2014 PLP 1171 (MLD)

SHAHNAWAZ TARIQ, J.

Through instant criminal miscellaneous application, the applicant Ehtishamullah Khan, Advocate has impugned order dated 11-6-2011 passed by learned Ex-Officio Justice of Peace/IV Additional Sessions Judge, Karachi East, whereby Criminal Miscellaneous Application No. 1005/2011, under section 22-A, Cr.P.C. filed by the applicant for recoding statement of applicant and lodging of F.I.R. has been declined. 2 Relevant facts spelt out from instant Cr. Misc. Application are that the brother of the applicant namely deceased Ikramullah Khan was killed by accused Nasir son of Abdul Rahseed, Mst. Lubna, Mohsin and Haseeb. The applicant number of times approached the concerned police station for lodging F.I.R., but police did not record his statement, and even he moved an application in this regard, but of no avail. Being aggrieved, the applicant approached to the Court of District and Sessions Judge, Karachi East/Justice of Peace vide Criminal Miscellaneous Application No. 861 of 2011, which was transferred to the court of learned IV Additional Sessions Judge, Karachi East/ Justice of Peace, and same was allowed with direction to the respondent No. 1 to record the statement of applicant, but the respondent No. 1 allegedly lodged F.I.R. without recording the statement of applicant, and flatly refused from taking any action against the accused persons. For redressal of his grievances, the applicant again approached the Justice of Peace and filed another Criminal Miscellaneous Application No. 1005 of 2011, but after hearing the parties, same was dismissed.

3. Learned counsel for the applicant has contended that brother of the applicant namely Ikramullah was murdered and the applicant approached the concerned police but his report was not lodged by the police and despite of the directives of the court, police had not recorded his statement in his verbatim and even after lodging of F.I.R. no action was taken against the proposed accused persons, therefore, the applicant again approached the Justice of Peace for lodging of second F.I.R., but his application was dismissed despite of the allegations of the applicant that police had not investigated the crime properly and extended its favour to the accused.

4. He has further contended that there is no legal embargo upon lodging of second F.I.R. against the accused persons to ascertain the truthiness of the facts pertaining to the murder of the deceased. He further submitted that S.H.O. Police Station Zaman Town may be directed to record the statement of the applicant under section 154, Cr.P.C. and to conduct investigation fairly, but police may not cause the arrest of the accused persons until any solid iota of evidence is collected against them.

5. Learned counsel for the proposed accused has vehemently opposed the submission made by learned counsel for the applicant and has contended that applicant has already lodged F.I.R. against two accused and now with ulterior motives, he has again approached this Court by filing instant Criminal Miscellaneous Application to implicate and humiliate the proposed accused malafidely in a false case, as proposed accused Mst. Lubna is widow of the deceased and there is a serious dispute between the applicant and widow of the deceased upon her share of property left by the deceased, therefore, the applicant only to defeat and deprive her from her legal share, has been pursuing the case.

6. Learned A.P.G. has supported the submission made by learned counsel for the applicant.

7. I have heard learned counsel for the parties as well as learned A.P.-G. for the State and perused the record with their assistance.

8. From the perusal of record it has reflected that previously applicant has filed Criminal Miscellaneous Application 861 of 2011, under section 22-A, Cr.P.C. which was allowed by the learned IV Additional District Judge/Ex-Officio Justice of Peace, Karachi East and F.I.R. bearing No. 258 of 2011, under section 320/109/34, P.P.C. was lodged against the proposed accused persons as well as one Nasir, stating therein that accused Nasir while riding motorcycle, hit the deceased Ikramullah who after getting down from Steel Mills Bus, was crossing the road. Police after conducting investigations, had disposed of said F.I.R. as FRT A (Class) vide No. 158/2011, dated 23-6-2011 and submitted such report before the concerned Court.

9. In case of Abdul Karim v. The S.H.O. Sariab Police Station, Quetta and 3 others 2014 PCr.LJ 240, it has held that there is no embargo with regard to registration of second F.I.R. in respect of the different version given by the aggrieved party of the same occurrence only impediment is that second F.I.R. should not contain facts for mere amplification of the first version.

10. In case of Wajid Ali Khan Durani v. Government of Sindh 2001 SCMR 1556, the Hon'ble Supreme Court of Pakistan has held that widows of the deceased were not satisfied with two previous F.I.Rs. as they felt that said F.I.Rs. did not reflect the true facts. 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, was also cognizable by the police, then unless it was mere amplification of the first version, it must be recorded by the police.

11. Further glance of the record also reflects that the applicant has levelled serious allegations against the conduct of the concerned police and has blamed that the case of murder of his brother was not properly investigated by the police and even his statement was not recorded in his verbatim and available evidence was not properly considered by the police as such applicant was deprived of the justice. It is prime assignment of the court that while dealing with such cases, to minutely examine the involved circumstance of the main issue judiciously to ensure the administration of justice and the door of the investigation must not be closed.

12. In view of the dictum laid down by Hon'ble Supreme Court of Pakistan referred supra, and considering the peculiar circumstances of the present case, I am of the considered view that the application of the aggrieved person cannot be declined mere on the ground that he has already lodged one F.I.R. which was disposed of by the Investigating Officer through his concluding report of the investigation and said report was accepted by the learned concerned Magistrate or the applicant would improve his earlier statement if he is allowed for recording of his statement for lodging of another F.I.R. Since there is no legal impediment that another F.I.R. cannot be lodged regarding same occurrence, therefore, S.H.O. Police Station Zaman Town is directed to record statement of applicant under section 154 Cr.P.C. in his verbatim and if any cognizable offence is made out, further action be initiated strictly in accordance with law, however, S.H.O. or Investigating Officer shall not be influenced or convinced from the observations made supra, and to ensure the transparency during the course of investigations.

13. For the foregoing reasons, instant Criminal Miscellaneous Application stands allowed and the impugned order dated 11-6-2011 passed by learned IV Additional District Judge/Ex-Officio Justice of Peace is set aside. HBT/E-3/Sindh Application allowed.