' On 15-6-1998, the petitioner filed this petition on the assertions that the petitioner's business of manufacturing second grade grease and mobil oil was lawful and respondents Nos.3 to 7 have no legal authority to interfere in the business or to prohibit the petitioner from manufacturing and selling the same. On 17-6-1998, this Court issued notice to respondent No,7 (S.H2O.) to show under what authority of law he was conducting raids on the business premises of the petitioner, In the meanwhile, the respondents were restrained from acting in any illegal manner.
2. On 19-6-1998. Petitioner instituted another Writ Petition No, 12079 of 1998 substantially on the same fact and claimed the relief that registration of case F.I.R. No,201 of 1997, dated 24-4-1998.
Under sections 23 and 24 of the Petroleum, Act, 1937, be declared as without lawful authority and the allegations be quashed. The perusal of the second petition shows that there is no mention whatsoever regarding institution of the earlier Writ Petition No,11640 of 1998. At the end, the certificate duly signed by the learned counsel, Ch. Abdul Rashid, Advocate appears and it is to the fact that "as per instructions this is the first petition on the subject". The second petition was listed before my learned brother Mian Nazir Akhtar, J., who admitted the same on 22-6-1998 and PCr.1.1 on 2-7-1998, vide order passed on C.M. No,1 of 1998, stayed further investigation. Both the petitions have been filed by the same person and through the same learned counsel, Ch. Abdul Rashid, Advocate. 15-Edwards Road, Lahore.
3. Even if the filing of second petition be considered permissible, it was obligatory that reference was made to the institution of earlier writ petition and the orders made on the same, By suppressing the necessary facts, petitioner was able to obtain a contrary order from a different Bench. The petitioner has clearly attempted to play fraud upon the process of this Court and his petition does not merit to be considered at all.
4. Even otherwise, vide Notification No, M.826/3 appearing in the Gazette of India. Dated March 27, 1937 at page 632 at Police Officers of the rank not below that of Sub-Inspector have been authorized to conduct raid in terms of section 26 of the Petroleum Act, 1934. This is complete answer to the submission of the learned counsel in bath the cases, that the S.H.O. Was wrongly raiding the factory premises of the petitioner and was illegally registering the F.I.R. Unfortunately, Notification, dated March 27, 1937, was not noted in the reported judgments relied upon by Mr. Abdul Rashid viz. 1993 MLA 2279 and NLR 1994 Crl. 257, and hence the view propounded therein.
5. For the above reasons, this petition is dismissed with costs. In view of the conduct of the petitioner, special costs of Rs,10,000 (ten thousands) are imposed on the petitioner, The amount when recovered shall be confiscated in favor of the State as fine.
6. As this is the first instance in respect of Ch. 4hclul Rashid, Advocate. Learned counsel for the petitioner, to my knowledge, I would only let him off with a warning to be careful in future.
Petition dismissed.
1999 P Cr, L J 1193 [Lahore] Before M. Laved Buttar and Saved Zahid Hussain, .1.1 GHULAM MUHAMMAD-Petitioner versus A.C./S,D.M JALALPUR PIRWALA, DISTRICT MULTAN and another---Respondents Intra-Court Appeal No,86 of 1998 in Writ Petition No,9430 of 1998, heard on 14th July, 1998.
(a) Criminal Procedure Code (V of 1898)--- ----S. 154---Registration of F.I.R.---Complaint was sent to the Station House Officer of police station by the Assistant Commissioner with a direction to register a case under the relevant law--- F.I.R. Was registered on such complaint---Validity---Endorsement by the Assisent Commissioner on the application did not, in any way, restrict the Station House Officer in the performance of his lawful function---Said direction was qualified with the words "under the relevant law" and it was, thus, the Station House Officer who had to register the case in accordance with law and who was obliged to conduct the investigation justly and fairly without being influenced by any extraneous factor---No illegality was committed in the registration of the case in circumstances. [p. 1195] A PLD 1985 Lah. 288; PLD 1968 Lah. 464; PLD 1988 Kar. 521; 1979 SCMR 112 and 1990 PCr.LJ 1811 rel.
(b) Constitution of Pakistan (1973)--- ----Art. 199---Intra-Court appeal---Constitutional petition---Quashing of F.I.R. Registered on the application moved by Assistant Commissioner---Station House Officer of police station had registered a case against petitioner on an application moved by Assistant Commissioner--- Constitutional petition for quashing of the F.I.R. Was filed in the High Court and the same was dismissed---Order of High Court was assailed in Intra-Court Appeal---Registration of the case was done by the Station House Officer concerned, he was obliged to conduct the investigation and to proceed in accordance with law---F.I.R. Could not be ordered to be quashed simply for the reason that the complainant in the first instance made an application to the Assistant Commissioner/Sub-Divisional Magistrate who sent the same to the Station House Officer to act under law---No justification was found to interfere in the order of High Court---Intra-Court Appeal being without merit was dismissed in circumstances. [p. 1196] B Mst. Kausar Parveen v. Ahmed Ali Zafar, J.M. Kabirwala, District Khanewal PLD 1997 Lah. 208 and Allah Ditta Hamdani v. I.-G. And others PLD 1998 Lah. 193 distinguished. PLD 1985 Lah. 288; PLD 1968 Lah. 464; PLD 1988 Kar. 521; NLR 1974 Cr1.
146 and 1990 PCr.LJ 1811 rel. Ch. Faqir Muhammad for Petitioner. Addl. A.-G. For Respondents.
Date of hearing: 14th July, 1998.
' SAYED ZAHID HUSSAIN, J.--- This is an Intra-Court Appeal against the order, dated 30-3-1998 passed by a learned Single Judge of this Court in Writ Petition No,9430/Q of 1998, whereby the said petition filed by the appellant was dismissed.
2. The appellant filed the aforesaid writ petition under Article 199 of the Constitution for the quashment of F.I.R. No,244 of 1997, dated 7-10-1997 under section 324/440/506(2)/148/149, P.P.C.
Registered at Police Station Sadar Jalalpur Pirwala, District Multan. The quashment was sought on the ground that the said case was registered under the orders of respondent No,1, Assistant Commissioner/Sub-Divisional Magistrate, Jalalpur Pirwala for which he had no authority under the law to direct the registration of the case. The learned Single Judge in his judgment after dealing with the contentions of the appellant expressed the view that even if such a direction of the Assistant Commissioner was ignored and kept aside and a simple application had been presented to the S.H.O. Even then he was competent to register a case.
3. Learned counsel for the appellant has reiterated his contention as was raised by him before the learned Single Judge. It is contended that after separation of judiciary from the executive cognizance of an offence can only be taken either by a Judicial Magistrate or the S.H.O. Concerned himself can register a case. Reference has been made to section 190, Cr.P.C. And section 156(3) of the Code. It is further contended that since the Assistant Commissioner is no more competent to exercise powers of a Judicial Magistrate, he could not order the registration of the case. Reference has also been made to Mst. Kausar Parveen v. Ahmad Ali Zafar, J.M. Kabirwala, District Khanewal PLD 1997 Lah. 208 and Allah Ditta Hamdani v. I.-G. And others PLD 1998 Lah. 193 to support the above contention.
4. We have given our thought to the submissions made by the learned counsel but find that there is no real substance in the contentions raised by him.
5. Section 154, Cr.P.C. Obliges the officer in charge of a Police Station to record every information relating to the commission of a cognizable offence. Such an information is commonly caned as F.I.R., the object and purpose of which is to set in motion the law and its machinery against the culprits. See PLD 1985 Lah. 288 and PLD 1968 Lah.
464. This duty of the Station House Officer is not dependent upon any order or direction from any superior State functionary. The source of information may be any. See PLD 1988 Kar.
521. The right to report the violation of law belongs to every member of the public including a Magistrate 1979 SCMR 112 and 1990 PCr.LJ 1811.
This is the duty which S.H.O. Is to perform and proceed in accordance with law. In the instant case the Assistant Commissioner has not taken cognizance of the matter himself and case was registered by the S.H.O. Of the concerned police station. The endorsement on the application made by him i,e, "S.H.O., Police Station Sadar to register a case under the relevant law" does not in any way restrict the S.H.O. In the performance of his lawful function. The said direction was qualified with the words "under the relevant law". It is, thus, S.H.O. Who has registered the case in accordance with law and who is obliged to conduct the investigation justly and fairly without being influenced by any extraneous factor.
5. The precedents relied upon by the learned counsel in Mst. Kausar Parveen case (supra) is not applicable as in the said case a Judicial Magistrate of Kabirwala had issued search warrants of the petitioner who was residing at that time in Mian Channu and the point was as to whether a Judicial Magistrate, Kabirwala could issue such a warrant when the petitioner was not residing within his territorial jurisdiction. However, some observations were made regarding the functions of the Judicial Magistrate and a Sub-Divisional Magistrate in the executive hierarchy which observations are not applicable in the instant case. The other precedent cited by the learned counsel viz. Allah Ditta Hamdani case (supra) rather supports the view taken by the learned Single Judge that the S.H.O. Is under legal obligation to register a case, conduct the investigation and collect all the evidence about the alleged occurrence. The registration of the case having been done by the S.H.O. Concerned, he is obliged to conduct the investigation and to proceed in accordance with law. The case registered (FAR.), therefore, cannot be ordered to be quashed simply for the reason that the complainant in the first instance made an application to the Assistant Commissioner/Sub-Divisional Magistrate who sent the same to the S.H.O. To act under the law.
6. We do not find any justification to interfere with the order of the learned Single Judge. This appeal has no merit and is, therefore, dismissed.
Appeal dismissed.
1999 P Cr. L .1 1196 [Karachi] Before Sabihuddin Ahmed, J SHAFIQUDDIN-Applicant versus THE STATE---Respondent Criminal Bail Application No,2058 of 1997, decided on 5th January, 1998.
(a) Criminal Procedure Code (V of 1898)--- ----S. 497(1)---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Bail, grant of---Statutory delay---Effect---If prosecution could show that accused was a desperate, dangerous and a hardened criminal, Court could refuse bail. [p. 1198] A
(b) Criminal Procedure Code (V of 1898)--- ----S. 497(1)---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)- --Bail, grant of---Statutory delay---Accsued was not named in F.I.R.---More than one year had passed and even charge had not been framed-Delay caused in trial was not on account of accused---Accused was either acquitted or was granted bail in other cases against him---Bail was granted to accused in circumstances. [p. 1198] B Moundar and others v. The State PLD 1990 SC 934 ref. S. Mahmood Alam Rizvi and Ms. Aklitar Rehana for Applicant. Ashiq Hussain Mehar for the State.
' The applicant is charged with an offence under section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979. According to the F.I.R. Lodged by one Major Irfan Ahmad Khan on 12-8-1996 at about 4-30 a.m., four unknown youngsters entered into his house locked him and his family members on one room and robbed them of substantial amount of cash (local and foreign currency), substantial quantity of jewellery, household goods and other expensive things.
The applicants were arrested on 26-11-1996 under F.I.R. No,100 of 1996 of Police Station Shahrah-e- Faisal, Karachi East.
' Learned counsel for the applicant has pressed this application on the ground of statutory delay alone and has contended that having remained in custody for more than a year the applicant is entitled to grant of bail as of right in terms of third proviso to subsection (1) of section 497, Cr.P.C., and the law declared by the Honorable Supreme Court in the case of Moundar and others v. The State PLD 1990 SC 934 and subsequent cases.
' The principles relating to grant of bail under the third proviso to section 497, Cr.P.C. Appear to be clearly settled through several precedents. After the expiry of one year in the case of offences not punishable with death and two years in those so punishable, an accused person is entitled to grant of bail as of right on the ground of delay in the trial of the case against him. Such bail, however, can be refused only if it is shown that the delay has been caused by the conduct of the accused himself or somebody acting on his behalf or that he is a hardened, desperate or dangerous criminal or involved in acts of terrorism. Learned counsel for the applicant contended, on the basis of the diary sheet of the trial Court, that but for a few adjournments for very short intervals obtained by the applicants for arguing his application for bail, delay in the prosecution of the case has been occasioned by the prosecution itself. He stated that despite the expiry of more than one year even charge has not been framed by the trial Court.
' Learned counsel for the State has not seriously disputed this position. He has, however, contended that the applicant is charged with 15 other offences and is as such a desperate, dangerous or hardened criminal.
I am afraid the mere fact of the applicant's involvement in other cases would not render him to be treated as a desperate, dangerous or a hardened criminal. It is no doubt correct that if it could be shown by the prosecution that the allegations against him in the other cases are of such nature which may prima facie show that he is a desperate, dangerous and a hardened criminal, the Court might be inclined to refuse him bail. However, neither the F.I.R., in those 15 cases nor any other material indicating that there are reasonable grounds to infer that the accused is a desperate, dangerous or a hardened criminal have been placed on record. In the absence of any such material it is not possible to hold that the applicant falls within those exceptional categories of persons to might not be entitled to grant of bail by way of statutory rights. Learned counsel for applicant has also contended that in none of the F.I.Rs, in the other cases he has been named personally and has in fact been granted bail or acquitted in most of these cases. However, in the circumstances I would direct that the applicant be released on bail subject to furnishing security in the sum of Rs,2,00,000 (Rupees two lacs) with one surety and P.R. Bond in the like amount to the satisfaction of the trial Court unless required in any other case.