IN THE HIGH COURT OF SINDH AT SUKKUR
C.P.No. 2247 of 2011.
Date of hearing: 18.8.2011
Petitioner: Zahid Ali S/o Azhar Ali
Respondents: Station House Officer, P.S Patni, Taluka Rohri, District Sukkur & another
Mr.Ghulam Shabbir Shar Advocate for the petitioner.
Mr.Agha Ather Hussain AAG.
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Muhammad Ali Mazhar, J- This constitution petition has been brought to assail an order passed by the Justice of Peace, Sukkur in Cr. Misc. Application No.541 of 2010 on 26.7.2011, whereby the application moved by the petitioner under Section 22-A & 22-B, Cr.P.C was dismissed with the observation that there is no case for registration of second FIR of the same incident.
2. The learned counsel for the petitioner argued that the petitioner and his father deceased Azhar Ali were serving as Chowkidar at fish farm of Muhammad Imran. The father of the petitioner Azhar Ali was murdered and Muhammad Imran the employer of Azher Ali lodged an FIR but it does not reflect the correct position and the actual names of the accused persons who have committed the murder of petitioner’s father, have been suppressed and concealed and the FIR has been lodged against two other persons, therefore, an application was moved to the Justice of peace with the names of proposed accused/culprits. The gist of grievance of the petitioner was properly narrated in the paragraphs 4 to 6 of the Application instituted under Section 22-A & 22-B, Cr.P.C which are reproduced as under:-
“4. That the father of applicant felt some doubt that Gul Bahar along with other persons used to catch the fish from the farm of Muhammad Imran and sell to other persons, on which Azhar Ali made complaint to his owner Muhammad Imran against Gul Bahar Mirbahar, on which Muhammad Imran replied that he will come there at night time and will verify this thing.
“5. That on 24-5-2011 the applicant along with his deceased father Azhar Ali came on their duty with torches where Muhammad Imran Kamboh and Muhammad Ibrahim S/O Meenhar, Allah Wadhayo S/O Jaro Khan also came there with torches they met with them and ask that they are staying there and will see the actual face of Gul Bahar at about 2.00 A.M of night they saw and identified on the light of torches clearly that they were accused each (1) Qalander Bux S/O Khadim Hussain with lathi (2) Asghar Ali S/O Qalander Bux with Lathi (3) Niaz S/O Khadim Hussain with Lathi (4) Gul Bahar S/O Muhra, with Pistol (5) Nisar Ahmed S/O Abdul Majeed with Lathi. All by caste Mir Bahar, R/O Village Borahan, Taluka Rohri, District Sukkur, came there and started to catch the fish from fish farm of Muhammad Imran on which the deceased father of applicant gave them Hakal and raised cries which also attracted to Muhammad Imran Kamboh, Muhammad Ibrahim Mirbahar and Allah Wadhayo Mirbahar who also on the light of the torches saw the accused persons and identified them to be same.
6. That accused Gul Bahar asked the father of applicant not to raise cries and he instigated other accused persons who were armed with Lathies not to leave him but kill him on which all accused persons armed with lathies caused lathi blows upon deceased Azhar Ali which hit him on the several parts of body but he continued his cries on which accused Gul Bahar direct fired upon the deceased father of applicant with intention to commit his murder which hit him on his head who fell down with raising cries, thereafter all the above witnesses were coming towards them and also came there with the help of above witnesses they apprehended two accused persons each Gulbahar Mirbahar with Pistol and accused Niaz Ahmed Mirbahar with lathi at spot and other accused persons succeeded in good escape, thereafter they phoned to police of P.S Patni through Mobile phone who also came there and they handed over the accused persons to them along with weapons.”
3. The learned counsel for the petitioner argued that in spite of mentioning the explicit particulars in the application, the learned justice of peace has dismissed the application in a cursory manner without adverting to the contents of the application. The entire basis of rejection of application was simply a lodging of earlier FIR by Muhammad Iman, which did not reflect the truthful state of affairs and in fact the names of the actual culprits have been hidden and obscured.
4. The learned counsel further argued that petitioner is not only the legal heir of the deceased but also an eye witness of the incident, therefore, much sanctity attached to his statement rather than the statement of the employer of the deceased, therefore, his statement should have been accepted and orders ought to have been passed for registration of FIR after recording his statement under Section 154 Cr.P.C. He further argued that there are instances, in which at least three FIRs registered for the same offence but the FIR lodged by the legal heirs was given preference and tried for further proceedings by the trial Court. In support of his arguments, he referred to a judgment reported in 2001 SCMR 1556 (Wajid Ali Khan Durrani v Government of Sindh), in which the widow of the deceased lodged the third FIR as she was not satisfied with two previously registered FIRs. In this case the first FIR was registered at the instance of the police officer, second FIR was registered at the instance of the private servant, who was in police custody. The widow of deceased filed constitution petition in the High Court seeking direction to the police concerned to record another FIR disclosing the true facts of the incident. High Court accepted the petition and directed the police to record the FIR as prayed for by the widow holding that no hard and fast rule was that another FIR could not be registered. The order of the High Court was challenged in the honorable supreme court, which was affirmed and the petition filed by Wajid Ali Khan Durrani, was dismissed. The honorable supreme court held as under:-
“Registration of third F.I.R. Widows of the deceased were not satisfied with two previously registered F.I.Rs. as they had felt that said F.I.Rs. did not reflect the true facts. First F.I.R. was registered at the instance of a police officer who was suspected by the widows of being accused himself in the case. Second F.I.R. was registered at the instance of a private servant of one of the widows who was still in police custody. Contention of widows that two F.I.Rs. registered by the police did not transpire true facts, was not unreasonable. Widows of the deceased filed Constitutional petition before High Court seeking direction to the police concerned to record another F.I.R. disclosing the true facts of the incident. High Court accepted petition and directed the police to record third F.I.R. as prayed for by the widows holding that no hard and fast rule was that another F.I.R. could not be registered in respect of different version given by the aggrieved party of the same occurrence. If information subsequently given to a police officer which disclosed a different offence, was also cognizable by the police, then unless it was mere amplification of the first version, it must be recorded by the Police. If true facts in respect of an occurrence were not reflected by the two earlier F.I.Rs., the refusal to record a genuine version of the same occurrence would not be justified. Alternate remedy though was provided to an aggrieved party under the law by way of lodging complaint, but mere fact that an alternate remedy had been provided for, could not debar the Court from giving direction to the police to record another F.I.R. in an appropriate case. High Court, in circumstances, had rightly directed to the police concerned to register a third F.I.R. at the behest of the widows of the deceased. Petitions for leave to appeal against judgment of High Court were dismissed”.
5. At this juncture I would like to refer to another judgment reported in 2011 Y L R 866, (Muhammad Nawaz Versus District Police Officer and others), in which, the learned single judge of Lahore high court held in the similar circumstances as under:
“Petitioner/complainant had never believed the version of the complainant as contained in the already registered F.I.R. about the occurrence and he had resorted to record his own version. Higher police officials including the DPO had been approached in this behalf by the petitioner, but his request for registration of second F.I.R. was not acceded to. Petitioner had been alleging the murder of his daughter against different accused persons and registration of F.I.R was not unnecessary. Station House Officer concerned was consequently directed to register a second F.I.R. forthwith containing the version of the petitioner and then investigate and proceed with the matter strictly in accordance with law. Constitutional petition was allowed accordingly”.
6. In another case reported in PLD 2005 Supreme Court 297, (Mst. Anwar Begum Versus Station House Officer, Police Station Karli West, Karachi), the honorable Supreme Court has held as under:-
“Registration of second F.I.R. Accused mentioned in the first F.I.R. lodged by Manager of deceased were unknown and untraceable. Police refused to record second F.I.R. as per widow's version. High Court in Constitutional petition directed Police to consider widow's version by examining her and her witnesses during investigation. Widow from the day of incident had been alleging murder of her husband to be managed by his real brothers in league with complainant of first F.I.R. its Investigating Officer and others named accused. Veracity and truthfulness of first F.I.R. had become highly doubtful in such circumstances. Widow was right in asking for registration of another F.I.R. as per her own version. Widow had been moving applications and making representations to high‑ups in Police, but all in vain. Discretionary powers under Art. 199 of the Constitution must be exercised by High Court in good faith, fairly, justly and reasonably having regard to all relevant circumstances and in accordance with the principles laid down by Superior Courts. Disposal of Constitutional petition on technical grounds without adverting to grievance of widow was not legal. Widow had made out a case for registration of second F.I.R. Supreme Court accepted appeal with direction to Police to register fresh F.I.R. on basis of widow's version within a week & report its compliance to officer‑in‑charge of Court.
7. The learned AAG argued that instead of requesting for the registration of second FIR the petitioner may file direct complaint in the trial Court and he further opposed that instead of filing this petition, the petitioner should have filed an application under Section 561-A, Cr.P.C in this Court.
8. I have heard the arguments of the learned counsel and reached to the conclusion that in fact it is not the function of the Justice of Peace to touch the merits of the case and his role is only confined to see whether the police officer on the approach of an aggrieved person recorded the statement under Section 154, Cr.P.C or not. If Justice of Peace in each and every case on an application moved under Section 22-A & 22-B, Cr.P.C will start to try the case on merits and before registration of FIR then the entire purpose of remedy provided under Section 22-A Cr.P.C will become redundant and a futile exercise. The contents of the application filed before the Justice of Peace are clear without any shadow of doubt that the applicant, who is not only the son of the deceased but also an eye witness of the incident and he had also proposed the names of alleged culprits. In my own judgment reported in 2011 P.Cr.LJ 268, (Mumtaz Ali Versus S.H.O. Naushahro Feroz and), being fortified by the pronouncement of honorable supreme court on the subject, I have held that under S.22-A, Cr.P.C., Justice of Peace was required to ascertain whether a cognizable case was made out by the facts narrated in the application for registration of F.I.R. Minute examination of the case and fact finding was not included in the functions of the Justice of Peace. Powers of Justice of Peace were designed to aid and assist criminal justice system; such powers are not supervisory or judicial but the same were administrative and ministerial in nature. Officer in charge of Police Station was not authorized to assess the correctness or falsity of the information received, instead, he was obliged to reduce the same into writing irrespective of the fact whether such information was true or false. Justice of Peace acted in excess of his powers by touching the merits of the case without any justification doing, thereby, violence to the whole scheme of Criminal Procedure Code, 1898. Justice of Peace was saddled with the administrative duty to redress the grievance of complainants aggrieved by refusal of Police Officer to register their reports and was not authorized to assume the role of investigating agency or prosecution. Assumption of role of investigator by Justice of Peace would make Ss.154 and 155, Cr.P.C. redundant.
9. So far as the question whether two F.I.Rs can be registered for the same offence. This particular aspect has already been dealt with by the honorable supreme court (supra), therefore, there is no cavil to this proposition that second FIR can be lodged and preference shall be given to the statement recorded under Section 154, Cr.P.C by the legal heir of the deceased who is in this case also an eye witness and narrated all the crucial facts in his application before justice of peace warranting the registration of second FIR on the basis of his statement. There is no hard and fast rule that another F.I.R. could not be registered in respect of different version given by the aggrieved party of the same occurrence. If information subsequently given to a police officer discloses a different offence, cognizable by the police, then unless it was mere amplification of the first version, it must be recorded by the Police. If true facts in respect of an occurrence are not reflected by the earlier F.I.R, the refusal to record a genuine version of the same occurrence would not be justified.
10. The upshot of this discussion is that the impugned order dated 26.7.2011 is set aside. The respondent No.1 is directed to record the statement of the petitioner immediately and if any cognizable case is made out, he should register the F.I.R. in accordance with law.
Judge