' By this Constitutional petition the petitioner Muhammad Akram alias Bhola has sought the following relief:--- "(a) To direct the respondent No,3 to register the F.I.R. Of the petitioner.
(b) To grant protection from Police so that the petitioner may live in peace and attend his day to day affairs without any fear/disturbance.
(c) Any other relief that may deem fit and proper in the circumstances."
2. The brief facts of the case, as disclosed in the petition, are that the petitioner is a law abiding citizen and he is living at Shabina Hotel, Bara Imam, Napier Road, Karachi, since last twenty (20) years and he sold chips/Pakoras at the footpath of Napier Road, Lea Market, Karachi, to earn his livelihood. The men of respondent No,3 used to collect "Bhatta" (illegal gratification) from the hawkers but all of sudden police demanded the same at an enhanced rate from the petitioner. He refused to give such "Bhatta". Due to which they (policemen) got annoyed.
3. On 9-10-1999 at about 2-00 p.m. a police man took the petitioner to Napier Police Station where he was produced before Muhammad Ishtiaque, Reader to D.S.P. And Hanif, the Head Moharrar of Napier Police Station, Karachi. They abused and maltreated the petitioner with the result he received injuries on different parts of his body. They called one barber and got shaved his beard, head and moustaches. Thereafter, the petitioner was confined in police lock-up. On 10-10-1999 his sister approached as S.D.M., Eidgah, Karachi, when he was released.
4. On 11-10-1999, the petitioner appeared before the learned S.D.M. Eidgah, Karachi, who referred him for medical examination to Civil Hospital, Karachi, and also directed the petitioner to lodge report against accused police officials. It is further stated that police officials of respondent No,3 in order to save their own skin from the clutches of law prepared a false report wherein it was shown that petitioner was arrested under sections 107, 151 and 117, Cr.P.C. The petitioner immediately made application(s) to higher authorities, including the respondent No,2.
5. It is averred that petitioner submitted his complaint to respondent No,3 who refused to accept the same. He, therefore, sent it telegraphically but so far no action has been taken by the concerned authorities.
6. The respondent No,3 filed his parawise comments through Mr. Muhammad Sarwar Khan, Additional Advocate-General, Sindh wherein he has denied the allegations levelled against him and he has stated that the petitioner was arrested under sections 107, 151' and 117, Cr.P.C., as breach in peace was apprehended. He has categorically denied involvement of A.S.-I. Muhammad Ishtiaque, Reader to SDPO, Risala and Head Moharrar Muhammad Hanif in the commission of any offence. It is further stated in the comments that the petitioner was of a questionable character and in the past he was sent up in a case under sections 294 and 34, P.P.C. Under section 11-A of Prohibition (Enforcement of Hudood) Order, 1979 but those proceedings were stopped by the Court.
He was also sent up in two cases under section 5/5-A of Gambling Ordinance.
7. In his affidavit-in-rejoinder the petitioner denied the allegations levelled against him in the comments filed by respondent No,3 and he has reiterated the averments made by him in the petition.
8. I have heard Mr. S.A. Ghaffar, learned counsel for the petitioner, Mr. Muhammad Sarwar Khan, learned Additional Advocate-General, Sindh, on behalf of the State and I have also perused the material placed on record.
9. The perusal of record shows that on 11-10-1999 petitioner submitted an application before the learned S.D.M., Eidgah, Karachi for referring him to Civil Hospital, Karachi for medical treatment and necessary certificate. The learned Magistrate passed the following order thereon:--- "Refer to M.S., Civil Hospital for medical check-up."
10. On the same day, the petitioner appeared before Civil Hospital Authorities, Karachi, where Medico-Legal Officer, Civil Hospital, Karachi, examined him and issued medical certificate. The contents of the medical certificate are also reproduced herein-under:--- "Medico-Legal Certificate ' NAME: Muhammad Akram son of Ghulam Haider, aged 40 years, Male, ' ADDRESS: Napier Road, Lea Market, Karachi.
' PLACE OF OCCURRENCE: Napier Police Station, Karachi 1-00 p.m.
' History of Maltreatment at the hands of Police as alleged.
' General Condition conscious and stitched.
' Injuries (1) c/o pain and swelling (Rt) elbow. - Contusion 2 c.m. x 1 c.m. Bruise black on outer aspect of (Rt) elbow.
(2) Bruise 2 c.m. x 1 c.m. Near dorsal aspect of the (Lt) hand blackish.
(3) Bruise 4 c.m. x 3 c.m on (Rt) frontal region o/e blackish in colour Ad. X-Ray (Rt) elbow AP. Lat.
OPINION ' NATURE OF INJURIES: (1) Reserved for X-ray reports (2) and (3) Ghavar Jaffa Damyah.
' PROBABLE DURATION OF INJURIES about 2 days ' KIND OF WEAPON hard blunt subtance.
(Sd.)
MEDICAL LEGAL OFFICER, (Civil Hospital, Karachi)."
11. Further perusal of the record shows that the petitioner sent application(s) to the S.H.O., Napier Police Station, Karachi (respondent No,3 herein) and the Director Anti-Corruption Establishment, Karachi, telegraphically. Photostat copy of the receipt issued by the Telegraph Department is appended by the petitioner alongwith his petition as Annexure 'D'. It will be pertinent to reproduce hereinbelow the contents of the application sent by the petitioner to the authorities stated hereinabove for the sake of ready reference.
"Sir, ' It is stated that I am residing at Shabina Hotel, Bara Imam, Napier Road, Karachi, since last about 20 years and sells chips/Pakora at footpath. Napier Police demanded Bhatta which I refused.
' On 9-10-1999, at about 2 p.m. a policeman took me to police station, when I was produced before Muhammad Ishtiaque, Reader to D.S.P. And Hanif, Head Moharrar who abused and gave me severe beatings and I received injuries on different part of body. They called one Barber who cut cleaned my beard, head moustaches and I was put in lock-up. However, I was released on 10-10-1999.
' On 11-10-1999, I appeared before S.D.M., Eidgah who referred for medical check-up and asked to lodge report against accused Police officials.
' I, therefore, request that necessary action be taken against accused persons."
12. During the pendency of present petition, the petitioner filed Miscellaneous Application No, 848 of 1999, supported by the affidavit of his sister Mst. Shamim Akhtar, wherein it is stated that the S.H.O., Napier Police Station, Karachi, went to petitioner's sister Mst. Shamim Akhtar and asked her to withdraw the present petition, else she will be involved in false cases.
13. It is further stated in the said affidavit that petitioner and his sister Mst. Shamim Akhtar apprehend their involvement in false cases at the hands of respondent No,3, S.H.O., Napier Police Station, as such suitable orders may be passed in the interest of justice.
14. In reply to the aforementioned Miscellaneous Application, the S.H.O., Napier Police Station, Karachi, has filed reply through the learned Additional Advocate-General Sindh, wherein the allegations made in Miscellaneous Application have been refuted and it is further stated that Mst.
Shamim Akhtar is a prostitute and so many cases were registered against her at Napier Police Station and petitioner is her pimp and they want to start their previous profession of prostitution in the area. The respondent No,3 refused to grant them permission to that effect in his area, therefore, in order to harass the respondent No,3 the present petition was filed. The respondent No,3 in support of his submission has placed on record a list of cases instituted/pending against Mst.
Shamim Akhtar, wherein it was shown that Mst.Shamim Akhtar was convicted under sections 294, 34, P.P.C. And also under other provisions of law.
15. The perusal of report under sections 107, 151 and 117, Cr.P.C. Filed by the respondent No,3 alongwith his comments, shows that on 9-10-1999, A.S.-I. Amanat Ali of Napier Police Station, Karachi, was on patrolling duty alongwith his subordinate staff when he saw some persons assembled near the shop of one Naim and one person, whose name he subsequently come to know to be the petitioner was shouting and saying that the policemen are acting highhandedly and he (petitioner) was bent upon to create the law and order situation. A.S.-I. Amanat Ali, therefore, arrested the petitioner under section 151, Cr.P.C. And brought him at police station where after completing the codal formalities the petitioner was locked-up.
16. It will be pertinent to reproduce hereinbelow the contents of the application dated 11-10-1999, filed by S.H.O., Napier Police Station (respondent No,3 herein) alongwith his comments, which was sent by the petitioner to the Inspector-General of Police, Karachi, for the sake of ready reference:- {{URDU TEXT}}
17. It will also be pertinent to reproduce hereinbelow the observations made in the case of Mohabat Khan v. Atta Muhammad and others (1985 PCr.LJ 360):--- "8. It is inalienable right of every citizen of this country and of every other person for the time being within the sovereign limits of Pakistan to enjoy the protection of law and to be treated in accordance with law. This is so in accordance with Article 4 of the Constitution of Isjamic Republic of Pakistan, 1973. Every person regardless of his status in society whether lowly or highly placed, is entitled to be dealt with and treated in accordance with law to which he is subject. Police is no exception to this general rule. It has always been the high tradition of this Court to stand between the citizen/subject and any encroachment of his right by the executive or any authority, however, high subject to availability of its jurisdiction. This Court is not respector of persons and its endeavour is and must be to ensure that the voice of justice shall always be heard. In the case under consideration, the petitioner, it is stated in the petition, was malafidely dealt with. He was taken to his village and allegedly made naked by respondents police officials. In that state of condition he was allegedly given shoe-beating on his buttocks. Besides, it is stated that Shaukat and Sarfraz spat at him at the instance of respondent No,1 . Anybody who, enjoyed a little self- respect, to be dealt with like this in his own village in the presence of those, amongst whom he had passed his days of life, was sufficient to raze his respect to the ground making it well nigh impossible from him to pass on the rest of the days of his life respectably. This act must have done incalculable harm and damage to image and the personality of the petitioner, which he may have taken years to build. If the facts stated in the writ petition are true, it depicts a sad state of affairs.
Police which is expected to protect the rights of the people against encroachment by others, in this case, allegedly has itself violated the rule of law. The acts attributed to respondents Nos. 1 to 3 in the writ petition cannot at all be given protection under law of the land though committed during the course of investigation. The police is not supposed to transgress the limits of law imposed upon them. It was contended on behalf of the State that the petitioner has an alternate remedy available to him inasmuch as if so advised he can file a complaint against the conduct of the relevant police officials. Right to file a complaint is always available to the aggrieved person. A question which arises for consideration in the case is whether in the facts and circumstances of this case, the petitioner's grievance should be left to be dealt with in a complaint case or that a direction under Article 9 of the Provisional Constitution Order be issued for registration of a case against the delinquents including police officials. I have examined the facts and circumstances of this case with great anxiety. The result of this consideration persuaded me to take the view that the case as presented does call for a direction to the Police to register a case against respondents Nos.
1 to 4 under penal law of the land.................."
18. In the case of Mrs. Ghanwa Bhutto and another v. Government of Sindh and another PLD 1997 Karachi 119), a Division Bench of this Court, after considering and discussing at length the reported and unreported various decisions of this Court as well as of other High Courts and Hon'ble Supreme Court laid down the following dicta at pages Nos.127 and 128:--- " .It would, thus, appear from the said provisions of the Code of Criminal Procedure that different modes have been provided for to set the criminal law into motion. The two remedies, one by way of lodging of a report with the police in respect of commission of a cognizable offence and the other, by filing of a complaint before a Magistrate, are parallel remedies which appear to be equally efficacious and practical remedies. In case of a private complaint, the Magistrate to whom a complaint is made is empowered either to enquire into the case himself or direct an enquiry or investigation by a Police Officer or any other person referred to in section 202 of the Code of Criminal Procedure, depending upon the circumstances of each case. Therefore, remedy by way of a private complaint is equally an effective and a practical remedy and, thus, an adequate remedy.
13. A question, therefore, arises, when can discretion be exercised by the High Court in favour of an aggrieved party. It may not be out of place to mention that, according to the principles laid down by the superior Courts, discretionary power must be exercised in good faith having regard to all relevant considerations and it should be exercised justly, fairly and reasonably. Therefore, although an alternate remedy is provided for to an aggrieved party under the law, by way of a complaint, yet, the mere fact that an alternate remedy has been provided for, may not deter the Court from giving direction to the Police to record an F.I.R., in an appropriate case When a person is attributed a definite role by the complainant in the commission of a crime to indicate his participation therein, a prima facie case for registration of an F.I.R., may be made out, but when the accused named by the petitioner in the F.I.R., has neither been seen by any one while committing the alleged crime, nor any particular role has been attributed to him, yet the petitioner believes that he was involved in the commission of the alleged crime, then unless such belief is a reasonable belief, directions sought by the petitioner for registration of an F.I.R. May not be issued and he may be left to have resort to such alternate remedy, if so desired by him. A person can even be named as a suspect by the complainant but although there is no bar in respect of including his name in the F.I.R., registered by the police, but a prima facie case may be established against him only after ' investigation is conducted by the police. Therefore, discretion may not be exercised by the Court in favour of the petitioner, 'in every case where an F.I.R. Has not been registered by the police."
' It was further observed by the said Division Bench at pages Nos. 128 to 129 as follows:--- "14. Turning now, to the facts of the present case, there is no controversy in respect of the fact that two reports in respect of the said occurrence have already been registered by the Police and in the second report registered at the instance of Asghar Ali, the servant of the first petitioner. Police Officers have been charged with murder of Mir Murtaza Bhutto. No doubt, as has been pointed out by the learned counsel for the respondents, section 154 of the Criminal Procedure Code postulates registration of only one F.I.R. In respect of an offence and in any case an F.I.R. Indicating commission of Qatl-e-Amd has already been registered at the instance of the said servant of the first petitioner. Even the first F.I.R., registered at the instance of Station House Officer, Haq Nawaz according to the respondents' counsel, was sufficient to set the criminal law into motion. Therefore, is registration of a third F.I.R. Warranted under the law? The circumstances of the present case, however, indicate that while the first F.I.R. Was registered at the instance of a Police Officer who was suspected of being an accused himself in the case by the petitioners, the second F.I.R. Was registered at the instance of Asghar Ali, the private servant of petitioner No,1, after four days of the occurrence when he was still in the custody of the police. Therefore, the contention of the petitioners that the two F.I.Rs, registered by the Police do not reflect the true fact of the case, does not appear to be unreasonable.. It is also pertinent to point out that the petitioners wanted to name certain Police Officers as some of the culprits, who, according to the petitioners, had participated in the said crime and a definite role has been attributed to them in the proposed F.I.R. Therefore, a prima facie case appears to have been made out against the said persons for the purpose of recording an F.I.R. However, some other Police Officers have been named as suspects but no definite role has been attributed to them by the petitioners. Therefore, the petitioners have failed to satisfy the conscience of the Court so far as the said Police Officers are concerned.
' We are, therefore, firmly of the view that circumstances of the present case are distinguishable from those of the cases earlier decided by this. Court, reference to which is made in this judgment."
' It was lastly held by the said Division Bench as under:--- "16. In the result, subject to the observations made by us in this petition, this petition is allowed and the respondent No,2 is directed to perform his legal obligation and register the F.I.R., which may be lodged on behalf of the petitioners in this case...."
19. In yet another case a Division Bench of this Court in the case of Jamshed Khan and another v.
Government of Sindh and others (1999 PCr.LJ 512), td which I was one of the members and the judgment was authored by me, wherein it was observed as under:--- "21. Thus, it is obvious that looking towards the facts and circumstances of a particular case not only second but even third F.I.R. Could be registered.
22. The word 'offence' used in section 154, Cr.P.C. Is not synonymous with the word 'occurrence' or 'incident', hence if a counter-version containing different facts with regard to commission of cognizable offence is brought to the notice of the in charge of a Police Station he is duty bound and obliged in law to record the same and he can in no way refuse to do so. It is generally seen that in the report in which police personnel are figuring as accused, those reports are not even entertained and if those are entertained, such reports are always registered very reluctantly."
20. The upshot of the above discussion is that F.I.R. Proposed to be filed by the petitioner, prima facie, reveals commission of a cognizable offence and respondent No,3 is accordingly directed to register it and conduct investigation in accordance with law.
21. It will not be out of place to mention that the conduct of the police officials comes in question in this case, therefore, the S.S.P. Concerned must ensure that investigation is handled by a person, who is an impartial and unbiased person and has no grievance against either of the parties.
22. With the foregoing observations the petition stands disposed of with no order as to costs.
23. The office is directed to send the copy of this order to concerned Senior Superintendent of Police, Karachi.