' MUHAMMAD YUNUS SURAKHVI, J.---This appeal, with the leave of the Court, is directed against an order passed by the High Court on 28-8-1998, whereby the High Court has accepted the writ petition filed by the respondent Abdul Rehman and ordered the concerned Police to register a case against the appellants under sections 324, 452, 342, 341, 148, 147, 149, 109 and 337-A of the Azad Penal Code.
2. The precise facts of the case are that the respondent Abdul Rehman lodged a report at Police Station Bhimber on 15-1-1997 stating therein that he was serving in the Department of 'Qaza' District Bhimber, as a Clerk. During the last year's Local Bodies scheduled elections which were postponed in which his brother Muhammad Suleman was a contesting candidate against Khadam Hussain, which resulted in the political enmity. During the same days another occurrence took place that Liaqat Ali, who was a supporter of Khadam Hussain, was apprehended in a case of 'Zina' by police.
Unfortunately the complainant and his brothers were held responsible for providing the said information to the police. On 13-1-1997 a letter was sent to the complainant and his brothers wherein they were threatened. When the complainant reported the matter at police station the other party became infuriated and they chalked out a programme of doing away with his life and that of his brothers. On 15-1-1997 at about 4 p.m. Muhammad Suleman, brother of complainant, told him at Bhimber that accused Allah Ditta, son of Abdullah, resident of the said village, has slapped his daughter, Homera, who was coming towards her home after attending school rand abused her openly so that the other family members may be infuriated. On this the complainant and his brother Suleman went to police station for loading a report. However, Shabbir, Head Constable, told them that they should better come after 'Aftari', as such Suleman for the purpose of 'Aftari' went to his house whereas the complainant remained at Bhimber along with the police. After the 'Aftari' he along with Abdul Rauf, son of Muhammad Sadiq resident of Bhimber, went to police station. On this occasion Atta-urRehman, A.S.I. Bhimber, made an excuse that since the police force was not available, therefore it would be better for him to go to home and the moment the police force comes back we will reach the place of occurrence. After coming back from police station towards his house he started travelling on foot then Abdul Rauf told him that he would drop him on his vehicle. The vehicle of Abdul Rashid bearing No,7575-LE was arranged and the complainant and Abdul Rauf boarded on it and went towards the village. They had travelled for a while that a noise arose. They saw that so many people armed with Dandas, Sotas and axes had surrounded the house of complainant. Noor Ahmed son of Niaz Muhammad, Muhammad Arif, Muhammad Tariq and Muhammad Khalid sons of Noor Ahmed, Shabir Ahmed son of Manzoor Ahmed and Muhammad Shafi son of Din Muhammad etc. Were on the top roof of his house and were pelting stones on the household ladies, whereas Muhammad Rasib son of Noor Ahmed, Muhammad Aziz son of Muhammad Alam, Allah Ditta son of Abdullah, Muhammad Mushtaq son of Ismail, Abdul Haq and Afzal Haq sons of Muhammad Mushtaq, Muhammad Yunus, Muhammad Yaqub and Muhammad Manzoor sons of Fazal Hussain etc. After breaking down the window entered into his house and started abusing the ladies by raising slogans that none of them would go safe. Noor Ahmed accused instigated the other accused that they should first deal those who have come on the vehicle. On this accused Muhammad Shafi and Shabir Ahmed etc. Went to the driver of vehicle and asked him to go away otherwise they will damage the vehicle. At the same time other accused reached near the house of Akbar Bhatti and started giving blows to complainant and Abdul Rauf by kicks, fists and Dandas. In the meantime, in the leadership of Khadam Hussain some other accused persons came forward amongst whom Nazir and Khadam Hussain etc. After catching hold of Abdul Rauf put him in the house of Arshad Bhatti, whereas accused Muhammad Azam son of Noor Ahmed for, the purpose of killing the complainant inflicted Danda injuries on his head upon which he fell down and became unconscious. The second injury was caused by accused Shabir Ahmed son of Manzoor Ahmed by the blunt side of the axe on the right shin (Pindli). The accused thought that he had died, therefore, again went towards his house and started pelting stones and raised slogans and abused the ladies. In the meantime, someone told that police vehicle was arriving, so the accused ran away. According to this report lodged by Abdul Rehman apart from him and the members of his family Abdul Rauf son of Muhammad Sadiq, Muhammad Asif son of Muhammad Anwar, Muhammad Saleem son of Hakam Ali, Rehmat Ali son of Nawab Khan, Arshad Mehmood Butt son of Boota and Muhammad Razaq son of Muhammad Ellahi witnessed the occurrence.
3. According to the respondent Abdul Rehman in the light of F.I.R. Both the injured persons were referred for medical treatment and medical examination to Dr. Tariq Mahmood, C.M.O. District Headquarters Hospital, Bhimber. On the same day C.M.O. Described injuries on the person of Muhammad Luqman son of Muhammad Sadiq as simple and after providing him necessary treatment, discharged him from the hospital. However, Abdul Rehman who at the relevant time was unconscious, was given emergency treatment by the said Doctor and later on he was referred to the District Headquarters Hospital, Mirpur on 16-1-1997 for his treatment by the Neuro Surgeon.
According to the observations recorded by the Neuro Surgeon, Mirpur, respondent Abdul Rehman remained unconscious 'for about one and half an hour. Later on he was conscious with a Glasgow coma scale 14 and (here was no focal neurological sign. The X-ray of his skull was taken twice and both the times it was described as inconclusive. The Neuro Surgeon finally opined that the respondent had a Diffuse Axonal injury which led to unconsciousness with post traumatic amnesia -which could have caused his death and further that he may lead to long-lasting headache, vertigo, attention deficit and memory disturbances. The respondent was relieved by him on 27-1- 1997 from the hospital.
4. Despite the above-referred facts, when no progress was made in this case, the complainant, therefore, was constrained to invoke the Constitutional jurisdiction of the High Court.
5. On the writ petition filed by respondent Abdul Rehman, a learned Judge in the High Court before admitting the writ petition for regular hearing felt it expedient to invite parawise comments from SILO., Police Station Bhimber and Dr. Tariq Mahmood, C.M.O. District Headquarters Hospital. Bhimber.
The learned Advocate-General who appeared initially, on request was granted adjournment for parawise comments from the concerned S.H.O. But when he received no comments from the S.H.O., he pleaded for the admission of writ petition. The writ petition was admitted for regular hearing on 15-7-1998. The writ statement was filed by Additional Advocate-General on 4-8-1998 wherein. It was averred that medical report of the injured person has been prepared by the Neuro Surgeon but he has not explained the details of injuries. Anyhow the Additional Advocate-General expressed the view that there was no harm in registering the F.I.R.
6. It was contended by Mr. Ghulam Mustafa Mughal, the learned counsel for the appellants, that the alleged occurrence took place on 15-1-1997 while the writ petition for the registration of case was filed on 23-2-1998 after the period of more than one year which .Disentitled the writ-petitioner from getting any relief. On this point the learned counsel relied on Mahboob Khan and others v. Fazal Ellahi and others (1995 PCr.LJ 1778). It was also contended by the learned counsel for the appellants that the appellants were not arrayed as respondents in the writ petition which vitiates the judgment of the High Court as they were not provided with an opportunity of being heard.
7. On the other hand it was argued by Kh. Shahad Ahmed, the learned counsel for respondent No,1, that the provisions of section 154, Cr.P.C. Are imperative in nature. The S.H.O. After having information in writing about the commission of a cognizable offence, was bound to reduce it into writing. He should have conducted an investigation as required by law. But up to this time on account of influence of the opposite accused party, no investigation has been conducted. Even the case has not been formally registered as required by law. The learned Advocate-General. However, submitted that keeping in view the nature of the accusation. The police had no option to refuse the registration of the case. In the light of the record, which has been received from the relevant police station, up to this time even the statements of the injured persons have not been recorded. This shows negligence on the part of the police officials posted at Police Station Bhimber.
8. We have given our due consideration to the arguments advanced by the learned counsel for the parties and perused the record. Indeed it is correct that provisions of section 154, Cr.P.C. Are mandatory in nature and the moment it is brought to the notice of S.H.O. Through an information in writing about the commission of a cognizable offence, he is bound to reduce it into writing and he must conduct an investigation as required by law. But in the instant case the main hurdle that seems to us is that the occurrence, according to the prosecution, took place on 15-1-1997 but the respondents filed the writ petition on 23-2-1998, after more than a year. In our view the respondent has been guilty of gross negligence and a person who had been indolent and negligent in pursuing his remedy at least is not entitled to the discretionary relief by the High Court in exercise of writ jurisdiction.
9. In a case reported as Mehboob Khan alias Maroof and 11 others v. Fazal Ellahi and 2 others (1995 PCr.LJ 1778) the facts of the case were that the occurrence in that case took place on 8th of March, 1992, and as stated in the writ petition challas in the case was filed on 22nd of March, 1992. Fazal Ellahi respondent was one of the persons against whom challan was presented but he filed the writ petition on,20th of April, 1992. It was observed by this Court as follows:-- "On the very face of it the writ petition suffered from ladies and in our view should have been dismissed on that ground. It is stated in the writ petition that the police had not registered a case at the instance of Fazal Ellahi although he filed a written report. In these circumstances Fazal Ellahi should have filed the writ without any delay. The question of laches has to be seen in light of facts of each case. In criminal matters lodging of F.I.R. Has to be done at the earliest occasion and if there is any delay it should be explained. On the same analogy, filing of a writ seeking direction for registration of a case must be expeditious. Fazal Ellahi himself states that the police did not register a case at his instance. Since he was aware of this fact he should have at once, if so advised, filed the writ petition but he did not do so. On 22nd of March a 'challan was presented in the Court in which counter-version put forward by Fazal Ellahi was not given any credence but he still did not promptly file a writ. Although upon completion of investigation and filing of challan a material change had taken place yet the respondent slept over the matter for twenty-eight more days. For it, there is no explanation. In these circumstances re-opening of investigation at the instance of a person who is accused in the case would cause prejudice to the murder case pending in the Court.
Thus, the petition was hit by the doctrine of laches. It follows that the Discretionary and equitable jurisdiction under section 44 of the Interim Constitution Act should not have been exercised in the present case."
10. It may also be highlighted that the respondent at the time of filing the writ petition before the High Court furnished no reasonable explanation for the laches. Instead he admitted in the writ petition that for the last more than one year the police is not investigating the matter. So, it was obviously within the knowledge of the respondent No,1 and it was enjoined upon him to immediately pursue his remedy by fling a writ petition but he failed to do so. We have also been informed that the police has already filed challan against the accused persons, on the basis of report submitted by respondent No,1, in the Tehsil Criminal Court, Bhimber. So, even otherwise the efforts of respondent have borne fruit. In this view of the matter the writ petition being badly hit by laches we order its dismissal by accepting the appeal and setting aside the impugned judgment of the High Court.