MOHAMMED USMAN Versus ADDITIONAL SESSIONS JUDGE

SHAHID HAMEED DAR, J.--- Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan 1973, the petitioner has challenged vires of an order, passed by Ex-Officio Justice of Peace, Okara on 20.2.2013, whereby the SHO of Police Station Shah Bhaur, District Okara (respondent No.2) was directed to record statement of Muhammad Irshad (respondent No.3) under section 154, Cr.P.C. and proceed further, as should it be.

2. The relevant facts of the case are that petitioner Muhammad Usman reported an incident of robbery cum murder to the police on 8.12.2012 by contending that he and his companions, being seated on a motorcycle, were intercepted by four unknown armed men near a sugarcane field at 7.00 p.m., the same day, who forcibly snatched a sum of Rs.6,000/- from him and they all opened firing when he and his co-riders put up resistance; one of the fire shots, made by them, hit their own companion, whose name he learnt as Riaz son of Muhammad Iqbal; the injured robber fell and died instantaneously and his co-accused fled the spot, through the sugarcane field; the killed robber held a .30-bore loaded pistol in his hand and he had in his Shalwar's pocket ten live bullets and a doubly-laden cell-phone; he (petitioner) contended to have produced the firearm, thirteen bullets and cell-phone of the deceased before the police: the occurrence was witnessed by him and his companions, Rao Iftikhar and Tassawar Hussain. This event led to registration of crime-report No.277/12, dated 8.12.2012, under sections 392, 302, P.P.C. read with section 13 of the Pakistan Arms Ordinance No.XX of 1965, at Police Station Shah Bhaur (Okara). Respondent No.3, who is real brother of Riaz deceased, moved an application before the respondent-SHO with the contention that his brother had been murdered by Muhammad Usman (petitioner herein) and his companions in an occurrence of dacoity, which was witnessed by Khizar Hayat, Umar Hayat and Muhammad Tufail of Chak No.34/2-L. The SHO did not pay any attention to it, so he presented an application before the Inspector General of Police (Punjab) for registration of FIR against Muhammad Usman and others, but to no avail; he finally moved the Ex-Officio Justice of Peace, Okara under sections 22-A and 22-B, Cr.P.C. and fetched a direction for registration of second FIR, hence, the instant petition.

3. Learned counsel for the petitioner advanced the argument, that an FIR having already been lodged, the registration of second FIR at the instance of the brother of the deceased was not warranted in law; the machinery of law has already been set in motion through the FIR, registered at the instance of the petitioner, hence, idea of registering another FIR about the same incident was illegal and uncalled for; Muhammad Irshad (respondent No.3), his co-witnesses and his deceased brother were a criminal lot, having been involved in a number of cases of heinous nature and they had fabricated a fake event to rope the petitioner and his co-witnesses in a false case, so as to pressurize and blackmail them; the police suspected that there was no reasonable ground for recording second FIR or making investigation of the matter alleged, hence, their action could not be termed unlawful: the version of respondent No.3 has already been recorded and rejected by the police, so asking them to register second FIR would be a sheer wastage of time. Learned counsel has relied on Muhammad Ramzan v. The State (1997 PCr.LJ 376), Asghar Ali v. The State (1993 PCr.LJ 578), Fatima Bibi and 5 others v. Sardar Ali and 3 others (2002 PCr.LJ 668), Riaz Ahmad and 3 others v. The State (PLD 1994 Lahore 485), Malik Asghar v. The State and 3 others (2005 MLD 1114), Ghulam Qadir v. The State and 2 others (1995 PCr.LJ 1239), Hadayat Ali v. Muhammad Shahbaz (2002 MLD 83), Ata Ullah v. The State (PLD 2000 Lahore 364), Bahawal Bakhsh v. The State (2002 PCr.LJ 1902) and Alimdad alias Khan v. The State (2002 PCr.LJ 1785).

4. Learned counsel appearing on behalf of respondent No.3 has vociferously argued that written applications presented by respondent Muhammad Irshad certainly disclosed commission of a cognizable offence with all salient features, time, date and place of occurrence, the names of the murderers and their roles as to murder of Riaz, beside the names of eye-witnesses, so a separate case by way of second FIR should have been registered by the police; the petitioner and his cronies callously murdered innocent brother of the respondent in an occurrence of dacoity, which is well corroborated by the medical evidence: the respondent ran from pillar to post to lodge a case against the real murderers but couldn't succeed because of their unholy liaison with the police: the story of conspiratorial FIR, already got registered by the petitioner, is unnatural and unbelievable, which did not appeal to any prudent mind or common intellect: further contended that the police hypothetically and skeptically showed to have recorded version of the respondent on 23.1.2016 by copying his written application verbatim after years delay and cancelled it as secretly as they duplicated it; lastly contended that registration of second FIR at the instance of respondent Muhammad Irshad was the only way to prosecute the actual murderers and take them to their logical end. He has relied on Mushtaq Hussain and another v. The State (2011 SCMR 45), Dilbar Hussain and others v. Riasat Javed Bajwa, SHO, Ferozewala and others (1994 MLD 1736) and Muhammad Latif v. SHO, Police Station Saddar, Dunyapur and 14 others (1993 PCr.LJ 1992).

5. Learned Additional Advocate General Punjab felt inclined to the contentions of the learned counsel for the respondent and submitted that in a suitable case, even third FIR about the same occurrence may be ordered to be registered and law did not clamp an absolute bar in this context. He has referred to Wajid Ali Khan Durani and others v. Government of Sindh and others (2001 SCMR 1556) and Mrs. Ghanwa Bhutto and another v. Government of Sindh and another (PLD 1997 Karachi 119) in support of his argument.

6. How laughable and childish did it look, that the police readily entertained the contention of the petitioner, as contained in FIR No.277/12 (supra) that he and his two empty handed companions got scot-free, when four unknown armed men ambushed them at about 7.00 p.m. on 8.12.2012 near a sugarcane field and opened straight firing, but killed a man of their own and silently slipped away through the sugarcane crop by taking away a meager amount of Rs.6,000/- from them and leaving behind a dead body along with its arms and ammunition. What the unknown robbers had opened firing for, was a crucial question, how easily overlooked by the police, nor did they venture into knowing the source, disclosing name of the killed robber to the informer (petitioner) as Riaz son of Muhammad Iqbal, caste Kharal, resident of Chak No.27/GB, district Faisalabad. The police appeared to have done everything in the investigation of this case, but locating the real murderers/accused and closed the file as untraced on 13.2.2016 by preparing a report under section 173, Cr.P.C. There may be found a copy of the written application submitted by respondent Muhammad Irshad to the investigating officer on 8.12.2012, wherein he categorically alleged that his brother Muhammad Riaz had been murdered in an occurrence of dacoity by Muhammad Usman (petitioner) and his companions. The investigating officer marked presence of respondent Muhammad Irshad in the first case-diary without mentioning the fact of receiving an application from him for registration of case against three named and three unknown persons, as mentioned therein. It transpired from the investigation-record that the police did not record a word about the version of respondent Muhammad Irshad till a direction was given by this court on 19.1.2016 in the instant petition, but it turned out to be a mere eyewash, as they reproduced contents of the said application in case-diary dated 23.1.2016, sans any remarks, if it disclosed commission of any cognizable offence and after scribing a couple of one-sided case-diaries declared the respondent's version false/baseless and prepared report under section 173, Cr.P.C. labelling it an untraced case. The partiality of the police floats on the record, as they constantly kept the respondent at an arm's length and paid no heed to his contentions at any stage of the investigation.

7. Finding no other way to translate his assertion into registration of a crime-report, the respondent filed an application under sections 22-A and 22-B, Cr.P.C. and fetched the impugned order, whereby Ex-Officio Justice of Peace, Okara directed the respondent-SHO to record his version under section 154, Cr.P.C. and proceed ahead within the annals of the law. The operation of this order was suspended by this court in year 2013 in the instant petition, so efforts of the respondent for lodging a case against the petitioner and others stumbled for a while. The respondent's application, which rested with the police, right from day one did not appear to have been misread by the Ex-Officio Justice of Peace while passing the impugned order, as it categorically disclosed the commission of a cognizable offence, which was bound to be made into an FIR, though second on the trot. Law did not clamp any embargo as to registration of second or third FIR, after registration of the first one, qua the same offence, as warranted by the situation and circumstances. The version of the respondent, as entailed in his written application, was altogether different from that of the petitioner and it could, by no means, be considered a mere amplification of the first version, that, most probably, did not reflect the true facts. The sternness of the police, as against the respondent's contention coined up many a crucial questions, which could only be answered by investigating the issue after registration of another FIR about the murder of Riaz, who happened to be the respondent's real brother. The refusal to record a genuine version of the same occurrence would not be justified nor could it be argued that the respondent might opt for the alternate remedy of filing a private complaint against the proposed accused. Learned counsel for the petitioner focused himself, by referring to many a judgments noted as above, on the point that first registered at the instance of the petitioner had set the machinery of law in motion, therefore, the police could unearth the truth and fix the liability of murder of Riaz on anyone, having done so, hence, ordering the police to register another FIR with a different version is not advisable. The respondent is an aggrieved person, being real brother of the deceased and he had every right to cause reparation of the damage, if any, done by the informer of first FIR and denial of the police on record his genuine version could not he justified by any argument. In an identical case, reported as Wajid Ali Khan Durani and others v. Government of Sindh and others (2001 SCMR 1556), the Supreme Court of Pakistan has observed as under:-

"We see no force in the contentions raised by the learned counsel. Perusal of the impugned judgment passed by the learned High Court would show that the first contention of the learned counsel was precisely raised before the learned High Court, who dealt with it elaborately and repelled it for the reasons shown in the judgment, to which no exception can be legitimately taken and the learned High Court in the circumstances of the case, was within its jurisdiction in giving the direction to the police for registering another FIR at the instance of the aggrieved widows of the deceased. Moreover, admittedly, since lodging of the third FIR, regular challan has been submitted in the Court in which the petitioners have been named as accused persons, and the trial is yet to take place. The only question before the learned High Court, therefore, being whether on the facts and circumstance of the case direction be given for lodging their FIR at the instance of aggrieved parties. The learned High Court was justified in not impleading the petitioners in the petition for the reason of avoiding causing prejudice to the case of either party on merits. Indeed, FIR merely sets in motion the criminal law and it cannot be used as a substantive piece of evidence against any accused person and even observations made in respect of the FIR pertaining to the merits of the case which is yet to be tried, cannot be used against any accused persons at the trial.

As to the contention of the learned counsel that the petitioners having been named as accused in the third FIR they were placed in disadvantageous position carrying the attending liability as accused persons, since the case has now been challenged in the Court of law, they will have full opportunity to defend themselves at the trial and the prosecution will have to ensure that they are not handicapped in their defence. Similarly, the contention that the learned High Court has not followed the view expressed by this Court in 1983 SCMR 436 is misconceived, as perusal of the impugned judgment would also show that in the circumstances pointed out in the judgment the learned High Court had correctly appreciated the views expressed in several cases by the superior Courts including the case referred to by the counsel in giving the direction for registering another FIR."

The petitioner's learned counsel emphatically argued that respondent Muhammad Irshad and the eye-witnesses, quoted in his written application, were a criminal lot being involved in about a dozen of cases each, so their story could not be believed and it had rightly been rejected by the police during investigation. Mere involvement in a number of criminal cases cannot render a person disentitled to enjoying the fundamental rights of life and liberty as guaranteed under the Constitution of Islamic Republic of Pakistan 1973. The respondent did not stand precluded from becoming an informer of the occurrence of murder of his brother and his status gathered more importance, when we looked at vulnerability of the story of firstly recorded FIR. The application of the respondent should have been made into "cross-first information report" on day one, but for the stubbornness and skeptical conduct of the police in the matter. The respondent has been denied the statutory right of having his grievance redressed by the police, so it is high time to mend the damage done. The registration of second FIR would assuage miseries of the respondent, besides it would help hierarchy of the police make a vigorous and rejuvenated effort to bring the actual culprits to book. No infirmity can be attached with the impugned order, which is hereby sustained. This petition stands dismissed. No order as to costs.

8. Before parting with this order, the Inspector General of Punjab is directed to look into the probability of effecting first change of investigation under Article 18(6) of the Police Order, 2002, of the FIR-case already registered and that of the one, to be registered in consequence hereof, so that allegation/objection of dishonest and partial investigation by the local police may be overcome and the ends of justice may efficaciously be met with.

SL/M-153/L Petition dismissed.