AKRAM ALI SHAH vs STATION HOUSE OFFICER, POLICE STATION KOTWALI, KASUR AND 2 Other

ORDBR In an occurrence on the 18th of September, 1978 in the area of Police Station, City Kotwali, Kasur, two parties of Syeds received injuries. The side of the petitioner received 15 injuries, whereas there were 21 injuries on the other side.

2. Soon after the incident both the sides were examined by the Doctor in the Civil Hospital, Kasur and each side according to the petitioner proceeded to the police station and gave information of their version. The local Police registered a case under sections 307, 325 and 148, P. P. C. Read with section 149, P. P. C. At the instance of the other side and did not register the case reported by the petitioner's side.

3. The petitioner approached the Superintendent of Police, Kasur who directed him to approach the D. S. P. The petitioner also made a written report to the District Magistrate who forwarded the same to the S. H. O. With certain observation. However, no case at the instance of the petitioner was registered by the Police. Hence this writ petition.

4. A reading of the writ petition gave me the impression as if the S. H. O. Had chosen to flout the order of the District Magistrate as wolf as the S. P., therefore, I sent for comments from both the superior officers. On receipt of the parawise comments from the respective officers, I also sent for the Superintendent of Police, Kasur as he is the Head of the Police in the District and it looked a case of deliberate dereliction of duty on the part of S. H. O.

The view taken by the S. P. Is that the S. H. O. Enquired into the matter and he found the petitioner's side aggressor, therefore, the case was not registered at his instance. The District Magistrate on seeking the report had consigned the application to record. The Superintendent of Police in this regard has drawn my attention to an unreported judgment of my brother Shaft-ur-Rehman, J.

Which being short is quoted below :- , "From the facts stated it appears that on the night of 9-5-1978 a report was lodged at the police station by Fazl 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. I. 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."

The Superintendent of Police seems to be having the impression that once an F. I. R. Is recorded, this Court has no jurisdiction "to command the registration of another case".

5. As far back as in 1915 Karl Loreburn in Flair & Co. Ltd. v. Chilton (1), gave a warning in the House of Lords "We ought to beware of allowing tests or guides which have been suggested by the Court in one state of circumstances, or in one class of cases, to be applied to other surroundings.

Their Lordships in the Supreme Court of Pakistan have adverted to this aspect in many cases, and by now it is a settled principle of law that ever thing said in a judgment, particularly in a criminal judgment, must be under-14 stood as having been said with regard to that particular case. My brother S. Rehman, J. Had not approved the case referred to above, for reporting, which should indicate that my brother was not laying down the observations made therein as a proposition of law, and that was an order being passed with reference to the particular facts of that case and not with reference to the interpretation of any of the provisions of Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 or any of the provisions of the Code of Criminal Procedure. The usage of the word `command' is being made in the sense that the circumstances of the case do not command or I may say warrant the granting of the relief as desired by the petitioner. I had the advantage of sending for the case from the record and I find that the order passed by my brother is fully justified as the facts of that case were that the petitioner's side in that case at mid-night trespassed in the house of the respondent for committing an offence. On being so found there, a scuffle took place, in which one of the side of the petitioner got killed. The matter was promptly reported to the Police who registered a case for trespass, etc. Against the petitioner's side. A few days later, presumably as an afterthought giving a different version they made an attempt to have a case registered against the complainant party of that case in whose house they. Had gone at the mid-night for no legal rhyme or reason and on failure m that attempt they filed a writ petition in this Court, in which, order referred to above was passed.

The facts of the present case are entirely distinguishable from that case. It is a day time occurrence. The incident is at a public place. Both the sides are injured ; both sides have been medically examined promptly and both the sides have proceeded to the Police promptly. Bearing in mind the particular facts of this case, refusal to register the case, at that stage, appears to be an arbitrary act on the part of the S. H. O. At that stage the Police had no material whatsoever to be able to either judge, as to who was the aggressor, or to form any opinion about the comparative veracity of the two versions placed before it. It is also not m consonance with the underlined' wording of the mandatory provisions of section 154, Cr. P. C. : Every information relating to the commission of a cognizable offence if given orally to an Officer incharge of 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 he 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."

[Here in italics]

(1) (1915)84LJKB 1147 Fair treatment warranted that the Police should have registered both the cases, recorded the evidence produced by both the sides and submitted the cross-cases to a Court for adjudication.

As the function of the Police is merely that of an investigating agency and not that of a Judge.

Whatever evidence is produced before the Police or they collect for or against a version reported to it, it is their duty to submit that to a Court which is to scrutinize or evaluate that evidence. The ultimate Judge in any cause is a Court of competent jurisdiction and not the investigating agency.

A bare reading of subsection (3) of section 173; Cr. P. C. Supports the view expressed by me above and clearly indicates that irrespective of the level or rank of the investigating officer, the result of the investigation is submitted to a Court which at the time of taking cognizance decides to agree with or not. If on the perusal of the record the Court chooses to disagree with the report submitted by the Police, irrespective of the fact that the same has been approved by the Inspector-General of Police, the order of the Magistrate prevails. In this view of the matter, there should be no doubt in the mind of the S. P. About the jurisdiction of this Court under the Constitution or Letters Patent, to be able to command in suitable cases, registration of a case.

5. It cannot be laid down as a proposition of law that if one F. I. R. Pertaining to a particular occurrence has been registered then another F. I. R containing the counter-version of thesame occurrence cannot or ought not to be registered. The facts of the case reported in Sawan v. The S. H. O. Polio Station Sadar, Kasur (1), decided by Ataullah Sajjad, J. Are closely parallel to the case in hand and I would respectfully agree with the view taken in that case : "The provisions of section 154, Cr. P. C. Are imperative in nature. The information relating to the commission of a cognizable offence has to be reduced by the S. H. O. Into writing and investigation has to be conducted therein. The version given by the complainant party only describes their side of the case as to how the offence was committed. The petitioner now insists that this version is not correct and that his side of the case should be investigated according to law. Of course, :t is open to him to file a complaint but the learned counsel for the petitioner insists that it is his right to demand that the Police should do their duty and investigate his side of the case.

I also say with great respect that the language of section 154, ' Cr. P. C. Is imperative and a police officer cannot dub the counter version as fake without first investigating the matter, His duty is to make investigation." It is for these reasons that I verbally directed the Superintendent of Police who was present here to have the case registered at the instance of the petitioner's side as well, though.

I wonder very much if the petitioner will get any effective relief in view of the stand already taken by the S. H. O. Or his superiors. The view taken by my brother S. Rehman, J. Which case I have distinguished on facts, is not applicable to the facts of this case. Acting in accordance with the observation made in that case can only help the petitioners in defending themselves and not for getting the other side, punished for their guilt if any proved against them before a Court of law. I the existence. On the other hand, however, if the accused of a particular ca have a counter version by way of a grievance, then unless a formal F.

1. R. Containing that grievance exists, the accused of the counter case could got 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 privet complaint is erroneously not given the due importance This view I consistent with the practice established over centuries of submitting challan in cross-cases in a Court of law.

The point involved basically related to the determination of public rights and the duty of public servants, therefore, I also asked for the assistance of the learned Additional Advocate-General. Mr. Khadim Mohayudin, Advocate, for the petitioner and the learned Additional Advocate-General Khawaja Muhammad Afzal have both supported the proposition that when an information disclosing the commission of a cognizable offence is given to the Station House Officer, it is his duty to register a case and the law does not give him any choice at that stage. Correspondingly that becomes the right of the petitioner, both of which can be validly, if desired, commanded by this Court. The learned counsel have also supported the proposition that the Police is only the investigating agency, which has to submit the result of its investigation for adjudication, to a Court of competent jurisdiction.

For the foregoing reasons, the petition succeeds and the respondent No. 1 is directed to register the case and proceed further in accordance with law.