Station House Officer. This line of arguments was adopted by M/s. M. Akhtar Chishti, Advocate, Ch. Shafi Muhammad Tariq, Advocate, Ch. Manzoor Ahmed, Advocate, Sardar Muhammad Aslam Khan, Advocate, Malik Muhammad Hanif Ghaffari, Advocate, Muhammad'
Aslam Khan Dhukar, Advocate, Sohail Mehmood Qureshi, Advocate, Pirzada Muhammad Jamil Saleem Aslam, Advocate, M.M.A. Pirzada, Advocate, Noor Muhammad 'Chishti, Advocate, Mian Muhammad Saleem Akhtar, Advocate, Inam-urRehman, Advocate, Ahmed Mansoor Chishti, Advocate, Ch.M. Safdar Nizami, Advocate, M. Aslam Minhas, Advocate, Raja M. Sohail Iftikhar, Advocate, Muhammad Sharif Bhatti, Advocate, and Jam Mehjoob Ahmed Lar, Advocate.
' Reliance was placed on Emperor v. Khawaja Nazir Ahmed AIR 1945 PC 18, M.Bashir Saigol and another v. State and another PLD 1964 Lah. 148, Gul Nawaz Lone v. S.H.O., P.S. Model Town, Gujranwala PLD 1990 Lah. 428, Riaz Ahmed and three others v. The State PLD 1994 Lah. 485, Ezekiel v.
The Province of Bengal AIR 1939 Calcutta 746, The Emperor v. Kampurkuki and Dingur Singh 6 Cr.LJ 86, Dhanu Raut and others v. Emperor AIR 1928 Patna 59, Kala Sing and others v. Boma Singh AIR 1938 Lah, 457, Ibrahim and others v. Mitho PLD 1959 Kar. 381, Abdul Haleem v. Raja Qurban Hussain and others PLD 1965 Lah. 570, Aziz-ur-Rehman v. The State PLD 1960 Dacca 1054, Ghulam Ahmad v.
The State PLD 1962 Lah, 280, Islam-ud-Din v. P.O. Singh and others 1995 MLD 372 and Nazeer Ahmad v. Khushi Muhammad and two others 1974 PCr.0 579.
7. The learned A.A.-G., who appeared on behalf of the State, fully supported the rules enunciated in Nazir Ahmad Siddiqi's case, (supra). He contended that it was true that section 154, Cr.P.C. Was madantory in nature yet according to him, the remedies provided by section 156(3) and section 202 of Cr.P.C. Were adequate and were barrier, in way of availing relief under Article 199 of the Constitution. The Deputy Inspector-General, Police who appeared on Court's call, submitted that the orders of this Court were complied with by Complaint Committees and grievances of wronged persons were redressed. He assured the Court that the District Complaint Committees will maintain complete record of complaints/applications/petitions so received; that these Committees will do their duties as quickly as possible. He assured the Court that copying agencies will issue certified copies of complaints applications/petitions so received and orders passed over them so as to eliminate elements of secrecy and surreptitiousness. In order to augment his stand, he informed the Court that in year 1996, almost 160 Constitution petitions were received from this Court which were disposed of by the complaint Committees; that in year 1997, 310 petitions were received from Court out of which 309 were disposed of and only one was pending; Similarly in 1998 up to 15th September, 1998, 49 complaints had been received out of which 27 had been disposed of and the others are in the process of disposal. He further informed that the complaint Committees of each District comprised of S.P., Crimes Branch and a D.S.P. (Legal); that these Committees were fully capable to monitor and supervise subordinate police officials namely the Station House Officer of the Police Stations.
8. Having penned down the facts, circumstances of the petitions, in hand, the contentions put forth by the learned counsel for the parties we find following points arise for consideration:
9. (1) Whether section 154 of Cr.P.C. Is mandatory in nature and so the S.H.O. In charge of the Police Station is bound, under the law, to record the statement of the informant in the F.I.R. Register if such statement discloses commission of any cognizable offence?
(2) Whether the remedy provided under sections 156(3) and 202 of Cr.P.C. Are effective, alternative and so the petitioners, without exhausting these remedies, are not entitled to file petitions under Article 199 of the Constitution.
(3) On what circumstances and conditions, this Court should exercise its jurisdiction under Article 199 of the Constitution in such petitions?
(4) Whether the District Complaint Committees constituted by the Inspector-General of Police, Punjab are legal entities and are competent to redress the grievances of the petitioners?"
9. With regard to first point/question, it is sufficient to say that this was referred to Full Bench in M.
Anwar, Barrister-at-Law v. The Station House Officer, Civil Lines, Police Station, Lahore PLD 1972 Lah.
493. Sardar Muhammad Iqbal, J., as he then was speaking for the Bench said: "Before parting with the case, we would like to observe that 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 be related 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. The information referred to in section 154 of the Code of Criminal Procedure appears to us to be something in the nature of a complaint, or accusation, or at least information of a crime, given with the object of putting the police in motion in order to investigate. In the case of a first information, it is not required by the law that the police officer is to receive it only if it is given in writing and to record it only if in his opinion it is correct. The question whether or not it depends on the investigation which a Police Officer is to conduct under section 157 of the Code of Criminal Procedure. The guarantee of the correctness of the first information is ensured by section 182 of the Pakistan Penal Code under which if any person gives the first information statement to a police officer which is recorded under section 154 of the Code of Criminal Procedure, and if it ultimately turns out to be false, the informant shall be liable to punishment with imprisonment of either description for a term which may extend to six months, or with the fine which may extend to one thousand rupees, or with both."
10. The view taken in M. Anwar's case (supra), was followed by the Full Bench of this court in Riaz Ahmad v. State PLD 1994 Lah. 485 and was held as under: "This case thus lays emphasis on the performance of a statutory duty by the Police Officer as a public servant, and Police Officer failing to comply with the mandate of law contained in sections 154 and 155, Cr.P.C. Renders himself liable to be dealt with in accordance with law. These provisions on the one hand curb arbitrariness of the police officer and on the other secure to citizen a record to be referred to for the purpose envisaged by law. The freedom of movement and personal liberty of citizens is sought to be secured by enjoining the Police Officer to record the F.I.R. Or at least substance thereof in the daily diary. At the same time, it is to be kept in mind that for commencement of investigation, in a crime the recording of F.I.R. Is not a condition-precedent.
What is the effect of non-performance of a statutory duty is a separate question and is effect in a given case is to be canvassed by the parties and will be determined by the Court in the circumstances of each given case. We, therefore, answer the first question accordingly."
11 The ratio deducible from above precedents is that section 154, Cr.P.C, is obligatory in nature and S.H.O. Has no option but to record the statement of the complainant in the relevant register, if it discloses the commission of cognizable offence. If he finds that the occurrence reported does not amount to any cognizable offence he has to record a report under section 155, Cr.P.C. The omission to do so is liable to penal as well as disciplinary action under the relevant rules and section 29 of the Police Act. This Act also falls within the ambit of section 217 of P.P.C. This being the position we find, without any sense of doubt, that section 154, Cr.P.C. Is pre-emptory in nature.
12. In order to answer second and third points/questions it is necessary to examine sections 154, 156, 157, 190 and 200 to 204 of Cr.P.C. The aforesaid provisions were examined by the Supreme Court of India in D. Lakshminarvana v,. V. Narvana AIR 1976 SC 1672. In that case, respondent No,1 had filed a complaint on 26-7-1975 before a Magistrate against alleging that the appellant along with his colleagues had committed offences punishable under sections 147, 148, 149, 307, 395, 448, 378 and 342, P.P.C. The offence under sections 307 and 395, P.P.C. Were exclusively triable by a Court of Session. Having received complaint, the Judicial Magistrate sent it to the police for investigation.
Feeling aggrieved, the aPpellant moved a petition in the High Court for quashment of above order but in vain. Against that, the appellant preferred an appeal which was dismissed by the Supreme Court. Dealing with the ambit of section 156(3), Cr.P.C. The learned Judge observed: "Section 156(3) occurs in Chapter XII, under the caption: 'Information to the Police and their powers to investigate': while section 202 is in Chapter XV which bears the heading 'Of complaints to Magistrate'. The power to order police investigation under section 156(3) is different from the power to direct investigation conferred by section 202(1). The two operate in distinct spheres at different stages. The first is exercisable at the pre-cognizance stage the second at the post-cognizance stage when the Magistrate is in seisin of the case. That is to say in the case f a complaint regarding the commission of a cognisable offence the power under section 156(3) can be invoked by the Magtistrate before he takes cognizance of the offence under section 190(1)(a). But if he once upon the procedure embodied in Chapter XV, he is not competent to switch back to the pre-cognizance stage and avail of section 156(3). It may be noted further that an order made under subsection (3) of section 156, is in the nature of a peremptory reminder or intimation to the police to exercise their plenary powers of investigation under section 156(1). Such an investigation embraces the entire continuous process which begins with the collection of evidence under section 156 and ends with a report or charge-sheet under section 173. On the other hand, section 202 comes in at a stage when some evidence has been collected by the Magistrate in proceedings under Chapter XV, but the same is deemed insufficient to take a decision as to the next step in the prescribed procedure. In such a situation, the Magistrate is empowered under section 202 to direct, within the limits circumscribed by that section, an investigation for the purpose of deciding whether or not there is sufficient ground for proceeding.' Thus, the object of an investigation under section 202 is not to initiate a fresh case on police report but to assist the Magistrate in completing proceedings already instituted upon a complaint." (The Underlining are of ours).
' The learned Judge, while examining sections 156, 200 and 202, Cr.P.C. Held:-- "In the instant case the Magistrate did not apply his mind to the complaint for deciding whether or not there is sufficient ground for proceeding; but only for ordering an investigation under section 156(3). He did not bring into motion the machinery of Chapter XV. He did not examine the complainant or his witnesses under section 200, Cr.P.C. Which is the first step in the procedure prescribed under that Chapter. The question of taking the next step of that procedure envisaged in section 202 did not arise. Instead of taking cognizance of the offence, he has, in the exercise of his discretion, sent the complaint for investigation by the police under section 156.
' This being the position, section 202(1), 1st Proviso was not attracted. Indeed, it is not necessary for the decision of this case to express any final opinion on the ambit and scope of the 1st Proviso to section 202(1) of the Code of 1973. Suffice it to say, the stage at which section 202 could become operative was never reached in this case. We have therefore, in keeping with the well-established practice of the Court, decided only that much which was essential for the disposal of this appeal, and no more."
13. The aforesaid provisions were considered by a Division Bench of this Court in Haji Muhammad v.
Khizar Hayat PLD 1977 Lah.
424. On_ this occasion, his Lordship Aftab Hussain, J. (as he then was) analysed the above provisions with his usual lucid style and masterly approach celebrated Judge said: "Sections 154 and 157 deal with different contingencies. The former section provides for the recording of the F.I.R. At the instance of a complainant while section 157 deals with the procedure for investigation of any cogniszable offence. The later provision leaves it to the judgment of the relevant police officer to refuse to investigate in certain cases where for example there is no sufficient ground for entering on an investigation. But this power should not be confused with his responsibility to record the First Information Report. He has no choice in the recording of the First Information Report though he has a discretion in the making of investigation or refusing to make it on the grounds given in section 157. The writ petition so far as concerns the prayer for directing the police officer to investigate into the conduct of respondent No.1 or to bring him to trial cannot , therefore, be allowed as the High Court does not interfere with the exercise of discretion."
' Continuing, the learned Judge further observed:-- "... ... ...The procedure for dealing with such complaint is provided in sections 200 to 203, Cr.P.C. There may be cases where the evidence to prove the commission of 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 complaint. 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 the writ jurisdiction under Article 199 of the Constitution. The advisability of exercising discretion in favour of a petitioner can be considered only in a case where the evidence can be collected through the agency of the police."
14. This point reached the Supreme Court in Wajih-ul-Hassan Zaidi v. S.H.O. Police Station City, Jehlum PLD 1979 SC 49. In this case Syed Wajihul-Hassan was involved in a case under sections 148, 149, 452, 366, 376, 365, 464, 363, 362 and 336, P.P.C. The F.I.R. Was registered at Police Station Jhelum City on 18-8-1978 on the complaint of Assistant Commissioner Jhelum. The petitioner's application for bail before arrest was rejected by the learned Single Judge of the High Court on 28-8-1978.
Resultantly, the petitioner in that case, was arrested. He so moved Criminal Miscellaneous No.3672/B of 1978 which was dismissed by the learned Single Judge on 30-9-1978. Still feeling aggrieved, the petitioner filed a petition (Cr1. P. 411/78) for leave to appeal which was also dismissed by the apex Court on 19-10-1978. This did not conclude the matter and the petitioner filed another petition for quashment of the F.I.R. In the High Court which was also dismissed on 21-11- 1978. The petitioner again approached the Supreme Court, but without any result. Speaking for the Bench his Lordship Mr. Justice Karam Ellahee Chauhan (as he then Was) held that: "... ... ...As pointed out in R.R. Chari v. The State AIR 1951 SC 207 'what is taking cognizance has not been defined in the Criminal Procedure Code and I have no desire to attempt to define it. It seems to me clear, however, that before it can be said that any Magistrate has taken cognizance of any offence under section 190(1)(a), Criminal Procedure Code he must not only have applied his mind to the contents of the petition but must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of this chapter-proceeding under section 200 and thereafter, sending it for inquiry and report under section 202. When the Magistrate applies his mind not for the purpose of proceeding under the subsequent sections of this Chapter but for taking action of some other kind e.g. Ordering investigation under section 156(3), or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cogniaznce of the offence. To the same strain are Badshah Mid and others v. The State PLD 1958 Dacca 598 and Narayandas Bhagwandas Madhavandas v. The State of West Bengal AIR 1959 SC 1118. In the latter case, it was held at page 1123 that 'as to when cognizance is taken of an offence will depend upon the facts and circumstances of each case and it is impossible to attempt to define what is meant by 'taking cognizance'. Issuing of a search warrant for the purpose of an investigation, or of a warrant of arrest for that purpose cannot by themselves be regarded as acts by which cognizance was taken of an offence. Obviously, it is only when a Magistrate applies his mind for the purpose of proceedings under section 200 and subsequent sections of Chapter XVI of the Code of Criminal Procedure, or under section 204 of Chapter XVII of the Code that it can be positively stated that he had applied his mind and therefore, had taken cognizance,' applying the aforesaid principles to the facts and the circumstances of the present case it will be evident that the Assistant Commissioner had not proceeded with any 'complaint' or any case in any 'judicial capacity', The Deputy.
Commissioner had received an information regarding certain alleged highhandedness of the police and disturbance of law and order in his executive capacity. He directed the Assistant Commissioner to enquire into the matter in that capacity and after noticing that the facts disclosed the commission of 'cognizable offence, he directed the S.H.O. Police Station City Jhelum, to register a case. The learned counsel has not been able to show any law which prevented him from doing so. Subsection (3) of section 156 of Criminal Procedure Code clearly lays down that 'any Magistrate, empowered wider section 90 may order such investigation as above-mentioned'. This may be read with section 23 of the Police Act V of 1861 which is headed as 'duties of Police Officers', and so far as relevant lays down that 'it shall be the duty of every Police Officer promptly to obey and execute all orders and warrants lawfully issued to him by any competent Authority... ...To detect and bring offenders to justice and to apprehend all persons whom he is legally authorised to apprehend, and for whose apprehension sufficient ground exists... ... 'The registration of the case on the part of the S.H.O. Concerned being, thus, quite in the ambit of the _provisions of the aforesaid law no exception can be validly taken against the same before us. It may hereby pointed out that the only restriction placed by the Code of Criminal Procedure on the sort of persons who can complaint of the commission of an offence, in order that action may be taken thereon, according to law, are those contained in Chapter XV, sections 195 to 199 that is to say in cases of breach of contract, defamation and offence against marriage falling under Chapter XIX or XXI of the Penal Code which lay down that only a 'person aggrieved' concerned in the matter can move... ...". (The Underlinings are of ours).
' The above view was reiterated by the Supreme Court in Muhammad Ramzan v. The.State 1979 SCMR 200.
15. The ratio, emerging from foregoing examination, is as follows:- "(i) That the Illaqa Magistrate, under section 156(3), Cr.P.C., is 1 empowered to order investigation of case, if he receives a complaint/disclosing commission of cognizable offence. Such order may include the direction to register a case and investigate the same in accordance with law. It can be safely said that recording of the statement of the complainant is a step in the process of commencing investigation. It will be highly ludicruous to assume that under section 154(3), Cr.P.C., no order can be passed directing the compliance of section 154, Cr.P.C. At this stage it is necessary to note that judiciary has been separated from the executive and now the Magistrates are entirely free from extraneous influences. We have, therefore, no room to entertain any doubt that the Illaqa Magistrates will exercise their authority under section 156(3), Cr.P.C. Without any fear and extraneous considerations and will come to the rescue of aggrieved persons.
(ii)The language employed in section 156(3) clearly enacts two options for the learned Illaqa Magistrate who receives petitions of such nature. In the first instance, he may forward it to concerned Police Station House Officer for registration of the case, record statement of the complainant and thereafter, to proceeding the matter strictly in accordance with law for investigation. Alternatively, the Illaqa Magistrate may record the statement of the complainant under section 200, Cr.P.C. And thereafter, proceed himself within the four corners of sections 202, 203 and 204, C Cr.P.C. In our view remedies provided under section 156(3), Cr.P.C., are purposive in nature and are quick, convenient and alternative within the terms of Article 199 of the Constitution.
We are, at this stage tempted to quote the words of celebrated Aftab Hussain, J. That: ' The procedure for dealing with such complaint is provided in sections 200 to 203, Cr.P.C. There may be cases where the evidence to prove the commission of 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 the writ jurisdiction under Article 199 of the Constitution. The advisability of exercising discretion in favour of a petitioner can be considered only in a case where the evidence can be collected through the agency of the police.'
(ii) That although no mathematical formula can be prescribed for dealing with such petitions yet it can safely be said that the doctrine of exhaustion/availing of afore stated remedies prescribes healthy mechanism of filtration. A person, who wants to avail of remedy under Article 199 of the Constitution is bound to show that either he had tried to avail of remedies noted above but in vain; that he must demonstrate concerned Magistrate had illegally declined to provide him sought for relief; that it would be futile to approach the aforesaid authorities on account of their manifest bias.
Seen from all angles we have no hesitation to say that a person, who wants to file a Constitutional petition with complaint noted above, must in the first instance approach the police hierarchy constituted under the Police Act i.e. D.S.P., S.P., S.S.P., D.I.-G., and I.-G. And then should move the Magistrate concerned under section 156(3), Cr.P.C. If he still feels dissatisfied, then he has right to come to this Court. No doubt this Court has power to come to rescue of the petitioner in exceptional cases where the petitioner have not availed of the aforesaid remedies. This, however, can be done in line with exceptional cases highlighted in Haji Muhammad v. Khizar Hayat PLD 1977 Lah.
424.
16. As regards legal efficacy of District/Range/Provincial Complaint Committees, it is pertinent to note that police institution/police organizations are as old as human being. These are instruments of social control and order in a society. In the words of Encyclopedia of Crime and Justice (Vol.3) published by "The Free Press A Division of Macmillan, In, New York, this 'institution is described as under:-- "Throughout the Western World, the police are official gate-keepers of the criminal justice system and those representatives of the legal system most commonly in contact with the citizenry. Police are charged with a multitude of different tasks, exist in a wide variety of organizations, and operate within the community in ways that highlight special problems concerning law enforcement in free societies."
Manifestly, the policemen are the State-Employed guardian of citizens and are first component of system of criminal justice. The policemen are charged with multifarious duties/relatable to enforcement of laws maintenance of social order and preservation of peace. Briefly, they are guardian of citizenry and weild coercive power of State. The nature/purpose of police force/organization vary from State to State/commensurate with its nature. In colonial States, this organization is designed to maintain peace so as to keep loyalties of slaves to its Masters, in a democratic State, this is so structured that ensures the supremacy of Law made by Legislature and the dignity of citizenry. It will not be out of place to mention that still this force, in our cherished State, owes its life to Police Act, 1861 which was enforced by the British masters. Naturally, it was framed with above noted purpose. It goes without any saying that this institution worked with effectiveness and efficiency in colonial days because of being free from extraneous political influences. The District Magistrates as well as the Superintendents of Police of Districts were agent of Croat and enforced colonial laws with slavish mentality. Recruitments in this organization were made on the basis of merits. It is highly painful to note that with the dawn of independence and after the first phase, those who were at the helm of affairs, neither changed this legislation nor tried to infuse it with principles of democratic control. What happened was that this organisation was subordinated to political control. Even when this country was governed by Martial Law, these orientations did not undergo much change. Resultantly, Kleptocratic tendencies commenced to occupy very field including this force. The appointments, recruitments of police officers, their transfers, their promotions were made on the whims of new political masters. This injected anarchic, indiscipline, nepotism in this disciplined institution. Confronted with these degenerative tendencies, various commissions were appointed to suggest reforms in police, but none of report was published and so no consequential reforms in this force were made. Resultantly, these conditions caught the eyes of a team of U.N. Experts headed by former Chief of Interpol. After in depth examination of these trends he said: " There has been a near complete failure on the part of successive governments both military and democratic to either equip the police adequately or to ensure that they receive adequate training.
Accordingly, they are quite simply completely unprepared to deal with the present situation.
' Policing will collapse not only in Karachi but also in other parts of the country unless law enforcement institutions are strengthened immediately."
' As no reforms were taken, these issues again surfaced and were dealt with by one Muhammad Abbas Khan, former Inspector-General of Police, Punjab. He analysed the ailments of this police force and suggested number of proposals dealing with the decentralizations of powers in this force its accountability and its insulation from political influence. He went then on to suggest adaptation of Japanese Model. The crux of his thesis was that this institution must be freed-From extraneous pressure as quickly as possible and be subjected to democratic control rather than political control. We are tempted to quote him in his words: "The old and anachronistic Police Act of 1861 needs to be replaced by a new Police Act wherein the role of 'police for the people' and concept of public service should be highlighted. In order to achieve this purpose and to win the trust of the citizens, institutions should be developed to improve police accountability and professionalism. The following two supporting institutions are required to achieve the objective of a politically neutral, democratically controlled and professional police service.
' The Police in Pakistan should be brought under the control of Public Safety Commission, both at the Federal and Provincial Government level. ' These Commissions should have the following features:
(i) The Commission needs to be a multi-party body with no single party to have a controlling majority.
(ii) The members of the Commission should represent various professions like lawyers, scholars, journalists, social workers, retired Judges and politicians, etc. They must be citizens of integrity imbued with the spirit of public service.
(iii) Members of the Commission may be appointed for a five years tenure. They may only be removed if physically incapacitated or when found guilty of misconduct. Their removal may be with the consent of both House of Parliament through a process of impeachment.
(iv) The members at Federal level may be nominated by the Prime Minister, subject to approval by both the National Assembly and the Senate. Similarly, members at provincial level, may be appointed by the Chief Minister subject to approval by the Provincial Assembly.
(v) The Public Safety Commission will be a policy making institution. It will safeguard the interest of the citizens as well as secure the police from external pressures."
' Confronted with the breakdown in law and order we were tempted to point out above picture and conditions obtaining in this law enforcing agency, we are faced with questions as to whether Police Act is old, out-dated and has lost its efficacy with the march of time; whether decentralised model of police experimented by Britishers/Japan is preferable to centralized model as embodied in Police Act, 1861; what police oganisation is crumbling mechanism should be evolved to insulate the police force from extraneous pressure. These questions are beyond the sphere of judiciary and are reserved exclusively to legislature and political executive. We have described the above noted ailments with an objective that legislature will attend to the aforesaid circumstances and save the police force from further degeneration. What a wrong that a complainant cannot go to Police Station and get his statement recorded. It is good for though for everyone. Superior hierarchy of Police must look this problem with serious and purpose like approach.
17. In this contextual background, we turn to examine efficacy of Provincial/Range/District Complaint Committee, it is to be seen that these were provided by Standing Order No.3 of 1993 which was issued by Inspector-General of Police, Punjab on 10-3-1993. This related to discipline- internal accountability of Police. The three layers of Committees were formed by the Inspector- General of Police, Punjab with an objective to redress the grievance of citizens; institute discipline in the force and hold inquiry against the delinquent police officials. The point for consideration is whether Inspector-General of Police was competent to issue Standing Order 3 of 1993 and constitute said Committees. On analysis of section 12 of Police Act, we are of opinion that this point is free from difficulty. Section 12 of the Police Act is hereunder: "12. The Inspector-General of Police may, from time to time, subject to the approval of the Provincial Government, frame such orders and rules as he shall deem expedient relative to the organisation, classification and distribution of the police force shall reside, and the particular services to be performed by them their inspection, the description of arms, accoutrements and other necessaries to be furnished to them; the collecting and communicating by them of intelligence and information ; and all such other orders and rules relative to the police force as the Inspector- General, shall, from time to time, deem expedient for preventing abuse or neglect of duty, and for rendering such force efficient in the discharge of its duties."
' A bare reading of this section will indicate that Inspector-General of Police has been empowered, of course subject to control of Provincial Government to issue Rules, Regulations and Orders relating to Organization, classification and distribution of police force, the places at which the members of the force shall reside, and the particular services to be performed by them; their inspection, the description of arms, accoutrements and other necessaries to be furnished to them; the collecting and communicating by them of intelligence and information and all such order and Rules relevant to the police force. The police force is constituted under section 2 of the Act and is patterned on centralized model. This force is subject to control of Provincial Government and is headed by Inspector-General of Police who is appointed under sectio3 4 of the Act. Section 5 of the enacts that Inspector-General shall have the full powers of a Magistrate throughout the general police-district and has to exercise all these powers subject to such limitation as may be imposed from Provincial Government. This being the position, we have no hesitation to say that police force is commanded/controlled by Inspector-General of Police who is at the apex. He is vested with the power of a Magistrate as well as S.H.O. And is empowered to issue Rules Regulations which are required to facilitate the implementation of Police Act 1861. In view of the above, no doubt, he could issue Standing Order 3 of 1993 which constitute three layers of Complaint Committees. The area of Complaint Committee is vast and these Committees can effectively redress the grievance of the complainants. They can probe into cases of non-recording of statements of the complainants and come to their rescue. From above situation it follows that these Committees are manned by Senior Police Officers. The District Complaint Committees comprise of three persons namely S.P. Of the District, the S.P. Crime Branch and D.S.P. Legal. These Committees are, therefore, not an illegal entities and have the power to function in consonance with the parameters provided in Standing Order No.3. If any authority is needed, reference be made to Pakistan v. Abdul Hamid PLD 1961 SC 105, P.W.P. v. Din Muhammad PLD 1964 SC 21, Ellerman Lines v. I.T. Commissioner AIR 1972 SC 524, V.T.
Khanzode v. Reserve Bank of India AIR 1982 SC 917 and Senior Superintendent of Post Office v. Izhar Hussain AIR 1989 SC 2262.
18. Seen from every angle, we do not find any circumstances to conclude that these Committees are without any legal support and so are nullities in the eyes of law. These Committees have been contributed by Inspector-General of Police, Punjab and are of super visionary nature. Coming to the apprehension of the learned counsel for petitioners that these Committees will not function efficiently and expeditiously, we have no reason to reject the assurance of D.I.-G. Bahawalpur Range as well as Assistant Advocate-General who assured that Complaint Committees at District level as well as range level will maintain complete record of the applications filed by the complainants, the copies of the order so passed by the said Committee, copies of the petitions and orders received from this Court and will dispose of grievances within fourteen days of the receipt of such complaint. No doubt, the police is subject to control of judiciary and moment this Court comes to conclusions that functionaries of Police force are not performing duties within the parameters assigned to them, this Court will come to the rescue of the aggrieved citizens. Clearly the petitions of such nature are coming to this Court so frequently that we are obliged under the circumstances to direct the Committees noted above to submit their quarterly reports to this Court. These reports shall be sent by the Head of the District Complaint Committees and head of Range Complaint Committees to the respective Deputy Registrar (Judl.) of the Lahore High Court, Lahore and the Benches working at Bahawalpur, Multan and Rawalpindi.
19. Guided by above conclusions we dispose of these petitions, direct the office to send copies of these petitions to concerned Complaint Committees as quickly as possible. The petitioners shall appear before the respective Complaint Committee which shall deal with their complaints/grievances strictly in accordance with section 154, Cr.P.C. And decide them within a period of fourteen days of receipt of petition/complaints. The petitioners will be well within their rights to get copies of the orders passed by. The District Complaint Committees and avail of any remedy, if need be, available under the law.
20. While parting with this order we are inclined to reiterate that rules enunciated above, flow from doctrine of exhaustion as embodied in Article 199 of the Constitution. It is hardly necessary to reiterate that this doctrine does not absolutely bar the jurisdiction of this Court to adjudicate such petitions if other remedies are available against the impugned orders/grievance. If the Court comes to the conclusion that the orders/proceedings/actions of functionaries of State under attack are in excess of authority or totally destitude of authority if had power to come to the relief of the effected party in exceptional circumstances. Doctrine of exhaustion is regulatory in nature. In a highly exceptional circumstances this Court definitely will come to the rescue of the effected party as pointed out by a celebrated Judge Mr. Justice Aftab Hussain in Haji Muhammad v. Khizar Hayat PLD 1977 Lah.
424. See Qamar-uz-Zaman v. Zila Council Bahawalpur 1990 MLD 1748.
21. While closing this judgment, we feel it necessary to express our feeling gratitude to the learned counsel for the parties, the learned' A.A..-G. And the D.I.-G. Who assisted us with industry and vision and gave their view-points as effectively as possible. The office shall immediately send copies of this judgment to the Secretary Home Department, Punjab/Inspector-General, Punjab for circulating it among the heads of Provincial, range and District Complaint Committees. The D.I.Gs. In Punjab who are the Chairmen of respective Range Complaint Committees, shall get published the Standing Order No.3, dated 10-8-1993 in daily Newspapers of Pakistan so that the public-at-large should have the knowledge about the functional mechanism of the Complaint Committees.