2014 P Cr. L J 1007
[Balochistan]
Before Muhammad Kamran Khan Mulakhail, J
MUHAMMAD HANIF---Petitioner
Versus
S.H.O. POLICE STATION NEW SARI AB, QUETTA and 2 others---Respondents
Criminal Quashment No.625 of 2013, decided on 21st March, 2014.
(a) Criminal Procedure Code (V of 1898)---
----Ss. 154, 156, 173 & 190---Information of cogni zable offence---Recording of F.I.R.---
Investigation in the case---Powers and duties of S.H.O.---S.H.O., was under statutory duty to
reduce into writing the information given to him by the informant about commission of
cognizable offence, and invest igate the matter---S.H.O., need not determine the guilt or
innocence of accused persons; he was bestowed with the duty just to differentiate the nature of
offence reported to him including recording of F.I.R.---Whenever S.H.O. received a report, the
only power conferred on him was to decide as to under which category of offence the
information so received fell whether the same was cognizable or non-cogni zable---Obligation of
the S.H.O./Investigating Officer, was not to satisfy the parties to the case or to render any opinion about guilt or innocence of an accused, but his duty was only to collect all the
relevant evidence---In the reports to be submitted by the Police in connection with investigation of a criminal case, it could comment about sufficient or otherwise of the evidence
available against accused, but it could not comm ent upon credence or ot herwise of evidence
becoming available on record---Question of wo rthiness or credence or otherwise of such
evidence, was to be attended to by the Magist rate empowered under S.190, Cr.P.C., or by the
Trial Court---Law cast an obl igation upon the S.H.O./Investiga ting Officer for collecting the
evidence and the evidence alone.
Mrs. Ghanwa Bhutto's case PLD 1997 Ka r. 119; Muhammad Bashir's case PLD 2007 SC
539; Khizar Hayat's case PLD 2005 Lah. 470 and Wa jid Ali Khan Durrani v. Government of
Sindh 2001 SCMR 1556 ref.
(b) Criminal Procedure Code (V of 1898)---
----S. 154---Lodging of F.I.R.---Cross-versions ---Powers and duties of S.H.O.---When two
distinct and opposite versions had come on reco rd, wherein the manner of commission of the
crime was not only different fr om each other, but on certain points all diametrically opposed
each other, interest of justice, as well as fair investigation, demanded that a separate F.I.R. on the
basis of application of informant should be r ecorded and investigated upon, so that both the
versions could be placed before the court who w ould then be in a position to determine, and
adjudicate upon as to which of the version was wholly or partly correc t---Only the promptly
lodged F.I.R., and both versions with all minute de tails, would enable the Trial Court to put both
the versions in juxta-position, a nd after evaluating the credence, and assessing the worthiness of
offence, the court could determine the question of aggression; and ther eafter the guilt or
innocence of accused---Virtually impossible it would be in case of one F.I.R. in respect of two
divergent versions, because the task of param ount importance, such as the appreciation of
evidence, could not be done with care and caution like 'sifting the grains from chaff'---If counter-
version was merely restricted to a defence version, the second F.I.R. could not be recorded, but if
a distinct and separate cognizab le offence was disclosed, and no effective inquiry or the trial
could be held without properly appreciating and c onsidering the two versions , then another F.I.R.
was to be recorded---S.H.O., in the present case ha d illegally refused to re gister the case; he was
directed by High Court to dispose of a pplication in accordance with law.
Masoom Khan Kakar and Syed Qaseem Agha for Petitioner.
Abdul Karim Malghani along w ith Muhammad Waris, Investig ation Officer for the State.
Date of hearing: 13th December, 2013.
JUDGMENT
MUHAMMAD KAMRAN KHAN MULAKHAIL, J. ---Through this Criminal
Quashment Petition the following prayer has been sought:--
"It is therefore, respectfu lly accordingly prayed that impugned order dated 13-11-2013
passed by Additional Session Judge-VI responde nt No.2 may kindly set aside and respondent
No.1 be directed to register the F.I.R. of the petitioner as per hi s version against the proposed
accused persons strictly in accordance with law."
2. Briefly, facts leading to the filing of the in stant petition are that the petitioner submitted a
written report before the SHO/respondent No.1, a nd on his refusal, he moved an application to
the Sessions Judge, Quetta/an Ex-Officio Just ice of the Peace under section 22-A(6) of the
Criminal Procedure Code (Cr.P.C.), which wa s transmitted to the file of learned Additional
Sessions, Judge-VI, Quetta, who vide orde r dated 13-11-2013 dismissed the same. The
contention of the petitioner as narrated in his ap plication appended with me mo of the petition is
that he along with his cousin Muhammad Murad son of Abdul Rahim, after vi siting their relative
Ghulam Nabi were proceeding to their house, when the accused persons launched a murderous assault upon them by means of daggers and stic ks (Danda) and both of them were severely
trounced. Resultantly he was severely injured a nd Muhammad Murad after having been injured
became unconscious. The occurrence was reported to the concerned police but the respondent
No.1/SHO refused to lodge an F.I.R. on the st rength that an F.I.R. No.170 of 2013 had already
been lodged in respect of same occurrence, ther efore, second F.I.R. on similar facts cannot be
entered. The contents of already registered F.I.R. are reproduced herein below:--
3. The perusal of referred to F.I.R. reveal s that respondent No.1/ SHO on his own became a
complainant and lodged the F.I.R. against the petitioner and the accused along with absconding
accused persons, who were alleged to have launched an attack. After prelim inary hearing of this
petition, notice was issued to the respondents, in response wh ereof, Muhammad Waris, the
Investigation Officer appeared and submitted his report stating therein that F.I.R. has
already been lodged and the challan in this behalf has also been submitted before the trial
Court. It was further averred that the accused pers ons from other side were not arrested. Perusal
of report further reflects that the injured Muha mmad Murad succumbed to his injuries in Civil
Hospital, therefore, inquest report as envisaged under section 174 of the Cr.P.C. was also
compiled in the hospital, in consequence thereof, section 302 of the Pakistan Penal Code
("P.P.C.") was inserted in the F.I.R. supra.
4. The learned Additional Sessions Judge-VI, Quetta vide order dated 13-11-2013 has
dismissed the application w ith following observations:--
"Since the complainant has nominated both the parties in F.I.R., however the applicant'
has filed the instant application has mentioned the names of above mentioned persons, but the
counsel for applicant during the course of arguments contended the [sic] the above mentioned
persons were unknown and the applicant came to know their names, even the applicants has
not mentioned the descriptions, image of the unknown persons; even he has not mentioned
the source of his information regarding the no mination of the above mentioned persons. The
record clearly shows the incide nt took place on 20th October, 2013 while he filed the instant
application on 29th October, 2013 af ter delay of nine days and after though [sic], thereafter
mentioned the names of above mentioned remain ing persons of his opponents in the instant
application which shows the mala fide on the part of applicant. Therefore, in view of the
discussion and circumstances of the case the a pplication in hand is dismissed. The application
after completion be co nsigned to record".
5. Mr. Masoom Khan Kakar, Advocate, learned counsel for the petitioner submitted that the
petitioner who was severely injured due to murderous assault, was arrested from the hospital and
shifted to the jail ward of the Sandeman Provincial Hospital, Quetta and presently, is confined in District Jail, Quetta. Whereas his injured companion Muhammad Mu rad succumbed to his
injuries. The learned counsel contended that the SHO/respondent No.1 was under obligation to
record the version of the petiti oner as according to the facts and circumstances of the case, the
petitioner and his deceased cousin were thrashed by means of sharp weapons. He alleged that the
SHO concerned is in league with the assailants, therefore, he nominated the injured complainant and the deceased towards the commission of the offence and they have been arrayed as accused with the assailants. He further contended that it is evident from perusal of F.I.R. that the
petitioner and his deceased cousin Muhammad Murad were taken to the hospital by the SHO
when both of them were found unconscious at the place of occurre nce. But the SHO instead
of recording the version of the petitioner has lodged the F.I.R. in haphazard manner. He alleged that the SHO acted w ith malice and mala fide; theref ore, instead of arresting the
perpetrators of crime, he was playing the role of the accomplice of the perpetrators. He finally
urged that the directions may be issued to the SHO/respondent No.1 for registration of F.I.R. He
relied upon an unreported judgmen t of this Court passed in Cr iminal Quashment Petition No.274
of 2013 and Mrs. Ghanwa Bhutto's Case reported in PLD 1997 Karachi page 119.
6. Mr. Abdul Karim Malghani, Advocate repres enting the State strong ly opposed the
petition and supported the impugned order da ted 13-11-2013 passed by the learned
Additional Sessions Judge-IV/Ex- Officio Justice of the Peace. He contended that since the
F.I.R. in respect of alleged occurrence had alr eady been registered, ther efore, registration of
second F.I.R. will amount to recording of defence version of the petitioner, which course is not
permissible under the law and two F.I.Rs. in resp ect of one occurrence cannot be registered. In
addition, he referred to a letter dated 14-6-2012 issued by the SP Cr imes on behalf of the Capital
City Police Officer, Quetta ("CCPO") and stated that through the said le tter all the SHOs had
been strictly directed to refrain from lodging tw o separate F.I.Rs. in cas e of scuffle between two
rival groups, therefore, the SHO had acted as accor ding to directions contained therein, while the
learned lower court has passed a well-speaking or der, which does not requ ire any interference by
this Court. He urged for dismissal of the petition.
7. I have heard the learned couns el and have gone through the re cord of the case with their
valuable assistance. Before dilating upon the legitim acy of the letter issued by the CCPO, Quetta
and merits of the case, it would be helpful to reproduce after referred letter which speaks as
under:--
8. It is a unique case of its kind, where the polic e, after the receipt of written statement from
the petitioner/complainant, instead of registerin g a separate and independ ent F.I.R. on the basis
of written report submitted by the petitioner, made it a part of a case registered vide F.I.R.
No.170 of 2013 under section 337, A.D.F. read w ith sections 147, 148 and 149, P.P.C., claiming
casualty by the rival party at the hands of the petitioner's party, may be, considering both the
counter-versions to be result of one occurrence a nd thus, entered its contents in the diaries of
afore referred case. Such a pract ice is unprecedented had never e xperienced earlier and still to
come across as general principle is that, whenev er counter-versions are received by the police,
separate F.I.Rs. are chalke d out. The police, while treating the written report as part of the earlier
registered case by the SHO himself and not regist ering an independent case , seems to be oblivion
of the fact that the statement it so taken in the cas e after registration of case would be under
section 161, Cr.P.C. and which, not to speak of written report. A pr oper course is to register a
separate case on the basis of su ch a written report containing al l the necessary ingredients of
F.I.R. i.e. the time of report, the time of occurre nce, distance from the police station, and being
read over to the maker and getti ng his thumb-impression or signatu re in token of its correctness
and at the end the proceeding carried out by the police with regard to th e necessary steps taken
by them immediately after registrati on of the case and then signature of the scribe. In the present
case the written report which was made well in time, was not in line as narrated by the SHO in
F.I.R. registered earlier, therefore, was not c onsidered as worthy of credence. The SHO instead
of conducting an independent investigation, has simply relied upon the information gathered by
him on the spot, and then investigation was entrus ted to another officer viz, Muhammad Waris.
The manner and procedure adopted by the SHO is bere ft of all the aforesaid statics and even the
SHO to whom such a written report has been submitted did no t bother to endorse it even
with the timing of its receipt and not si gned by him and not made fu rther inquiries, which are
bounden duties of the SHO being an addressee and recipient of the First Information Report
(F.I.R.).
9. Before considering the legality and the n ecessity of registration of second F.I.R. on
written report of the petitioner, it is observed with grave concerns that the referred to letter issued
by the CCPO Quetta is also a unique of it s kind which has demolished the edifice of
administration of criminal justice for the simple reason that neither the Criminal Procedure Code nor the Police Rules 1934, nor the dictums laid down by the Hon'ble Apex Court provides any
support to the letter issued by the CCPO Quetta. For example, if a person who receives a minor injury gets an F.I.R. recorded, then the opposite party whose man has been murdered, has been
stopped from getting a case registered and investigated upon merely because an F.I.R. has
already been registered. The proposition, which revolves around the controversy, remained under
consideration before the Hon'ble Supreme Court time and again and it is held that the occurrence
may be same but where there are two cross ve rsions of the occurrence. The SHO is under
statutory duty to reduce into writing the in formation given to him by the informant about
commission of cognizable offence and investigat e the matter. An authoritative verdict, on
registration of an F.I.R. is rendered by the Ho n'ble Supreme Court in Muhammad Bashir's case
reported in PLD 2007 SC 539 and it is instructive to reproduce the relevant passages from said
judgment:--
"(14) The wisdom was not far to find. If the S. H.O. was given the authority to determine the
truthfulness or the falsehood of the allegations le velled against someone and thereafter to decide
to record or not to record such allegations as F.I.R., then such a police officer would have got
blessed with the power to decide about the guilt or innocence of an accused person. This was,
however, far from the envisaged by the law-make rs regarding the identification and the
consequent acquittal or convic tion of accused persons as the said task stood assigned only
to the courts of law and had never been conceded to police officers.
(17) In the matter of ascertainment of the gui lt or innocence of the persons accused of the
commission of offences or in the matter of determination of the truth or otherwise of the
allegations made in the said connection, the only power may the oblig ation cast on the police
officers is to carry out the inve stigation of cases, on their ow n if the offence be cognizable
(sections 156, 157 and 174, Cr.P.C.) and with the permission of a Magistrate if the same be non-
cognizable (section 155(2), Cr.P.C). And 'investigation' as defined by section 4(1)(I ) of the said
Code, means only, the collection of evidence and no more. The impression that an Investigating
Officer had any power or was even allowed to pronounce upon the guilt or innocence of an
accused person was a grave misconception. In fact such an opinion expressed by an Investigating Officer was not even admissible in evidence at the trial being the opinion of a person who had
never been held by the Courts of law to be an e xpert. Therefore, in any criminal proceedings, the
job of a police officer only is to collect evidence and to place the same along with other
information, before the competent Magistrate in the form of a report in terms of section 173,
Cr.P.C. It would be evident from the provisions of section 63, Cr.P.C. that the fate of a person,
though arrested by the police, was no longer in thei r hands but was at the mercy of a Magistrate
and likewise the fate of an F. I.R. though recorded by a police officer but once recorded, went
beyond his control and it was then only a Magistra te who could cancel it (Rule 24.7 of the Police
Rules of 1934). The most which is permissible fo r an Investigating Officer, vis-a-vis an accused
person whose case was under investigation, was to release him, on his bond, if according to the
Investigating Officer there was not enough evid ence available against him or no reasonable
ground of suspicion existed which could justify his being forwarded to a Magistrate (section
169, Cr.P.C.). But then it will be no ticed that such a step by an Investigating Officer was
not final as such an accused person had to execute a bond before being so released, committing himself to appear before the competen t Magistrate if and when required by such a
Magistrate to face the trial. Th e provisions of section 173, Cr.P.C . further support this view as
the S.H.O., while reporting the result of his inves tigation under the said section i.e. the challan,
had to give the details of any accused person re leased under section 169, Cr.P.C. and the final
fate of such a person was thereafter, again in the hands of the comp etent Magistrate/Court.
(18) What, therefore, transpires from the above not iced scheme, the spirit, the intention and
even the letter of the relevant law was that there was no r oom for any inquiry into the
veracity of the information received by an officer incharge of a Police Station with
respect to the commission of an offence a nd he was consequently clothed with no
authority to refuse to reco rd an F.I.R. only because, in his opinion, the information conveyed
to him, lacked credibility".
(underlining is provided for emphasis) 10. Thus, in view of judgment supra and discussi on made herein above, it is held that the
SHO is nobody in order to determine the guilt or innocence of the accused persons, however, he
is bestowed with the duty just to differentiate th e nature of offence report ed to him as for same
purpose including recording of F.I.R., thus, when ever the SHO receives a report the only power
conferred to him under the Code, 1898 is to decide that the information received, comes within
the ambit of which category of offences, whet her cognizable or non-cognizable. The criminal
offences have been categorized by the Criminal Procedure Code in two clauses i.e. 'cognizable
and non-cognizable' offences. Whereas sections 154 and 155(1) of the said Code provides the
procedure envisaged viz a viz, the information relating to both categories of offences, these
provisions read as under:--
154. Information in cognizable cases. Every in formation relating to the commission of a
cognizable offence if given orally to an officer incharge of a pol ice-station, shall be reduced to
writing by him or under his direction, and be read over to the informant, and every such
information, whether given in writing or reduced to writing as aforesaid shall be signed by the
person giving it, and the substance thereof shall be entered in a book to be kept by such officer in
such form as the Provincial Governme nt may prescribe in this behalf."
155. Information in non-cognizabl e cases. (1) When informati on is given to an officer
incharge of a police station of the commissi on within the limits of such station of a non-
cognizable offence, he shall ente r in a book to be kept as af oresaid the substance of such
information and refer the informant to the [Magistrate].
Thus, an immense obligation of the SHO/Invest igating Officer is not to satisfy the parties
to the case or to render any opinion about guilt or innocence of an accused persons but his duty is only to collect all the relevant evidence. In the reports to be submitted, by the police, in
connection with investigation of a criminal cas e it can comment about sufficiency or otherwise
of the evidence available against an accused person but it cannot comment upon credence or
otherwise of evidence becoming available on the r ecord. The question of worthiness of credence
or otherwise of such evidence is to be attende d to by the Magistrate empowered under section
190, Cr.P.C. or by the trial Court, thus the law casts an obliga tion upon the SHO/Investigation
Officer is collecting the evidence and the eviden ce alone. This practice in legal terminology is
known as an 'investigation', whereas the word investigation has been defined in section 4(1)(I) of
the Criminal Procedure Code and has been inte rpreted in Khizar Hayat's case reported in PLD
2005 Lahore 470 and it would be advantageous to reproduce a passage from para 23 at page
No.544 of the said judgment, which reads as follows:--
"The term 'investigation has been defined by section 4(1 )(I) of the Code. "---all the
proceedings under this Code for the collection of evidence conducted by a police officer or by
any person (other than a Magistrate ) who is authorized by a Magistrate in this behalf". The job of
an Investigation Officer is, only to collect all th e relevant evidence pert aining to the allegation
levelled regarding the crime in issue, so as to dig out the truth enab ling and facilitating the
relevant court to administer justi ce between the parties. His job is not to satisfy the parties to the
case or to arrogate to himself the role of an adjudicator, rendering an opinion regarding guilt or innocence of any person. In the reports to be submitted by the police in connection with
investigation of a criminal case it can comment about sufficiency or otherwise of the evidence
available against an accused person but it cannot comment upon believability or otherwise of the
evidence becoming available on the record ag ainst such accused person. The question of
believability or otherwise of such evidence is to be attended to by the relevant Magistrate or the
trial Court".
11. Now adverting to the question of registrati on of second F.I.R., plethora of judgments
have been rendered on the subject and one of thes e is the case of Mrs. Ghanwa Bhutto reported
in PLD 1997 Karachi 119, wherein it is held that
"9. Reference to the case-law, th erefore, indicates that there is no hard and fast rule that a
second F.I.R. cannot be registered in respect of a different version given by an aggrieved party of
the same occurrence. If information subsequen tly given to a police o fficer, which discloses a
different offence, also cognizable by the police, then unless it is a mere implication of the first
version, it must be recorded by th e police; therefore direction to the police to record a second
F.I.R. would depend upon the circumstances of each case. If true fact s in respect of an
occurrence are not reflected by the first F.I.R., th en refusal to record a genuine version of the
same occurrence would not be just ified. The question has, therefore, to be examined in the light
of the circumstances of a particular case."
The view rendered by the Hon'ble Sindh High Court was further confirmed by the
Hon'ble Supreme Court of Pakistan, when the no minated accused in Ghanwa Bhutto's case, who
were police officers viz Wajid Al i Khan Durrani, Shahid Hayat Khan and Rai Muhammad Tahir,
wanted to be formally impleaded as responde nts in the constitutional petition, although their
request was declined but their counsel was permitted to address the court on various issues involved in that case. The aforesaid, police o fficers being aggrieved had assailed the judgment
supra before the Hon'ble Supreme Court of Paki stan but leave was refused and a view rendered
by the Hon'ble Sindh High Court was upheld, which is captioned as "Wajid Ali Khan Durrani v.
Government of Sindh" in 2001 SCMR 1556.
This view is rendered with consistency not only by the Hon'ble Apex Court but by all the
High Courts of the country that when two distinct and opposite versions have come on record,
wherein the manner of commission of the crime is not only different from each other but on
certain points all diametrically oppose each other. The interest of justice as well as fair
investigation, therefore, demands that a separate F.I.R. on the basis of application of informant
should be recorded and investigated upon so that both the versions may be placed before the
court who will then be in a posit ion to determine and adjudicate upon as to which of the version
is wholly or partly correct.
In case of cross-versions, only the promptly lodged F.I.R., and both versions with all
minute details, enable the trial Court to put bot h the versions in juxt aposition, and after
evaluating the credence and assessing the worthine ss of evidence, the court can determine the,
question of aggression, and thereafter, the gu ilt or innocence of the accused. It would be
virtually impossible in case of one F.I.R. in resp ect of two divergent versions because the task of
paramount importance, such as, the appreciatio n of evidence cannot be done with care and
caution like 'sifting the grains fr om chaff'. The conclusion is irre sistible that the sifting of
information conveyed by informant to an Officer Incharge of Police Station and picking
out what was correct and dis carding which was false was not a task assigned to SHO.
12. The crux of the matter, whic h boils down after goi ng through all releva nt law and the law
of registration of F.I.R. as laid down by the H on'ble Apex Court is that if counter-version is
merely restricted to a defence version, the second F. I.R. cannot be recorded but if a distinct
and separate cognizable offence is disclosed and no effective inquiry or the trial can be
held without properly appreciating and considering the two vers ions, then another F.I.R. is
to be recorded. I am, therefore, of the view that the respondent/SHO has illegally refused to
register the case and thus grave miscarriage of justice is being committed because of
instructions rendered by the top slot in hierarchy of law-enforcing agency, meaning
thereby, that an Investigation Officer of the pol ice department, will sit over the domain of the
courts of law. By no stretch of imagination, th ese instructions can be maintained. Thus, the
referred to letter No.34145-75 dated 14th June, 2012 issued by the CCPO, Quetta is hereby
turned down followed by settin g aside the impugned order date d 13th November, 2013 passed by
the learned Justice of Peace/Additi onal Sessions Judge-VI, Quetta.
Resultantly, the application filed by the petitioner is deemed to be pending and the
respondent No.1/SHO. Police Station New Sariab Quetta is directed to dispose of the same in
accordance with law and submit his report within one week to the Registra r of this court after
receipt of this order.
HBT/25/Bal. Order accordingly.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.