RAJA FAYYAZ AHMED, C.J.---It has been prayed in this Constitutional petition that the respondent may be directed to register F.I.R. On behalf of the petitioner against the accused persons namely Sher Ahmed, Farooq Ahmed sons of Haji Muhammad Akram, Nihal Khan alias Babul son of Haji Kamal Khan and Naseer Ahmad son of Saeed Ahmed residents of Killi Baro Rind Abad, Sariab Road, Quetta and to recover the abducted son of the petitioner.
2. The case of the petitioner Mst. Shehnaz is that 4/5 years back F.I.R. Was registered in respect of the murder of one Muhammad Akram with Police Station Shailkot and due to the alleged incident relations between the parties were strained. Subsequently; the member of the deceased party started threatening for dire consequences and on 16-5-2002 relatives of the deceased party including Sher Ahmed, Farooq Ahmed and Nihal Khan came to the house of the petitioner, threatened the petitioner and his son by declaring that they would abduct her son and thereafter, the petitioner's son namely Abdul Jabbar was found missing. Further the case of the petitioner is that on inquiries made by her she came to know that her son has been abducted and confined illegally by the above said accused persons. It has been alleged that after the incident of kidnapping of her son she approached to the S.H.O./Police Station Sariab Quetta to lodge F.I.R., but in vain, and; thereafter submitted applications to the Senior Superintendent of Police, Quetta, D.I.G.
Police and other higher authorities, but with no result. Copies of the applications have been annexed with the memo. Of Constitutional petition.
3. Notice of the Constitutional petition was directed to be issued to the S.H.O./Police Station Sariab and Shalkot as well as to the learned Advocate General. On the date fixed in the matter S.H.O./Police Station Sariab (Rauf Bare-ch) appeared in person and submitted that the matter relates to the territorial jurisdiction of Police Station Shalkot, whereas; S.H.O./Police Station Shalkot (Alain Pirkani) submitted that some time back complaint in respect of, the grievance of the petitioner was made to him and he forwarded the relevant papers to the Superintendent of Police, which till date were not returned to him, however; he stated that entries were made in the Roznamcha of the Police Station. In the light of submissions made by the S.H.O./Police Station Shalkot, he was directed to file a comprehensive report. Pursuant to the above, direction, the S.H.O./Police Station Shalkot filed his report in Court after conducting inquiry under section 157(2), Cr.P.C. With regard to the alleged incident of abduction. In such report it has been pointed out that on 18-5-2002 brother of the alleged abductee namely Abdul Sattar reported that one of his brothers namely Muhammad Ibrahim was arrested by the Crimes Branch Police about six days back in respect of murder case of the deceased Haji Muhammad Akram, who further alleged that on 16-5-2002 as per routine he alongwith his younger brother namely Abdul Jabbar, aged about 18 years, left for their grocery shop, whereas; he himself (Abdul Sattar) left for the Crimes Branch to provide food to his brother Muhammad Ibrahim and returned to the shop at 1-30 p.m. And found that his brother Abdul Jabbar was not present in the shop. He further alleged that his younger brother namely Hafizullah, aged about 10/11 years, who was present in the shop, disclosed to him that Abdul Jabbar asked him to remain present in the shop and himself left for somewhere, who had been extensively searched, but till date he could not find his whereabouts. As per report filed in Court by the S.H.O. It was stated that Abdul Sattar had in his report further disclosed that Sher Ahmed son of deceased Muhammad Akram had threatened to him that his brother Muhammad Ibrahim already apprehended by the Crimes Branch Police to admit the guilt of the murder of his father and also Gul Jan and Ahmed Din to give evidence against Muhammad Ibrahim, else; he would abduct someone. Also, Abdul Sattar suspected that Sher Ahmed, Farooq Ahmed, Naseer Ahmed and Nihal Khan are responsible for the abduction of Abdul Jabbar.
It has been specifically pointed out in the report submitted by the S.H.O. That narration of the alleged facts in respect of the incident of abduction by Abdul Sattar, prima facie found to be doubtful were recorded as such; in the Roznamcha of the police station on 18-5-2002. Inquiry as contemplated under section 157(2), Cr.P.C. Was conducted, during the course whereof it was found that sufficient incriminating material warranting for trial of the offence of the murder of deceased Muhammad Akram against Muhammad Ibrahim was procured, accordingly; challan for trial of the offence was submitted in the competent Court of law and the brother of the accused in order to pressurize the members of the victim's family without any truthful basis have alleged about the incident of abduction, in which the prosecution witnesses in the murder case of deceased Muhammad Akram have been nominated as involved in the abduction of Abdul Jabbar, in order to prevent them from giving evidence in the murder case and with the motive, to get acquittal of the accused facing trial in the murder case. Further it has been pointed out in the report that as both the parties are inter-related and in order to avoid tribal enmity, no independent person has come forward to disclose any fact in respect of the alleged incident of abduction and both tie parties have avoided to disclose true facts. As a result of inquiry conducted by the S.H.O. It has been concluded that the whereabouts of the alleged abductee Abdul Jabbar have been deliberately concealed in order to achieve the above motive and the facts and circumstances of the case indicate that no cognizable offence as alleged has been committed, therefore, F. I. R. In respect of this incident has not been registered as yet.
4. The learned counsel for the petitioner and the learned A.G. As well as S.H.O./Police Station Shalkot have been heard. Mir Aurangzeb, the learned counsel for the petitioner strenuously argued that since report in respect of the incident of abduction was made to the Police Officer by the brother of the abductee, therefore, it was obligatory for the S.H.O. To have registered the report and conducted investigation in respect of the commission of the cognizable offence by the nominated accused persons. According to the learned counsel, the S.H.O. In view of the given report had no option but to register the F.I.R. And to further proceed in accordance with law, but he deliberately avoided to discharge his legal duty, hence; necessary 'direction in such behalf be issued to the S. H.
O.
5. The learned A.G. Contended that after reducing into writing the report made by Abdul Sattar (brother of the alleged abductee) in the Roznamcha of the Police Station and having come to the conclusion and having found reasons to believe that the reported incident did riot call for investigation to be conducted in the matter as disclosed in the report submitted in the Court was perfectly justified not to proceed in the matter in the given circumstances of the case, hence; the relief claimed in the Constitutional petition may be found to be unwarranted and unjustified. The learned A.G. Further submitted that intentionally on false allegation of abduction the P.Ws. In the murder case have been nominated in order to pressurize them and to prevent the P. Ws. From giving evidence in the murder case against accused Muhammad Ibrahim, who happens to be the brother of the complainant/Abdul Sattar and with this object in mind, the brother of the accused Muhammad Ibrahim facing trial on the murder charge with the help and connivance of their mother (petitioner) have concealed Abdul Jabbar somewhere to achieve their ultimate motive for securing acquittal of accused Muhammad Ibrahim, therefore, for good grounds and reasons based upon inquiry conducted by the S.H.O./Police Station Shalkot investigation in respect of the alleged incident of abduction within the purview of section 157(2), Cr.P.C. Was not conducted.
6. The S.H.O./Police Station Shalkot submitted that as the report made by Abdul Sattar on the given facts and in circumstances of the case was doubtful, yet; for his further satisfaction inquiry was conducted by him and he was satisfied for the reasons mentioned in the report that in order to deter P.Ws. To depose against accused Muhammad Ibrahim facing trial on the murder charge they have been nominated to be responsible for the abduction of Abdul Jabbar and to pressurize the victim's family to inter into compromise in the murder case, a baseless and misconceived report in respect of alleged incident of abduction has been made by Abdul Sattar to save the skin of his brother Muhammad Ibrahim on the murder charge, therefore, investigation in the matter was not conducted by him and for such reasons he did not register the case except incorporating the contents of the report in the Roznamcha of the Police Station.
7. The contentions put forth on behalf of the parties and the submissions made by the S.H.O. Have been considered in the light of the report filed in Court by the S.H.O. As well as the relevant provisions of section 154, 156 and 157, Cr.P.C. It is an admitted feature of the case that prior to the alleged incident of abduction; Muhammad Ibrahim, brother of informant Abdul Sattar was arrested by the Crimes Branch Police, Quetta on the charge of murder of Haji Muhammad Akram and challan for trial of the offence was submitted in the competent Court of law against Muhammad Ibrahim in which the accused persons alleged to be involved/responsible for the abduction of Abdul Jabbar are the cited prosecution witnesses in the murder case, who were likely to give evidence against accused Muhammad Ibrahim at the trial. Subsequently; on 18-5-2002 brother of accused Muhammad Ibrahim namely Abdul Sattar and son of the petitioner reported to S.H.O./Police Station Shalkot that on 16-5-2002 he was informed by his minor brother Hafizullah aged about 10/11 years that Abdul Jabbar (alleged abductee) by leaving him in the shop has left the shop. Abdul Sattar further alleged that he made extensive efforts to search out his brother Abdul Jabbar, but could not find him, who also alleged that Sher Ahmed son of deceased Muhammad Akram had threatened to him that his brother Muhammad Ibrahim must confess his guilt and also Gul Jan and Ahmed Din to give evidence against accused Muhammad Ibrahim otherwise he will abduct someone. Thus he suspected that his brother Abdul Jabbar has been abducted by Sher Ahmed, Farooq and Naseer Ahmed out of whom the former two nominated, persons are the sons of deceased Muhammad Akram. The S.H.O. Did not register the F.I.R. And recorded the contents of the report in the Roznamcha of the Police Station of even date being doubtful and conducted inquiry as per his report within the meaning of section 157(2), Cr.P.C., as a result whereof, he concluded in his report submitted in Court that with a view to pressurize the P.Ws.
In the murder case and to procure acquittal of accused Muhammad Ibrahim false and misconceived report with regard to the alleged incident of abduction has been made by the brother of the accused Muhammad Ibrahim facing trial on the charge of murder of deceased Muhammad Akram. As regards the factual aspects of the case pertaining to the incident of alleged murder are concerned, we; refrain to make any comment, as the same might result into prejudicing the case of either party, however; so far as the legal position stands, we; may observe that since the report with regard to the alleged abduction was made to the S.H.O./Police Station Shalkot by the brother of the abductee, therefore, the same being with regard to the commission of cognizable offence it was obligatory on the part of the S.H.O. To have registered the F.I.R. Within the meaning of section 154, Cr.P.C. As it was not within his statutory discretion to refuse registration of the criminal case particularly when report in respect of commission of a cognizable offence was trade to him, however; if after registration of the case, the S.H.O. Has the reason to suspect commission of an offence which he is empowered under section 156 to investigate, he shall forthwith send a report of the same to the Magistrate empowered to take cognizance of such offence upon a police-report, and himself shall proceed in person, or shall depute one of his subordinate officers as provided under section 157, Cr.P.C. To the spot, to investigate the facts and circumstances of the case, and; if necessary; to take necessary steps for the discovery and arrest of the offender, provided; he may not do so, if the commission of any such offence is given against any person by name and the case is not of a serious nature, and; if it appears to the Officer Incharge of the Police Station that there is no sufficient ground for entering on an investigation, he shall not investigate the case as contemplated by clause (b) of Proviso to subsection (1) of section 157, Cr.P.C. For which as provided in subsection (2) of the aforesaid section, the Officer Incharge of the Police Station shall state in his said report his reasons for not fully complying with the requirements of any of the subsection and in the case covered by clause (b) the Officer Incharge of the Police Station shall also forthwith notify to the informant the fact that he will not investigate the case or cause it to be investigated. Bare perusal of provisions of section 157, Cr.P.C. Indicate that the powers exercisable by the Officer Incharge of a Police Station in the given facts and circumstances of a case cannot be resorted to unless report made to him in respect of commission of a cognizable offence is reduced into writing and be read over to the informant duly entered in a book to be kept by such Officer as prescribed within the meaning of section 154, Cr.P.C.
Mere incorporating contents or substance of the report in the Roznamcha of the Police Station made to the Officer Incharge of the Police Station by an informant in respect of commission of a cognizable offence would not be a compliance of the mandate of the law as envisaged by section 154, Cr.P.C., therefore, before resorting to any of the provisions of section 157, Cr.P.C., the Officer-in- Charge of the Police Station is duty bound to register the report as provided by section 154, Cr.P.C.
And thereafter, to proceed under section 156, Cr.P.C. Or under any of the provisions of the section 157, Cr.P.C. As the facts and circumstances of the case may admit or warrant, consequently, we; may observe that the Officer Incharge of the Police Station exercised the powers vesting in him not in accordance with law by resorting to provisions of section 157, Cr.P.C. Directly without the formal registration of the case as contemplated by section 154, Cr.P.C. In respect of the commission of a cognizable offence, therefore, we directed the Officer Incharge/S.H.O. Police Station Shalkot to register the case and to proceed further strictly in accordance with law in the light of the facts and circumstances of the case.
The result is that this Constitutional petition is disposed of in the above terms, leaving the parties to bear their own costs.