ABDUL HAMID ARAIN Versus GOVERNMENT OF SIND

ORDER

1. AJMAL MIAN, C.J.-- By this petition, the petitioner is seeking direction against S.H.O. Banaras Police Station to register an F.I.R. against 10 main accused persons mentioned in the draft of the F.I.R. for criminal conspiracy and A abetment in respect of blood-shed of helpless citizens of Karachi from 13th December to 19th December, 1986, in which 160 innocent persons were allegedly murdered and burnt alive while over 900 persons were bodily injured.

2. 'The above petition was filed against (11) eleven respondents which included the ten persons who are named in the draft. However, learned counsel for the petitioner, on 12-3-1987, made a request for amending the petition which permission was granted on the above date. In pursuance thereof, he presented amended petition on 24-5-1987, dropping (9) nine of the respondents and keeping only two respondents, as respondents, namely, Government of Sind and the S.H.O., Central Reporting Centre Police Headquarter, as respondents I and12 respectively. After that in pursuance of an order, passed by a Division Bench of this Court, the petitioner presented the draft of the F.I.R., in which the above averments have been made. In the case of Manzoor Hussain (Chaeywala) v. Station House Officer, etc. (1988 M L D 2681) the facts were that the petitioner sought a direction against the S.H.O. to register F.I.R. under section 302, P.P.C., for allegedly causing death of a patient by the Doctors of Civil Hospital, while declining the above petition, a Division Bench of this Court to which one of us (Mr. Justice Ajmal Mian) was a party, observed as follows:--

3. "It has, therefore, been further alleged that the respondents are guilty of alleged offence under section 302, P.P.C. and for which the petitioner wishes to lodge the F.I.R., which the respondents officials are not recording. It seems that the original F.I.R. in respect of the accident was registered at the police station concerned and after the death of the inured it was converted into 304-A, P.P.C. The question, whether factually the respondent Doctors were allegedly negligent resulting into death cannot be even tentatively adjudicated upon by us.

4. Dr. Hameed Ahmed Ayaz, learned counsel appearing for the petitioner, has vehemently urged that the mere fact that an F.I.R. has already been registered does not debar the petitioner to lodge the second F.I.R. in respect of the same offence and that it is the statutory duty of the officials respondents to record the same. Reliance has been placed on an unreported judgment of a Division Bench of this Court given on 30-7-1985: in C.P No.D-309 of 1985 (Muhammad Siddique and others V. Province of Sind and others) and also on a Full Bench case of the Lahore High Court; M. Anwar Barrister-at-Law v. The Station House Officer, Civil Lines, Lahore; P L D 1972 Lah. 493. There cannot be any cavil with proposition of law laid down in the above cited cases but the question, which requires .consideration is, as to whether this Court should press into service writ jurisdiction, which is discretionary, in the instant case, in which even prima facie it has not been shown that the alleged offence under section 302, P.P.C. has been committed by the respondents. It is not a simpliciter case of murder but the allegations of the petitioner are that on account of collusion on the part of the respondents the injured was not given proper medical assistance, Which resulted into his death.

5. In our view the present case is not a fit case in which this Court should exercise writ jurisdiction, particularly in view of the fact that the petitioner can either move the Court where the challan under section 304-A has been submitted or he can file a private complaint for the alleged offence. The petition is dismissed in limine."

6. A similar view was taken by the learned Single Judge of the Lahore High Court in the case of Malik Muhammad Anwar Khan v. The State etc. (1988 P Cr. L J 1986) while relying upon the two Supreme Court cases, namely, (1) Kaura v. The State and others (1983 S C M R 436) and (2) Jamshed Ahmad v. Muhammad Akram Khan and another (1975 S C M R 149).

7. However, Mr. M. Muzaffarul Haq, learned counsel for the petitioner, has vehemently contended that it is the statutory duty of respondent 2 to register the F.I.R. and thereafter, to initiate investigation. He has relied upon the case of Muhammad Akram and another v. Second Sind Labour Court and another (1987 S C M R 31), in which the criminal proceedings were initiated under the I.R.O. and the Hon'ble Supreme Court while dismissing an appeal observed that:

8. "Now the general rule under the Criminal jurisdiction is that any person having knowledge of the commission of an offence may set the law in motion by a complaint even though he is not a person injured by the commission of the offence."

9. On the other hand, Mr. A.A. Mohommedally, learned Additional Advocate-General, has submitted that the petitioner has not attributed any specific overt act of killing or any overt act in relation to the alleged other offences allegedly committed by the persons against whom the F.I.R. is to be registered. In our view, the distinction is to be drawn between an F.I.R. which is to be registered for the commission of offence in normal course after the incident and an F.I.R. which is so to a registered against the Government personnel on the ground of their negligence resulting into the alleged commission of offence or for the alleged conspiracy. The draft does not attribute any overt act to the alleged accused nor it indirectly indicates as to how they had entered into alleged criminal conspiracy. The alleged accused comprise of ex-Chief Minister and the officials who were then posted at Karachi. In our view, the ratio of the above Karachi case and the Lahore case is very much applicable to the present petition and, therefore, it is dismissed in limine.

10. S.A./A-571/K

11. Dismissed in limine,