ORDER SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Crl. Misc. Appln. No.S-223 of 2014.
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DATE OF HEARING |
ORDER WITH SIGNATURE OF HON’BLE JUDGE |
1. For orders on M.A.No.3066/2015
2. For orders on M.A.No.2633 /2015.
3. For Katcha Peshi.
30.9.2015.
Mr. Ahsan Ahmed Qureshi, advocate for applicant along with applicant.
Mr. Shahzado Saleem, A.P.G along with Inspector Ashfaque Ahmed Mangi, the then SHO PS Nasirabad.
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Through instant application, moved application under section 561-A, Cr.P.C, the applicant Muhammad Nawaz Jhatiyal has prayed for setting aside the order dated 11.9.2014, passed by learned Sessions Judge/Justice of Peace, Kamber-Shahdadkot @ Kamber, whereby rejecting his (applicant’s) application under section 22-A & B, Cr.P.C for registering of second FIR was rejected.
2. Succinctly the case of the applicant is that on 13.7.2014 at 2115 hours, Mst. Babli aged about 34/35 years was done to death by causing her firearm injuries in the jurisdiction of Police Station, Nasirabad on the pretext of “Karap”. Resultantly, FIR was lodged by the complainant Inspector Ashfaque Ahmed Mangi, SHO PS Nasirabad against accused Khadim Hussain, Abid and three other unidentified persons. During the course of investigation, one accused Abid Jhatiyal has been arrested with a crime gun, while another accused Khadim Husain, a real son of present applicant and brother of deceased Mst. Babli, is still at large. Now, applicant has filed this application for the lodgment of “Second” FIR in respect of same occurrence only against accused Abid Jhatiyal excluding his son/accused Khadim Hussain from the commission of crime.
3. Learned counsel for the applicant was asked to satisfy this Court on the point of the maintainability of this application for lodging “second” FIR only against one accused, namely, Abid Jhatiyal, who had already been mentioned and arrested in first FIR No.69/2014 under section 302, 34, PPC in respect of the same occurrence. Learned counsel for the applicant argued that deceased Mst. Babli, daughter of present applicant was done to death by only accused Abid and applicant’s son namely Khadim has falsely been implicated in the first FIR by the SHO PS Nasirabad with malafide intention, therefore, applicant has filed this application for the registration of “Second” FIR in respect of same crime. Learned counsel for the applicant in support of his contention has relied upon the cases of Muhammad Latif v. S.H.O., P.S. Saddar, Dunyapur, Mst. Malika Jan v. Inspector General of Police 2000 P.Cr.L.J 320, Wajid Ali Khan Durani v. Government of Sindh 2001 SCMR 1556, Rana Ghulam Mustafa v., SHO PS Civil Line, Lahore PLD 2008 Lahore 110, Mst. Allah Rakhi v. D.P.O Gujranwala 2009 MLD 99 and Mrs. Ghanwa Bhutto v. Government of Sindh PLD 1997 Karachi 119.
4. On the other hand learned A.P.G appearing on behalf of the State has opposed grant of this application on the ground that in this area innocent women are being murdered by the blood relatives without any hesitation on the pretext of “Karap” and no family member from the victim’s side is willing to lodge FIR, therefore, looking to the said tradition prevailing particularly in this area, SHO concerned has lodged first FIR against the accused persons on behalf of the State including son of the applicant.
5. I have heard learned counsel for the applicant as well as learned A.P.G appearing on behalf of the State and also gone through the material available on record.
6. At the very out-set, it would be material to refer the Section 22-A(6) of the Code which reads as:-
‘An ex-official justice of the Peace may issue appropriate directions to the police authorities concerned on a complaint regarding:-
i) non-registration of a criminal case;
ii) transfer of….
iii) neglect, failure or excess committed by a police authority in relation to the functions and duties;
The above provision no where permits directions for registration of second FIR. I am clear that issuance of instructions for ‘registration of a criminal case’ and that of registration of second FIR are not synonyms to each other. Further, Code of Criminal Procedure, 1898 does not recognize lodgment of second FIR in existence of first FIR. Thus, on this count alone the application of the present petitioner was not competent being beyond the four lines of Section 22-A(6) Cr.PC which only permits issuance of appropriate directions because in existence and continuity of an FIR the direction for lodgment of second FIR would not be appropriate.
8. It is worth to mention here that mostly in this area, the innocent women are being killed under the garb of “Karap” and cases are either not registered or lodged in a manner and fashion to have full advantage of such brutal act even which practice was / is always required to be curbed by Incharge police station concerned by lodging the FIR without waiting for related or interested to come.
9. Be that as it may be, let me insist that law normally does not debar the officer in-charge of a police station to lodge the FIR or asks him (officer in-charge) to wait for related or interested to come and report the matter, therefore, lodgment of FIR by a police officer is as competent and legal as one lodged by a private person can be. Further, the law normally permits registration of a single FIR on information of commission of a cognizable offence because the object of Section 154 Cr.PC is to set the law into motion. The law once set into motion allows and permits the investigating officer not to follow the dotted line but to take all measures to bring the truth on surface. The investigation is exclusive domain of the investigation agency which is normally not interfered even under Constitutional Jurisdiction. The Law even does not confine the authority of the Investigating Officer to necessarily send the nominated accused to face the trial but he (investigating officer) can competently declare the nominated accused as ‘innocent’ and to place a given witness as an accused even while submitting the challan (charge sheet) if investigation so concludes.
10. The perusal of the petition speaks that the present petitioner appears to be interested in lodgment of second FIR against Abid Jhatiyal only, whose name is mentioned in already lodged FIR but seeking exception to name of his son. In short, the reasons brought forwarded by the applicant is that his daughter Mst. Babli was only murdered by Abid Jhatiyal while his son Khadim Hussain is not involved in her murder and due to some reasons he could not be able to lodge FIR at concerned Police Station. Whether this fact itself can be considered and made the reason to order for “Second” FIR. Since already discussed the applicant or any other person interested in bringing the truth on surface can competently approach the investigation officer who shall be obliged to interrogate him / her if he / she is so found by the Investigating Officer, as is evident from Section 161 of the Criminal Procedure Code wherein word ‘any person’ is used in place of ‘persons named in FIR as witnesses’ which is indicative that how the legislature has widened the authority and competence of investigating officer while searching the truth. Even otherwise, if such practice cannot be allowed to prevail because if is allowed it shall open a door of new trend for such applications which no doubt shall cause serious prejudice to the case of prosecution. At this juncture, it is pertinent to mention here that in extraordinary cases the second FIR may be lodged / ordered which would require existence of extra-ordinary circumstances justifying such exceptional step. However, even in such eventuality, it would require cancellation of first FIR first because two F.I.Rs for one and same offence cannot go parallel. There existed no extra ordinary circumstances justifying accepting such request. Since applicant’s son is nominated in the FIR to be one of the accused of murder of his real sister Mst. Babli on the pretext of “Karap”, so it was duty of the I.O to proceed according to law and to send-up those only against whom sufficient evidence, justifying their trial (arraignment) comes on surface. Accordingly, in view of above discussion the petition is hereby dismissed being devoid of substance.
11. While parting, it is necessary to mention that if the investigation is continuing then the applicant is at liberty to approach the Investigating Officer for recording his statement or producing material, if any, if he wishes so. If the applicant appears , the Investigating officer shall not show any reluctance to record statement of the applicant if he proves himself to be acquainted with the facts and circumstances of the case’.
12. These are the detailed reasons for the short order dated 30.9.2015 whereby the instant miscellaneous application was dismissed.
Judge
M.Y.Panhwar/**