MUHAMMAD ASLA Versus STATION HOUSE OFFICER, POLICE STATION MAMUKANJAN

By my short order of 5-9-1979 1 had disposed of the petition. I now proceed to give the reasons for doing so.

2. By means of this Constitutional petition, a prayer has been made for the issuance of a direction to the respondent, S. H. O. to register a counter case. Learned counsel drew my attention to a judgment of Aftab Farrukh, J. of this Court, in Akram All Shah's case (P L D 1979 Lah. 320 ) in which, after noticing a short order of Shafi-ur-Rebman, J. (reproduced in para. 10 below) the Court directed the respondent, S. H. O. to register the case by way of counter version.

3. The attention of the learned counsel for the petitioner was drawn to a judgment of a Division Bench of this Court in Ghulam Siddique's case (P L D 1979 Lah. 263) given after the Supreme Court had remanded the case to enable the High Court to review its order directing the registration of a case. The remand order of the Supreme Court is reproduced in para. 9 below.

4. In the circumstances, on 1-9-1979,1 had desired that a Law Officer be deputed by the learned Advocate-General to assist this Court and Mr. Khalil Ramdey, learned Assistant Advocate-General has appeared.

5. Whenever an offence is committed, it may be reported to an Officer Incharge of the Police Station under Chapter XIV of the Code of Criminal Procedure, 1898. If the information relates to the commissioniog of a cognizable offence, section 154 requires that it be reduced into writing by the Officer Incharge of the Police Station. Such information is required to be entered in the First Information Report Register and the Station Diary under Police Rule 24.1. Thereafter, under section 156 the Police is entitled and indeed duty bound to investigate into the offence. Where this is not done by the Police Officer and the aggrieved approaches this Court under Article 199 of the Constitution, this Court may direct the registration of the case. Reference may be made to the judgments of this Court in M. Anwar's case (P L D 1972 Lah. 493), Sawant's case (P L D 1975 Lah. 733) and Muhammad Khan's case (P L D 1977 Lah. 424 ). However, where no investigation is required to be done this Court can instead direct the petitioner to the other alternate remedy of resorting to a complaint under Chapter XVI of the said Code (Ref. Shah Muhammad's case (P L D 1978 Lah. 1323 ? ). Where the Court feels that a direction to the Police to register and investigate the case will be counter productive, it may similarly direct the aggrieved party to file a complaint (Ref. Bashiran Bibi's case (P L D 1978 Lah. 1323 ? ).

6. Where the information conveyed to an Officer Incharge of a Police Station relates to the commissioning of a non-cognizable offence, such officer is required to enter it in the Station Diary under section 155 of the Code and Police Rule 24.3. However, the Police cannot investigate a non-cognizable offence without the order of a competent Magistrate.

7. More often than not, whenever a cognizable offence is committed both the contending parties have their own versions of the occurrence, each claiming that the opposite-party is the aggressor and has committed the offence, and itself claims to be the aggrieved party. In other words, their versions are counter to each other in material details. It goes without saying that the Police is bound to record, the information regarding the commissioning of a cognizable offence as an F.1. R. and in the circumstances whichever party manage to convey such information earlier in time, ordinarily faces no problem in getting the F. I. R. recorded. Such difficulty however does arise for those who desire the recording of their version of the incident after an F.

1. R. in relation to the incident has already been recorded. The question which arises in such situations is, whether every information conveyed to a Police Officer regarding commissioning of a cognizable offence is to be recorded as an F.

1. R. under section 154, Cr. P. C., i.e. will there be as many F. I. Rs. as there are informations/versions or can the Police Officer refuse to record such information/version as an F.

1. R. and instead record it as a statement given to the Police in the process of investigation under section 161 of the Cr. P. C.

8. In this connection, reference may be made to some observations in the leading Privy Council case of Emperor v. Nazir Ahmad (AIR 1945 P C 18), where in relation to the two informations conveyed to the Police it was observed that .

". . . . each discloses a separate offence, the second not being a mere amplification of the first, but the disclosure of further criminal activities ... ..."

9. The issue was taken note of by the Supreme Court in Ghulam Siddique's petition for leave to appeal and the Court's short order thereon is as under :

"It appears to us that once the case was registered vide F. I. R. 23 dated 7-2-76 in respect of the murder of Haji Jewan the registration of a fresh report notwithstanding the divergent version contained therein was not called for inasmuch as the ball bad already been set rolling and the Police was not only competent but also duty bound to unearth the true facts and trace the real culprits. The impugned order seems to be the result of some confusion or accidental slip. Indeed learned counsel pointed out that on the same day on similar facts the learned Chief Justice had declined to issue any direction to the Police for the registration of afresh case regarding the same transaction though a counter version was alleged in that case also. In these circumstances we consider the better course would be to approach the High Court for a review of the order, and there is no reason why the High Court should not rectify the situation." (Ref. P L D 1979 Lah. 263).

10. It is in this context that the observations of Shafi-ur-Rehman, J. and those contained in Akram Ali Shah's case and Ghulam Sididque's case can be properly appreciated. These are produced below for facility of reference:

Shafi-ur-Rehman, J.

"From the facts stated it appears that on the night of 9-5-1978 a report was lodged at the police station by Fazal Din with regard to the occurrence involving the persons of the petitioner's party and what the petitioner now wants to report to the police is a cross-case arising out of the same occurrence. As a case has already been registered and a different version with regard to the same is to be reported, the Police cannot be commanded to register as many F.

1. Rs. as there are versions to it. It will be for the petitioner to take up his case either by a complaint or prove his version, during the trial. The petition is dismissed." (Ref. P L D 1979 Lah. 320).

Akram Ali Shah's case

"If the accused of a particular case have a counter version for purposes of defence only then it is obvious that they are not handicapped in any manner whatsoever, even if a formal F. T. R. containing that version is not in existence. On the other hand, however, if the accused of a particular case have a counter version by way of a grievance, then unless a formal F. I. R. containing that grievance exists, the accused of the counter case could get away without any punishment therefore in a situation of the latter type the existence of a counter F. I. R. would appear to be equitable, as a private complaint is erroneously not given the due importance."

Ghulam Siddique's case

"It is quite obvious that the primary purpose of the F.1. R. is to inform about the commission of a cognizable offence, which a Police Officer is empowered to investigate under section 156, Cr. P. C. The Police Officer receiving that information may question the informant to find out his source of information, about the names of the offenders and the witnesses and whether the informant himself was an eye-witness as laid down in rule 21.1(4). All other informations with regard to that occurrence coming out later in point of time have to be taken down as statements of those persons before the police under section 161, Cr. P. C."

11. It will be seen that distinction is to be drawn between a version being given for purpose of defence only and a version being given by way of grievance. In the former category, the accused and the offences are ordinarily the same and information in amplification of that recorded earlier is being conveyed. 1n the latter category of cases separate offences are disclosed and even the persons complained against may be different. The distinction i material for whilst in the former case the registration of on F. I. R. is required by law, in the later it need not be recorded as an F.

1. R. but as observed in Ghulam Siddique's case may be recorded as a statement under section 161 of the Cr. P. C. s. A. H.

Order accordingly.