ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

C.P.  No. S- 454 of 2012.

DATE OF HEARING

ORDER WITH SIGNATURE OF HON’BLE JUDGE

 For Katcha Peshi.

24.07.2012.

Mr. Muhammad Yaqoob Dahani, advocate for petitioner.

                        Mr. Habibullah Ghouri, advocate for proposed accused.

                        Mr. Naimtullah Bhurgari, State Counsel.

                                                -.-.-.-.-.-.-

NAIMTULLAH PHULPOTO, J- Through this Constitutional Petition Mst. Sahib Khatoon has prayed for the following relief (s):

a) This Hon’ble Court may be pleased to direct the respondent No.01 to record statement of the petitioner and if any cognizable offence is made out from its contents same may be incorporated into book under section 154, Cr.P.C.

b) Award cost of the petition, and

c) Any other relief, which this Hon’ble Court may deems proper and fit.

            Notice was issued to the respondents as well as Addl. A. G. Comments were filed on behalf of respondent No.1.

                        Brief facts leading to the filing of the instant petition are that on 01.6.2012, petitioner along with Piral Buledi (Now deceased) and Muhammad Umer were coming from Ghari Khairo to their village on motorcycle, when at about 6:30 p.m, they reached at Police Post near Saifullah Bridge where they saw proposed accused persons namely Khalid Sarki, SHO Police Station Ghari Khairo, PCs Hussain Bux Dayo, Ameeruddin Noonari and Nazir Ahmed Noonari all armed with K.Ks. The police officials took the deceased Peeral alias Peer and asked him that he is required in some case. On which deceased Peeral asked the SHO to show  FIR in which he was required. The SHO annoyed and there was exchange of the harsh words. Thereafter it is alleged that SHO fired from his K.K at deceased and he received bullet injuries and fell down. Petitioner and PW Muhammad Umar arranged conveyance and took the injured Peeral to Taluka hospital Ghari Khairo from where injured was referred to CMC hospital Larkana where he succumbed to injuries on 04.6.2012. Thereafter it is alleged that police lodged false encounter F.I.R against the deceased after his death on 01.6.2012. The petitioner approached to the SHO Police Station Ghari Khairo for registration of her FIR against respondent No.1 and others but she was kept on false hopes. Thereafter she was refused. Finding no other alternative or efficacious remedy the petitioner invoked the constitutional jurisdiction of this Court.

                        Mr. Muhammad Yaqoob Dahani, learned advocate for the petitioner argued that SHO has failed to perform his statutory duty while refusing to record the statement of the petitioner. He has further submitted that there are eyewitnesses of the incident and there is medical certificate on the record. The SHO with malafide intention has lodged FIR against the deceased to show that it was police encounter case.

                        Mr. Naimtullah Bhurgari, learned state counsel assisted by Mr.Habibullah Ghouri argued that deceased died in police encounter. Such FIR No.15/2012 under section 324, 353 in respect of the incident was registered at police station Ghari Khairo by respondent No.1. He has further argued that deceased was involved in a number of cases registered at Police Station Ghari Khairo. Lastly he has submitted that there is no merit in this petition.

                        I have carefully perused the Petition and examined all the relevant provisions of law regulating the subject; it is the duty of the SHO to record the statement of the petitioner in case cognizable offence is made out, in terms of 154, Cr.P.C but SHO has failed to perform his statutory duty. Before recording the FIR, SHO was not supposed to hold enquiry as to the correctness or otherwise of the information received by him for the purpose of being reduced in writing as FIR. SHO had no authority under the law to refuse to record the FIR where information conveyed, disclosed the commission of cognizable offence. Plea of learned State Counsel that deceased was involved in other cases and he died in police encounter was also not sufficient ground for the SHO to refuse the FIR. It is duty of police to arrest criminals not to eliminate in encounters. On the subject matter, the Honourable Supreme Court of Pakistan has been pleased to observe in the case of Muhammad Bashir v. Station House Officer (PLD 2007 Supreme Court 539), as under :

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 FIR. We may also add that even the expression “FIRST INFORMATION REPORT” (F.I.R) was not an expression of the Cod of Criminal Procedure, 1898 but was in fact the name given to 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-à-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 Incharge 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 forum as the Provincial Government may prescribe in this behalf.”

155. Information in non cognizable cases –(1) When information is given to an officer Incharge 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).

                        For my above stated reasons and while respectfully relying upon the above cited authority of Honourable Supreme Court, I direct the SHO concerned to record statement of the petitioner Mst. Saheb Khatoon in her verbatim if cognizable offence is made out, SSP Jacobabad shall depute responsible and honest police officer for conducting investigation in accordance with the law. Petition stands disposed of accordingly.

Judge