Mst. QASIM JAN Versus SENIOR SUPERINTENDENT POLICE, DISTRICT NEELUM AZAD KASHMIR

RAZA ALI KHAN, J. ---Through this petition filed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, following relief is prayed for:

"It is, therefore, very humbly prayed that by accepting the writ petition, read with section 561-A, Cr.P.C. order of the Justice of Peace, District Neelum in Criminal Miscellaneous No.8, decided on 20.01.2018, may very graciously be set aside and respondent No.3 may very kindly be directed to register a criminal case against the culprits in accordance with contents of the applications, submitted by the petitioner and relatives of the petitioner, for registration of criminal case."

Precise facts of the case are that Khateeb-ur- Rehman, grandson of petitioner herein, died on 28.05.2016 and his dead body was found lying at the bank of Chanjat water channel. Muhammad Riafat reported the matter to the police, whereupon the police started proceedings under section 174, Cr.P.C. Postmortem was conducted and necessary items were sent to Forensic Science Laboratory. After obtaining report from Forensic Science Laboratory and the report of doctor who conducted the postmortem of deceased and declared the death of deceased as natural, submitted report before the concerned Magistrate who consigned the proceeding to the record. Thereafter, on 06.06.2019, Bashir Ahmed, father of the deceased filed application before SSP Neelum for initiation of the proceedings against the accused mentioned in the application. Bashir Ahmed, father of the deceased also approached to IG Police for registration of the case and when the police did not register the case, Mst. Qasim Jan, petitioner herein, filed an application under section 22-A, Cr.P.C. for registration of FIR before Sessions Judge/ Justice of Peace, Neelum on 28.08.2017, stating therein, that Khateeb-ur-Rehman was in fact murdered but the police has failed to perform his duties and registered the FIR. The other side filed objections on the application. After hearing the parties, the learned Sessions Judge/Justice of Peace rejected the application vide impugned order dated 20.01.2018, hence, the captioned writ petition.

Syed Hazoor Imam Kazmi, learned Advocate appearing for the petitioner reiterated the contents of the application filed by Muhammad Riafat that the applicant was resident of Lehri Mangal. His real nephew Khateeb ur Rehman on 25.05.2016 went with Abid Forest Guard resident of Kaiyan Shareef for earning and came back to home at night. On 27.05.2016, as usual Abid went towards Jungle and did not come back. On 28.05.2016, they found the dead body of Khateeb-ur-Rehman lying in the jungle. The learned Advocate further argued that postmortem of the deceased was conducted and as per column No.23 of autopsy report, a rope was also found from near the dead body and as per column No.13, there was swelling on the neck of the deceased which clearly suggested that he has been murdered but the doctor who conducted the postmortem without any medical investigation declared the death of the deceased natural due to disease of epilepsy. The learned Advocate contended that the doctor who conducted postmortem was close relative of suspected accused, therefore, the suspected accused in connivance with the doctor and the police maneuvered the murder as natural death.

The learned Advocate appearing for the respondents contended that no cognizable offence seemed to have been committed after taking into consideration the allegation and the facts narrated in the applications. It is also stated that at no stage during the inquiry proceedings it could be found that death was due to any act of any person. The learned Advocate submitted that the police proceeded in the matter under section 174, Cr.P.C. and when they found the death of deceased as natural, presented the report before the concerned Magistrate, therefore, Justice of Peace rejected the application filed under section 22-A, Cr.P.C.

I have heard the learned counsel for the parties and gone through the record of the case.

Keeping in view the facts and circumstances of the case, it would be appropriate to reproduce the relevant provisions of the Code of Criminal Procedure, 1898 which reads as under:-

154. Information in cognizable cases. Every information relating to the commission of 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.

156. Investigation into cognizable cases. (1) Any officer incharge of a police-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 subsections (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.]

157. Procedure where cognizable offence suspected. (1) If, from information received or otherwise an officer incharge of a police-station has reason to suspect the commission of an offence which he is empowered under section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police-report, and shall proceed in person, or shall depute one of his subordinate officers not being below such rank as the Provincial Government may, by general or special order, prescribe in this behalf to proceed, to the spot, to investigate the facts and circumstances of the case, and, if necessary to take measures for the discovery and arrest of the offender: provided as follows:

(a) Where local investigation dispensed with. When any information as to the commission of any such offence is given against any person by name and the case is not of a serious nature, the officer incharge of a police-station need not proceed in person or depute a subordinate officer to make an investigation on the spot.

(b) Where police officer incharge sees no sufficient ground for investigation. If it appears to the officer incharge of a police-station that there is no sufficient ground for entering on an investigation, he shall not investigate the case.

(2) In each of the cases mentioned in clauses (a) and (b) of the proviso to subsection (1) the officer incharge of the Police Station shall state in his said report his reasons for not fully complying with the requirements of that sub-section and in the case mentioned in clause (b), such officer shall also forthwith notify to the informant, if any, in such manner as may be prescribed by the Provincial Government, the fact that he will not investigate the case or cause it to be investigated."

174. Police to inquire on suicide, etc. (1) The officer incharge of a police-station or some other police-officer specially empowered by the Provincial Government in that behalf on receiving information that a person:

(a) has committed suicide, or

(b) has been killed by another, or by an animal, or by machinery, or by an accident, or

(c) has died under circumstances raising a reasonable suspicion that some other person has committed an offence, shall immediately give intimation thereof to the nearest Magistrate empowered to hold inquests, and, unless otherwise directed by any rule prescribed by the Provincial Government, shall proceed to the place where the body of such deceased person is, and there, in the presence of two or more respectable inhabitants of the neighbourhood, shall make an investigation, and draw up a report of the apparent cause of death describing such wounds fractures, bruises and other marks of injury as may be found on the body, and stating in what manner, or by what weapon or instrument (if any), such marks appear to have been inflicted.

(2) The report shall be signed by such police officer and other persons, or by so many of them as concur therein, and shall be forthwith forwarded to the Magistrate.

(3) When there is any doubt regarding the cause of death, or when for any other reason the police officer considers it expedient so to do, he shall, subject to such rules as the Provincial Government may prescribe in this behalf, forward the body, with a view to its being examined, to the nearest Civil Surgeon, or other qualified medical man appointed in this behalf by the Provincial Government, if the state of the weather and the distance admit of its being so forwarded without risk of such putrefaction on the road as would render such examination useless."

The First Information Report sets into motion the process of criminal machinery. Hon'ble Supreme Court of Azad Jammu and Kashmir and Pakistan through various authoritative judgments have time and again taken an unequivocal view that where complaint is made to the concerned police officer which disclose commission of cognizable offence, it is the statutory duty of police to register the FIR and then proceed to hold investigation in the complained offence but unfortunately voice of Hon'ble Supreme Court and this Court fallen in deaf ears. It is experienced and observed that not only the police officials of lower rank but also of the higher ranks ignores the statutory law and directions of the Courts consistently, hence, reminder of the same to the Azad Jammu and Kashmir police and other concerned investigating agencies once again is necessary. The leading judgments of the Hon'ble Supreme Court on the subject are reproduced as under:-

(i) Case titled "Muhammad Rashid Rathore v. SHO. City Police Muzaffarabad and 2 others" (1996 SCR 107), wherein, Supreme Court of Azad Jammu and Kashmir has observed as under:

"It may be pointed out that if report made to a police officer is ambiguous and merely based on a doubt, the officer concerned is not bound to register a case straightaway without probing into the matter. However, we would like to make it clear that if any such report clearly indicates the commission of a cognizable offence, police officer cannot refuse to register a case on the ground that first he would satisfy himself about the truth of allegations made and then register a case; in such an eventuality, he is bound to register a case forthwith."

(ii) Case titled "Liaqat Ali and 2 others v. Raja Shahid Nawaz and 2 others" (2007 PCr.LJ 246), wherein, Supreme Court of Azad Jammu and Kashmir has opined as under:

"No doubt investigation must follow FIR and registration of a case after preliminary investigation is not only illegal act but it also creates serious doubts. However, in the present case according to statement of Syed Zaffar Hussain Gardezi, who was Incharge Chowki Police Mangla, he received information on 23.9.1984 that the parties are fighting with each other. On this information he rushed to the place of occurrence along with the police where he recorded the statement of complaint, Liaqat Ali son of Muhammad Alam. In his opinion the offence was committed, under sections 307/447, A.P.C. read with sections 14/15, I.P.L. Act. He sent the statement so recorded by him to the police station for registration of case. He never admitted anywhere that any investigation was conducted by him except recording the statement of complainant. In our view, a prosecution case cannot be thrown merely on the ground that F1R was recorded after preliminary investigation. However, it is a serious irregularity which creates doubt. It would however not vanish the sanctity attached to section 154, Cr.P.C."

(iii) Case titled "Kh. Muhammad Naheem and 4 others v. Justice of Peace and 5 others" (2014 SCR 1049), wherein, Supreme Court of Azad Jammu and Kashmir has held as follows:

"The provisions of section 154, Cr.P.C. are mandatory. The SHO has no option except to register the said information and if any cognizable offence is made out from the contents of the application, he shall start the investigation in the matter."

(iv) Case titled "Shan Muhammad v. Muhammad Younis and 4 others" (2014 SCR 183), wherein, Supreme Court of Azad Jammu and Kashmir has observed as under:

"8. Part V of the Criminal Procedure Code relates to the information to the Police and its powers to investigate. Under section 154 of Cr.P.C. every information relating to the commission of a cognizable offence, if given orally to an officer in charge 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."

(v) Case titled "Muhammad Nazir v. Justice of Peace and 2 others" (2018 YLR 1599), wherein, Supreme Court of Azad Jammu and Kashmir has observed as under:

"The provisions of section 154, Cr.P.C., are mandatory in nature, which postulate that every information relating to the commission of a cognizable offence, if furnished orally or written to an officer-in-charge of a police station, shall be reduced to writing by him but in the case in hand, the concerned officer in-charge police station failed to discharge the statutory duty and proper course has been adopted by the respondent by approaching the proper forum i.e. the Justice of Peace. The purpose of registration of case is to set the law into motion and to obtain first hand spontaneous information of occurrence, in order to exclude possibility of fabrication of story or consultation or deliberation or complainant has time to device or contrive anything to his advantage and to the disadvantage of others and to safeguard the accused of such like happenings/occurrence in FIR."

Legislature clearly and cautiously used the word "information" in section 154 of Cr.P.C. without qualifying the same as used in other provisions of the Code wherein the expressions "reasonable complaint" and "credible information" are used. The intent of legislature to use the word "information" was for the reason that police officer should not refuse to record the information relating to the commission of a cognizable offence and to register thereon, on the ground that he is not satisfied with reasonableness or credibility of information. In other words "reasonableness" or "credibility" of the said information is not a condition or requirement for the registration of a case. Intention of legislature is very much clear by using the word "Every information relating to the commission of 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", so the police officer In-charge of a police station satisfying the requirement of section 154, Cr.P.C. has no other option except to register a case on the basis of such information and there can be no departure after plain reading of the provision of 154, Cr.P.C. that there is an inviolable duty cast upon the police officer In-charge of a police station or register an FIR.

Turning to the facts of the present case, a perusal of the record reveals that on the death of deceased one Muhammad Riafat filed application before City Police Station Authmaqam. Thereafter Bashir Ahmed, father of the deceased filed application before the S.P. District Neelum, which is reproduced as under:

When no action was taken by the police on the applications filed by Muhammad Riafat and Bashir Ahmed, he filed another application before I.G. Police for registration of FIR against the persons nominated in the application. The application filed before I.G.P. is reproduced as under:

The police did not take any action on the applications filed for registration of FIR for the murder of deceased, whereupon, Mst. Qasim Jan, filed application under section 22-A, Cr.P.C. before the Justice of Peace Neelum and disclose all the relevant facts but the learned Justice of Peace rejected the application vide impugned order dated 20.01.2018 on the ground that no cognizable offence appears to have been committed from the facts of the case, however, the learned Justice of Peace did not consider the relevant provisions of law. A perusal of the record further reveals that Injury Form of dead body was prepared and following injuries were mentioned in the injury form:-

The postmortem of deceased was conducted and the medical officer recorded following remarks:-

"The dead body was brought to hospital covered in clothes stained with sand particles. Same particles were also present in ear, nose, mouth and hands. Lips, ears and hands were cyanosed and blue in colour. Tongue was bitten. No evidence of physical assault on body. Specimen of brain, liver, kidney, lungs and stomach were sent to Forensic Laboratory Lahore, Punjab for chemical examination. No evidence of blood stains and poison on body. In my opinion, no evidence of any unnatural cause of death however the final report will be given after chemical examination report."

No doubt, the application filed by Muhammad Riafat did not disclose commission of any cognizable offence, however, in the second application filed before S.P. Neelum and third application filed by father of the deceased before I.G.P. sufficiently disclose the commission of cognizable offence of murder and even the accused were also nominated in the applications. The Police admitted that petitioner's family made several complaints to the police and the higher authorities, even copies of such complaints are annexed with captioned writ petition, which clearly states that the offence of murder of Khatib-ur-Rehman was alleged against the persons nominated in the application. On the face of aforesaid clear and explicit allegation levelled by the complaint what more was required to register an FIR by the concerned police officials is beyond the comprehension and understanding of this Court. The dead body lying in mysterious circumstances is there, injury sheet indicating the multiple injuries on the body of the deceased, complaint alleged the previous enmity with the suspected accused. Although police took a stand that there was need to conduct a preliminary inquiry and they conducted inquiry but found nothing, such like inquires are not the substitute of the FIR and proper investigation.

I have also gone through the postmortem report, wherein following wounds were mentioned on the dead body of deceased.

1. Scratch mark on (R) cheek.

2. One scratch mark on nose.

3. 3-4 scratch marks below the chin.

4. One bruise on the medial aspect of (L) arm.

5. Tongue bitten.

After receiving report of Punjab Forensic Science Laboratory, the doctor wrote following note:-

"According to Punjab Forensic Science Agency report read Certificate No.11/10 CS/06/16, there was no evidence of any Drug/Poison in the specimen of Mr. Khateeb-ur-Rehman son of Muhammad Bashir. So, the final cause of death is according to provisional report is not unnatural and is most probably is due to a disease called "Epilepsy".

The police in the present case has consumed a miserably long time in inquest proceedings, purpose of holding inquest proceedings as per section 174, Cr.P.C. is very limited but the police in garb of proceedings under section 174, Cr.P.C. refused to register the FIR of a cognizable offence reported to it. Police in this case can not take refuge of the said inquest report to say that based on the observation of inquest, postmortem and initial findings. Case in hand clearly depicts insensitivity of police department specially Police of District Neelum. I constrained to observe that police not only infringed the fundamental right of life of a State Subject, which is governed by the Interim Constitution 1974 but also violate the mandatory provisions of law of the State, and disbelieved the value of human life. Another unfortunate aspect of the case is that even senior officers of the police also showed poor approach by not taking prompt steps to direct the subordinates to register the FIR.

Although, there are a lot of lapse found in this case, but I restrained to comment and observe at this state of the case because allegedly suspect of this case (as evident from the applications by the complainant party before the police officials) are not party in this case, which may prejudice to the merit of the case. However, I cannot...... myself to observe that the police cannot contain the crime rate by not registering the FIRs. Crime rate can only be kept low if the police act fast in apprehending the criminals and not by avoiding the registration of cases in accordance with law and rules, which is the demand of the society.

This factual scenario is in my judicial notice as to how the provisions of section 154, Cr.P.C. is being worked out by the police officers in practice at the ground, filing of large number of petitions under section 44 of Constitution complaining inaction on the part of police authorities to register the case despite the application/complaints clearly disclose the cognizable offences but concerned police officers generally refuse to register the FIRs. The reasons for doing so are not very difficult to understand, even reasons given in reply of these petitions are mostly not justifiable nor reasonable. The very object of having police force is to register, detect and investigate the crime and prosecute the law invaders besides maintaining the law and order etc. I am of the view that law and order only can be maintained if the commission of crime is prevented. It is incumbent upon the police officers concerned to made strict compliance of provisions of section 154, Cr.P.C. rather than to embark upon a kind of preliminary enquires in order to ascertain the veracity of the allegations made in complaints/applications and if police after collecting the evidence and other materials an investigation come to conclusion that arrest of accused person become imperative after recording the reasons in case diary may arrest them after the registration of the FIR. Police is not bound to arrest the accused immediately until prima facie satisfied that accused/suspect of crime under the given circumstance is involved or where police considered that if arrest of accused taken will result the sabotaging the course of investigation. Police is always expected to take fair and impartial investigation, where found any accused innocent, he should be discharged under section 169, Cr.P.C. and in the case complaint/FIR founds baseless and false proceedings under section 182, Cr.P.C. should be initiated against the complainant. The petitioner and the entire family of deceased are facing agonizing traumatic period due to sudden death of deceased but they are forced to file one case after the other just for seeking the registration of simple FIR while the Police started proceedings under section 174, Cr.P.C.

In view of above, while accepting the captioned writ petition the impugned order of Justice of Peace Neelum dated 20.01.2018 is set aside and the police is directed to register the FIR in light of application filed by petitioner forthwith and proceed into the matter in accordance with law. Copy of this judgment shall be sent to the Inspector General of Police Azad Jammu and Kashmir and all the DIGs of the regions for intimation and compliance.

JK/79/HC(AJ&K) Petition accepted.