Friday, 20 September 2013

Registration of FIR is a right of aggrieved person

PLJ 2009 Lahore 554
Present: S. Ali Hassan Rizvi, J.
MUHAMMAD NASIR MAHMOOD, ASST. S.I.--Petitioner
versus
EX-OFFICIO JUSTICE OF PEACE/LEARNED ASJ,
FAISALABAD and 2 others--Respondents
W.P. No. 17130 of 2008, decided on 28.1.2009.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 154--Constitution of Pakistan, 1973--Art. 199--Constitutional petition--Registration of the case--Ex-officio Justice of Peace--Statutory duty of police--Incharge of police with regard to commission of a cognizable offence either given in writing or orally is bound to reduce it into writing--Information supplied for commission of a cognizable offence cannot be said is ultimately true--SHO should have been directed to register the case on statement of respondent if any offence of cognizable nature is made out--It is also statutory duty of police to record as to what offences are made out in information supplied--Held: Requirement of law is that the police official has to record to FIR in a cognizable offence u/S. 154, Cr.P.C.--Registration of the case is an independent right of the aggrieved person--Petition was partially allowed.  [P. 555] A
Ch. Zulfiqar Ali, Advocate for Petitioner.
Rai Tariq Saleem, AAG for State.
Ch. Muhammad Kashif Shahzad, Advocate for Respondent No. 2.
Date of hearing: 28.1.2009.
Order
Through this writ petition it is prayed to set aside the impugned order dated 17.112008 of the learned Additional Sessions Judge whereby SHO police station Factory Area has been directed to register the case against Respondents No. 2 and 3 described in the application and to investigate in accordance with law. Respondent No. 2 Shaukat Ali applicant was directed to appear before the DIG (Operation) Faisalabad for further proceedings in the case.
2.  The brief facts of the case are that Respondent No. 2 filed an application to learned Ex-Officio Justice of Peace for registration of the case against Nasir SI and Zahid Haleem ASI posted in Police Station Factory Area, Faisalabad, leveling the allegation that one Asif Pasha duped to his friend Dr. Abdul Khalid and grabbed an amount of Rs.1,40,000/- on the pretext to send his son to Malaysia. An application was filed to FIA by the said Dr. Abdul Khaliq. The petitioner/Respondent No. 2 had  supported to his friend in enquiry and legal proceedings were initiated against said Asif Pasha who has good relation with two ASIs' and in order to arrest the petitioner, on 18.7.2008, the said police officials entered into the house of the petitioner and took the petitioner to police station. The amount of Rs. 60,000 was taken away from almirah and received Rs. 5000/- in lieu of his release. The petitioner approached to DSP for legal action but the said police official recorded against him an FIR No. 846/08 dated 8.8.2008 u/S. 489-B and 489-C PPC. The petitioner filed an application to the Ex-Officio Justice of Peace for registration of the case. Learned Additional Sessions Judge passed an order for registration of the case observing that nature of the allegation contained in the petition reveals the nature of offence u/S. 222/386 PPC and 155-C of Police Order, 2002 and case was directed to be registered.
3.  It is argued by learned counsel for the petitioner that order has been passed for registration of the case u/Ss. 222/386 PPC and 155-C of Police Order, 2002 which are non-cognizable offences in nature. Hence the impugned order is patently illegal and liable to the set aside.
4.  Learned Law Officer assisted by learned counsel for Respondent No. 2 alleges that offence u/Ss. 342/161/380 PPC along with 5(2) 47 of the Prevention of Corruption Act are also made out from the facts. Hence the impugned order was passed for registration of the case under these sections alongwith other offences, whatsoever are made out.
5.  Heard.
6.  The offences in which the petitioner has been directed to be booked are non-cognizable but the application filed contains on many allegations. These are the facts, which constitute the offence, and the learned Ex-Officio Justice of Peace was not legally justified to direct to SHO to register the case under certain offences. The incharge of the police station with regard to commission of a cognizable offence either given in writing or orally is bound to reduce it into writing. The information supplied for commission of a cognizable offence cannot be said is ultimately true. The SHO should have been directed to register the case on the statement of the respondent if any offence of cognizable nature is made out. It is also statutory duty of the police to record as to what offences are made out in the information supplied. Requirement of law is that the police official has to record the FIR in a cognizance offence u/S. 154 Cr.P.C. The registration of the case is an independent right of the aggrieved person. The learned Additional Sessions Judge has directed  to  register  the  case in specific sections which is not warranted by law whereas complaint also discloses other offences. Therefore, the impugned order dated 17.11.2008 of learned Ex-Officio Justice of Peace is modified the SHO is directed to record the statement of Respondent No. 2 and if any cognizable offence is made out to register the case and investigate the matter in accordance with law. This writ petition is partially allowed and disposed of accordingly.
(R.A.)      Petition allowed

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