' This Constitutional petition is filed under Article 199 of the Constitution, 1973 seeking direction against respondent No,1 to register F.I.R. Against respondents Nos.2 to 10 for offences under sections 387, 506-B and 337-A(i), P.P.C. Read with section 34, P.P.C.
2. Brief facts as alleged in the petition are that the petitioner is the owner of a two-storeyed building on Plot No,NE-II, Block-2, P.E.C.H.S., Karachi and that respondent Raees Ahmed is his tenant in respect of Shops Nos.2, 3 and 6. The remaining facts being unnecessary are not referred.
However, the grievance leading to filing of the instant petition pertains to an incident, dated 22nd October, 1998 when at 5-30 p.m., as alleged by the petitioner, two persons including one Sub- Inspector came to his shop and after threatening him to kill and after causing physical beating directed him to execute some document as demanded by respondent No,3 and that in case the said demands were not complied with within 20 minutes, the petitioner would be shot dead. This matter was narrated by the petitioner immediately to his uncle who approached S.D.P.O., Ferozabad who sent one S.I. Irfan to the place of occurrence and to inquire as to who the police officer was against whom the petitioner had levelled allegations. S.I. Irfan reported back to the S.D.P.O. That it was S.I. Parvez Gujjar, respondent No,2, who committed the acts alleged above. In such circumstances, the petitioner addressed a complaint to the I.G.P., Sindh with copies thereof to S.S.P., East, S.D.P.O., Ferozabad and S.H.O., Ferozabad Police Station. The said complaint has been filed alongwith this petition as Annexure 'C'.
3. Pre-admission notices were issued to the respondents. On 17-2-1999, respondent No,1 filed his statement and alongwith such statement, he has filed copies of several documents which were received by Ferozabad Police Station in respect of the dispute between the petitioner and respondents Nos.3 to 7. One such document is the copy of Annexure 'C' filed with the petition which shows that in addition to the allegation of the petitioner that he has served copy of Annexure 'C' on the respondent No,1, he also received this complaint from the office of S.D.P.O., Ferozabad with endorsement "S.H.O., Ferozabad for necessary action", but, no action was taken by him. Mr, B.M.
Bangash has referred to para. 6 of the comments filed by respondent No,1 wherein it is admitted by him, "The application of the complainant was fully entertained and proper inquiry was conducted.
On the other hand, the petitioner cannot produce a single witness in support of his application, therefore, after conclusion of the investigation and inquiry and to avoid law and order situation, a report under section 107/117, Cr.P.C. Was submitted before the Court of concerned S.D.M." However, learned A. A.-G. Has pointed out some other portion of the same paragraph where the said S.H.O.
Has said that he is prepared even today to take legal action against the culprits under the law provided the petitioner/complainant produces witness in support of his allegations.
4. I have heard Mr. B.M. Bangash, Advocate for the petitioner, Mr. Ainuddin Khan, A. A.-G., Mr. Muneeruddin Alvi, Advocate and Mr. Z.A. Mubashir, Advocate for the respondents. M/s. Muneer Alvi and Z.A. Mubashir have attempted to argue the case on merits of allegations made in Annexure 'C' and for that purpose have referred to counter-affidavit of respondent No,3. But I would not like to consider those facts at this stage since in such matters the Courts are confined to see whether the petitioner has approached the concerned police station with a complaint disclosing any of the cognizable offence and in what manner such complaint was treated by the said police station.
Merits or demerits of such allegations are to be inquired into by the concerned Police Officer or Investigating Officer to be appointed after registration of the F.I.R. And if it is found to be false, the said officer may proceed against the complainant according to law, but, once a complaint discloses a cognizable offence the in charge of police station as defined under section 154, Cr.P.C.
Is required to lodge/register F.I.R. Mr. B.M. Bangash has referred to a Full Bench decision of Lahore High Court in the case of M. Anwar v. S.H.O., Civil Lines Police Station, Lahore and another (PLD 1972 Lah. 493) where it was held that a police officer is under statutory obligation to lodge an F.I.R. Under section 154, Cr.P.C. After receiving an information relating to commission of a cognizable offence.
The other case is of a Division Bench of this Court in Miandad Ghangro v. S.H.O., Kandhra and others (1989 PCr.L..1 1945) where it was held that in both the circumstances i,e, where a cognizable offence or non-cognizable offence is made out, a report is to be lodged; in the first case, under section 154, Cr.P.C. And in the latter case under section 155, Cr.P.C. I may also refer the case of Malik Shaukat Ali and 12 others v. Ghulam Qasim Khan Khakwani (PLD 1994 SC 281) where Honible Supreme Court while reiterating its view in the earlier case Pakistan through Secretary, Ministry of Law, Islamabad v.
Zafar Awan, Advocate (PLD 1992 SC 72) held, inter alia, that the direction to register the case where the allegation showed commission of a cognizable offence even by public servant were unexceptional and were within competence of the High Court in Constitutional jurisdiction.
5. In the instant case, the respondent No,1 after receiving Annexure 'C', wherein it is alleged by the petitioner that a police official of the rank of Sub-Inspector has threatened him to kill after abusing and causing physical injuries, did not take any action which shows gross negligence on his part in performance ci his statutory duties. Not only from the pc titioner, such complaint was received, by him from his superiors, but no action was initiated and simply a proceeding under section 107/117, Cr.P.C. For apprehension of breach of peace was filed which, in my tentative view reflects the correctness of the allegations of the petitioner that respondent No,1 acted in order to save the skin of respondent No,2, both being the police official. All these circumstances lead to irresistible conclusion that this petition is to be granted with cost. Ordered accordingly.
6. At this stage, it is contended by Mr. Ainuddin Khan, A. A.-G. That the S.H.O. Has expressed his willingness to register F.I.R. If he is approached by the petitioner/ complainant therefore, imposition of cost, in such circumstances, is not justifiable. Learned A.A.-G. Has lost sight of the fact that the petitioner was forced due to the acts of S.H.O./respondent No,1 to approach an advocate to file the instant petition seeking direction for registration of. F.I.R. Such process has not only involved monetary expenses but, at the same time, has also consumed time of the petitioner as well as precious time of this Court. This matter has been coming up for hearing for last 5/6 dates for which several advocates, High Court staff and police officials were involved. This matter is not as simple as stated by the learned A. A.-G. This Court is receiving hundreds of such petitions nowadays disclosing that S.H.Os. Avoid to perform their statutory duties and instead hold inquiry themselves and conclude, without resorting to the provisions of the Code of Criminal Procedure, that no case is made out, In the instant case, the petitioner was compelled to approach this Court for redress of his grievance for which respondent No,1 should be burdened with some cost. The object of granting cost was considered recently by the Hon'ble Supreme Court in the case of Khursheed Ahmed Naz Faridi v. Bashir Ahmed and 3 others (1993 SCMR 639 at 642) in the following words:-- "5. The next question arises whether costs granted and the direction that it should be paid by the appellant and respondent No,4 from their own pockets is proper and legal. Costs are granted to a person who succeeds in a litigation. Such costs are to be paid by the unsuccessful party. The object of granting such costs may be two-fold. One, to compensate the aggrieved party, who in successful assertion/defence of his right, has been put to unnecessary litigation and harassment.
The other object is to penalise a party who may have initiated any action or passed the order in complete disregard of the obvious and glaring facts and provisions of law which a reasonable person would not do unless he acts with highhandedness, arbitrarily, mala fide or ulterior motive.
Where a person ' acting in his official capacity in complete disregard of the clear records and documents and having no authority to pass order of a particular nature, passes such an order, then while setting aside such order the Court awards cost to be paid by him personally, it will be proper exercise of discretion. But such discretion is based on the facts and circumstances of the case and conduct of parties. As the order granting costs is discretionary, it should not be fanciful, arbitrary, whimsical or capricious. Such discretion is exercised with regard to the party that will be charged with costs, the amount and manner in which costs are to be paid. The discretion exercised by a Court should not be lightly interfered in appeal unless well-settled principles are violated.
Refer to S.S. Miranda Ltd. v. Chief Commissioner, Karachi (PLD 1959 SC (Pak.) 134)."
7. In the instant case, the respondent No,1, namely Inspector Rustam Nawaz, who at the relevant time was, as well as today is, the In charge/Station House Officer of Ferozabad Police Station, Karachi, acted in glaring violation of the provisions of Chapter XIV of the Code of Criminal Procedure. It has been successfully established by the petitioner that his complaint in the shape of Annexure 'C' was received by this respondent, which allegations, prima facie, disclose commission of a cognizable offence but instead of recording F.I.R. He proceeded to hold inquiry and finally filed a proceeding under section 107/117, Cr.P.C. Before the Court of S.D.M., Ferozabad, Karachi. What impression a member of general public would gather from the above acts of the S.H.O.? Obviously, he would be justified in drawing conclusion that the members of the law enforcing agencies are above the Law and the no F.I.R. Could be registered against a police officer. It was a very sensitive matter but the S.H.O. Instead of dealing the same with me care and caution acted in a m unbecoming of a true police officer. The criteria for imposing cost as laid down in the case of Khurshid Ahmad Naz Faridi (ibid) fully attracted, in the aforementioned circumstances.
8. In view of the facts of this case direct respondent No,1, namely Inspector Rustam Nawaz to pay a cost of Rs,5,000 the petitioner which he will deposit within days with the Nazir of this Court where after it will be paid to the petitioner. In ease, fails to deposit the same, it shall recovered/deducted from his salaries.
9. With the aforesaid observations, the petition stands granted. Let a copy of the order be forwarded to the Inspector-General of Police, Sindh, for his information a necessary action against respondent No namely Sub-Inspector Pervez Gujjar.