1. The present petition has been filed under Article 199 of the Constitution of Islamic Republic of Pakistan (1973) with a prayer that the police may be directed to register the F.I.R./Case. Article 199 of the Constitution gives discretionary powers to the Court subject to the condition that if adequate remedy is not available under any provision of law then the powers can be exercised. In various authorities, it has been observed and found that a complaint before a Magistrate is an adequate remedy. The learned Advocate for the petitioner has argued that the remedy of filing complaint before the Magistrate cannot be compared with the registration of F.I.R. by police, therefore, he has requested that the police may be directed to register the F.I.R. Chapter XIV of the Criminal Procedure Code deals with the registration of F.I.R. and investigation of the case by police. For the purpose of this petition, sections 154 to 156 of the Criminal Procedure Code, are relevant therefore, they, are reproduced:-- "154. "Information in cognizable case.---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."
155. Information in non-cognizable case.---(1) When information is given . to an officer-in-charge of a police station of the commission within the limits of such station of a non-cognizable offence, he shall enter in a book to be kept as aforesaid the substance of such information and refer the informant to the (Judicial Magistrate).
(2) Investigation into non-cognizable case.---No Police Officer. shall investigate a non- cognizable case without the order of Magistrate of first class or second class having power to try such case or send the same for trial to the Court of Session.
2. (3)Any Police Officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer-in-charge of a police station may exercise in a cognizable case."
156. Investigation into cognizable cases.--(1) Any officer-in-charge of a ponce station may without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have .power to inquire into or try under the provisions of Chapter XV relating to the place of inquiry or trial.
(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.
(3) Any Magistrate empowered under section 190 may order such an investigation as above- mentioned.
(4) Notwithstanding anything contained in subsection (1), (2) or (3), no police officer shall investigate an offence under section 497 or section 498 of the Pakistan Penal Code, except upon a complaint made by the husband of the woman, or in his absence by some person who had the care of such woman on his behalf at the time when such offence was committed."
3. Under section 154, Cr.P.C. if an aggrieved person/informant approaches the officer-in-charge of the !police station for lodging the report. either \orally or in writing then the first step which the officer-in-charge of police station is required to take, is to satisfy himself as to whether from the facts narrated by the aggrieved person or from the written complaint a case of cognizable offence has been made out or not. If he is satisfied that a cognizable offence has been committed then the facts of the case are required to be reduced into writing and recorded in the book known as 154, Cr.P.C. book. If the complaint is in writing then its facts are required to be incorporate in the said book after complying with the other requirements of section 154, Cr.P.C. Thus it is the direction of law that the report of cognizable offence is to be registered in the 154, Cr.P.C. book and the police officer has no option to A refuse to register the said report. If from the facts of the case the incharge of the police station forms an opinion that an offence has been committed but it is a non- cognizable offence then he has to enter the facts of the complaint in the book, which is known as station diary and then refer the informant to the Judicial Magistrate but in such case the officer-in- charge of a police station is not authorized to investigate the non-cognizable offence without the order of the Magistrate but after receipt of the authorization from the Magistrate to investigate the case then the officer-in-charge of police station would investigate the case and exercise same powers as in respect of investigation of a cognizable offence except the power to arrest without warrant. Under subsection (1) of section 156, Cr.P.C., the officer-in-charge of police station is authorized to investigate the cognizable case without the order of the Magistrate. Under subsection
(2) of section 156, Cr.P.C. the proceedings of a police officer in a cognizable case cannot be called in question on the ground that the officer, who was not empowered to do so, investigated the case.
4. Under subsection (3) of section 156, Cr.P.C. the Magistrate empowered to take cognizance under section 190, Cr.P.C. has been authorized to make order for investigation as mentioned above. Under subsection (4) of section 156, Cr.P.C. the powers of police officer to investigate the case has been restricted in respect of offences under section 497 or 498 of P.P.C. if the complaint is not made by the husband of the woman or in his absence by some person who has the care of such woman on his behalf at the time when such offence was committed.
5. A perusal of subsection (I)(b) of section 157 shows that the officer of incharge police station has been authorized not to investigate the case if sees that there is no sufficient ground for entering on an investigation but under subsection (2) of section 157, he is required to state in his report sent to the Magistrate under section 157 with his reasons for not complying with the said provision and shall also forthwith notify the informant if any the fact that he will not investigate the case or cause it to be investigated.
6. Under section 156(3), Cr.P.C. power for ordering for the investigation has been assigned to a Magistrate, who is authorised to take cognizance under section 190, Cr.P.C.
7. A perusal of section 190, Cr.P.C. shows that the Magistrate can take cognizance in one or other three ways specified in the section. The first is upon receiving a complaint, the second is upon a report in writing made by the police officer and the third is upon information received from any person other than a police officer or upon the magistrate's own knowledge or suspension.
8. If the Magistrate, authorized to take the cognizance under section 190, Cr.P.C. receives any complaint that the police officer after registering the F.I.R. had refused to investigate the case under section 157(b), Cr.P.C. then under section 156(3), Cr.P.C. read with section 159, Cr.P.C. the Magistrate can direct the police officer to investigate the matter, if he sees reasons to do so and then such officer would start the investigation.
9. If such Magistrate receives a complaint that the police officer has refused to register the F.I.R. then under section 156(3), Cr.P.C. the Magistrate is empowered to direct the informant without taking cognizance/recording his statement on oath to approach the officer-in-charge of the police station for registration of a case and investigation by giving him a copy of such order. If the informant submits a written complaint before the Magistrate then the Magistrate under section 156(3), Cr.P.C. without taking cognizance/recording the statement of the informant, send the complainant alongwith the said complaint and order passed by him to the officer-in-charge of the police station for registration and investigation of the matter.
10. In the above situation when the informant approaches the Magistrate with an oral or written complaint then the Magistrate has two alternative courses open to him and can follow either of them at his option. He may examine the complainant on oath, proceeds under Chapter XVI of the Cr.P.C. by recording the statement of the complainant on oath under section 200, Cr.P.C. and then pass orders as required under section 202, Cr.P.C. as deemed fit by the Magistrate. The second option available with the Magistrate is that he may simply direct for investigation by the police under section 156(3), Cr.P.C. and proceed under Chapter XIV of the Cr.P.C. The conditions precedent for adopting second course is that the Magistrate should not take cognizance/record the statement of the complainant on oath. Once he had recorded the statement on oath then the course as required, under section 156(3), Cr.P.C. of Chapter XIV of Cr.P.C. is not available to him but then he can adopt the course as provided under Chapter XVI of the Cr. P.C.
11. If the Magistrate, authorized to, take cognizance upon information received from any other person than a police officer or upon the Magistrate's own knowledge or suspicion then the Magistrate under section 156(3), Cr.P.C. can send such report to the officer in-charge of the police station for registration and investigation of the matter.
12. From the above position, it is clear that the Magistrate authorised to take cognizance, is empowered under section 156(3), Cr.P.C. to direct the incharge of the police station to register the case and investigate the same.
13. The section 156(3), Cr.P.C. has been subjected to interpretation by the Pakistan and Indian Courts in which they have held that the Magistrate can only pass orders under section 156(3), Cr.P.C. before taking the cognizance/recording the statement of the complainant on oath and once he had recorded the statement of complainant then the provision would not be applicable but the provisions of Chapter XVI, Cr.P.C. viz. sections 202 and 203 would be applicable.
14. In a case reported in AIR 1956 Cal. 76, a complaint was made to the Magistrate who without recording the statement of the complainant on oath sent the complainant to the police for investigation and submission of challan after treating the complaint as F.I.R. by passing the following order:-- "Heard petition. O/C section 'O' to treat the petition as- F.I.R., and take up investigation, and if the facts as alleged appear to be correct, take cognizance, arrest the accused persons and submit challan in the usual course."
15. Thereafter the police registered the case and after investigation submitted the challan in the Court.
16. The proceedings were challenged in the Court and the matter went to the High Court. The High Court did not quash the proceedings by observing that the challan was validly submitted by the police on the above mentioned order of the Magistrate, which was validly passed by him under section 156(3), Cr.P.C.
17. In a case reported in AIR 1959 Assam 231 the Magistrate without examining the complainant on oath, took no steps under Chapter XVI of the Cr.P.C. sent the complaint to the police with direction to investigate the matter and submit the charge-sheet if warranted by 23rd August, 1927. This order was found validly passed by the Magistrate under section 156(3), Cr.P.C.
18. In a case reported in PLD 1975 Lah.577, the Magistrate without taking cognizance/recording the statement of the complainant on oath sent the complaint to the police for investigation under section 156(3), Cr.P.C. the police after investigation submitted the challan in the Court. The matter went to the High Court. It was held as under:-- "It follows, therefore, that where a learned Magistrate, as in the present case, has not taken cognizance of a private complaint by applying his mind to it for decision and has not recorded the statement of the complainant or his witnesses, it is open to him to send the case to the police for registration of a case, investigating the same and filing a challan if there is enough evidence."
19. The order of the Magistrate was found to be validly passed under section 156(3), Cr.P.C.
20. In a case reported in 1990 PCr.LJ 1547, the Magistrate without taking cognizance/recording the statement of the complainant on oath passed following order:-- "S.H.O. Rangpur please register the case and investigate and submit the challan, if necessary."
21. The order was found to be validly passed by the Magistrate under section 156(3), Cr.P.C.
22. The Supreme Court of Pakistan in a case reported in 1979 SCM R 112 has finally set the controversy at rest. In that case, the Deputy Commissioner had received information regarding certain alleged high-handedness of the police and disturbance of law and order in his executive capacity. He directed the Assistant Commissioner to inquire into the matter. The Assistant Commissioner inquired into the matter in that capacity and after noticing that the facts disclosed the commission of a cognizable offence, he 'directed the 'S.H.O., Police Station City Jhelum to register a case. The order of the Magistrate was challenged before the High Court of Lahore. The order was maintained and proceedings were found to be validly initiated. The matter was challenged before the Supreme Court and the Honourable Supreme Court of Pakistan has held that the direction of the Magistrate for registration and investigation of the case was given under section 156(3), Cr.P.C. which cannot be taken exception to and the petition was dismissed.
23. The learned Advocate for the petitioner has shown an apprehension that the order of the Magistrate for registration of case and investigation would not be implemented by the police as in some cases even the order for the registration of a case passed by the High Court has been violated by the Police Officers. The apprehension of the Advocate for the petitioner is misconceived, as the law has taken care of it. It is one of the duty of the police officer to obey the lawful orders as provided under section 4(m) of the Police Order, 2002. The disobedience of lawful order will expose such police officer for penalty for misconduct as provided' under section 155(d) of the Police Order, 2002.
24. It is further pointed out that the registration of the F.I.R. is the requirement and direction of law as provided by section 154, Cr.P.C. which every Police Officer is required to obey. If a police officer refuses to register the F.I.R. then he would expose himself for a prosecution for an offence punishable under section 166, P.P.C. (public servant disobeying to the direction of law). In such situation the Magistrate after receiving the complaint of non-registration of the F.I.R. in addition to the prosecution of delinquent police officer under section 155(d) of the Police Order, 2002, may either direct the complainant to file a complaint before the Special Judge, Anti-Corruption or to file a complaint by making the Court as complainant through him or through any of his duly authorized subordinate officer before the Special. Judge, Anti-Corruption because the offence is a scheduled offence of Pakistan Criminal Law Amendment Act, 1958. It is desirable that when the Special Judge, Anti-Corruption receives such complaint then he should decide the same expeditiously in accordance with law so that the delinquent police officer if found guilty can be adequately punished within the shortest possible time which can serve as an eye opener for the others. If the citizen and the Magistrate/Court adopts the above procedure then the complaints of non-registration of Flit. would be eliminated.
25. The prayer in the petition is that the police may be directed to register the F.I.R. but the same powers can be exercised by the Magistrate under section 156(3), Cr.P.C. more expeditiously than through the present petition because as soon as the complaint is received by the Magistrate whose Court is situated near the scene of the incident or the residence of the complainant, he would immediately pass orders as deemed fit to him either adopting the course of Chapter XVI of Cr.P.C. or Chapter XIV of Cr.P.C. As such, the adequate and more efficacious remedy is available in this case; hence, the present petition is dismissed accordingly. The petitioner may approach the Magistrate having jurisdiction in the matter, if so advised.