1. ' The petitioner through this petition seeking, inter alia, the following reliefs- "(a) To direct the respondent No,2 to register the and investigate the matter according to law.
(b) Any other relief that this Honourable Court deems fit under the circumstances of the case."
2. ' The brief facts as narrated in the petition are that the petitioner's grandfather deceased Haji Pathan Khan was respectable landlord having agricultural lands and his brother Haji Sahib Khan was the co-owner in the said land. About 5/6 years back Haji Sahib Khan brother of Haji Khan had applied loan from Agricultural Development Bank of Pakistan Ubauro for purchase of Tractor. His own area did not coup-up with the limit of loan hence he got power of attorney from deceased Haji Pathan Khan Tart and thereafter completing the documental formalities got loan sanctioned in his name and got the tractor through A.D.B.P. Ubauro. All the documents of loan were in the name of Sahib Khan and not in the name of Haji Pathan Khan, so he was not loanee of the Bank. It is also stated in the petition that Haji Sahib Khan used to pay instalments but on account of water scarcity he could not take the required yield of the crops, hence he felt difficulty in the payment. On 19-2- 2002 Haji Pathan Khan had gone to Ubauro alongwith Ghulam Hussain and Muhammad Ali for purchase of animal from cattle Piri for sacrifice on Eid-ul-Uzha and had liken Rs,10,000 with him, three officers of Agricultural Development Bank of Pakistan namely Israr Ahmed Memon', Manager, A.D.B.P., Muhammad Soomar Channa, M.C.O., A.D.B.P. And Hamid Ali Korai, M.C.O., Ubauro (proposed accused) caught hold him and made his search and recovered Rs,10,000 from his pocket on Rawinti Road Ubauro in presence of several persons including P.W. Ghulain Hussain and Muhammad Ali resident of Village Sahib Khan Tart Deh Mandhan Wali Taluka Ubauro District Ghotki. It is further stated in the petition that the proposed accused asked the deceased Haji Pathan Khan to pay the instalments of the bank to which deceased replied that, he was not the loanee and assured that his brother will pay the instalments after Eid as the latter had gone to Karachi to sale his cattle. It is further alleged that the proposed accused started maltreating deceased with kicks and fist blows and was thrown on the ground and they started beating him by kicks and dragging him towards Police Station Ubauro, where the deceased went unconscious. The police of Ubauro looking to the condition of deceased, who was old man aged about above 70 years refused to accept his custody. The above named proposed accused instead of providing medical aid took the deceased to Sukkur and handed over to the authorities of Central Jail No,1, Sukkur. The warrants of committal, dated 19-2-2002 of defaulter was given to the Superintendent Central Jail, Sukkur and the said Pathan Khan was delivered to Jail Authorities. It is further said in the petition that after accepting the custody of Haji Pathan the Chief Medical Officer examined Civil Prisoner (Haji Pathan). The observations of Chief Medical Officer, Central Prison-I, Sukkur are reproduced herein below:-- "Below extract of report No,15, dated 22-2-2002 of Register No,32 recorded by Medical Officer, Central Prison-I, Sukkur.
3. ' I have examined civil prisoner Haji Pathan son of Ghulam Muhammad by caste Tarat is suffering from bleeding per mouth and bleeding per rectum. Now B.P. Is 100/60 mm. Hg. Referred to Civil Hospital, Sukkur to physician for proper investigation and treatment. This is for your kind information.
4. (Sd.) Chief Medical Officer, Central Prison-I, Sukkur.
5. ' Office of the Superintendent Central Prison-1, Sukkur.
6. ' No, JB-920 dated 22-2-2002 ' Forwarded to the Medical Superintendent, Civil Hospital, Sukkur alongwith above civil prisoner, who is produced under proper guard."
7. ' After examination on 22-2-2002 the Chief 'Medical Officer referred the above named prisoner to Superintendent, Civil Hospital, Sukkur where he was admitted and had expired on 24-2-2002. Such information was conveyed by Superintendent Civil Hospital, Sukkur to Superintendent, Central Prison-I, Sukkur. The post-mortem was conducted and multiple visrars were taken and preserved "Fuma line solution for Histopathological examination from C.M.C. Hospital, Larkana so the final opinion was reserved till the Histopothological report is received from C.M.C. Hospital, Larkana. It is further argued that the jail authorities after the report of Civil Hospital, Sukkur handed over the dead body to the petitioner after observing codal, formalities. The deceased was buried on 25-2- 2002 and on 26-2-2002 the petitioner sent application to higher ups and the telegrams as well, thereafter the petitioner submitted an application to Al.-G. Police, Sukkur who forwarded the same to D.P.O. Cihotki for actiok and the petitioner has been running from pillar to post to seek justice, but his F.I.R. Was not registered. Hence this present petition has been filed.
8. ' It is inter alia contended that the section 154, Cr.P.C. Relating to the commission of a cognizable offence if and when given to the officerin-charge of a police station shall be reduced in writing by him and substance thereof shall be entered in a book to be kept in such form as prescribed by the Provincial Government. The verb used in the section, is not "may" which normally imports discretion but the word used is "shall" which is ordinary used in the obligatory or mandatory sense. Mr. Abdul Fateh Malik learned counsel for the petitioner in support of his proposition has relied upon case of Muhammad Ilyas v. Senior Superintendent of Police and another reported in 1989 PCr.LJ 1129 and 2001 PLC 1559.
9. ' M. Gul Bahar Korai learned counsel for the proposed accused has also filed counter-affidavit of Israr ,Ahmed, Muhammad Soomar and Hamid Ali Korai and it is stated that the story given in the petition is false and fabricated and this petition has been filed with ulterior motive to harass them.
10. It is furthet urged by Mr. Korai that the petition is legally bad and it is hit by section 79, C.P.C. Order 27,. Rule 3, C.P.C. And Article 174 of the Constitution of Islamic Republic of Pakistan (1973). It is further argued that the petitioner has wrongly mentioned that Sahib Khan acted as attorney for Haji Pathan Khan for getting the loan but it was their joint application together for getting the loan by themselves and no one acted as attorney for the other. He has further stated that the loan documents are independently in the names of three loanees and not solely in the name of Sahib Khan and it is wrong that Haji Pathan Khan was/is not loanee of the Bank. Learned counsel for the proposed accused has relied upon the case of Wazir Ahmed v. S.H.O. Police Station, Mehboob Kalhoro and others reported in 1990 PCr.LJ 2006, Mrs. Javed v. S.H.O. Police Station Khanpur and others reported in 2000 MLD 997 and other cases reported PLD 1998 Lah. 72, 1999 PCr.LJ 1317-1532 and 1999 SCMR 16.
11. ' Mr. Muhammad Iqbal Memon learned counsel for the State has filed a statement of S. I . P. Gul Baig S.H.O. Police Station Ubauro stating therein that the present S.H.O. Has recently taken over the charge on 6-4-2002 and the alleged offence has taken place on 19-2-2002 as mentioned in the F.I.R. And after verification of record he states that there is no entry regarding the complaint of deceased Haji Pathan Khan and the order of this Court will be complied accordingly.
12. ' I have heard the arguments of the learned counsel for the respective parties and perused the material placed on record and case-law cited by the learned counsel.
13. ' It will be advantageous to incorporate the section 154, Cr.P.C. Relating to registration of F.I.R. Which is reproduced as under:- "154.1nformation in cognizable casesr--- Every information relating to the commission of a cognizable offence if given orally to an officer in-charge of police station, shall be reduced to writing by him or under his direction and be read over to the information; and every such information, whether given 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 Government may prescribe in this behalf."
14. In view of the above provision it is clear that every information relating to the commission of cognizable offence if and when given orally or in. Writing to an officer-in-charge of a police station it shall be recorded into writing and same shall be signed by the person given it and the substance thereof shall be entered in the book to be kept in such form as prescribed by the Provincial Government. In the above section use of verb "shall" clearly indicates that it has been used in the mandatory sense and does not allow any discretionary powers to the officer-in-charge of a police station and consequently the S.H.O./Police Officer has no choice but to register the complaint in the prescribed book if information of cognizable offence is given to him by any person.
15. ' The deceased was brought alongwith the warrant of committal of defaulter under section 82(5) of West Pakistan Land Revenue Act, 1967 by the Manager and Assistant Collector Grade-I of A.D.B.P.
16. And the deceased was handed over on 19-2-2002 and on 22-2-2002 the deceased was examined by Chief Medical Officer as the deceased was suffering from bleeding per mouth and bleeding per rectum and blood pressure was 100/60 mm.Hg and Haji Pathan Khan was referred to Civil Hospital, Sukkur for further treatment but the said Haji Pathan Khan could not survive and died at 8-00 a.m.
17. On 24-2-2002 and after preparing postmortem the deceased was handed over to the petitioner.
18. The medico-legal officer has taken multiple visrars for Histopathological examination but no report has been received up to this time.
19. ' In view of dicta laid down in the case of Muhammad Ilyas v. S.S.P. 1989 PCr.LJ 1129 and Multiline Associates v. Ardeshir Cowasjee and others 1995 SCMR 362 and thereafter Honourable Supreme Court in case of Ardeshir Cowasjee v. Karachi Building Control Authority 1999 SCMR 2883, 1999 SCMR 2912 where it has been held as under:-- "It may be pointed out that a Bench of the same number of Judges of the same High Court, or of the Supreme Court, cannot deviate from the view of an earlier Bench as rightly has been held in the case of Multiline Associates v. Ardeshir Cowasjee and others PLD 1995 SC 423 (supra) in relation to the High Court."
20. In view of the legal position and pronouncement of the Honourable apex Court, I have no option but to follow the earlier judgment of D.B. Of this Court in case of Muhammad Ilyas and the other authorities of the Honourable Supreme Court and according to which when any police officer-in- charge of a police station is duty bound to record the statement of every complainant and have it signed by the B person making it, if any, information relating to the commission of cognizable offence is made before him and thereafter enter it in the book, prescribed by law.
21. ' Since there are serious allegations made against the proposed accused in the petition and by filing counter-affidavit in this Court registration of F.I.R. Cannot be denied. The complainant has a right to ask officer-in-charge of a police station to record F.I.R. Against any person who commits a cognizable offence. It is his fundamental right to require the Police Officer to record his complaint and to act in accordance with law. The case-law cited by the learned counsel for the proposed accused do not help him in the prevailing circumstances.
22. ' So far the provision of section 79, C.P.C., Order 27, rule 3, C.P.C. And Article 174 of the Constitution of Islamic Republic of Pakistan (1973) are formal objections which can be taken into consideration in appropriate case but in this petition the prayer of the petition is that his F.I.R. Be 'registered and investigated in accordance with law and in spite of his approaching the A.I.-G., Police, Sukkur by moving him the application, dated 1-3-2002 and his complaint was forwarded to D.P.O. Ghotki for taking necessary legal action but no step has been taken. Thereafter, the petitioner has sent applications to higher ups but no direction has been issued for registration of F.I.R.
23. According to the contents of the petition a cognizable offence punishable under sections 302 and 34, P.P.C. Read with sections 17/3, Offences Against Property (Enforcement of Hudood) Ordinance, 1979 is made and the officer-in-charge of the police station is supposed to record the statement of the petitioner and thereafter such information shall be kept in such form as prescribed by the Provincial Government. The stand taken by proposed accused in their counter-affidavit can only be considered by the Investigating Authority after registration of F.I.R. And not by this Court under its writ jurisdiction.
24. ' During the course of arguments learned counsel for the State has made a candid statement that if in case the petitioner will appear before the respondent No,2 his statement will be recorded and same will be incorporated in 154, Cr.P.C. Book.
25. In the light of the case-law cited by the learned counsel for the petitioner, this petition is allowed and the respondent No,2 is directed to register the F.I.R. Of the petitioner and investigate in accordance with law.