2014 P Cr. L J 240
[Balochistan]
Before Muhammad Hashim Khan Kakar, J
ABDUL KARIM ---Petitioner
Versus
The S.H.O. SARIAB POLICE STATION QUETTA and 3 others ---Respondents
Criminal Quashment Petition No.367 of 2012, decided on 30th July, 2013.
Criminal Procedure Code (V of 1898) ---
----Ss. 22- A & 561- A---Inherent powers of High Court ---Second F.I.R. ---Scope of S.22- A,
Cr.P.C.---Ex -Officio Justice of Peace dismissed application filed by petitioner for registration of
second F.I.R.---Validity ---No embargo existed with regard to registration of second F.I.R. in
respect of different version given by aggrieved party of the same occurrence ---Only impediment
was that second F.I.R. should not contain facts for mere amplification of first version---No h ard
and fast rules or principles could be laid down as to when second F.I.R. could or should be
recorded ---Provisions of S.22- A, Cr.P.C. were limited only to the extent of directing concerned
authorities to register criminal case ---At the time of first inf ormation report, proposed accused
persons named in complaint had no right of hearing ---High Court set aside the order passed by
Ex-Officio Justice of Peace and remanded the matter for decision afresh ---Petition was allowed
accordingly.
Mrs. Ghanwa Bhut to v. Government of Sindh PLD 1997 Kar. 119; Wajid Ali Khan
Durani v. Government of Sindh 2001 SCMR 1556 and Muhammad Bashir v. Station House
Officer, Okara Cantt. PLD 2007 SC 539 ref.
Mushtaq Ahmed Anjum for Petitioner.
Miss Sarwat Hina, Additional Prosecutor -General along with SI/SHO along with Din
Muhammad Barech for the State.
Respondents Nos.3 and 4 in person.
Date of hearing: 23rd July, 2013.
JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, J. ---Through this criminal miscellaneous
quashment petition under section 561- A of the Criminal Procedure Code, 1898 (Cr.P.C.),
petitioner Abdul Karim son of Payo Khan, seeks order dated 19th July, 2011 (the "impugned
order") passed by the learned Additional Sessions Judge -VI, Quetta (the "trial Court") to be
declared as illegal, void and of no legal consequence, whereby an application under section 22- A
of the Cr.P.C. filed on behalf of petitioner was dismissed with the following observations: --
"The applicant himself admits that the police has lodged F.I.R. No.72 of 2011 about the
occurrence dated 25 -4-2011 in which the applicant and other persons received injuries. In respect
of the alleged occurrence the challan has been submitted in the court of Additional Sessions
Judge -IV and case is under trial. According to SHO Sariab, the statement of the applicant under
section 161, Cr.P.C. has been recorded and the medical legal certificate of the applicant has been
taken in police possession. As the applicant statement and report of SHO clearly show that about
the alleged occurrence the F.I.R. has already been registered against the accused persons and the
applicant is speaking and narrating the same occurrence dated 25 -4-2011 therefore, no separate
F.I.R. can be lodged because in that occurrence according to SHO Sariab 9 persons received
injuries in the firing between the parties so it will not be possible to lodge separate F.I.R. for
every injured person. Hence due to above stated reasons the instant applicant is not maintainable
which stands rejected and be consigned to record."
2. In a nutshell, the accusation against the proposed accused/respondents and the
background scenario so far as relevant for the disposal of this petition are that the petitioner filed
an application under section 22- A of the Cr.P.C . in the month of June 2011 for registration of
criminal case against the proposed accused nominated therein before the learned Sessions Judge,
Quetta, which was entrusted to respondent No.2. i.e. the trial Court for disposal and decision in
accordance wit h law. The learned trial Court summoned a report from the authorities of police
station Sariab, Quetta, which was submitted and, after hearing the parties, the learned trial Court
dismissed the application through the impugned order.
3. I have heard the learned counsel for the petitioner and have also gone through contents of
the impugned order passed by the learned trial Court, which reveals that the petitioner has been
technically knocked out on the sole ground that an F.I.R. bearing No.72 of 2011 about the same
occurrence dated 25th April, 2011 had already been lodged by concerned IP/SHO of police
station Sariab, Quetta, as such, second F.I.R. cannot be lodged regarding the same incident. So
far as the registration of earlier F.I.R. No.72 of 2011 is concerned, the same has been registered
by IP/SHO of police station Sariab by giving his own version, but the contents of the application
moved by the petitioner before the learned trial Court does disclose commission of a distinct
offence, therefore, he was bound to register a counter case, but he failed to perform his
mandatory duty. Prima facie, it appears that it is a case of two versions. On the one hand, the
petitioner claims that on 25th April, 2011, he was performing the duties of watchmen/Chowkidar
on the land of one Haji Lala Khan Badezai, when accused Sultan Dastagir, Saleem Jahangir,
Shah Zain Bugti and Gorham Bugti along with their bodyguards, while armed with deadly
weapons, rushed there and ordered him to vacate the premises. As per his version, he apprised
them regarding the subjudice of the matter before a civil court of law, however, they opened
indiscriminate firing, as a result whereof, he sustained a bullet injury on his right leg.
Subsequently, in order to save his life, his right leg was a mputated at Agha Khan Hospital,
Karachi, while on the other, police claim that both the groups belong to the land mafia and at the
time of occurrence, they made firing upon each other in order to grab a piece of land. The
petitioner has sought registration of an independent F.I.R. on the basis of the facts, which are
entirely different from the facts narrated in the earlier F.I.R. No.72 of 2011.
4. Apparently, the findings of the learned trial Court, while refusing to entertain and redress
the grievance o f the petitioner, are erroneous for the reason that it is by now settled that there is
no embargo with regard to registration of second F.I.R. in respect of different version given by
the aggrieved party of the same occurrence and the only impediment is that second F.I.R. should
not contain the facts for the mere amplification of the first version. No hard and fast rules or
principles can be laid down as to when a second F.I.R. can or should be recorded. The matter has
to be seen in the context of the total ity of the circumstances and the allegations. Absolutely, there
is no bar against the registration of second F.I.R. regarding the same occurrence, rather in case of
Mrs. Ghanwa Bhutto v. Government of Sindh, PLD 1997 Karachi 119, the order of registration
of third F.I.R. was passed by the Hon'ble Division Bench of the Sindh High Court, which was,
subsequently, maintained by the Hon'ble Supreme Court of Pakistan in case of Wajid Ali Khan
Durani v. Government of Sindh, 2001 SCMR 1556. The Hon'ble Division Bench of the Sindh
High Court, while dealing with proposition, in paragraph No. 9 of the judgment observed as
under: --
"9. Reference to the case -law, therefore, 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 is subsequently given to a police officer, which discloses a
different offence, also cognizable by the police, then unless it is a mere amplification of the first
version, it must be recorded by the police. Therefore, direction to the police to record a second
F.I.R. would depend upon the circumstances of each case. If true facts in respect of an
occurrence are not reflected by the first F.I.R., then refusal to record a genuine version of the
same occurrence would not be justified. The question has, therefore, to be examined in the light
of the circumstances of a particular case."
5. It is also by now settled that if the application of the aggrieved person disclos es
commission of a cognizable offence, then there is no option for the Court, but to pass a direction
for registration of the case, If any authority is needed on the point, I may refer the case of
Muhammad Bashir v. Station House Officer, Okara Cantt., PLD 2007 SC 539, wherein it has
been held as under: --
"no authority vested with an Officer Incharge of a Police Station or with anyone else to
refuse to record an F.I.R. where the information conveyed, disclosed the commission of a
cognizable offence."
6. In view of the dictum laid down by the Hon'ble Supreme Court, it can safely be inferred
that if a distinct and separate cognizable offence is disclosed and no factual inquiry is or trial can
be held without properly appreciating and considering the two versions, then another F.I.R. has
to be registered. As already observed, the only impediment to the said is that the second F.I.R.
should not be a mere amplification of the first version.
7. I am conscious of the fact that crime No.72 of 2011 was lodged on 25th April, 2011 and
in pursuance thereto, charge sheet has also been submitted before a competent Court of law and
the trial is in progress, however, I am of the considered view that neither the crime die or
diminish due to the passage of time, nor the gravity of the offence reduced. If the guilt of an
accused person has been established through reliable evidence, then the interest of justice
demands that fair handed treatment should be meted out to the complainant without keeping the
factor of time. At this juncture, it would be relevant to mention here that the apple of discard
between the parties is a piece of land and both the parties claimed to be owner of the same. Be
that as it may, no one can be allowed to take the law in own hand and started awar ding
punishment to the culprits in a manner not recognized by the law.
8. I am afraid that the proposed accused; viz, Saleem Jahangir and Shahzain Bugti though
were not arrayed as respondents in application under section 22 -A of the Cr.P.C., yet an
oppor tunity of hearing was also provided to them prior to passing of the impugned order by the
learned trial Court. Section 22- A of the Cr.P.C. gives a power to the learned Sessions
Judge/Justice of the Peace to direct registration of a criminal case, in case o f failure of the police
officials to discharge their statutory obligations vested in them under section 154 of the Cr.P.C.
This Section does not envisage any hearing before issuance of direction for registration of a
criminal case, thus, providing of an opportunity of hearing prior to passing of the impugned
order by the learned trial Court is not understandable. The provisions of section 22- A of the
Cr.P.C. are limited only to the extent of directing the concerned authorities to register a criminal
case. I t is by now settled that, at the time of first information report, proposed accused persons
named in the complaint have no right of hearing.
9. For what has been discussed above, the petition in hand is accepted and the impugned
order dated 19th July, 2011 is set aside. The application under section 22- A of the Cr.P.C. filed
by the petitioner shall deem to be pending before the learned trial Court , who is directed to
dispose of the same in view of the observations made hereinabove strictly in accordance with
law.
MH/82/Bal. Case remanded.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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