1999 P Cr (PLP)

Syed Zulfiqar Ali Bokhari, Asstt. A.‑G., Punjab, for Respondents. Date of hearing: 18th November, 1998 On 8‑9‑1998 at 4‑30 a.m. the fire broke out in the house of Mst. Razia Sultana alias Gogi Butt petitioner situated in Sabza Zar Scheme, Lahore within the area of Police Station Nawan Kot, Lahore. She herself was confined in judicial lock‑up in connection with some criminal case: Her daughter Mst. Rabia Saleem reported the matter to the Police, Police Station Nawan Kot, Lahore through the making of her statement on the basis of which formal F.I.R. No.442, dated 8‑9‑1998 was registered at 11‑00 a.m. under section 436, Pakistan Penal Code. On coming to know about the fire inter house the petitioner is said to have sent an application to the District Magistrate, Lahore through ‑the Superintendent Central Jail, Kot Lakhpat, Lahore on 12‑9‑1998 wherein she named some persons including Muhammad Ashiq Marth, Inspector Police Station Nawan Kot, Lahore as the persons responsible for setting at fire the house as well as harassing her and her family members. This petition was sent to the Police Authorities and the S.H.O., Police Station Nawan Kot entered it verbatim in the case diary on 18‑9‑1998.

2. Expressing that the statement of her minor daughter Mst. Rabia Saleem complainant was recorded by the police in routine and that the accused were not intentionally mentioned therein, Mst. Razia Sultana alias. Gogi Butt has filed this writ petition on 3‑10‑1998 to get registered the second F.I.R. about the same occurrence by naming Muhammad Ashiq Marth, Inspector/the then S.H.O. Police Station, Nawan Kot, Lahore, Naheed Zia, A.S.‑I. Police Station Nawan Kot, Lahore, Mian Mahmood Ahmad son of Haji Abdur Rashid, Mahr Mahmood Ahmad son of Mahar Malik Din and Mahr Wajid son of Taj Din respondents Nos.5 to 9 as the accused. Her contention is that the investigation has not been conducted in the initial F.I.R. which was registered for her wrongful loss.

3. In the comments the Senior Superintendent of Police, Lahore has expressed that the version of the petitioner is being considered in the investigation. It is narrated in the comments that the petitioner is involved in certain criminal case and for that matter she has an adverse motive against the police.

4. I have heard the learned counsel for the petitioner as well as the learned Assistant Advocate‑General and the learned D.S.P. (Legal) and gone through the record before me. I have also heard Mst. Razia Sultana alias Gogi Butt petitioner and Muhammad Ashiq Marth, Inspector so that the true picture emerges. The main contention of the learned counsel fot; the petitioner is that the police acted with mala fides and in haste by recording the statement of Mst. Rabia Saleem and that the detailed facts of the occurrence were intentionally eclipsed therefrom which necessitated and entailed the filing of this writ petition to get registered the second F.I.R. On the contrary learned Assistant Advocate‑General and the learned Deputy Superintendent of Police (Legal) laid the emphasis that in view of the registration of the F.I.R. at the instance of Mst. Rabia Saleem who was admittedly present in the house while the petitioner was in the judicial lock‑up, the registration of the 2nd F.I.R. is simply uncalled for especially when the 1st F.I.R. can be further processed with by setting the law in motion. It was, however, conceded by them that the statements of the witnesses have not been recorded under section 161 of the Code of Criminal Procedure. Before embarking upon the discussion I would express that the house of the petitioner caught the fire at 4‑30 a.m. on 8‑9‑1998, Mst. Rabia Saleem got recorded F.I.R. No.442, dated 8‑9‑1998 at 11‑00 a.m. under section 436, Pakistan Penal Code, that the statements of the prosecution witnesses have not been recorded under section 161 of the Code of Criminal Procedure, that Mst. Razia Sultana alias Gogi Butt petitioner was not present in her house at the alleged time of occurrence and that her version has not been recorded during the investigation. I would express that the case‑law is not bereft of the judicial decisions to the effect that in the presence of the registration of a criminal case the order for the registration of the 2nd F.I.R. about the same occurrence can be passed by the High Court. In this regard reference is made to the cases printed as:‑‑ (1) Mrs. Ghanwa Bhutto and another v. Government of Sindh PLD 1997 Kar. 119, (2) Haji Ahmad v. Senior Superintendent of Police, Rahimyar Khan 1997 PCr.LJ 2069 and (3) Muhammad Aslam v. S.H.O. Police Station City Pattoki and others PLJ 1997 Lah. 1453. However, in the circumstances of this matter when case F.I.R. No.442, dated 8‑9‑1998 registered at Police Station Nawan Kot under section 436, Pakistan Penal Code is under investigation wherein the version of the petitioner can be recorded thereof, there is no legal and factual necessity to pass the order in the matter. In this regard it is pertinent to mention that after recording the statement of Mst. Rabia Saleem under section 154 of the Code of Criminal Procedure, as mentioned above, the statement of any other witness has not been recorded by the police under the same procedural law, viz. section 161 (ibid). By reporting the matter to the police even if a dead body is found in a gunny bag the law has to be set in motion by the police and the investigation can be minutely conducted to reach at the conclusion about the accused prima facie liable in the matter. The links of different ingredients of the prosecution case can be collected during the investigation and the opinion under section 173 of the Code of Criminal Procedure can be expressed by the Investigating Officer making any concerned accused prima facie liable. Likewise the aforesaid F.I.R. has to be treated and further processed within the aforesaid framework. Since the initial F.I.R. No.442 registered on 8‑9‑1998 under section 436, Pakistan Penal Code at Police Station Nawan Kot, Lahore has not been cancelled as contemplated under section 169 of the Code of Criminal Procedure, it can safely be expressed that the law can be set in motion according to the version of the complainant and the affected family. Consequently, I declare that there is no legal justification to pass the order for the registration of the 2nd First Information Report as required and desired by Mst. Razia Sultana alias Gogi Butt petitioner.

5. Hence, I must express that after the registration of the aforesaid F.I.R, No.442, dated 8‑9‑1998 under section 436, Pakistan Penal Code at Police Station Nawan Kot, Lahore the law has to be set in motion particularly when the statement of any prosecution witness has not been recorded under section 161 of the Code of Criminal Procedure. Obviously, the version of Mst. Rabia Saleem and other family members has to be and can be recorded by the Investigating Officer who can collect any type of material/evidence to be produced during the investigation. I am tempted to express that even an Investigating Officer has to keep in mind the shape of scale of justice as the foundation of a criminal case has to be laid during the investigation of a case. As such where I have declared that there is no legal necessity to pass the order for the registration of the second F.I.R., keeping in view the fact that the justice is to be administered at the stage of the investigation of the case as well, under my Constitutional jurisdiction which I use very sparingly, I pass the order for the transfer of the investigation of the case to the Crimes‑Branch, Punjab, Lahore. The S.H.O., Police Station Nawan Kot, Lahore shall submit the police file before the Inspector‑General of Police, Punjab, Lahore on 23‑11‑1998 alongwith a copy of this order who shall depute a seasoned officer of his own choice not below the rank of Deputy Superintendent of Police to investigate and conclude the investigation within a period of thirty days either way without feeling prejudiced by this order. This period shall not be extended by the police. The persons nominated in the writ petition as the accused shall also be joined in the investigation as contemplated under section 162 of the Code of Criminal Procedure. Mst. Razia Sultana alias Gogi Butt and her daughter Mst. Rabia Saleem shall also appear before the Inspector‑General of Police Punjab, Lahore on 23‑11‑1998. The Investigating Officer shall join Mst. Razia Sultana alias Gogi Butt petitioner in the investigation according to her version who shall record the statements of the witnesses under section 161 of the Code of Criminal Procedure. If found proper by him he may again visit the house of the petitioner and prepare the fresh spot inspection note.

6. If the Investigating Officer feels about the existence of a prima facie case within the terms of section 173 of the Code of Criminal Procedure he shall submit the challan before the learned Court of competent jurisdiction through the S.H.O., Police Station Nawan Kot Lahore within a period of forty days positively.

7. This writ petition stands disposed of in the aforesaid terms. H.B.T./R‑78/L???????????????????????????????????????????????????????????????????????????????????? Order accordingly