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Petitioner: HAZOOR BAKHSH VS Respondent: SENIOR SUPERINTENDENT OF POLICE, RAHIMYAR KHAN
Court Name: Lahore High Court Judge(s): Mian Allah Nawaz, Muhammad Zafar Yasin Title:HAZOOR BAKHSH vs SENIOR SUPERINTENDENT OF POLICE, RAHIMYAR KHAN
JUDGMENT
Reported As: PLD 1999 Lahore 417 Result: Order accordingly Judgment JUDGMENT ' MIAN ALLAH NAWAZ, J.---This judgment will govern twenty two Constitution Petitions bearing No,4332, 4385, 4390, 4411 to 4414, 4423, 4427 to 4431, 4433, 4434, 4450, 4458 to 4462 all of 1998. All of these petitions have been filed under Article 199 of the Constitution with prayer that a direction be given, in the form of mandamus, to the Station House Officers of various police stations/commanding them to record statements of ,the petitioners in the first information registers and thereafter, proceed with the investigation of the reported occurrence. 2. Factually, all these petitioners fall in the same category which was dealt with by one of us (Mian Allah Nawaz, J.) while deciding Writ Petition No,1689 of 1996 vide order dated 1-8-1996. It is necessary to note at this stage that inflow of such petitions in this Court had assumed unprecedented magnitude. The record of this (Bahawalpur) Registry reveals that 2181 Constitution petitions were filed in 5 months/from 1-1-1996 to 30-6-1996; that out of. These Constitution petitions. 602 were against the S.H.Os. Who had declined to record the statements of the petitioners in the first information registers and 198 petitions related to acts of police excesses. Clearly 1/3rd of petitions, so filed, were directed against the functionaries of police establishment. Faced with such petitions, one of us (Mian Allah Nawaz, J.) heard all those petitions together and attended to interaction between various relevant provisions/sections 154 to 173, Cr.P.C. Along with relevant rules. Mr Jaffar Hashmi, Advocate, Mr. M. Mahmood Bhatti. Advocate, were associated as amicus curiae, while the learned counsel for the petitioners argued on behalf of their clients. Deputy Inspector- General, Bahawalpur Range, was also associated who submitted written note.
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3. On the consideration of contentions of the learned counsel for the parties, written note presented by the Deputy Inspector-General, Police, Bahawalpur Range, and argument of Assistant Advocate- General, Court laid down following rules:- "Firstly: That Magistrate, under section 156 (3) of Cr.P.C. Has ample powers to order the investigation of the case if he receives the complaint/disclosing commission of cognizable offence. After the separation of judiciary from Executive, the Judicial Magistrates have become wholly free from any influence by the Executive. This Court has, therefore, no room to entertain any doubt that the Magistrate will not exercise his authority under section 156(3) of Cr.P.C. Fearlessly and without extraneous influences. The power under section 156(3) resides in the Magistrate having power to take cognizance of the case under section 190 of the Cr.P.C. The moment, the concerned Magistrate receives complaint, he may, forward it to the concerned police station for investigation of the case or he may record the statement of the complainant under section 202 and further proceed under sections 202, 203 and 204 of Cr.P.C. In my considered opinion, remedy embodied in section 156(3), Cr.P.C. In the changed scenario, is quick, convenient and effective for all intents and purposes within the terms of Article 199 of the Constitution. ' Secondly: The remedy prescribed in Section 200 of Cr.P.C. Is effective and alternative in nature. In the words of his Lordship Aftab Hussain, J. '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 the writ jurisdiction under Article 199 of the Constitution. The advisability of exercising a discretion in favour of a petitioner can be collected only through the agency of police.' In short, the remedy provided under sections 202 and 203 cannot be described as ineffective and inadequate within the terms of Article 199 of the Constitution. The power of the High Court to issue writ, however, is extraordinary and can be exercised in cases which fall within the category mentioned by my brother Aftab Hussain, J; ' Thirdly: Although no hard and fast rule can be prescribed for dealing with such petitions, with mathematical exactitude and facts of each case will have to be examined for reaching the conclusion as to whether the petitions can be entertained without availing of the afore stated remedies, yet it can be safely said that doctrine of alternative remedy/exhauster prescribes the healthy and orderly mechanism of filtration; a person, who wants to avail of a Constitutional remedy, is bound to show that either he has no other alternative remedy or he had tried to avail such remedy but in vain or he must show that the action on the part of the functionary of the State is so illegal and without jurisdiction and that it would be useless to approach the concerned authorities on account of their bias. Seen from these angles, it is quite clear that a person who wants to file such petition must, in the first instance, approach the superior police hierarchy constituted under the Police Act, i,e, the D.S.P., S.P., S.S.P., D.I.-G. And I.-G., then he should move the Magistrate concerned under 156(3) of Cr.P.C. If he fails, he still is well within his right to file complaint. No doubt, this Court may exercise its power of mandamus in exceptional cases or in category case noted above." 4. However, the coming of such petitioners remained unabated. On 14-9-1998, 22 petitioners came up for hearing before one of us (Mian Allah Nawaz, J.). The learned counsel for the petitioners submitted that the rules enunciated in the judgment dated 1-8-1996 in W.P. 1689 of 1998 titled "Nazir Ahmed Siddiqi v. S.S.P. Etc." were not being followed by the District Complaint Committee; that therefore, the ratio laid down in Nazir Ahmed Siddiqi's case was not correct and needed re- examination. In the context of the aforesaid circumstances, one of us (Mian Allah Nawaz, J.)
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requested our lord the Chief Justice to constitute a larger Bench for examination of ratio of Nazir Ahmed Siddiqi's case. The Hon'ble Chief Justice was pleased to accede to his request and by telephonic order, constituted Division Bench comprising of ourselves. In this background, all these petitions were laid before Division Bench on 16-9-1998. The learned A.A.-G. Entered appearance along with the Deputy Inspector-General of police Bahawalpur Range, Bahawalpur who had entered appearance on Court's call. 5. Mr. Abdur Rehman Tayyib, Advocate opened the debate on behalf of the petitioners. He contended that the Complaint Committee, constituted by the Inspector-General, Punjab in various Districts were not lawful entities that these committees were not provided by any statute or by any rule and so they were devoid of any legal authority. On the strength of the above arguments, he suggested that the decision of this Court in Nazir Ahmed Siddiqi's case be modified and petitions be sent to the concerned S.S.Ps./S.Ps. Of each District to deal with the grievance of the petitioners. 6. The arguments submitted by Malik M. Farrukh Mahmood, Advocate, who entered next in the debate can be summarised as below: (i) That the language of section 154 of Cr.P.C. Clearly shows that it is compulsory in nature and the S.H.O, has no authority, whatsoever, to refuse to record the statements of the complainants in the register if it discloses commission of cogniazble offence. According to him, if he does not do so, this Court has ample power under Article 199 of the Constitution to direct him to record the statement of the complainant and thereafter, proceed in the matter in accordance with law. Reference was made to Muhammad Hanif v. The State (1977 PCr.LJ 425), Dilawar Ali v. S.S.P. District East Karachi (1989 PCr.LJ 814) and Haji Muhammad Khan v. Ch. Khizar Hayat (PLD 1977 Lah. 424). (ii) That the remedies provided under sections 156(3) and 202, Cr.P.C, are neither adequate, nor efficacious. Reliance was placed upon Capt. (Retd) Naqiullah v. Chairman State Engineering Corporation Ltd (1989 CLC 2384), Muhammad Yousaf v. Collector of Sea Customs, Karachi (PLD 1969 Supreme Court 153) and Liaquat Ali and two others v. State and another (PLD 1989 Karachi 481). (iii) That this Court had no power to give any direction to police authorities to provide machinery for the purpose of dealing with such complaints. He relied upon State of Behar v. J.A.C. Saldanna (AIR 1980 SC 326). (iv) That sections 154 and 156(3) of Cr.P.C. Cater for different situations. According to him, first section mandates the Station House Officer to record the statement of the aggrieved person, if it discloses commission of cognizable offence and thereafter, proceed strictly in accordance with law, while the latter section empowers the Magistrate to order investigation of any offence having occurred within his territorial jurisdiction. On this line of argument, it was canvassed that this Court must intervene directly in order to come to rescue of the aggrieved person. That in the alternative, the learned counsel suggested that a mechanism be evolved which can ensure that superior police hierarchy/complaint committee has attended to the complaint of the aggrieved person against subordinate police hierarchy so that the aggrieved persons can come to the Court in circumstances in which his voice has not been attended. (vi) That the Police is constituted under the Police Act, 1861; that this Act provides a centralized model of police organization; that the police establishment constituted under section 2 of Police Act, is controlled by the I.-G. Police appointed under section 12 of the Act; that this Act is wholly outdated and does not take into consideration the centrifugal forces; that the police constituted under this Act comprises of two layers, namely the superior hierarchy and subordinate hierarchy. The S.H.O. Is on the bottom of this police organization; that he is invested with awesome powers; that the superior hierarchy comes' from three sources namely rankers, central superior services and the armed forces. On the strength of the above structure of this organisation it was stated that the constituted units of this force remain almost at logger head with each other and this does not
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inspire confidence, discipline and healthy orientation. The learned counsel so strongly submitted that it was time that the Scheme of police organization as laid down in the Police Act, 1861 be debated and this Act be improved to meet the changing need of the time; (vii) that the Corruption has become so rampant in all walks of life that it is not possible for an ordinary citizen to breathe in the ,air without it. The first information reports, according to the learned counsel, cannot be lodged without greezing palms of the S.H.Os. Who are in charge of basic unit of police organisation. The superior hierarchy of police has become sluggish, inefficient and functions under the vitious influence of political leaders.-- This being the position the only remedy, according to the learned counsel, available to a citizen is the relief under Article 199 of the Constitution. On the basis of above circumstances, it was pleaded that this Court should not provide any barrier for filing petitions of this nature in the High Court. Continuing the learned counsel said that the District Complaint Committees so constituted were not competent to deal with complaints of the petitioners. 6. Mr Abdur Rasheed Rashid, Advocate then Submitted his arguments. According to him, remedies provided under section 156(3) and section 202, Cr.P.C. Were neither sufficient nor were alternative and so the Court should not send these cases to S.S.Ps./Complaint Committees and must issue writ to the concerned Station House Officer. This line of arguments was adopted by M/s. M. Akhtar Chishti, Advocate, Ch. Shafi Muhammad Tariq, Advocate, Ch. Manzoor Ahmed, Advocate, Sardar Muhammad Aslam Khan, Advocate, Malik Muhammad Hanif Ghaffari, Advocate, Muhammad' Aslam Khan Dhukar, Advocate, Sohail Mehmood Qureshi, Advocate, Pirzada Muhammad Jamil Saleem Aslam, Advocate, M.M.A. Pirzada, Advocate, Noor Muhammad 'Chishti, Advocate, Mian Muhammad Saleem Akhtar, Advocate, Inam-urRehman, Advocate, Ahmed Mansoor Chishti, Advocate, Ch.M. Safdar Nizami, Advocate, M. Aslam Minhas, Advocate, Raja M. Sohail Iftikhar, Advocate, Muhammad Sharif Bhatti, Advocate, and Jam Mehjoob Ahmed Lar, Advocate. ' Reliance was placed on Emperor v. Khawaja Nazir Ahmed AIR 1945 PC 18, M.Bashir Saigol and another v. State and another PLD 1964 Lah. 148, Gul Nawaz Lone v. S.H.O., P.S. Model Town, Gujranwala PLD 1990 Lah. 428, Riaz Ahmed and three others v. The State PLD 1994 Lah. 485, Ezekiel v. The Province of Bengal AIR 1939 Calcutta 746, The Emperor v. Kampurkuki and Dingur Singh 6 Cr.LJ 86, Dhanu Raut and others v. Emperor AIR 1928 Patna 59, Kala Sing and others v. Boma Singh AIR 1938 Lah, 457, Ibrahim and others v. Mitho PLD 1959 Kar. 381, Abdul Haleem v. Raja Qurban Hussain and others PLD 1965 Lah. 570, Aziz-ur-Rehman v. The State PLD 1960 Dacca 1054, Ghulam Ahmad v. The State PLD 1962 Lah, 280, Islam-ud-Din v. P.O. Singh and others 1995 MLD 372 and Nazeer Ahmad v. Khushi Muhammad and two others 1974 PCr.0 579. 7. The learned A.A.-G., who appeared on behalf of the State, fully supported the rules enunciated in Nazir Ahmad Siddiqi's case, (supra). He contended that it was true that section 154, Cr.P.C. Was madantory in nature yet according to him, the remedies provided by section 156(3) and section 202 of Cr.P.C. Were adequate and were barrier, in way of availing relief under Article 199 of the Constitution. The Deputy Inspector-General, Police who appeared on Court's call, submitted that the orders of this Court were complied with by Complaint Committees and grievances of wronged persons were redressed. He assured the Court that the District Complaint Committees will maintain complete record of complaints/applications/petitions so received; that these Committees will do their duties as quickly as possible. He assured the Court that copying agencies will issue certified copies of complaints applications/petitions so received and orders passed over them so as to eliminate elements of secrecy and surreptitiousness. In order to augment his stand, he informed the Court that in year 1996, almost 160 Constitution petitions were received from this Court which were disposed of by the complaint Committees; that in year 1997, 310 petitions were received from Court out of which 309 were disposed of and only one was pending; Similarly in 1998 up to 15th September, 1998, 49 complaints had been received out of which 27 had been disposed of and the
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others are in the process of disposal. He further informed that the complaint Committees of each District comprised of S.P., Crimes Branch and a D.S.P. (Legal); that these Committees were fully capable to monitor and supervise subordinate police officials namely the Station House Officer of the Police Stations. 8. Having penned down the facts, circumstances of the petitions, in hand, the contentions put forth by the learned counsel for the parties we find following points arise for consideration: 9. (1) Whether section 154 of Cr.P.C. Is mandatory in nature and so the S.H.O. In charge of the Police Station is bound, under the law, to record the statement of the informant in the F.I.R. Register if such statement discloses commission of any cognizable offence? (2) Whether the remedy provided under sections 156(3) and 202 of Cr.P.C. Are effective, alternative and so the petitioners, without exhausting these remedies, are not entitled to file petitions under Article 199 of the Constitution. (3) On what circumstances and conditions, this Court should exercise its jurisdiction under Article 199 of the Constitution in such petitions? (4) Whether the District Complaint Committees constituted by the Inspector-General of Police, Punjab are legal entities and are competent to redress the grievances of the petitioners?" 9. With regard to first point/question, it is sufficient to say that this was referred to Full Bench in M. Anwar, Barrister-at-Law v. The Station House Officer, Civil Lines, Police Station, Lahore PLD 1972 Lah. 493. Sardar Muhammad Iqbal, J., as he then was speaking for the Bench said: "Before parting with the case, we would like to observe that if there is an information relating to the commission of a cognizable offence, it falls under section 154 of the Code of Criminal Procedure and a police officer is under a statutory obligation to enter it in the prescribed register. The condition-precedent is simply two-fold; first, it must be an information and secondly, it must be related to a cognizable offence on the face of it and not merely in the light of subsequent events. A police officer is bound to receive a complaint when it is preferred to him, or where the commission of an offence is reported to him orally he is bound to take down the complaint. If he does not incorporate in the register a complaint so made, he fails to perform a statutory duty as a public servant and, therefore, renders himself to be dealt with by his superior officers for neglect of duty. Thus, it does not depend on the sweet will of a police officer who may or may not record it. The information referred to in section 154 of the Code of Criminal Procedure appears to us to be something in the nature of a complaint, or accusation, or at least information of a crime, given with the object of putting the police in motion in order to investigate. In the case of a first information, it is not required by the law that the police officer is to receive it only if it is given in writing and to record it only if in his opinion it is correct. The question whether or not it depends on the investigation which a Police Officer is to conduct under section 157 of the Code of Criminal Procedure. The guarantee of the correctness of the first information is ensured by section 182 of the Pakistan Penal Code under which if any person gives the first information statement to a police officer which is recorded under section 154 of the Code of Criminal Procedure, and if it ultimately turns out to be false, the informant shall be liable to punishment with imprisonment of either description for a term which may extend to six months, or with the fine which may extend to one thousand rupees, or with both." 10. The view taken in M. Anwar's case (supra), was followed by the Full Bench of this court in Riaz Ahmad v. State PLD 1994 Lah. 485 and was held as under: "This case thus lays emphasis on the performance of a statutory duty by the Police Officer as a public servant, and Police Officer failing to comply with the mandate of law contained in sections 154 and 155, Cr.P.C. Renders himself liable to be dealt with in accordance with law. These provisions on the one hand curb arbitrariness of the police officer and on the other secure to citizen a record to be referred to for the purpose envisaged by law. The freedom of movement and personal liberty
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of citizens is sought to be secured by enjoining the Police Officer to record the F.I.R. Or at least substance thereof in the daily diary. At the same time, it is to be kept in mind that for commencement of investigation, in a crime the recording of F.I.R. Is not a condition-precedent. What is the effect of non-performance of a statutory duty is a separate question and is effect in a given case is to be canvassed by the parties and will be determined by the Court in the circumstances of each given case. We, therefore, answer the first question accordingly." 11 The ratio deducible from above precedents is that section 154, Cr.P.C, is obligatory in nature and S.H.O. Has no option but to record the statement of the complainant in the relevant register, if it discloses the commission of cognizable offence. If he finds that the occurrence reported does not amount to any cognizable offence he has to record a report under section 155, Cr.P.C. The omission to do so is liable to penal as well as disciplinary action under the relevant rules and section 29 of the Police Act. This Act also falls within the ambit of section 217 of P.P.C. This being the position we find, without any sense of doubt, that section 154, Cr.P.C. Is pre-emptory in nature. 12. In order to answer second and third points/questions it is necessary to examine sections 154, 156, 157, 190 and 200 to 204 of Cr.P.C. The aforesaid provisions were examined by the Supreme Court of India in D. Lakshminarvana v,. V. Narvana AIR 1976 SC 1672. In that case, respondent No,1 had filed a complaint on 26-7-1975 before a Magistrate against alleging that the appellant along with his colleagues had committed offences punishable under sections 147, 148, 149, 307, 395, 448, 378 and 342, P.P.C. The offence under sections 307 and 395, P.P.C. Were exclusively triable by a Court of Session. Having received complaint, the Judicial Magistrate sent it to the police for investigation. Feeling aggrieved, the aPpellant moved a petition in the High Court for quashment of above order but in vain. Against that, the appellant preferred an appeal which was dismissed by the Supreme Court. Dealing with the ambit of section 156(3), Cr.P.C. The learned Judge observed: "Section 156(3) occurs in Chapter XII, under the caption: 'Information to the Police and their powers to investigate': while section 202 is in Chapter XV which bears the heading 'Of complaints to Magistrate'. The power to order police investigation under section 156(3) is different from the power to direct investigation conferred by section 202(1). The two operate in distinct spheres at different stages. The first is exercisable at the pre-cognizance stage the second at the post-cognizance stage when the Magistrate is in seisin of the case. That is to say in the case f a complaint regarding the commission of a cognisable offence the power under section 156(3) can be invoked by the Magtistrate before he takes cognizance of the offence under section 190(1)(a). But if he once upon the procedure embodied in Chapter XV, he is not competent to switch back to the pre-cognizance stage and avail of section 156(3). It may be noted further that an order made under subsection (3) of section 156, is in the nature of a peremptory reminder or intimation to the police to exercise their plenary powers of investigation under section 156(1). Such an investigation embraces the entire continuous process which begins with the collection of evidence under section 156 and ends with a report or charge-sheet under section 173. On the other hand, section 202 comes in at a stage when some evidence has been collected by the Magistrate in proceedings under Chapter XV, but the same is deemed insufficient to take a decision as to the next step in the prescribed procedure. In such a situation, the Magistrate is empowered under section 202 to direct, within the limits circumscribed by that section, an investigation for the purpose of deciding whether or not there is sufficient ground for proceeding.' Thus, the object of an investigation under section 202 is not to initiate a fresh case on police report but to assist the Magistrate in completing proceedings already instituted upon a complaint." (The Underlining are of ours). ' The learned Judge, while examining sections 156, 200 and 202, Cr.P.C. Held:-- "In the instant case the Magistrate did not apply his mind to the complaint for deciding whether or not there is sufficient ground for proceeding; but only for ordering an investigation under section 156(3). He did not bring into motion the machinery of Chapter XV. He did not examine the
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complainant or his witnesses under section 200, Cr.P.C. Which is the first step in the procedure prescribed under that Chapter. The question of taking the next step of that procedure envisaged in section 202 did not arise. Instead of taking cognizance of the offence, he has, in the exercise of his discretion, sent the complaint for investigation by the police under section 156. ' This being the position, section 202(1), 1st Proviso was not attracted. Indeed, it is not necessary for the decision of this case to express any final opinion on the ambit and scope of the 1st Proviso to section 202(1) of the Code of 1973. Suffice it to say, the stage at which section 202 could become operative was never…
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