The concept of rule of law is not a new one, and actually dates back to ancient times when great Athenian philosopher Aristotle wrote “Law should govern”, but the proper usage of the phrase “Rule of Law” started emerging from the 16th century and it was in the 19th century that the British jurist A.V. Dicey gave it such a real force that now everywhere, be it in the developed nations or the developing ones, continuous efforts are made to ensure the Rule of Law.
Nobody can deny that “Rule of Law” is a very old principle and is largely enforced in the developed and modern world; yet here in Pakistan, after 68 years of its independence, one can barely dream to have such a society where the rule of law prevails.
And how is it possible for one to expect so when the whole state machinery operates either with complex procedures or by not enforcing such procedures along with the menace of corruption?
It is the absence of rule of law that incompetence and inefficiency are glaringly seen in the working of each and every state department. One of them is the police department that not only transgresses its powers, but also deliberately avoids complying with its legal obligations.
Amongst others, one of the mandatory duties of police is to register First Information Report (FIR) as per section 154 of the Code of Criminal Procedure (Cr.P.C.) 1898 in cognizable offences. For ease of reference, section 154 Cr.P.C. is reproduced hereunder: “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 form as the [Provincial Government] may prescribe in this behalf.”
Where section 154 of the Cr.P.C. 1898 deals with cognizable offences, section 155 Cr.P.C. 1898 lays down the procedure for dealing with non-cognizable offences. Thus, the law has created a distinction between ‘cognizable’ and ‘non-cognizable’ offences; and the difference between the two is that, in case of cognizable offences, police are empowered to investigate the case without permission of a court and to arrest accused without warrant; whereas in non-cognizable offences police cannot investigate the matter without court orders. The classification of cognizable and non-cognizable offences is mainly contained in the Second Schedule to the Code of Criminal Procedure (Cr.P.C.) 1898.
At least, in the case of cognizable offences, the wording of section 154 Cr.P.C. clearly demonstrates that police have no discretion at all in determining whether or not to register the case and are statutorily duty-bound to register FIR and such was the conclusion drawn by the Hon’ble Supreme Court of Pakistan in the case of Muhammad Bashir Vs. Station House Officer Okara Cantt. and others (PLD 2007 Supreme Court 539) wherein the Hon’ble Court held:
“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 provision of section 154 Cr.P.C. would take over which obliged the SHO 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 FIR 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 SHO relating to the commission of an offence was to be treated.”
Not only that, but the Hon’ble Court has even gone to the extent of concluding that no provisions exist in the Code of Criminal Procedure or in any other law which permit police to refuse registering an FIR where the information discloses commission of a cognizable offence.
It is certainly a misconceived notion that police ought to determine the truthfulness of the allegations before registering FIR. Had it been so, police would have unfettered powers of deciding the guilt or innocence of an accused person, which essentially is the task of courts.
Police, understandably to determine their veracity, have to consciously apply their mind to the information provided; but, as held in above-mentioned case, that exercise is only permissible after registering the information; no matter how absurd it is, under Section 157 of Cr.P.C. 1898. And should police find no merits in the complaint then communicate the decision of not to investigate both to the concerned magistrate and the informant.
A concern may be raised that registering an FIR without verifying it would open floodgates for false FIRs, but that cannot be a justification for not complying with the mandatory provision of section 154 Cr.P.C.; as the safeguard against lodging false FIRs does not lie in refusing to register FIR but to take legal action against the informant under section 182 of Pakistan Penal Code 1860 which prescribes a punishment of six months or fine or both for such type of offences.
With such explicit statutory provision of section 154 Cr.P.C. and its affirmation by the Supreme Court, the rule of law, indeed, demands police to register FIR instantaneously upon receiving information of a cognizable offence. However, that does not generally happen in practice and most of the time, if one does not wield political influence, application is made to the Justice of Peace under sections 22-A Cr.P.C. 1898 and all you get at the end of the day is a direction to police to register the case, which should have been done in the very first place anyway, without the concerned police officer facing any wrath of law thus getting away with such breach of statutory duty without any penalty and that too against the society’s right to require public officials to account for their administrative acts which is yet another fundamental principle of rule of law.
The judiciary in fact recognizes that such deviation of police officer from section 154 Cr.P.C. to register FIR exposes him to the guilt of disobedience of the direction of law and he could be prosecuted as such, yet no action is taken against such officers which would have ensured the strict compliance of section 154 Cr.P.C. and people would not have been deprived of their basic right to approach state for their protection with ease.
There is no denying the fact that an independent judiciary is one of the safest safeguards against executive lawlessness and such lawlessness is experienced everywhere which raises questions at the role of judiciary as well.
The crux of above debate is that it is the absence of rule of law that flagrant breaches of law are seen in our society with the result that the poor get overly punished even for a petty matter while rich get away after committing a heinous crime. This is the hallmark of a regime which flouts the rule of law, where the king is the law and with such attributes no real growth, be it morally or economically, is possible as when the former chairman of the Federal Reserve Bank of the United States, Alan Greenspan, was asked what he considered the single most important contributor to economic growth, his terse reply was: ‘The Rule of Law’.