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Petitioner: MUHAMMAD BASHIR VS Respondent: STATION HOUSE OFFICER, OKARA CANTT. and others
Court Name: Supreme Court of Pakistan Judge(s): Khalil-ur-Rehman Ramday, Raja Fayyaz Ahmad Title: MUHAMMAD BASHIR vs STATION HOUSE OFFICER, OKARA CANTT. and others Case No.: Civil Petition. No,512-L of 2006 Date of Judgment:2006-04-20 Reported As: PLD 2007 Supreme Court 539 Result: Order accordingly
Judgment ORDER ' KHALIL-UR-REHMAN RAMDAY, J.---Invoking the authority of the Sessions Judge of Okara as an Ex- officio Justice of the. Peace under section 22-A(6) of the Code of Criminal Procedure, 1898, Bashir petitioner complained that despite a written application submitted by him to the Officer In charge of the Cant. Police Station of Okara seeking registration of a criminal case against Faisal and Zahid respondents, the needful was not being done. He consequently prayed that the said S.H.O. Be directed to do what the mandatory provisions of section 154 of the Cr.P.C. Commanded him to do. 2, A learned Additional Sessions Judge who also stood nominated as an Ex-officio Justice of the Peace in terms of section 25 of the said Code and who had got entrusted with the said application, dismissed the same through an order dated 12-12-2005 which is reproduced hereunder:-- "Petitioner seeks direction in the name of S.H.O. For registration of case against respondents Nos. 3 to 4 and 2 unknown persons. 2. It is argued that on 3-11-2005 at about 7.15 p.m. Petitioner along with Muhammad Saleem and Shoukat All were coming back to his Chak when reached in the territorial limits of Chak No,51/3-R, 4 armed persons stopped his car and started searching petitioner and others. It is further contended that assailants looted away Rs,1,000 Pistol 30 bore along with licence, 3 I.D. Cards and police is still reluctant in registered of case. Hence this petition. 3. Police has submitted detailed report denying alleged occurrence. 4. Arguments heard. 5. According to the police report, no occurrence took place as alleged in this petition. Furthermore petitioner as betrayed to take oath on Holy Qur'an regarding the innocence of respondents Nos. 3 and 4. Police recorded statement under section 157(2), Cr.P.C.
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6. What has been discussed above this petition is without force, the same is hereby dismissed. File be consigned to the record room after its duly completion." 3. It appears from the record that despite dismissal of his above mentioned application by a learned Additional Sessions Judge, Bashir petitioner did not loose heart and continued his endeavors to have as F.I.R. Registered with respect to the crime allegedly committed against him. The record further reveals that his efforts did yield some fruit and the S.H.O. Did finally obliged him by recording the requisite F.I.R. On 25-1-2006. 4. But these fruits of Bashir petitioner's success did not last long as Faisal accused hastened to rush to, the Lahore high Court with a petition under Article 199 of the Constitution seeking quashment of the said F.I.R. No, 16 of 2006 of Police Station Cant okara registered for the alleged commission of offences punishable under sections 382 and 395 of the Pakistan Penal Code on the ground that the said F.I.R. Was totally false and baseless; that the local police had declared that no occurrence, as alleged, had ever taken place; that the F.I.R. In question had been recorded more than two months after the alleged occurrence and finally that the F.I.R. In question was rooted in malice. 5. Through a judgment dated 22-3-2006, the learned High Court quashed the said F.I.R. But only on the ground that Bashir complainant had maneuvered the recording of the same:-- ' After concealing the facts of the dismissal of earlier application by the learned Additional Sessions Judge...." 6. Hence this petition. 7. Needless to say that we have heard the learned counsel for the parties at length and have benefited, immensely, from the submissions made by them. 8. We have re-produced, in para. 2 above, the order dated 12-12-2005 passed by the learned Additional Sessions Judge on the above mentioned application submitted by Bashir petitioner praying for a direction to the concerned S.H.O. To record an F.I.R. With respect to the alleged occurrence in question. What transpires from perusal of the said order is that on receipt of the said application, the same was sent to the local police for its report thereon. The said police then held an enquiry into the veracity and the correctness of the allegations leveled therein and found that no such occurrence had ever taken place and reported further that Bashir petitioner had refused to take oath on the Holy Qur'an about the guilt of the accused persons and finally that the "police recorded statement under section 157(2) Cr.P.C." 9. Such an exercise of powers by the learned A.S.J under section 22-A(6), of the Cr.P.C. In such a manner raises some serious questions in ottr minds, that is:.- (a) do the provisions of law regulating the recording of F.I.Rs permit or even envisage an enquiry into the correctness or otherwise of the information which is received by an officer In charge of a Police Station for the purpose of being reduced into writing as a F.I.R.? (b) does the law empower an Officer In charge of a Police Station to refuse to record an F.I.R. Only because, in his opinion, the allegations conveyed to him were false? And, (c) what is the proper scope of the powers conferred through the newly-added provisions of section 22-A(6) of the Cr.P.C. And whether the said provisions conferred any new, extra or additional powers on an Ex-officio Justice of the Peace in the matter of recording of F.I.Rs," 10. The expression "REGISTRATION OF A CRIMINAL CASE", used in section 22-A(6), Cr.P.C. Was alien to law i,e, 'to the Code of Criminal Procedure and the Police Rules of 1934 till the addition of the said subsection (6) to the said section 22-A of the Cr.P.C. Through the Code of Criminal Procedure (Third Amendment) Ordinance, No, CXXXI of 2002 which was promulgated on 21-11-2002. We shall, however, presume that what was intended to be meant by the said expression was, in fact, the recording of F.I.R. We may also add that even the expression "FIRST INFORMATION REPORT" (F.I.R.) was not an expression of the Code of Criminal Procedure, 1898 but was in fact the name given to
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the "INFORMATION" mentioned in section 154 of the Cr.P.C. By Chapter XXIV of the Police Rules of 1934. 11. For some purposes, including recording of F.I.Rs,, criminal offences have been categorized by the Cr.P.C. Into two classes i,e, the ones which were cognizable and the others which were non- cognizable. Section 154 of the Cr.P.C. Prescribes the manner in which an information conveyed to a S.H.O. With respect to the commission of a cognizable offence was to be dealt with while the provisions of section 155(1) of the said Code tell us of the procedure envisaged vis-a-vis the information relating to a non-cognizable offence. These provisions read as under:-- "154. Information in cognizable cases.---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, and the substance thereof shall be entered in a book to be kept by such officer in such from as the Provincial Government may prescribe in this behalf." 155. Information in non-cognizable cases.---(1) When information is given to an Officer In charge of a Police Station of the commission within the limits of such station of a NON-COGNIZABLE OFFENCE, he SHALL enter in a book to be kept as aforesaid the substance of such information and refer the informant to the Magistrate." (The Emphasis and underlining is ours) 12. The scheme of law which becomes apparent from a bare perusal of these provisions is that whenever an Officer In charge of a Police Station receives some information about the commission of an offence, he is expected first to find out whether the offence disclosed fell into the category of cognizable offences or was one which was non-cognizable. And once he was through with this exercise then the word "SHALL' appearing in the said provisions of section 154, Cr.P.C. Would take over which obliged, the S.H.O. Thereafter to reduce the said information to writing in the First Information Report Register as, what is called by Chapter XXIV of the Police Rules of 1934, a F.I.R. If the offence disclosed was cognizable or else to merely record the same in the Station Diary as mentioned by section 155(1) of the Cr.P.C. And rule 24.3 of the said Rules and refer the informant to the competent Magistrate if the offence be non-cognizable. As has been mentioned above sections 154 and 155 of the Cr.P.C. Are the only two provisions in the said Code which talk about the manner in which an information received by a S.H.O. Relating to the commission of an offence was to be treated. 13. It may be reiterated and even emphasized that there was no provision in any law, including the said section 154 or 155 of the Cr.P.C. Which authorized an Officer In charge of a Police Station to hold any enquiry to assess the correctness or the falsity of the information received by him before complying with the command of the said provisions which obliged him to reduce the same into writing irrespective of the fact whether such an information was true or otherwise. 14. The wisdom was not far to find. If the S.H.O. Was given the authority to determine the truthfulness or the falsehood of the allegations levelled against someone and thereafter to decide to record or not to record such allegations as F.I.R., then such a police officer would have got blessed with the power to decide about the guilt or innocence of an accused person. This was, however, far from the envisaged by the law-makers regarding the identification and the consequent acquittal or conviction of accused persons as the said task stood assigned only to the courts of law and had never been conceded to police officers. 15. It may be added that the Police force was not a creation of the Code of Criminal Procedure but was a force initially established by the Police Act of 1861. The Code of Criminal Procedure only borrowed some, from amongst this force, and asked them to perform some of its functions. They had, therefore, no powers to go around doing things according to their whims or desires in the matter of administration of justice in the field of crimes. The powers enjoyed by the members of the
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police force were limited to the authority conferred on them by law. And it may be added that every step which the Cr.P.C. Permitted a police officer to take, was subject to scrutiny and control of some court or Magistrate. It may be of benefit to give certain examples to highlight the kind of role and duties assigned to some of the members of the Police force by the Code of Criminal Procedure. 16. The provisions such as sections 54, 55, 57, 151 etc. Of the Cr.P.C. Oblige the S.H.O. And, in certain cases, some other police officers, to arrest, without a warrant, persons mentioned in the said sections. The provisions of sections 60 and 61 of the Cr.P.C. Then command such police officers to take the persons, so arrested, to a Magistrate without any unnecessary delay and thereafter the role of the police comes to an end and an arrested person was then to be handled only and only as per the direction of such a Magistrate. Section 550, Cr.P.C. Authorizes police officers to seize any property which may either be the subject-matter of some crime or which may have been used for committing some crime. Leave alone with human beings, the police does not have power even to decide the fate of the items of property so seized by them and has to produce the same before a Magistrate as required by section 523, Cr.P.C. And its disposal, thereafter, has to follow the orders of a Magistrate. 17. In the matter of ascertainment of the guilt or innocence of the persons accused of the commission of offences or in the matter of determination of the truth or otherwise of the allegations made in the said connection, the only power may the obligation cast on the police officers is to carry out the investigation of cases, on their own if the offence be cognizable (section 156, 157 and 174, Cr.P.C.) and with the permission of a Magistrate if the same be non-cognizable (section 155(2), Cr.P.C.). And 'investigation' as defined by section 4(1)(1) of the said Code, means only, the collection of evidence and no more. The impression that an Investigating Officer had any power or was even allowed to pronounce upon the guilt or innocence of an accused person was a grave misconception. In fact such an opinion expressed by an Investigating Officer was not even admissible in evidence at the trial being the opinion of a person who had never been held by the Courts of law to be an expert. Therefore, in any criminal proceedings, the job of a police officer only is to collect evidence and to place the same along with other information, before the competent Magistrate in the form of a report in terms of section 173, Cr.P.C. It would be evident from the provisions of section 63, Cr.P.C. That the fate of a person, though arrested by the police, was no longer in their hands but was at the mercy of a Magistrate and likewise the fate of an F.I.R. Though recorded by a police officer but once recorded, went beyond his control and it was then only a Magistrate who could cancel it (Rule 24.7 of the Police Rules of 1934). The most which is permissible for an Investigating Officer, vis-a-vis an accused person whose case was under investigation, was to release him, on his bond, if according to the Investigating Officer there was not enough evidence available against him or no reasonable ground of suspicion existed which could justify his being forwarded to a Magistrate (section 169, Cr.P.C.). But then it will be noticed that such a step by an Investigating Officer was not final as such an accused person had to execute a bond before being so released, committing himself to appear before the competent Magistrate if and when required by such a Magistrate to face the trial. The provisions of section 173, Cr.P.C. Further support this view as the S.H.O., while reporting the result of his investigation under the said section i,e, the challan, had to give the details of any accused person released under section 169, Cr.P.C. And the final fate of such a person was thereafter, again in the hands of the competent Magistrate/Court. 18. What, therefore, transpires from the above noticed scheme, the spirit, the intention and even the letter of the relevant law was that there was no room for any inquiry into the veracity of the information received by an officer in charge of a Police Station with respect to the commission of an offence and he was consequently clothed with no authority to refuse to record an F.I.R. Only because, in his opinion, the information conveyed to him, lacked credibility.
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19. In so saying, we find strength from another aspect of the matter also i,e, the provisions of section 162, Cr.P.C. Which provide that: "162(1). No statement made by any person to a police officer in the course of an investigation under this Chapter shall, if reduced into writing, be signed by the person making it, nor shall any such statement or any record thereof, Be used for any purpose at any inquiry or trial in respect of any offence under investigation at the time when the statement was made." Any steps taken by a police officer to find out about the correctness or otherwise of the information conveyed to him would obviously entail collection of material in the form of questioning people and the parties etc. As was done by the police in the present case which is evident from the order in question of the learned A.S.J./Ex-officio Justice of the Peace dated 12-12-2005. If such an exercise was permitted to be undertaken before recording an F.I.R. Then the F.I.R. Reduced into writing thereafter would get hit by the prohibition contained in the said section 162, Cr.P.C. And any such F.I.R. Would become a futility being inadmissible in evidence at the trial. 20. The conclusion is again irresistible that sifting of the information conveyed by an informant to an Officer In charge of a Police Station and picking out what was correct and discarding which was false, was not a task assigned to a S.H.O. But was an obligation entrusted, initially to a Magistrate empowered to take cognizance under section 190, Cr.P.C. And finally to the trial Court. 21. It could be said that if F.I.Rs, were permitted to be recorded without verifying the worth of the information, then the same would open flood gates for false F.I.Rs, So what and we add that this could be the concern shown only by layman and not by a law knowing person because anyone acquainted with the relevant law was expected to know that registration of an F.I.R. Was only a mode of recording or preserving an information and was one of the many means to set the machinery of criminal law into motion. Otherwise we know that presence or existence of an F.I.R. Did not confer any extra or additional powers on a police officer nor did the non-existence of the same withhold or take away any powers vesting in him. 22. The notion is unfounded that it was an F.I.R. Which authorized a police officer to commence an investigation or that if an F.I.R. Was once recorded then the S.H.O., or some other police officer deputed by him, got obliged to go through the full length of investigation. A bare perusal of the provisions of sections 155(2), 156(1), 156(3), 157(1), 174 and even those of section 202, Cr.P.C. Would reveal that existence of an F.I.R. Was never a condition precedent for commencement or for the holding of an investigation. Likewise, the provisions of section 54(1) of the Cr.P.C. Would demonstrate that a police officer did not require a F.I.R. To clothe him with authority to arrest a person who appeared to be concerned or was even suspected of being concerned with the commission of a cognizable offence. While we are on the subject, we may also add the F.I.R. Was not a condition precedent even for the holding of a trial as would be evident from the provisions of section 190(1) of the Code of Criminal Procedure. 23. Therefore, legally speaking, the position which emerges is that the Officer in charge of a Police Station or any other police officer did not require the crutches of an F.I.R. To get clothed with authority either to commence an investigation or even to arrest a person who appeared to be concerned with the commission of a cognizable offence. Nor was there any provision in any law which commanded or even envisaged that whenever an F.I.R. Got recorded, a police officer was obliged to go through the entire length of investigation as he was permitted by section 157(1)(b) of the Cr.P.C. To refuse to investigate a case. As has been mentioned above with reference to the provisions of section 54 of the Cr.P.C. Irrespective of the fact whether an F.I.R. Did or did not stand recorded and also irrespective of the fact whether person did or did not stand nominated as an accused person, a police officer could arrest a person only after the conditions prescribed therefore by the said section 54 stood satisfied.
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24. It must, therefore, be kept in mind that mere registration of an F.I.R. Could bring no harm to a person against whom it had been recorded. No one consequently, need fear a false F.I.R. And if a police officer arrested a .Person in the absence of the requisite material justifying the same and only on the pretext of such a person being mentioned in an F.I.R., then such would be an abuse of power by him and the remedy for such a misuse of power would not be to permit another abuse of law by allowing an unlawful exercise of colectomy of evidence to assess the veracity of allegations levelled through the information conveyed to a S.H.O. Before recording of an F.I.R. The tvirtedy lies elsewhere. 25. As has been mentioned above, no provisions exists in the Code of Criminal Procedure or in any other law which permitted a S.H.O. To refuse to record an F.I.R. Provided the information conveyed to him disclosed the commission of a cognizable offence. However, we have come across some cases wherein it was said that the provisions of section 157(1)(b) of the Cr.P.C. Or the provisions of Rule 24.4 of the Police Rules of 1934 were the kind of provisions which did allow the S.H.O. To do so. The impression is misconceived and fallacious. The said provisions of section 157(1), Cr.P.C. Read as under:-- "157. Procedure where cognizable offence suspected.--(1) If, from information received or otherwise an Officer In charge of a Police Station has reason to suspect the commission of an offence which he is empowered under section 165 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 In charge 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 In charge sees no sufficient ground for investigation.--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." What transpires from a bare reading of these provisions contained in the main body of subsection (1) of section 157, Cr.P.C. Is that whenever an Officer In charge of a Police Station, from information received i,e, F.I.R. Or otherwise, even suspects the commission of a cognizable offence, he is obliged to commence, immediately, the investigation of such a case and further that such an investigation had to be done at the spot i,e, at the place of occurrence and not while sitting in his office or elsewhere. The provisions of clauses (a) and (b) of the said subsection (1) are exceptions to the said command of the said subsection (1). Clause (a) mentions the exceptional situation where an Investigating Officer needs not carry out the investigation at the place of occurrence and clause (b) envisages a situation where the S.H.O. Was permitted to refuse to investigate a case which discretion, is however, exercisable subject to the conditions mentioned in subsection (2) of section 157, Cr.P.C. And is subject to the control of a superior police officer under section 158, Cr.P.C. And a magisterial check under section 159 of the said Code. 26. It will thus be noticed that the provisions of section 157, Cr.P.C. Equip a police officer only with a discretion to refuse to investigate a case and nowhere do these provisions, even remotely indicate, any power vesting in the S.H.O. To REFUSE TO RECORD AN F.I.R. If the information conveyed to him disclosed the commission of a cognizable offence. Needless to add that rules are always subordinate to the statutory provisions and no rule can permit what was not allowed by a statutory provision.
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27. The conclusions that we draw from the above, rather lengthy discussion, on the subject of F.I.R., are as under:-- (a) no authority vested with an Officer In charge of a Police Station or with anyone else to refuse to record an F.I.R. Where the information conveyed, disclosed the commission of a cognizable offence- (b) no authority vested with an Officer In charge of a Police Station or with anyone else to hold any inquiry into the correctness or otherwise of the information which is conveyed to the S.H.O. For the purposes of recording of an F.I.R. (c) any F.I.R. Registered after such an exercise i,e, determination of the truth or falsity of the information conveyed to the S.H.O., would get hit by the provisions of section 162, Cr.P.C. (d) existence of an F.I.R. Is no condition precedent for holding of an investigation nor is the same a prerequisite for the arrest of a person concerned with the commission of a cognizable offence; (e) rigor does the recording of an F.I.R. Mean that the S.H.O. Or a police officer deputed by him was obliged to investigate the case or to go through the whole length of investigation of the case mentioned therein or that any…
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