MUHAMMAD RAMZAN vs THE STATION HOUSE OFFICER, P.S. JAHANIAN and anothers

ORDER

' This is a writ petiton under Article 9 of the Provisional Constitutional Order, 1981 for issuing a direction to the S.H.O., P.S. Jahania for the registration of a criminal case against the persons mentioned in para. 1 of the petition for murderously assaulting Faqir Hussain with knives and a broken glass on 7-7-1984. In support of the allegations medical certificate of Faqir Hussain has also been appended showing that he had suffered five injuries, three with sharp-edged weapons and two with blunt weapons.

2. A report was called from the S.H.O., P.S. Jahania. According to him', the occurrence as alleged in the petition had not taken place, no one had been injured during the throw of glasses between Muhammad Aslam and Faqir Hussain and that he had intervened and forced the parties to leave that place. According to him, the Medical Certificate of Faqir Hussain was bogus, application for the registration of the case was received by him through S.S.P., Multan but he dropped the matter in exercise of the powers conferred on him by section 157, subsection (2), Cr.P.C. Read with Police Rule 24, subsection (4) because the facts contained in the application were incorrect.

3. The learned A.A.-G. Was directed to address the Court on the powers of the police in this behalf.

He has referred to section 157 (1)(b), Cr.P.C. Which is to the following effect:- "if it appears to the Officer-in-charge of a police station that there is no sufficient ground for entering on an investigation, he shall not investigate the case."

' Rule 24.4 of the Police Rules has also been referred to by him. It is to the following effect:-

(i) If the information or other intelligence relating to the alleged commission of a cognizable offence, is such that an officer-incharge of a police station has reason to suspect that the alleged offence has not been committed, he shall enter the substance of the information or intelligence in the station diary and shall record his reasons for suspecting that the alleged offence has not committed and shall also notify to the informant, if any the fact that he will not investigate the case or cause it to be investigated.

(ii) If the Inspector or other superior officer, on receipt of a copy of the station diary, is of opinion that the case should be investigated, he shall pass an order to that effect, and shall, in any case, send on the diary or an extract therefrom to the District Magistrate for his perusal and orders."

' The contentions raised by the learned Assistant Advocate-General were considered in Haji Muhammad Khan v. Ch. Khizar Hayat and 3 others PLD 1977 Lah. 424 and were not accepted to be correct. In the said case it was observed that the provisions of rules 24.1 and 24.4 of Punjab Police Rules do not vest the police officer with the power to refuse to record the F.I.R. Under section 154, Cr.P.C. Rule 24.4 deals with the powers of investigation and not with recording of the F.I.R. The section as well as rule 24.1 used the word 'shall' making it incumbent upon the police officer to record the F.I.R. Sections 154 and 157, Cr.P.C. Deal with different contingencies, the former provides for the recording of the F.I.R. At the instance of a complainant while section 157, Cr.P.C. Deals with the procedure for ivnestigation A of a cognizable offence. The latter provision leaves it to the judgment of the police to refuse to investigate in certain cases but this power should not be confused with his responsibility to record the F.I.R. He has no choice in recording of the F.I.R. Though he has a discretion in making of investigation.

4. The learned A.A.-G. Has also referred to some case-law but the same is not relevant to the case in hand. The cases cited by him mostly pertain to a situation where a case had already been registered with regard to an occurrence and the other party wanted to get a cross case registered arising out of the same occurrence. On the other hand, the case-law cited by the learned counsel for the petitioner is about the statutory obligation of the Station House Officer to enter into prescribed register the complaint lodged with him relating to the commission of a cognizable offence.

In M. Anwar Barrister-At-Law v. S.H.O. Civil Lines Police, Lahore and another PLD 1972 Lah. 493, a Full Bench of this Court had held that a police officer is under a statutory obligation to enter an information relating to the commission of a cognizable offence in the prescribed register. It is not on his sweet-will to record or not to record it. The question whether or not the information is correct depends on the investigation which the police officer is to conduct under section 157 of the Code of Criminal Procedure. The guarantee of the correctness of the F.I.R. Ensured by section 182 of the P.P.C.

If the report given under section 154 of the Code of Criminal Procedure ultimately turns out to be false, the informant shall be liable to punishment. The question as to whether a police officer could investigate without formal registration of a case had also come up for consideration in Sheikh Naseem Ahmad v. D.I.-G. Police, Sargodha etc. NLR 1981 Criminal 155. The relevant portion of the order passed by the Division Bench may be reproduced below:- "Learned Advocate-General submits that inquiry was conducted into the allegations agianst the S.H.O. Respondent No,4, and no case has been found against him. He, however, concedes that such an inquiry is not envisaged under the Criminal Procedure Code. The investigation has to follow after the registration of the case under section 154, Cr.P.C. That having not been done the appellants are entitled to relief claimed.

' The S.H.O. Shall act in accordance with section 154, Cr.P.C. If approached with the commission of a cognizable offence."

5. In the present case the petitoner does not desire the registration of a counter case setting up a defence plea but prays for the registration of an independent case for murderously assaulting Faqir Hussain and the allegations as raised by him do spell out the commission of a cognizable offence the respondent is, therefore, under a legal obligation to register a case. Consequently, I accept the petition and direct the S.H.O. Concerned to register the case and proceed further in accordance with law.

' The petitioner will be liable to action under section 182, P.P.C. If the information given by him is ultimately found to be false.