2015 P Cr. L J 1777
[Balochistan]
Before Naeem Akhtar Afghan and Shakeel Ahmed Baloch, JJ
SYED BIBI ---Petitioner
Versus
NAIB TEHSILDAR LEVIES BOSTAN and 10 others ---Respondents
Criminal Miscellaneous Quashment No.42 of 2010, decided on 20th August, 2015.
(a) Criminal Procedure Code (V of 1898) ---
----Ss. 22 -A & 561 -A----Penal Code (XLV of 1860), Ss. 302, 324, 353 & 186 --Constitution of
Pakistan, Art.199 ---Qatl-i-amd, attempt to commit qatl -i-amd, assault or criminal force to deter
public servant in discharge of his duty, obstructing public servant in discharge of public
functions ---Registration of second FIR ---Principles ---Powers of Ex -officio Justice of Peace ---
Inherent powers of High Court ---Application un der S.561 -A, Cr.P.C. converted into
constitutional petition ----Scope ---Petitioner filed application under S.22 -A, Cr.P.C. for
registration of second FIR against respondents -police officials who had been alleged to have
killed petitioner's son in police enc ounter, which was dismissed by Ex -officio Justice of Peace ---
Respondents had already registered FIR against co -accused along with deceased for firing at
them during police encounter ---Contention raised by petitioner was that respondents had killed
her son by torturing him ---Held, contradictions existed in and between statements of prosecution
witnesses as to manner and time of death of deceased ---Respondents, having fired at deceased,
had alleged to have taken him to hospital, but no medico legal certificat e had been produced ---
Prosecution could not explain multiple injuries caused on body of deceased while he was in
custody of respondents (Police Officials) ---Unexplained wound on skull and temporal/occipital
region of deceased caused by blunt means had nece ssitated registration of second FIR as per
version of petitioner and then investigation thereunder ---Two distinct and opposite versions had
come on record ---Manner of occurrence, place of occurrence and other details were not only
different, but same were also opposite to each other ---Interest of justice demanded that separate
FIR on basis of petitioner's application should have been recorded and investigated upon ---After
two versions were placed before court, who then had to decide and adjudicate upon as t o which
of the two versions was wholly or partly correct and which of accused persons were liable to be
convicted ---High Court, setting aside impugned order of Ex -officio Justice of Peace, directed
respondents to register second FIR as per version of petit ioner and suspended trial being
conducted under first FIR and further directed the same to be conducted simultaneously with trial
under second FIR after completion of investigation ---Constitutional petition was accepted
accordingly.
(b) Criminal Procedur e Code (V of 1898) ---
----S. 22 -A----Registration of second FIR ---Principles ---If it is found that counter version given
by party has disclosed distinct and separate cognizable offence, another FIR will have to be
registered and shall be investigated upo n.
Muhammad Azam v. Inspector -General of Police, PLD 2008 Lah. 103 and Hamayun
Khan v. Muhammad Ayub Khan 1999 PCr.LJ 1706 rel.
Asghar Khan Panezai for Petitiioner.
Muhammad Qahir Shah for Respondent Nos. 1 to 9.
Atiq Ahmed Khan, Deputy Prosecutor General.
Muhammad Aslam Chishti Amicus Curiae.
Date of hearing: 21st April, 2015.
JUDGMENT
NAEEM AKHTAR AFGHAN, J. ---This judgment disposes of Criminal Miscellaneous
Quashment Petition No.42 of 2010 filed by the pe titioner (mother of deceased Muhammad Jan)
against the order dated 15th July, 2010 (hereinafter the impugned order") passed by learned
Justice of Peace/Sessions Judge, Pishin whereby application under section 22 -A Cr.P.C. filed by
the petitioner has been r ejected.
2. Facts of the case are that vide FIR No.17/2010 dated 9th June 2010 report was lodged at about
8:30 p.m. with Levies Thana Bostan by Ali Muhammad Defedar Levies (respondent No.2)
against Abdul Wali. Mohammad Jan and unknown accused under secti on 186, 353, 324, P.P.C.
with regard to the occurrence of 6 -30 p.m. stating therein that on 9th June, 2010 at about 6 -30
p.m. he proceeded with levies staff in official pickup No.PN -6404 towards Kuchlak main road
for routine patrolling that at the Bostan C ross, a motorcycle upon which three persons were
sitting coming from the front was signaled to stop; that two persons took out pistols and started
firing upon levies personnel; that he immediately informed Naib Risaldar Levies, namely Feroz
Khan who reache d on the spot within a while along with levies personnel; that the accused left
their motorcycle, embattled and started firing; that Naib Risaldar Levies Feroz Khan received
bullet injury and fell down; that in the meanwhile 300 inhabitants of the area als o reached on the
spot duly armed and started firing upon the accused due to which one accused, whose name was
subsequently disclosed as Muhammad Jan got killed; that co -accused whose name was
subsequently disclosed as Abdul Wali was arrested alive, whereas the third unknown co -accused
succeeded in fleeing; that one IT pistol No.31047171 China made with 03 magazines and 6
cartridges was recovered from the accused Abdul Wali; that the accused were coming on the
road for dacoity, but apprehending their arrest, they started firing.
3. In pursuance of above FIR. investigation was conducted by Naib Tehsildar Bostan. During
investigation the bloodstained clothes of the injured Naib Risaldar Levies Feroz Khan were taken
into possession, statements of the witnesses were recorded. During investigation Naib Tehsildar
Bostan issued Murasila dated 10th June, 2010 to Medical Officer, Civil Hospital. Quetta for
conducting postmortem of Hafiz Muhammad Jan. In the said Murasila it has been written that
Hafiz Muhammad Jan go t killed during encounter with levies.
4. On the same date i.e. 10th June 2010, the petitioner (mother of the deceased) submitted an
application to Naib Tehsildar, Bostan for handing over the dead body of deceased without
postmortem. On the request of pe titioner the dead body was handed over to her in Civil Hospital,
Quetta without postmortem against receipt dated 10th June, 2010 before the witnesses Zafran son
of Muhammad Hayat and Haji Mira Jan son of Bangal Khan. On submission of challan in FIR
No.17/2 010 trial of co -accused Abdul Wali commenced before learned Special Judge Anti -
Terrorism Court -II, Quetta, where the prosecution has produced 08 witnesses and co -accused
Abdul Wali has also been examined under section 342, Cr.P.C.
5. Before recording of evidence against co -accused Abdul Wali in FIR No.17/2010, the
petitioner had submitted an application, dated 21st June, 2010 under section 22 -A(6)(i), Cr.P.C.
to learned Justice of Peace/Sessions Judge, Pishin for issuing directions to respondent No.1 for
lodging FIR against respondents Nos.2 to 9 for causing murder of her son Hafiz Muhammad Jan.
The said application has been rejected by learned Justice of Peace/Sessions Judge, Pishin vide
impugned order dated 15th July 2010.
Feeling aggrieved of the impu gned order, the petitioner initially filed C.P. No.513/2010, which
was converted to a Criminal Miscellaneous Application under section 561 -A Cr.P.C. by this
Court vide order dated 5th August 2010. In view of recent pronouncement of the Hon'ble
Supreme Cour t. the Criminal Miscellaneous Application under section 561 -A Cr.P.C. is re -
converted to constitutional petition under Article 199 of the Constitution.
Mr. Muhammad Aslam Chishti, Advocate was appointed as amicus to assist the Court.
6. Learned counsel for the petitioner stated that the facts and circumstances of the case warrant
registration of second FIR with counter version of the occurrence as alleged by the petitioner;
that soon -after the alleged occurrence of FIR No.17/2010, the son of the petitioner was taken to
Levies Thana Bostan in the evening of 9th June 2010 and he died unnatural death in levies
custody with multiple injuries; that he was brought to civil hospital Quetta in dead condition on
the next day i.e. 10th June, 2010 at 11 -45 a.m. and was examined by the Medico Legal Officer
("MLO") at 11 -50 a.m. whereafter, medical certificate was issued on the basis of his external
examination which reveals of blunt injuries, apart from the firearm injuries; that the learned
Justice of Peace while rejecting the application of the petitioner under section 22 -A Cr.P.C. has
failed to properly appreciate the facts and circumstances of the case and has failed to properly
exercise the vested jurisdiction.
7. Learned counsel for the respo ndents while opposing the petition stated that the occurrence was
of 9th June 2010, whereas, the application has been submitted under section 22 -A, Cr.P.C. on
21st June, 2010 by the petitioner without mentioning therein the date of incident; that no
postmo rtem of the deceased was conducted: that the petitioner herself received the dead body of
the deceased on 10th June, 2010 without postmortem; that at the time of taking the custody of the
dead body, no complaint or grievance was expressed by the petitioner ; that version of the
occurrence as alleged by the petitioner in her application under section 22 -A Cr.P.C. is an
afterthought and the same is based on mala fide to harass the respondents for ulterior motives;
that no offence has been committed by the resp ondents as alleged by the petitioner; that at the
trial, against co -accused Abdul Wali, it has come on record that after firing by the deceased as
well as co -accused upon the levies personnel, more than 300 inhabitants of the area gathered at
the place of occurrence and they made firing upon the deceased as well as co -accused which
resulted into unnatural death of the deceased; that in vengeance of the same, the petitioner has
filed a baseless application under section 22 -A Cr.P.C.; that the learned Justice of Peace after
proper appreciation of the material available on record has rightly rejected the application
through impugned order and has committed no illegality or irregularity warranting interference
by this Court in its constitutional jurisdiction.
8. Learned Deputy Prosecutor General opposed the petition on the ground that while rejecting
the application of the petitioner under section 22 -A, Cr.P.C, learned Justice of Peace/Sessions
Judge, Pishin has properly appreciated the facts and circumstances of the case and has not
committed any illegality or irregularity.
9. Learned Amicus Curiae while referring section 154 Cr.P.C. stated that there is no statutory bar
to lodge second FIR; that the dispute with regard to time, place and manner of occurrence as well
as the multiple injuries on the dead body of the deceased particularly lacerated wounds on skull
and temporal region and bleeding from left ear and nostrils furnish legal justification to register
second FIR with regard to counter version of the o ccurrence. Learned amicus curiae relied upon
the cases of Muhammad Azam v. Inspector -General of Police, PLD 2008 Lahore 103; Hamayun
Khan v. Muhammad Avub Khan 1999 PCr.LJ 1706.
10. Heard the learned counsel and perused the available record. Perusal of r ecord reveals that
there are two versions of the occurrence i.e. one narrated by the in FIR No.17/2010 and other
alleged by the petitioner for which there is no FIR or investigation. According to the prosecution
version on 9th June, 2010 at about 6 -30 p.m. the deceased along with arrested co -accused Abdul
Wali and the third unknown co -accused made firing upon the levies party to avoid their arrest:
that in the meanwhile, almost 300 inhabitants of the area also gathered and they along with levies
party start ed firing upon the accused, due to which, the son of the petitioner namely Muhammad
Jan received injuries and expired while co -accused Abdul Wali was arrested and the third co -
accused succeeded in fleeing.
According to the Court statement of PW -1 Ali Muh ammad Defedar Levies (complainant of FIR
No.17/2010) the son of the petitioner received bullet injuries in his abdomen and foot and that
from the place of occurrence the injured was brought to Thana whereafter he was sent to Civil
Hospital Pishin in the sa me evening. But according to statement of PW -2 Haji Muhammad Amin
Khasadar Levies, the son of the petitioner namely Muhammad Jan had died on the spot. During
cross - examination PW -2 self -contradicted himself by stating that co -accused Abdul Wali was
brough t to Thana, whereas the other injured was taken to Pishin. According to statement of PW -
3 Muhammad Anwar Hawaldar levies the son of the petitioner succumbed to the injuries on his
way to the hospital. PW -3 further stated that Mohammad Jan died in the vehic le on the Katcha
road of Bostan whereafter, Tehsildar took him to civil hospital Pishin.
11. The trial of co -accused Abdul Wali in FIR No.17/2010 has concluded as his 342, Cr.P.C.
statement has also been recorded. Throughout the trial of FIR No.17/2010, no treatment
record/Medico Legal Certificate ("MLC") of Civil Hospital Pishin has been brought on record by
the prosecution. The question arises that if the son of the petitioner had received bullet injuries at
the place of occurrence then why he was taken to levies Thana Bostan instead of any hospital for
treatment and if as per statement of the prosecution witnesses, he was taken to civil Hospital
Pishin, then why no MLC/treatment record of civil Hospital Pishin has been made part of the
record.
12. Acc ording to the prosecution version of FIR No.17/2010, the son of the petitioner had
received bullet injuries, but the external examination of the deceased by the MLO of Sundeman
Provincial Hospital Quetta reveals of multiple lacerated wounds on the skull an d
temporal/occipital region, right eyebrow as well bleeding from left ear and nostrils of the
deceased. There is no explanation by the prosecution as to how the said multiple injuries were
caused to the deceased particularly when he remained in levies cust ody throughout. The
unexplained wounds on the skull and temporal/occipital region of the deceased caused by blunt
means as certified by MLO issued on 19th, June 2010 by MLO of Sundeman Provincial Hospital
Quetta necessitate registration of second FIR with version of the petitioner and its investigation.
It is the case of the petitioner that her son expired due to torture by the levies personnel during
his custody in levies Thana Bostan and on expiry his dead body was brought to Sundeman
Provincial Hospital Quetta in the morning of 10th June 2010. In view of issuance of MLC on
19th June 2010, filing of application under section 22 -A. Cr.P.C. by the petitioner on 21st June,
2010 cannot be termed as an afterthought.
13. According to the settled principles of law, if in a case it is found that a counter version is
given by a party which discloses a distinct and separate cognizable offence, another FIR will
have to be registered and shall be investigated upon.
14. Considering the facts and the attending circum stances of the instant case, two distinct and
opposite versions have come on record, wherein manner of the occurrence, place of occurrence
and other details are not only different, but are also opposite to each other. Therefore, interest of
justice as well as fair investigation demands that a separate FIR on the basis of application of the
petitioner should be recorded and investigated upon, so that both the versions may be placed
before the Court who will then be in a position to determine and adjudicate u pon as to which of
the version is wholly or partly correct and which of the accused persons are guilty and liable to
conviction.
15. In the referred case of 'Muhammad Azam' it has been held that where a different, opposite or
a cross version is put forth by the complainant which discloses commission of cognizable
offence second FIR is not barred.
In the case of 'Humayun Khan' it has been held that recording of second FIR depends upon the
facts of each case and the matter is to be seen in the context of totality of the circumstances and
the allegations.
16. For the above reasons, the petition is accepted, the impugned order dated 15th July \ 2010
passed by the learned Justice of Peace/Sessions Judge, Pishin is set aside, the application filed by
the peti tioner under section 22 -A, Cr.P.C. is accepted and the respondent No.1 is directed to
register FIR against the respondents Nos.2 to 9 for causing murder of deceased Hafiz
Muhammad Jan (son of the petitioner) in levies custody. Since the respondent Nos.2 to 9 are
levies personnel. therefore, fairness and transparency, the investigation should be conducted by
the Crimes Branch of Balochistan Police. The trial of the co -accused Abdul Wali in FIR
No.17/2010 pending before ATC -II Quetta shall remain suspended ti ll completion of the
investigation against the respondents Nos.2 to 9. In case of submission of Challan against the
respondents Nos.2 to 9. the trial of respondents Nos.2 to 9 shall be conducted along with the trial
of co -accused Abdul Wali in FIR No.17/20 10 and both the cases shall be decided simultaneously
by the same Court on merits in accordance with law. Copy of this judgment be also sent to DIG
Crimes Branch Balochistan Quetta.
SL/95 -Bal. Petition accepted.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,
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