Mst. ANWAR BEGUM vs STATION HOUSE OFFICER, POLICE STATION KALRI WEST, KARACHI and 12 others

' ABDUL HAMEED DOGAR, J.---Through this petition, petitioner Mst. Anwar Begum seeks direction by this Court for respondent No,1 Station House Officer, Police Station Kalri West, Karachi, to register F.I.R. At her behest against respondent Nos. 1-A to 9.

2. Briefly, stated, the facts leading to the filing of the instant petition are that petitioner's husband Abdul Razzaq son of Noor Muhammad was murdered while sitting in his office known as "M/s. The New Chishtian Goods Transport Co." situated at Maripur Karachi (hereinafter referred to as the Company) on 13-3-2002. The said incident was reported at Police Station Kalri, Karachi, vide F.I.R.No,50 of 2002 by Muhammad Yousuf respondent No,1-A, the Manager of the Company, in Emergency Ward, Civil Hospital, Karachi, on the same day at 1530 hours. Contents whereof are reproduced as under:-- "I was working as manager in New Chishtian Goods Company. Today as per routine I along with owner Abdul Razzaq son of Noor Muhammad were busy in routine work in our office. About 12-15 p.m. Suddenly two young boys apparently looked like Baloeh, wearing Shalwar Qameez, entered into office showing our office entrance slip and held the weapons on us and said don't move, hand over to us whatever do you have otherwise we will shot you. On that I and the owner Abdul Razzaq made resistance on which they both opened the fire on us and we both fell down, I tried to hold them. But I fell down near the gate, saw that outside there were their two companions sitting in the Suzuki Alto car, during this started firing and ran away in the Suzuki toward Kalri Naka."

3. The investigation of the case was conducted by different police officers but accused could not be traced out, resultantly F.I.R. Was disposed of under "A" Class vide F.R.I. 01/2004 dated 8-1-2004.

During the above process, the petitioner had been approaching Senior Police Officers for registration of second F.I.R. As per her own version but all in vain. She was, however, constrained to invoke the Constitutional jurisdiction of High Court of Sindh and filed Constitution Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, (hereinafter referred to as the 'Constitution') bearing No,68 of 2002 for registration of F.I.R. Which was disposed of vide order dated 30-10-2002. The same reads as under:-- "Investigation has already been transferred to a senior police officer pursuant to the request of the D.S.P. (Investigation-II) Sadar Town, Karachi. The Investigating Agencies are required to consider the version of the petitioner by examining her and her witnesses in the course of investigation. The petitioner, however, may not be arrested till a period of thirty (30) days from today within which she may approach the appropriate Court which will also consider her version of facts.

' Petition stands disposed of in above terms."

4. We have heard Rana M. Shamim, learned Advocate Supreme Court for the petitioner, Mr.Nooruddin Sarki, learned Advocate Supreme Court for respondents Nos. 2 to 8 and Mr. Muhammad Sarwar Khan, learned Addl. A.-G. Sindh on behalf of State at length and have gone through the record and proceedings of the case in minute particulars.

5. Learned counsel for the petitioner vehemently contended that the legal and factual aspects of the controversy have not been appreciated in its true perspective by the learned Division Bench of the High Court which resulted in serious miscarriage of justice. The impugned judgment on the face of it suffers from legal infirmity as the grievance of the petitioner has not been dilated upon in the said order but the petition has been disposed of only on mere technicalities. He further contended that right from the day of incident, petitioner has been agitating the involvement of respondent Nos. 1-A to 9 in the murder of her husband . She had been levelling specific allegations against respondents Abdul Khaliq, Abdul Malik and Latif, the real brothers of deceased, who, according to her version, wanted to grab her husband's property and control over its company of which the deceased was sole proprietor. The deceased used to pay income tax worth Rs,50,000,00 per year from the income of the Company and other properties which in fact prompted respondents, his real brothers, to snatch his property and thus hatched his murder. According to him the deceased was done to death so secretly that it came to the knowledge of petitioner the moment dead body was received by her in her house. Meanwhile F.I.R. Was lodged by respondent Muhammad Yousaf, the Manager of the Company mentioning that some unknown dacoits had killed the deceased while sitting in office in order to commit dacoity. Since the petitioner had levelled allegations against respondent No,9 Sub-Inspector Malik Nazir, the Investigating Officer, showing his complicity in the commission of offence, as such, neither the case was investigated properly nor F.I.R. Was registered as per petitioner's version. Learned counsel further contended that the motive behind the occurrence is fully established from the fact that after killing of deceased, his entire property has been forcibly occupied by respondent Nos. 3 to 5, his real brothers and the petitioner has been left shelterless and survives on Zakat. He vehemently urged that there is no bar for registration of second F.I.R. As the first F.I.R. Was registered by a Police Officer at the behest of respondent Muhammad Yousuf who was suspected of being accused in the case by petitioner. He contended that after the said demise, petitioner was being harassed by respondents so much so that F.I.R. No,50/2002 was lodged against her about kidnapping the drivers and snatching two trucks and trailers allegedly belonging to them. She was arrested in that case and later on was released on bail vide order dated 16-10-2002 by learned High Court. According to him, in the similar circumstances, superior Courts have given directions for registration of second F.I.R. In support, he placed reliance on the cases of Muhammad Ishaque v. S.P. Jaffarabad and another PLJ 1998 Quetta 1 and Wajid Ali Khan Durani. And others v. Government of Sindh and others 2001 SCM R 1556.

6. On the other hand, Messrs Nooruddin Sarki, learned Advocate Supreme Court and Muhammad Sarwar Khan, Additional Advocate General, Sindh, resisted the petition and contended that the same is not maintainable as F.I.R. Of the same incident had already been registered by police and was thoroughly investigated wherein the statement of petitioner was also recorded. According to them, even in the case of Kaura v. The State and others 1983 SCM R 436, it has been held that the police was not only competent but also duty bound to unearth the true facts and trace the real culprits. They contended that there is no provision in the law for the registration of the second F.I.R.

And the only remedy available to the petitioner was to avail alternate remedy of filing a private complaint. On this aspect, they referred the case of Jamshed Ahmad v. Muhammad Akram Khan and another reported as 1975 SCMR 149.

Admittedly, petitioner from the day of incident has been agitating that the murder of her husband was managed by his real brothers, namely, Abdul Khaliq; Abdul Malik and Latif in league with respondents Siddiq, Saifur Rehman, Muhammad Raza-ul-Haq, Akbar Ali and S.I. Malik Nazir. In such circumstances, the veracity and truthfulness of F.I.R. Lodged by respondent Muhammad Yousuf, the Manager of the Company, became highly doubtful and the petitioner was right in asking for registration of another F.I.R. At her own version. It is on record that she had been moving applications and making representations to the high-ups in the police but because of influence of private respondents, all in vain, therefore, she rightly invoked the Constitutional jurisdiction of the learned High Court and urged for registration of the case at her own version which apparently was not disposed of in legal manner. No doubt, exercise of the jurisdiction under Article 199 of the Constitution is discretionary with the High Court but according to the principles laid down by the Superior Courts, the discretionary powers must be exercised in good faith, fairly, justly and reasonably having regard to all relevant circumstances. Examining the case of petitioner in the light of above principles, we are of the considered opinion that the High Court has not only exercised its jurisdiction improperly but also disposed of petition without adverting to the grievance of the petitioner only on technical grounds. This Court in the case of Wajid Ali Khan Durani and others v. Government of Sindh and others 2001 SCM R 1556 maintained the order of High Court whereby registration of third F.I.R. Was allowed on the ground that the two F.I.Rs earlier registered by police do not reflect the true facts of the case. It has also been held in this case that if information given to a police officer, which discloses a different offence was also cognizable by the police, then unless it is a mere amplification of the first version, must be recorded by the police.

8. In the case of Muhammad Ishaque referred (supra), the petitioner therein approached the learned High Court for registration of second F.I.R. As the police has refused to register his version with regard to a cognizable offence under section 154, Cr.P.C. By majority view, it was held that it was the duty of the police to register counter version of the petitioner through a separate F.I.R. And also directed for impartial and honest investigation by the police.

9. The question as to whether the relief by way of a private complaint to an aggrieved person under Article 199 of the Constitution is an adequate relief/remedy or not has also been thoroughly dilated upon by this Court in the above case in the following manner:-- "A question therefore arises, when can discretion be exercised by the High Court in favour of an aggrieved party. It may not be out of place to mention here that, according to the principles laid down by the superior Courts, discretionary power must be exercised in good faith having regard to all relevant considerations and it should be exercised justly, fairly and reasonably. Therefore, although an alternate remedy is provided to an aggrieved party under the law, by way of complaint yet, the mere fact that an alternate remedy has been provided for, may not deter the Court from giving directions to the police to record a F.I.R. In an appropriate case."

10. For the foregoing reasons, we are of the considered opinion that in the instant case petitioner has been able to make out a case for registration of second F.I.R. Accordingly,-the petition was converted in to appeal and was allowed vide short order dated 29-1-2004, which is reproduced as under:-- "For the reasons to be recorded later on, the petition is converted into appeal and the same is allowed. S.H.O., P.S. Liari Town, Karachi South is directed to register fresh F:I.R. On the basis of statement of Mst. Anwar Begum, the format of which is at page 8 of part II of this petition within a week and report compliance to Officer Incharge of this Court at Karachi Branch Registry."