' Exemption granted subject to all just exceptions.
2. On 3-6-1999, the petitioner who alleges to have been harassed and maltreated by the named Deputy Commissioner, Senior Superintendent of Police, Sukkur (S.S.P.) and other Police Officers of Sukkur filed this petition seeking, inter alia the following relief:-- "(i) That the dismantling of camp of the petitioner and his arrest along with his companions, their wrongful detention in lock-up abusing and insulting them, causing torture forcibly taking signatures/I.T. And terror of involvement in false criminal case, are offences for which F.I.R. Should be lodged against the respondents Nos.1 to 5 in the above narration.
(ii) In future the petitioner like the past be not made game in arresting, and defaming him, prior permission of this Honourable Court be taken if petitioner's arrest be required." (sic)
' Inspector Aijaz Tareen, respondent No,5 has today filed an application for adjournment on the ground that he wants to file a reply to the petition. This matter has been pending since 3-6-1999.
He had sufficient time to file his comments to the petition if he wanted which he did not do. The application is belated and mala fide is accordingly rejected.
3. On or about 2-10-1999 the S.S.P., Sukkur, (respondent No,3) filed his comments wherein he has inter alia, stated that the petitioner was arrested in F.I.R. No,47 of 1996 under section 13-D, Arms Ordinance, 1965 of Police Station, SITE, Sukkur on 21-5-1999 by S.H.O. Aijaz Tareen (respondent No,5) who was on patrol duty. He has elaborated that the said S.H.O. Saw the petitioner and his Companions near the Commissioner's Office but on seeing the police party they ran away.
4. Learned Additional Advocate-General, Sindh stated that the petitioner was acquitted in the case registered under section 13-D, Arms Ordinance and added that if the petitioner is aggrieved by the action of any respondent he can file a private complaint before a Magistrate or file a suit for damages. There is no cavil with his statement that the petitioner is at liberty to file a private criminal complaint or a civil suit against the person against whom he has any grievance but the law nowhere prohibits or disentitles a person from filing a criminal complaint with the police, against any person who in his opinion has committed a penal offence A defined in the Pakistan Penal Code. If he so chooses. Learned Additional Advocate-General referred to the case of Altaf Hussain v. Government of Sindh PLD 1997 Kar. 600 and contended that the petitioner has adequate alternate remedy available in the form of a private complaint. On perusal of the comments filed by S.S.P., Sukkur. Respondent No,3, it appears that that he has not specifically denied the allegations made by the petitioner against the high-handedness of the police.
' Section 154. Cr . P.C. Relating to registration of F.I.R. Provides as follows:-- "154. Information in cognizable cases.--- Every information relating to the commission of a cognizable offence if given orally to an officer incharge 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 Government) may prescribe in this behalf." (Emphasis added).
' The provision clearly states that every information relating to the commission of a cognizable offence if and when given to the officer-incharge of a police station shall be reduced in writing by him and the 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 words used is "shall" which is ordinarily used in the obligatory or mandatory sense. The Legislature could have, used the word "may" in the section like it has done at many other places in the code but it has chosen to use the word "shall" here and that has been done not once but three times. In section 154, Cr.P.C. The use of the 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. Has no choice but to register the complaint in the said book. If information of a cognizable offence is given to him by any person (See Muhammad Ilyas v. Senior Superintendent of Police 1989 PCr.LJ 1129. The judgment. Of Altaf Hussain cited by the learned A.A.-G. Is distinguishable and not applicable to the circumstances of the present case.
Further, it is well-settled that an earlier judgment of a Division Bench of the High Court on the same point is binding upon a subsequent Division Bench of the same High Court. (See Multiline C Associates v. Ardeshir Cowasjee and others 1995 SCM R 362). This principle was reiterated by the Honourable Supreme Court in the case of Ardeshir Cowasjee v. Karachi Building Control Authority 1999 SCM R 2883, 2912, wherein it observed as follows:- "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. "
5. In view of the above position, I have no discretion but to follow the law laid down by the Honourable Supreme Court i,e, the earlier judgment of the Division Bench of this Court in the case of Muhammad Ilyas has precedence over the subsequent D.B. Judgment in the case of Altaf Hussain. With great respect to the Honourable Judges of the Altaf Hussain's judgment. I shall follow the earlier judgment of the Division Bench in the case of Muhammad Ilyas referred to above according to which every officer-in-charge of a police station is bound to record the statement of every complainant and have it signed by the person making it, if any information relating to the commission of a cognizable offence is made before him and thereafter enter it in the Book prescribed by law.
6. Further in light of the allegations made against the police in the petition and the comments filed by respondent No,3, in my opinion, a private complaint would not be an appropriate and adequate remedy for the petitioner. He has the right to ask the officer-in-charge of the police station to record an F.I.R. Against any person who commits a cognizable offence. It is his fundamental right to require the Police Officer to act in accordance with law. No one can deprive him of his right guaranteed under the Constitution to be treated in accordance with law which if not enforced is likely to result in creating a police State which would be contrary of a Muslim State of Pakistan i,e, Dar-us-Salam where the rule of law is supreme.
7. The petition is accordingly admitted to regular hearing and is allowed in the following terms:-- "(i) The officer-in-charge of Police Station, Abad shall record the statement of the petitioner and if a cognizable offence is made out he shall obtain his signature on the statement and thereafter record the substance of statement in the Book kept for that purpose and proceed with it in accordance with law.
(ii) The second prayer for a direction not to arrest the petitioner without prior permission of this Court cannot be granted as the police has the authority and power to arrest any person if he commits a crime or is suspected of having committed a crime in the investigation of an offence conducted by the police."
8. Learned Additional Advocate-General requests that an observation be made that in case the petitioner's complaint is found to be false, the police shall be free to register an F.I.R. And take action against him in accordance with law because he is a habitual offender and is' in the habit of filing frivolous applications with the police. The learned Additional Advocate-General has, however, neither specified the kinds of offences committed nor shown copies of the alleged vexatious applications moved by the petitioner in the past. I am surprised at the request made by the learned Additional Advocate-General because even a common man on the street known that if a person commits a penal offence no observation or a direction from a Court is required by the police to take action against such person in accordance with law.
' The petition stands disposed of alongwith the listed application in the terms stated above.