SABIHUDDIN AHMED, J.---The petitioner who seems to be aggrieved by an order of termination of his services of his levels a host of allegations against different officers of the Karachi University including the Ex-Vice-Chancellor. Obviously matters relating to his terms and conditions of employment cannot be considered in these proceedings admittedly he has already moved the competent Services Tribunal for redress of grievances. However, he claimed that the respondent No,10 (S.H.O., Police Station Mobina Town) was not even prepared to register an F.I.R. In respect of the murderous assault committed on him. When this was brought to The notice of Mr. Sarwar Khan, learned Additional Advocate-General, who was present in Court, the learned Additional Advocate- General expressed the opinion that the Officer Incharge of a Police Station could refuse to register an F.I.R. Unless he was satisfied that there was reasonable ground to believe that the information given to him was substantially true. Since we entertained doubts as to whether such was the correct legal position and considering the floodgate of proceedings before this Court has opened up, largely on account of doubts as regards the obligation of Police Officer in this respect, we decided to admit the petition to consider this question in some depth. We requested the learned Additional Advocate-General to address us in some detail and also requested Mr. Shoukat Hussain Zubedi, Senior Advocate, who was present in Court to assist us in this respect.
2. After referring to the factual aspect of the case, which we shall consider at a later stage, Mr. Sarwar Khan, Additional Advocate-General at the outset drew our attention to Rule 24.4 of the Police Rules, which reads as under:-- "24.4.--(1) if the information or other intelligence relating to the alleged commission of a cognizable offence, is such that an officer in charge of a police station has reason to suspect that the alleged offence has not been committed, he shall enter the substance of the information or intellestigate the case or cause it to be investigated.
(2) If the Inspector or other superior officer, on receipt of a copy of the station diary is of opinion that the case should be investigated, he shall pass an order to that effect, and shall pass an order to that effect, and shall, in any case, send on the diary or an extract therefrom to the District Magistrate for his perusal and orders.
(3) ...
3. Learned Additional Advocate-General thereafter referred to other provisions of Rule 24 and argued that under Rule 24.4 Officer Incharge of the Police Station, was empowered not to record an F.I.R. In case he had reasons to suspect that the alleged offence had not been committed, though he conceded that the information conveyed alongwith the reasons for suspecting that it was not correct, ought to be recorded in the Station Diary. In support of his contention learned Additional Advocate-General referred to the case of Chaudhary Shah Muhammad v. S.H.O. Rahim yar khan and others 1977 PCr.LJ 2, Shaikh Ghulam Rasool v. Karamat Hussain and another 1990 PCr.LJ 844 and certain observation of a Division Bench of this Court in Altaf Hussain v. Government of Sindh PLD 1997 Kar. 600;
4. In the first case a learned Single Judge of the Lahore High Court observed that if the Police suspected that there were no reasonable grounds for recording the F.I.R. Or making the investigations their refusal could not be treated as unlawful and in any case the petitioner always had the remedy to file a complaint before a Magistrate.
5. In the case of Shaikh Ghulam Rasool, it was stated on behalf of police that an F.I.R. Would be registered provided the concerned officer, after inquiry under section 157, Cr.P.C. Was satisfied that a fit case for registration of F.I.R. Was made out. The Court ordered that the petitioner may first participate in the investigation under section 157, Cr.P.C. To be conducted by the S.H.O. Police and only thereafter, in case the latter failedto register F.I.R., he could file a direct complaint or approach the Court again.
6. In the case of Altaf Hussain, it was observed that "Apart from the foregoing, when information is received by Police Officer Incharge of a. Police Station regarding commission of a cognizable offence, the allegations must be found by him to be prima facie correct before an F.I.R. Is registered. But where allegations are made, without making an elaborate investigation into them, are found hard to believe, provisions of section 154, Cr.P.C. May not be attracted in such case".
7. Mr. Shoukat Hussain Zubedi, learned amicus curiae, however, took a contrary position as regards the requirements of law. He urged with a great deal of emphasis that the statutory obligations of a police officer to reduce into writing, every information regarding commission of an offence, unless the information given ex facie did not amount to commission of such offence or was palpably absurd. He argued that the provisions of Police Rules have to be read in such manner as they are consistent with the statutory requirements of Chapter XIV of the Criminal Procedure Code.
8. Mr. Zubedi invited us to closely examine the provisions of Chapter XIV occurring in Part V of the Criminal Procedure Code, which relates to information to the Police and their powers to investigate.
This Chapter commences with section 154 and learned counsel emphasised that the duty to record every information relating to commission of a cognizable offence was mandatory. He pointed out that the word "shall" has been used at three places in the aforesaid section to the effect that information regarding commission of a cognizable offence shall be reduced into writing, it shall be signed by the person giving it and it shall be entered in the prescribed book to be kept.
Section 155 relates to information given in respect of cognizable offences which also has to be likewise entered in a book and communicated to a Magistrate and a police officer can investigate a non-cognizable case, only upon an order from a Magistrate. On the other hand section 156 contemplates that investigation into cognizable offences may be undertaken without an order from a Magistrate. Section 157(1) deals with actual process of investigation in cognizable offences and requires that the police officer incharge should send a report to a Magistrate, proceed to investigate facts and if necessary take measures for discovery and arrest of the offender. Under the provision to the aforesaid subsection however, an officer may, for proper reasons, decide not to enter investigation and under subsection (2) he is required to notify such decision to the Magistrate and the informant alongwith reasons therefor. Under section 161, a police officer making investigation is empowered to examine persons supposed to be acquainted with the facts of the case and record statements made by such persons. Section 162 requires that the statements so made are not to be signed by the maker and can only be used in by the accused in evidence for the limited purposes of contradicting the maker in respect of his deposition in Court.
9. Moreover, learned counsel succinctly brought out the distinction between sections 154 and 157, Cr.P.C. He pointed out that the former related to recording of information regarding commission of a cognizable offence and the latter to the course of investigation subsequently adopted. Indeed a Police Officer, did have the power to refuse to investigate a matter provided the conditions laid down in the proviso to section 157, Cr.P.C. Were met and was required to convey his decision to the informant accordingly in terms of subsection (2) of section 157, Cr.P.C. This, however, showed that proceedings under section 157 could only be taken after the information under section 154 had been recorded. In this context learned counsel referred to a Division Bench judgment of the Lahore High Court in Haji Muhammad Khan v. Chaudhry Khizir Hayat PLD 1997 Lah. 424, where the distinction between the two provisions has been clearly explained and it was held that the provisions of Rule 24.4 of the Police Rules were attracted only for the purposes of investigation under section 157, whereas Rule 24.1 was related to section 154 and no discretion vested with the Police Officer in refusing to register an F.I.R.
10. In this context it may be pertinent to reproduce "Rule 24.1 of the Police Rules which reads as under:-- "24.1.-- (1) Sections 154 and 155, Code of Criminal Procedure, provide that every information relating to an offence, whether cognizable or non-cognizable, shall be recorded in writing by the officer in charge of a police station. The distinction between the form of reports required by the abovementioned two sections has been defined as follows by the Punjab Chief Court (now High Court):-- Every information covered by section 154, Criminal Procedure Code, must be reduced to writing as provided in that section and the substance thereof must be entered in the police station daily diary which is the book provided for the purpose. It is only information which raises a reasonable suspicion of the commission of a cognizable offence within the jurisdiction of the police officer to whom it is given, which compels action under section 157, Criminal Procedure Code.
(2)
(3)
(4)
11. Mr. Zubedi further argued that recording of an F.I.R. After having made some investigation regarding the truth or otherwise of the allegations levelled by the informant would completely divert the process of Criminal justice system envisaged by the Code. He pointed out that the law did not confer any power upon police officers to hold inquiries and only enable him to carry out investigations. The moment such officer decides to embark upon investigation of an offence and proceeds to record statements of persons allegedly acquainted with facts, such statements have to be recorded under section 161, left unsigned and used for limited purposes mentioned in section
162. On the other hand an F.I.R. Under section 154 by the mandate of law is required to be signed by the.Maker and can always be tendered in evidence. Therefore, learned counsel was of the view that the observations made in Shaikh Ghularn Rasool's case were pre-incuriam inasmuch as the distinctive feature of sections 154, 157 and 161 were not considered.
12. Reliance was also placed on a number of judgments of Lahore High Court, inter alia, Shaikh Nasim Ahmad v. D.I.-G. Police Sargodha (1985 Pcr.LJ 906), Muhammad Ramzan v. S.H.O. (1985 PCr.LJ 1081) and Qazi Muhammad Jawaid v. Senior Superintendent of Police of Gujranwala (NLR 1988 Cr.LJ 141(sic)), wherein the distinction between sections 154 and 157 has been highlighted and it has been held that a Police has no discretion to refuse recording of an F.I.R. Learned counsel also referred to a judgment of the Supreme Appellate Court under the Special Court for Speedy Trial Act, 1987 in Said Muhammad Shah v. The State (1993 SCM R 550), wherein Sajjad Ali Shah, J. (then a Judge of the Hon'ble Supreme Court), observed:- "In part V of the Criminal Procedure Code there is Chapter XIV containing sections 154 to 176 which relate to the information to the police their powers to investigate. These provisions cover information in cognizable cases as well as in non-cognizable cases. Under section 154, Cr.P.C. It is mandatory bounden duty of the police officer to register F.I.R. Of a cognizable offence. Under section 157, Cr.P.C. He has to send his report to the Magistrate and if he does not want to investigate a case for reason of insufficient grounds then also he has to send his report to the Magistrate with reasons for his such conclusion."
13. We have carefully considered the respective contentions urged before us and the case law cited which, prima facie, indicates some diversions of judicial opinion. Nevertheless a consideration of the relevant provisions of the Code leads us to the irresistible conclusion that truth or otherwise of the information given to the police can only be discovered after the concerned police officer embarks upon investigation. Even in cases, where the information given is ex facie unbelievable or the allegations levelled are patently absurd a police officer is required to consciously apply his mind in terms of the proviso to section 157 and communicate his decision not to investigate both to the concerned Magistrate and the informant. Obviously such application of mind or communication of decision cannot take place unless the information given is recorded in terms of the requirements of section 154. With profound respects we are of the view that to say that a police officer is required to act under section 157 or make some preliminary investigation to determine the truth or otherwise, as to the information conveyed would amount to putting the cart before the horse. In the circumstances we entirely agree with the construction of the relevant provisions of law by Mr. Zubedi and are unable to share the view put across by the learned Additional Advocate- General.
14. The legal position if we may say so with great respect, seems to have been stated in clear and precise terms in the cases of Chan Shah v. State (PLD 1969 Peshawar 109) and Suleman v. S.H.O.
Mitha Tiwana (1982 PCr.LJ 125) where the effect of the power of police officer to refuse investigation under proviso to section 157, Cr.P.C. Were considered. In the first case Late Shah Zaman Babar observed that it was obligatory on the Sub-Inspector receiving information (of an allegation of bribery) to have registered a case though it was not incumbent upon him to have investigated the offence if no substantial ground for entering on such investigation appeared. In the latter situation, however, he had to notify to the informant the fact that he will not investigate or cause investigation. In the second case Saad Saood Jan, J. Observed:-- "It is difficult to see how the provision of section 157 can be invoked by the S.H.O. In support of his action. No doubt this section does empower an Officer-in-charge of a police station to refuse to investigate a case but stage will arise only after a case has already been registered. It cannot be construed as conferring a discretion upon the Officer even in the matter of definite information with regard to the commission of a cognizable offence has been given to him."
15. We are indeed mindful of the consideration which have weighed with police officer and even at times with higher echelons in the executive as well as with some lawyer and Judges while making room for a certain amount of selectivity in regarding F.I.R. One reason seems to be that police officers are reluctant to record all reports because they might be called upon to furnish results and they may be held accountable for not properly investigating crime by their superiors. Another view that has prevailed is that when police is required to record every allegation of commission of an offence as an F.I.R. Indiscriminately, the situation might lead to harassment of innocent citizen on account of false information given with ulterior motives. However, we are of the view that no such apprehension should arise if the provisions of law are strictly followed.
16. In our view, however, their apprehensions should not arise if the requirements of law are strictly followed at all levels. As regards the first point all that needs to be done is that whenever investigation is justifiably declined by an officer incharge of a police station, his report under section 157 must be duly considered by his superiors and thereafter, he should be absolved of all responsibility. Similar treatment ought to be accorded to a report under section 169.
17. With respect to the second question it needs to be clearly borne in mind that the mere fact that a particular person has been named as an accused in an F.I.R. Does not necessarily imply that he should be promptly arrested. In Muhammad Siddique v. Province of Sindh PLD 1992 Karachi 358, a Division Bench of this Court has clearly laid down that the power to arrest a person suspected to have committed a cognizable offence can only be exercised by a Police Officer if some tangible material to connect him with the offence is available. Moreover, to discourage false information, criminal proceedings under section 182, P.P.C. Ought to be lodged more frequently.
(1) An F.I.R. Must be invariably registered the moment any information regarding commission of a cognizable offence is given to a Police Officer;
(2) The moment such officer is satisfied that there is no reasonable cause for investigation, he must send a report to the Magistrate and apprise the informant as to the reasons for not taking investigation;
(3) in case the information given found to be false, appropriate report under section 173 may be made and prosecution under section 182, P.P.C. Initiated;
(4) An accused person named in the F.I.R. May only be arrested if there are reasonable grounds to suspect his involvement in the offence.
18. Having recorded our opinion on the legal questions involved we may proceed to examine the facts for determining what order needs to be passed. Learned Additional Advocate-General has pointed out, and rightly so that there is nothing on record to indicate that the petitioner ever attempted to move the respondent No,10 for recording an F.I.R. All he has stated is that he sought permission from the respondent No,3 to record an F.I.R. Which was declined. Indeed, no such permission was necessary but the documents relied upon by the petitioner (Annexure E) shows that he had only alleged that the respondent No,4 had beaten him and that he wanted justice to be done. Moreover, it appears that on the basis of the said letter medical examination of the petitioner was ordered and according to the report of the Senior Medical (Veer, Karachi University there was no evidence of the petitioner having received any injury whatsoever. In the circumstances, we are of the view that though the respondent No,10 was bound to record an F.I.R.
(in case the petitioner had approached him); any investigation pursuant to the same would not have yielded any purpose. Perhaps the respondent No,10 would have also justifiable declined to investigate the matter.
19. From the above discussion, we have arrived at the following conclusions:--
(1) An information regarding commission of any cognizable or non-cognizable offence must invariably be recorded in writing in terms of sections 154 and 155. Cr.P.C. And Rule 24.1 of the Police Rules.
(2) In case of non-cognizable offences the informant should be referred to a Magistrate and investigation commenced only after receipt of orders from the Magistrate.
(3) With respect to the cognizable offences the Police Officer is required to apply his mind and would not embark upon investigation unless he find no reasonable ground for doing so. The power to decline to investigate is widely worded but ought to be treated as an exception to the general rule and be exercised on reasonable grounds.
(4) When a Police Officer decides not to investigate a matter he must, apart from informing the concerned Magistrate, communicate his decision to the informant.
(5) The power to arrest a person suspected to have committed a cognizable offence must, however, be exercised only when reasonable grounds for such suspicion are found to exist. The mere fact that some information regarding commission of such offence has been given to the police is not sufficient to cause such reasonable suspicion and the suspicion has to be based on some tangible material.
(6) Even after having entered upon investigation, wide powers are available to the police in not filing a challan in case evidence against an alleged offender is not sufficient. Even a person already arrested can be released under section 169. These powers ought to be honestly exercised.
20. We, therefore, hold that no useful purpose would be served by issuing any direction to the respondent No,10 and would, therefore, dismiss this petition. Nevertheless, we would direct that a copy of this judgment be dispatched to Inspector-General of Police, Sindh for the purpose of circulation our findings listed in para.16 above to different police officers in the Province. We hope that upon strict implementation of the same the frequency in petitions complaining of non- registration of F.I.R: could bechecked. We must also express our gratitude to learned Additional Advocate-General and particularly to Mr. Shouket Hussian Zubedi, Advocate who readily agreed to assist us on a short notice and whose knowledge and understanding of criminal law has been of great benefit to us.