Police is not possessed with right to murder anyone

PLJ 2000 Peshawar 3 (DB)

Present: MIAN SHAKAR ULLAH JAN AND talaat qayyum qureshi, JJ.

Mst. MALKA JAN-Petitioner

Versus

I.G. POLICE NWFP PESHAWAR and 2 others-Respondents

W.P. No. 137 of 1997, decided on 19.8.1999.

 Criminal Procedure Code, 1898 (V of 1898)-

—S. 154-F.I.R.-Registration of--Prayer for-Offence U/S. 302 Pakistan Penal Code, 1860~Two version casc--A police muqabala case-Filing a
writ petition by deceased's mother after one month for registration of murder case against police—Petitioner who is mother of deceased has charged various police officers and attributed specific roles to them for  urder of her son-Police is not possessed with right to murder or kill or take life of any citizen accused of any offence only for reason that such person was involved in criminal cases and keeps a previous bad record- No body even police can be allowed to take law into bis hands and it is  uty of Courts to Curb high-handedness sternly-In view of attending
circumstances of case police is under a statutory duty to reduce into writing information given to him by petitioner of commission of a cognizable offence as provided by Section 154 Cr.P.C.--Version on basis  .I.R. of Police muqabala has already been registered is distinct whereas version given by petitioner is totally on different premises, that s n of petitioner lady was murdered by police officials named in writ petition- Truth can be ascertained only if versions of two sides are placed only before Court-Petition accepted and police is directed to register a case in accordance with Section 154 Cr.P.C. on information being given to him by petitioner of a cognizable offence.       [Pp. 12 & 13] E, F & G

Criminal Procedure Code, 1898 (V of 1898)-

—S. 154 & 190 FIR and Private complainant-In order to set criminal law into motion two modes have been provided in Criminal Procedure Code; one by way of lodging of report with police under Section 154 Cr.P.C. in respect of commission of cognizable offence and other by filing of a complaint before Magistrate as provided by Section 190 of Code of Criminal Procedure.        [P. 6] A

Criminal Procedure Code, 1898 (V of 1898)--

—S. 155~Non-cognizable case-So far as non-cognizable offence is concerned, Section 155 Cr.P.C. provides that substance of such information shall be entered in a book to be kept for such purpose and informant is to be referred to Magistrate-It is further provided that no Police Officer shall investigate in non-cognizable case without order of Magistrate having power to try such case-After receiving such order from Magistrate, Police Officer can investigate case and may exercise powers in same way as in cognizable case.                                                                             [P. 7] B

Criminal Procedure Code, 1898 (V of 1898)--

—S. 154-F.I.R.~Registration of-Requirement of law is that Police Officer has to record FIR mandatorily of a cognizable case under Section  54
Cr.P.C. but if it is a non-cognizable case then substance of such information is to be entered in relevant register but in each case refusal is out of question~The Incharge of a Police Station is duty bound and it is his statutory obligation that on receipt of information whether orally or in  riting he has to record same in book prescribed for that purpose and
no option or discretion is left with him in this regard.                           [P. 7] C

Criminal Procedure Code, 1898 (V of 1898)--

—S. 154--F.I.R. lodging of-Two versions~Case~If a distinct and separate cognizable offence is disclosed and no effective inquiry or trial can be held without properly appreciating and considering two versions then another F.I.R. is to be registered.                                                                                                     [P. 12] D

Mr. Muhammad Aslam Uns, Advocate for Petitioner. Qazi Muhammad Ghazanfar, AAG for State. Date of hearing: 23.6.1999.

judgment

Talaat Qayyum Qureshi, J.--6rief facts given in the writ petition in hand are that on report of one Waris Khan son of Muhammad Rafique who is real brother of Muhammad Muzaffar Khan Inspector of local police, a case under Section 11/16 Offences of Zina (Enforcement of Hudood) Ordinance, 1979 was registered against Muhammad Akhtar on 8.8.1996 vide F.I.R. No. 6, in Police Station Abbottabad alleging therein that Muhammad Akhtar had abducted Mst. Saiqa his niece and daughter of Muhammad Muzaffar Khan. Mst. Saiqa Bibi, the alleged abductee, being sui juris contracted marriage of her own free will with Muhammad Akhtar on 12.8.1996 and the spouses started living together with complete harmony in village Sheikhul Bandi District Abbottabad. This marriage had been contracted by Mst. Saiqa Bibi independent of her parents. They were not consulted prior to solemnization of the said marriage nor their consent was obtained thereafter, which nourished grudge against Muhammad Akhtar. The father of Mst. Saiqa Bibi namely, Muhammad Muzaffar Khan Inspector Police NWFP who was inimical towards Muhammad Akhtar deceased for having abducted his daughter and solemnized marriage with her without his consent was in chase to take revenge from him. He managed to get Muhammad Akhtar killed, conspired with Head Constable Iqrar and Muhammad Arif F.C. who in pre-planned manner after due deliberation on 14.3.1997 while Muhammad Akhtar deceased was going to offer Jumma Prayers and had hardly reached near Mosque, Muhammad Iqrar Head Constable opened fire at him which hit him and as a result of which he died on the spot Muhammad Arif F.C. was also firing in the air to keep the people away. Later on, this incident was given the name of "POLICE MUQABALA* and a case vide F.I.R. No. 307 was also registered on 14.3.1997 in Police Station Cantt. Abbottabad and in this way it was endavoured to put a veil on the police action to save the skin of police officials and avoid possible re-action from general public. The matter did not end there, the police party after murdering Muhammad Akhtar deceased went to his house, violated the privacy and took away the jewellery and other articles from the house.

2.    The petitioner who is aged mother of deceased Muhammad Akhtar as well as both his wives voiced against high-handedness of  olice, approached many times to concerned authorities to register a case against those who had killed the deceased but to no avail, hence she sought the help of local press through which they made the high ups known of the extra judicial killing by the police officials. They also made sympathetic appeal to the worthy Chief Minister, NWFP of judicial inquiry into the gruesome murder of deceased and also beseeched that the police was after them and their lives were in eminent danger but no action was taken by the authorities which necessitated in filing the present writ petition seeking the direction of this Court in the name of SHO, P.S. Cantt: Abbottabad to register a case against the culprits.

3.  Mr. Muhammad Aslam Uns Advocate, the learned counsel for the petitioner argued that fundamental rights as envisaged in Article 25  f the Constitution, to be treated in accordance with law or to be entitled to equal protection of law, have been violated by respondents. It is the duty of the Officer In-charge of Police Station to register a case on receipt of information that a cognizable offence has been committed. The S.H.O. P.S. Cantt: Abbottabad, Respondent No. 2 failed to discharge his duty in accordance with law. He further argued that the petitioner not only approached Respondent No. 2 many a times to register a case for the murder of her son but approached Respondent No. 1, the worthy Chief Minister and other high  ps through the help of press but no action was taken on her request. After the publication of news in all the local Newspapers,  the concerned authorities were well aware of the incident but they failed to act in accordance with law. He placed reliance on "Mst. Ghanwa Bhutto and another vs. Government of Sindh and another" PLD 1997 Karachi 119 and "Saleem Sarwar vs. SHO, P.S. Head Marala and two others" PLJ 1984 Cr. Cases (Lahore) 369 and prayed that direction he issued to register a case against the real culprits.

4.    Qazi Muhammad Ghazanfar A.A.G. firmly resisted the writ petition. He argued that the petitioner had adequate remedy in form of private complaint available to her which she did not avail. If the police authorities did not register a case on her request she could easily file a private complaint in the Competent Court of law. He further argued that  fter the occurrence the petitioner kept mum for about a month and thereafter raised hue and cry in the press. He stated that the press clippings annexed with the writ petition are not admissible. Neither any report in writing was submitted to the S.H.O. concerned nor she ever approached him for registration of the case. The deceased Muhammad Akhtar was not a law abiding citizen but was a proclaimed offender. He was involved in case FIR No. 56 registered on 8.8.1996 under Sections 11/16 of Zinc Ordinance, FIR No. 322 dated 7.8.1994 U/Ss. 11/16/5/10 Zina Ordinance in P.S. Havelian and FIR No. 51 dated 14.2.1995 U/Ss. 452/506/34 PPC, in P.S. Nawanshehr and his history sheet No. 18/APO has also been opened. On the day  f occurrence he alongwith his co-accused Sohrab proclaimed offender and Arshad fired at the police party headed by Muhammad Iqrar of P.S. Cantt; in village Sheikhul Bandi. The police party in their defence also opened fire with the result Muhammad Akhtar sustained injuries and died on the spot while his co-accused succeeded in decamping from the spot. After his death one rifle 222 bore, two pistols 30 bore, dagger, 7 magazine and 110 cartridges were found lying near his dead body and were secured by the police. The deceased died in an encounter with police and Muhammad Zaffar Khan Inspector who was posted as Traffic Inspector at Mansehra had no concern with such police encounter. He further argued that F.I.R. No. 307 has already been registered on 14.3.1997 under Section 324/353/224 /34 PPC and 13 A.O. and second F.I.R. regarding the same incident cannot be
registered.

5.        We have heard the learned counsel for the parties at length.

6.        In order to set the criminal law into motion two modes have been provided in the Criminal Procedure Code; one by way of lodging of  eport with the police under Section 154 Cr.P.C. in respect of commission of cognizable offence and the other by filing of a complaint before Magistrate as provided by Section 190 of the Code of Criminal Procedure.

7.    Section 154 of the Code of Criminal Procedure provides that substance of every information relating to the commission of a  ognizable offence if given to an Officer Incharge of a Police Station shall be entered in a book to be kept by such Officer in such form as the Provincial Government may prescribed in this behalf. So far as non-cognizable offence is concerned, Section 155 Cr.P.C. provides that substance of such information shall be entered in a book to be kept for such purpose and informant is to be referred to the Magistrate. It is further provided that no Police Officer shall investigate in non-cognizable case without order of the Magistrate having power to try such case. After receiving such order from Magistrate, Police Officer can investigate the case and may exercise powers in the same way as in cognizable case.

Section 156 Cr.P.C. empowers the incharge of a Police Station to investigate cognizable cases whereas Section 157 Cr.P.C. lays down that on receiving information with regard to commission of a cognizable offence which a Police Officer is competent to investigate, report is to be sent immediately to Magistrate empowered in that behalf and to take necessary steps for discovery and arrest of offender. If the Officer Incharge of Police Station under proviso-B to Section 157(1) and sub-section (2) to Section 157 Cr.P.C. is of the view that there is no sufficient ground to conduct the investigation, he after recording reasons to that effect in the report can decline to investigate but it is mandatory for him to notify the information about the fact that he would not investigate the case or that the same will not be investigated. Section 159 Cr.P.C. lays down that on receipt of such a report by Magistrate under Section 157 Cr.P.C.,' he may determine either not to proceed further or he may take cognizance of the offence as provided under Section 190(l)(b) Cr.P.C. or under Section 203 Cr.P.C. Similarly, Section 169 Cr.P.C. empowers the Incharge of a Police Station to release to the accused in deficient evidence on his won bond or with or without sureties for his appearance when-ever he is required. Section 170(1) Cr.P.C. provides that upon investigation if there is sufficient evidence the Incharge of Police Station would forward the accused to Magistrate. Section 173 Cr.P.C. envisages that Incharge of Police Station is required to submit a final report after the completion of investigation containing the complete result of investigation conducted in the case and action taken in respect of informant before the Magistrate, competent to take cognizance in the case.

8.          The perusal of the above mentioned sections of law clearly show that the requirement of law is that Police Officer has to record the FIR mandatorily of a cognizable case under Section 154 Cr.P.C. but if it is a non- cognizable case then substance of such information is to be entered in the relevant register but in each case the refusal is out of question. The Incharge of a Police Station is duty bound and it is his statutory obligation that on receipt of information whether orally or in writing he has to record the same in the book prescribed for that purpose and no option or discretion is left with him in this regard.

9.     On receipt of a complaint the Magistrate, as provided by Section 190 of Code of Criminal Procedure may take cognizance of an offence. The Magistrate is empowered to take the cognizance of the offence under Section 200 Cr.P.C. On filing of complaint in Court, he shall at once examine the complainant on oath and the substance of the examination shall be reduced to writing. Section 202 Cr.P.C. further empowers such Magistrate to postpone the issue of process for compelling the attendance of person complained against and to either inquire into the case himself or to direct an inquiry or investigation to be made by any Justice of Peace or Police Officer or by such other persons as he thinks fit for the purpose for ascertaining the truth of falsehood of the complaint.

10. No doubt the above mentioned remedies are parallel and remedy by way of private complaint is equally effective practical and adequate remedy as has been held in the following cases: -

"High Court in exercise of its jurisdiction under Article 199 of the Constitution is not obliged to issue directions for registration of F.I.R. in each case. Issuance of such a direction, however, would depend on the facts and circumstances of each case as to whether such direction could be issued to meet the ends of justice or availability of an alternate remedy by way of filing a direct complaint would be considered as adequate and prper remedy for declining such relief."

(2)        "Jamsheed Ahmed v. Muhammad Akram and another" 1975
SCMR 149.

"The petition could be thrown out on the short ground that the High Court was under no obligation to grant the relief prayed for by the petitioner. It was a matter entirely in its discretion and there is nothing to indicate that it was improperly exercised. Even otherwise, by no means does the impugned order shut the door on the petitioner who is at liberty to initiate criminal proceedings by lodging a complaint."

(3)              "Haji Muhammad Khan v. Ch, Khizar Hayat and 3 others" PLD 1997 Lah, 424.

"The principle of law that has been enunciated in the Intra-Court Appeal No. 31 of 1976 is, however, unexceptionable. The exercise of power under Article 199 of the Constitution is subject to the condition that there is no adequate remedy provided by law. Such an adequate remedy is provided to a complainant under Section 190 read with Sections 200 to 203, Cr.P.C. Section 190 provides that a Magistrate may take cognizance upon receiving a complaint of facts which constitutes such offence. The procedure for dealing with such complaints is provided in Sections 200 to 203 Cr.P.C. There may be cases where the evidence to prove the commission of an offence cannot be collected except through the police agency. Similarly, there may be cases where the entire evidence to prove the commission of such offence is with the complainant. In the second category of cases it cannot be doubted that the complaint before the Magistrate is an adequate remedy. In such case the High Court refuses to exercise in writ jurisdiction under Article 199 of the Constitution. The advisability of exercising a discretion in favour a petitioner can be considered only in a case where the evidence can be collected through the agency of the police."

(4)               "Wazir Ahmad v. SHO, Police Station Maboob Kaldhoro and others" 1990 PCr.L.J. 2006.

"The relief under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, being discretionary relief, the writ cannot be issued as of right or in routine. In order to seek a relief of this nature, a petitioner must come to Court with clean hands and if he is ground to have suppressed a material fact such relief should be refused."

(5)               "Altaf Hussain  vs.   Government of Sindh  through  Home Secretary, Government of Sindh, Karachi an another" PLD 1997 Kar. 600.

"The cases referred to by us in this judgment, therefore, leave no doubt that whenever an adequate remedy in the form of a private complaint is available to the petitioner, relief sought by him in the petition may be declined to him. In the present case, the petitioner could have filed a private complaint before the Court having jurisdiction in the matter in case the complaint sent by him to the police was not registered or he was dissatisfied with the investigation of the case, carried out by the former, apart from the foreign, when information is received by a Police Officer Incharge of a police station regarding the allegations must be found by him to be prima facie correct before an F.I.R. is registered. But where allegations are made, which, 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. Therefore, the question, whether discretion must be exercised in favour of a party, in a even case, and direction must be given to a Police Officer to register an F.I.R. would depend upon the circumstances of each case. So far as the contention that alternate remedy must equally be an effacious remedy is concerned, suffice it to say that, a private complaint can provide an equally adequate relief to the complaint, because he can lead the entire evidence himself before the Court. It would, therefore, be erroneous to assume that grievance of the petitioner cannot be adequately redressed by filing of a private complaint. We are, therefore, clearly of the view that the directions sought by the petitioner in the present case need not be given by us to the respondents."

11.        The only fact that the aggrieved patty has an alternate remedy of filing a private complaint would not take away the discretion of this and deter the Court from giving directions to the police to record an F.I.R. in an appropriate case. According to the principles laid down by superior Courts the discretionary powers must be exercised in good faith having regard to all relevant considerations  and it  should be   exercised justly,   fairly and reasonably.

12.        It was argued by the learned A.A.G. that since F.I.R. No. 307 has already been registered on 14.3.1997 under Section 324/353/224/34 PPC and 13 A.O., second F.I.R. regarding the same incident cannot be registered. Before   examining  this   point,   with  the   reference   to   the   facts   and circumstances of this case it will be proper to discuss and examine some relevant case on the subject. In a case "Akram All Shah vs. SHO, P.S. and two others" PLJ 1976 Cr.C. (Lahore) 53 it was held,

"It cannot be laid down as a proposition of the law that if one F.I.R. pertaining to a criminal occurrence has been registered then another F.I.R. containing the counter version of the same occurrence cannot or not be registered."

13.              Similarly, a Division Bench of Lahore High Court in case "Abdul Ghani vs. S.H.O. P.S. Saddar" NLR 1982 Cr. 296 held,-

"I am of the view that in attending circumstances of the case in hand, the respondent SHO is under a statutory duty to reduce into writing the information given to him by the petitioner of commission of a cognizance offence as provided by Section 154 Cr.P.C."

Likewise in a case "Haleem Sarwar vs. SHO, P.S. Head Marala and two others" PLJ 1984 Cr.C. (Lahore) 369 it was held,

"On a review of the case law reproduced above, and the facts of the case as emerged from the record, the petitioner has a clear grievance against the police. If as alleged, the matter was reported to the police first in point of time and the substance of information disclosed commission of a cognizable offence, then the S.H.O. could not refuse to register a formal FIR for it was his duty to record the information and proceed to investigate the matter as provided in Section 154 Cr.P.C. Even if an FIR has been registered on the basis of one sided version, registration of a second FIR showing a different grievance could not be refused by the Police Officer in proper performance of his legal duty under Section 154 Cr.P.C."

Similarly, in an other case titled "Mrs. Ghanwa Bhutto and another vs. Government of Sindh and another" PLD 1997 Karachi 119 it was observed,

"Turning now, to the facts of the present case, there is no controversy in respect of the fact that two reports in respect of the said occurrence have already been registered by the police and in the second report registered at the instance of Asghar All, the servant of the first petitioner, police officers have been charged with murder of Mir Murtaza Bhutto. No doubt, as has been pointed out by the learned counsel for the respondents, Section 154 of the Criminal Procedure Code postulates registration of only one F.I.R. in respect of an offence and in any case an F.I.R. including commission of Qatl-e-Amd has already been registered at the instance of said servant of the first petitioner-Even the F.I.R. registered at the instance of Station House Officer, Haq Nawaz Sial, according to the respondents' counsel, was sufficient to se the criminal law into motion. Therefore, is registration of a third F.I.R. warranted under the law? The circumstances of the present case, however, indicate that while the first F.I.R. was registered at the instance of a police officer who was suspected of being an accused himself in the case by the petitioners, the second F.I.R. was registered at the instance of Asghar Ali, the private servant of Petitioner No. 1, after four days of the occurrence when he was still in the custody of the police. Therefore, the contention of the petitioners that the two F.I.Rs. registered by the police do not reflect the true facts of the case, does not appear to be unreasonable. It is also pertinent to point out that the petitioners wanted to name certain police officers as some of the culprits, who, according to the petitioners, had participated in the said crime and definite role has been attributed to them in the proposed F.I.R. Therefore, a prima facie case appears to have been made out against the said person for the purpose of recording an F.I.R. However, some other police officers have been named as suspects but no definite role has been attributed to them by the petitioner. Therefore, the petitioners have failed to satisfy the conscience of the Court so far as the said police officers are concerned. We are, therefore, firmly of the view that circumstances of the present case are distinguishable from those of the cases earlier decided by this Court, reference to which is made in this judgment."

Yet in another case "Muhammad Anwar Sub-Inspector, Railway Police Lahore vs. S.H.O. Railway Police Kasur and 2 others" PLD 1999 Lahore 50 it was held,

"The crux of the matter which boils down after doing through all the cited cases is that if counter-version is merely restricted to a defence version, the second version or a different version of incident, second F.I.R. cannot be recorded. But if a distinct and separate cognizance offence is disclosed and no effective inquiry or trial can be held without properly appreciating and considering the two versions, then another F.I.R. is to be recorded. I am, therefore, of the view that the respondents have illegally refused to register the case. The are, therefore, directed to register the F.I.R. and thereafter, to conduct the investigation therein."

Similarly, in case titled "Jamshed Khan and another vs. Government ofSindh and others" 1999 P.O.L.J. 512 it was held,

"Thus, it is obvious that looking towards the facts and circumstances of a particular case not only second but even third F.I.R. could be registered."

14.          The above discussion would lead us to the conclusion that "if a distinct and separate cognizable offence is disclosed and no effective  nquiry or trial can be held without properly appreciating and considering the two versions then another F.I.R. is to be registered.

15.          In the case in hand the police officials declared the occurrence as police encounter and registered F.I.R. No. 307 on 14.3.1997  hereas the  etitioner who is mother of the deceased has charged various police officers and attributed specific roles to them for murder of her son. The Constitution of Pakistan safe guards a against breach of his fundamental rights, they also stand controlled and governed by the provisions of law against breach of their rights and are also safe guarded against certain wrongs. The police is not possessed with right to murder or kill or take life of any citizen accused of any offence only for the reason that such person was involved in criminal cases and keeps a previous bad record. A person keeping bad record may be innocent in the case registered against him because under the law presumption of innocence will continue until he is proved guilty. If the police machinery takes law in their hands they are to be dealt with in the same manner as the ordinary citizen are dealt with. Nobody can be allowed to take law into his hands and it is the duty of the Courts to curb the high handedness sternly.

16.      aving given consideration to the controversy involved, we are of the view that in the attending circumstances of the case in hand, the
Respondent No. 2, S.H.O. P.S. Cantfc Abbottabad is under a statutory duty to reduce into writing the information given to him by the petitioner  f the commission of a cognizable offence as provided by Section 154 Cr.P.C. Needless to mention that if in the course of investigation he comes to conclusion that information given by the petitioner is false he can have a recourse to the law. The version on the basis of which F.I.R. No. 307 has already been registered on 14.3.1997 is distinct whereas the version given by the petitioner is totally on different premises that her son, the deceased, was murdered by Police Officials named in the writ petition. At this stage we cannot hold as to which version is correct but truth can be ascertained only if the case of the petitioner is registered and both the cases are investigated upon together and thereafter report or reports are submitted by the Investigating Agency. Unless both the versions are placed before the Court no proper adjudication of the respective contentions could be made to submit challan in one case and to ignore the version given in any other is not at all conducive to the interest of justice.

17. In view of the above discussion this writ petition is accepted. Respondent No. 2 S.H.O. P.S. Cantt: Abbottabad is directed to register a case in accordance with Section 154 Cr.P.C. on the information being given to him by the petitioner of a cognizable offence and the investigation of the case be entrusted to an experienced, and honest police official. The petitioner is directed to approach the Respondent No. 2 for registration of the case.

(K.K.F.) Orders accordingly.