RIAZ KAYANI, J.---Saeed Ahmad and others who were arrayed as respondents Nos.3 to 5 in the writ petition, out of which the instant Intra Court Appeal arises, have called in question the order of the learned Single Judge in Chambers, dated 15-11-1999 whereby the Superintendent of Police, Toba Tek Singh was directed to register a case at the instance of Naseer Ahmed respondent No,1/petitioner in the writ petition.
2. Naseer 'Ahmad stated in his writ petition that respondents No,3 to 6/appellants on 24-11-1998 at about 11 a.m. Came in a Pajero Jeep owned by Saeed Ahmad appellant at the time when the petitioner was proceeding towards his agricultural land for taking his turn of water, his wife, father and three children were present at his house when the respondent stopped their vehicles, made forcible entrance, after alighting from their jeep. Respondent No,3 was armed with a hatchet while respondent No,4 was armed with a 'Sota' whereas three constables who accompanied them were armed with rifles. Respondents started beating the father of the petitioner and when the wife of the petitioner ran to rescue her father-in-law respondent No,3 gave a hatchet blow on her head whereas respondent No,4 gave a 'Sota' blow also on her head. A constable present there hit the wife of the petitioner with the 'Butt' of his rifle on her left leg causing injuries on her hip as well. The second constable gave injuries with the 'butt' of the rifle on the left arm whereas the third constable injured her on the right arm. Respondents Nos.3 to 5 tore the clothes of the wife of the petitioner making her body visible. The occurrence was witnessed by Muhammad Ramzan and Nazeer Ahmad. The father of the petitioner was taken by the respondents by force.
3. Motive for the occurrence was old enmity of respondents Nos.3 and 4 with the uncle of the petitioner about a dispute regarding turn of water for irrigation.
4. It was stated that the matter was brought to the notice of the S.H.O. Police Station Rajana, District Toba Tek Singh but entreaties, to get a case registered fell on deaf ears. After obtaining the medico-legal report from the Doctor with respect to the injuries on the person of the petitioner's wife they approached the S.S.P., Toba Tek Singh with a request to get a' case registered but once again their grievance remained unattended. Writ Petition was filed seeking direction of this Court to the respondents for registration of a case.
5. Copy of the petition was sent to respondent No,2 - Senior Superintendent of Police, Toba Tek Singh for his comments and it was ordered on 22-12-1998 that the D.I.-G., Faisalabad would get the matter inquired through an upright officer in the Range Crime and that the report should be submitted within a month. On 4-3-1999 after perusing the report submitted by the D.I.-G., Faisalabad the learned Single Judge came to the conclusion that a case has been made out against respondents Nos.3 to 6 and consequently issued notice to all the respondents for regular hearing of the case fixed in the 3rd week of April, 1999. Respondents Nos.3, 4 and 6 filed a reply to the writ petition through Sardar Muhammad Latif Khan Khosa, Advocate who filed his power-of- attorney on behalf of the said respondents. Ch. Muhammad Hussain Chachar, Advocate represented respondent No,6 who was a Patwari of the Irrigation Department. On 15-11-1999, it seems that inadvertently Ch. Muhammad Hussain Chachar, Advocate was marked as counsel for the respondents and after hearing the petitioner order was passed in presence of Muhammad Munir, A.S.I. Representing the Police Department.
6. The only point raised by the learned counsel was that he was condemned unheard, no opportunity was provided to respondents Nos.3 to 6 to present their case and marking of Ch. Muhammad Hussain Chachar, Advocate for the respondents was due to a mistake of fact, actually Ch. Muhammad Hussain, Advocate only represented respondent No,6 and respondents Nos.3 to 5 went unrepresented on the said date of hearing when the order, now under challenge, was passed.
7. Elaborating his contention learned counsel for the appellants submitted that the registration of the case is not an absolute dictate of law as there is an alternate remedy of a complaint provided.
Had he been present he would have opposed the order directing registration of the case tooth and nail and since he was not heard, his clients now have to go through the hassles of prosecution and face the stigma of being named as perpetrators of crime in the F.I.R.
8. We have considered the arguments of the learned counsel and have also perused the record of the writ petition. We, however, regret we cannot see eye to eye to the plea raised by the appellant's counsel that being condemned unheard has occasioned a grave miscarriage of justice apart from being in violation of the principles of natural justice.
9. Registration of case is dealt with in section 154 of the Code of Criminal Procedure, which for facility of reference is reproduced below:-- "Every information relating to the commission of a cognizable offence if given orally to an officer- in-charge of a police station, shall be reduced to writing by him or under his direction and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the Provincial development may prescribe in this behalf."
A bare reading of the aforesaid provision of law makes it abundantly clear that once an information regarding commission of a cognizable offence is given to a police officer-in-charge of a police station he is bound to reduce the same to writing and substance thereof has to be entered in a book to be kept by such officer in such form as the Provincial Government may prescribe in this behalf. Reducing the information in writing at the instance of the informant regarding a cognizable offence is an imperative of law about which there is no cavil. Reliance is placed on M. Anwar, Barrister-at-Law v. The Station House Officer, Civil Lines Police Station, Lahore and others PLD 1972 Lah.
493. This judgment streamlined the law relating to the First Information Report under section 154 of the Code of Criminal Procedure and we can with advantage reproduce the relevant portion of the judgment:-- "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 relate 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."
10. Refusal of the S.H.O. Or any other police officer acting under his direction, can either be brought to the notice of the higher echelons in the police hierarchy or can be agitated through the instrument of writ. In the instant case there is an averment in the writ petition that even the S.S.P., Toba Tek Singh did not pay heed to the requests of respondent No,1/petitioner for the registration of the case. Resultantly the lapse in law was brought to the notice of this Court. The question for consideration is whether hearing of respondents Nos.3 to 5 was essential either under the law or according to the principles of equity and natural justice. Writ petition filed for seeking of order from this Court for registration of case is to remind the Station House Officer of his obligation under the law which he has failed to perform. Would it be essential at such an interim stage to call the accused/respondents and also give them hearing before issuing a direction to the Station House Officer for registration of the case. We are of the considered view that the answer to this question is in the negative. Tackling the question from another view, is it essential that when the Station House Officer is prepared to do his duty under section 154, Cr.P.C., is he bound by any provision of law to first provide an opportunity to the accused and thereafter, if he is satisfied that they have no explanation to offer, only then he is to register a case. It is a well-settled law by now that the moment the Station House Officer receives an information about the commission of a cognizable offence he shall reduce it in writing and shall proceed in accordance with law. If providing of an opportunity to the accused to be heard is not necessary under the law at the time of registration of the case, would the position change if a recalcitrant police officer is complained against to the High Court for not doing his duty under the law, the answer once again is that there is no such mandate because the position remains the same; in one case by doing his duty the police officer is bound to get a case registered in case an information of cognizable offence is laid before him and in the second case when he refuses, he is directed by the High Court in the exercise of constitutional jurisdiction to perform his duty.
11. Registration of a case involving cognizable offence is not the be-all and end-all of the matter.
The Police officer investigates the information given to him and if he finds grounds connecting the accused, against whom information is given, to be proceeded against, it is only then that he is called to explain the situation and upon failure to do so takes him in custody and proceeds further.
The order directing the police officer to get the case registered which he has earlier refused to do so, is of an interim nature in 'which participation of the accused is not the mandate of law for the reason that once a case is registered, it culminates into a full-fledged inquiry in which undoubtedly the accused have full chance to present their version. No rights of the accused stand trampled at the time of registration of the case and mere registration does not cause stigma. It is only after conviction that stigmatization commences. If the information is found false, those who have been put to hassles inquiry i,e, the accused, can invoke provisions of section 182, P.P.C. Or bring an action in law for damages.
12. A similar question arose in the case of Syed Muhammad Ali Sho Bukhari v. Chief Administrator of Auqaf, Punjab, Lahore and others PLID 1972 Lah. 416, where application of the rule of audi alteram partem was considered and it was held that the action of taking over a Waqf by the Chief Administrator of Auqaf being interim in nature it was not necessary to afford opportunity of hearing to all those persons who were affected by such action because a full-fledged judicial remedy was available to such persons to challenge the action of the Chief Administrator of Auqaf in a petition before the District Judge under section 7 of the West Pakistan Waqf Properties Ordinance, 1961. The relevant portion of the illuminating judgment is reproduced as under:- "The scope of the right or interest that can be claimed by the petitioner as a person affected has next to be determined. The property being Waqf could have been assumed control of by the Chief Administrator under section 6 of the Ordinance. That action of the Chief Administrator has been considered by the Ordinance not to be final as the very next section, namely, section 7, provides for a forum to scrutinize the correctness or otherwise of the notification. Under that section, a person affected may claim that the property assumed control of, is not Waqf or that the property is Waqf property within the limits stated in the petition. Can the petitioner lay claim that the property may not be assumed control of even if it is Waqf property? Admittedly he cannot enforce any such claim. Therefore, viewing the question of application of the rule of audi alteram partem from that angle, the interim or provisional decision of assumption of control passed under section 6 will fall within the exception to the rule, especially when a hearing is provided for against such interim order. Some argument has been raised that an ex post facto hearing is negation of the rule of audi alteram partem."
13. This question also cropped up in the case of Khushi Muhammad v. Commissioner, Multan Division PLD 1965 Lah. 250, the relevant portion is quoted as under:-- "a comparison of provisions of sections 4, 5, 5-A and 9 with the provisions of sections 40 of the Land Acquisition Act, 1894 will show that wherever it was intended by the Legislature that the person affected will have a right to show cause, a distinct provision to that effect is made.
' The omission in section 40 of a provision as regards notice to 'person interested' in the land to be acquired for the benefit of a Company is, thus, deliberate; the underlying consideration being that the satisfaction of the Commissioner is not in the nature whether land belonging to a person shall be acquired for the benefit of a Company or not but is entitled to provide material for determining whether the Government shall act on behalf of a Company in hat behalf or not. The non-issuance of the notice to the petitioner in the inquiry under section 40 has, thus no effect on the validity of the consent given by the Commissioner to the acquisition in question. The rule of natural justice is not of universal application."
14. We may also rely on the judgment of Abul A'la Maudoodi v. Government of West Pakistan PLD 1964 SC 673. It was held by the appeal Court as under:-- "I am prepared to concede that whenever an emergency requires the passing of an order without hearing the party concerned an order may be and to this extent there was to be a proviso to the maxim audi alteram partem but action can be taken ex parte only to the extent to which it is absolutely necessary. The ex parte order is in such cases to be regarded only as an interim order or a provisional order which will remain in force till a final order is passed after hearing the party concerned "
15. We may conveniently refer to the book on Judicial Review of A. Administrative Action by the celebrated author S.A. De Smith wherein it was noted that there are some cases which may exclude, by implication, the application of the rule of audi alteram partem and one such factor is where appropriate substitute for prior notice and opportunity to be heard are available.
16. There is no requirement, as noted above, at the time of registration of the case to give a hearing to the accused named in the complaint. However, soon thereafter, once the case is registered the Investigating Officer, while gathering evidence confronts the accused with the same and records their version which ultimately goes for adjudication before a Court of law where, undoubtedly, those complained against are given full and absolute hearing.
17. Viewed from another angle prior hearing if considered essential before the registration of the case would amount to placing the cart before the horse. This Court while considering the matter whether direction should be issued to the police for registration of case against the persons complained, if embarks on an inquiry whether the offence was, or was not committed by the accused, in our view, would be transgressing its jurisdiction and would be travelling in the realm meant for others to probe.
18. The upshot of the discussion is that it was not a requirement of law or natural justice to hear the respondents, even if they were present at the time of hearing of the writ petition, to the limited extent of directing the authorities to register a case. We have not been, therefore, persuaded to interfere in the order dated 15-11-1999 of the learned Single Judge. The Intra-Court Appeal having no merit is dismissed in limine.