SAEED ULLAH and another vs NIAZ MUHAMMAD and others

ORDER

MALIK HAQ NAWAZ, J.---The brief facts of the case are that on 25.02.2016 an unfortunate incident took place, wherein one Jan Ali lost his life and one Saidullah was severely injured. FIR No, 3/2016 under section 302/324/34, P.P.C. was lodged at Police Station Pari Banglow on 25.2.2016 by one Shahid Afzal son of Zaidullah Khan, which need not any detail discussion as the same has been admitted by both the parties, however the present controversy started when one of the nominated accused of FIR No, 03/2016 namely Niaz Muhammad submitted an application to SHO Police Station Pari Banglow for registration of counter FIR, as it is alleged in the application that on the day of occurrence on the command of Ali Jan (deceased) firing was opened by one Nisar Ali son of Jan Ali (deceased) and by one Saidullah (injured). As a result of firing Jan Ali died at the spot and the petitioner Niaz Muhammad (nominated accused in FIR No, 3/16) was also injured. The respondent Niaz Muhammad was referred to City Hospital Gilgit for medical treatment/medico legal opinion.

Medical Officer City Hospital Gilgit examined respondent Niaz Muhammad on 25.2.2016 at 7:30 and found a fire arm injury on his arm. SSP Gilgit sought legal opinion from PDSP on the application of respondent who submitted the same on 30.3.2016, which is also available on page 16 of the paper book, wherein it was suggested that SDPO Jaglote be directed to conduct an inquiry under section 157, Cr.P.C., to unearth the truth.

2. On 21.10.2016 SDPO Jaglot circle submitted comments in response to an application filed by the respondents Nos,1 and 2 before the Addl. Sessions Judge under section 22-A, Cr.P.C., wherein it is mentioned that the complainant party of FIR No, 3/2016 submitted an application to SSP Gilgit and that the respondents Nos, 1 and 2 are trying to produce false witnesses in support of their false version. The said application was also marked to SDPO Jaglot and as evident from the contents of the report of SDPO, the respondents Nos, 1 and 2 did not co-operate with SDPO during inquiry and failed to produce their witnesses in support of their version. The SDPO found the version of respondents false and fabricated.

3. The learned Addl. Sessions Judge as per his judicial wisdom came to the conclusion that non- registration of FIR is against the spirit of section 154, Cr.P.C., if a cognizable offence seems to have been committed. The learned Justice of the peace further held that on the application submitted by respondent No, 1, without registration of FIR, the inquiry or investigation cannot be carried out.

The learned Justice of the peace termed it illegal. The Justice of the peace allowed the petition under section 22-A, Cr.P.C., and directed SHO Pari Banglow to register FIR against the petitioners.

4. The petitioners being aggrieved from the said order/judgment have come to this Court for setting aside the impugned order, dated 31.10.2016.

5. The learned counsel for the petitioner submitted that the respondents are trying to twist the facts of the occurrence, taking advantage of the injuries of the respondent Niaz Muhammad backed by sinister motive to compel the complainant/petitioners of FIR No, 3/2016 to come to his terms. The learned counsel further contended that the FIR of the occurrence has already been registered and it has already come on record that Niaz Muhammad was injured during the occurrence. The very registration of FIR will not serve any useful purpose. The respondents are trying to use the authority of the Court to tilt the situation in their favour, otherwise filing of private complaint is an open option for them. The learned counsel relied on 2005 M LD 1114 and 2007 PCr.LJ 67.

6. On the other hand, the learned counsel for the respondents defended the judgment of Justice of peace and submitted that on the day of occurrence respondent/accused namely Niaz Muhammad submitted an application to SHO concerned for registration of FIR, which has not been registered. despite the fact that the respondent Niaz Muhammad was referred to City Hospital for medical treatment and medical officer has certified the injuries on the person of Niaz Muhammad to have been caused with fire arm. Lastly that the order of learned Justice of the peace be upheld in the given circumstances of the instant case. Per learned counsel the refusal of SHO to register the FIR, when a cognizable offence has been committed is against the mandate of section 154, Cr.P.C. The learned counsel relied on PLD 2007 SC 539.

7. Heard the parties at length and perused all the documents annexed with the petition. The Police reports and the comments of SDPO also minutely examined. During the proceeding under section 157, Cr.P.C. and in the statements of PWs recorded under section 161. Cr.P.C., it has come on record that respondent No, 1 Niaz Muhammad was also injured in the occurrence. The very fact that Niaz Muhammad has been injured at the place of occurrence is not denied by the either sides. The MLR of the respondent has been made a part of the judicial file and the factum of sustaining injuries by respondent No, 1 Niaz Muhammad are also mentioned in final police report submitted in the trial Court under section 173, Cr.P.C., under section 4(1)/156 collection evidence is not confined to only such evidence, which favours the prosecution only. Accused's version immediately after the occurrence is a relevant fact, within the meaning of Article-27 of Qanun-e-Shahadat, which has already been brought on record in the instant case.

8. A perusal of the statement of respondent Niaz Muhammad recorded by police under section 161, Cr.P.C., reveals that he has taken the stance of being injured in the occurrence and his first version has been recorded by the I.O., which could be brought on record through cross-examination of the prosecution witnesses as well as of the I.O., during trial.

9. There is no legal bar to order registration of a second or even a third FIR, if facts of a particular case so demands, but without commenting about the genuineness/otherwise of the allegations of the respondent against the petitioners, the registration of FIR will not be justified. However the respondent will be at liberty to file a private complaint under sections 200, 204, Cr.P.C.

10.Criminal Misc. 158/2016 filed by the petitioners is allowed and the order passed by the learned Justice of Peace dated 31.10.2016 is set aside.

11.Criminal Misc. 158/2016 is disposed of accordingly.