P L D 1997 Karachi 119 (PLP)

MAMOON KAZI, C J.--Petitoners Ghanwa Bhutto and Badarunnisa have filed this Constitution petition, seeking directions by this Court for Station House Officer, Clifton Police Station, Karachi, (respondent No.2) to register F.I.R on their behalf. 2 The bfief facts of the case are that, Mir Murtaza Bhutto and Ashique Hussain Jatoi, Chairman and President Sindh Province respectively of Pakistan People's Party (SB), were seriously injured on the 20th September 1996, while they wore returning home alongwith. other workers of the party after attending public gathering in Yousuf Village Surjani Town, Karachi. They subsequently died as a result of injuries received by their. First information report in respect of the incident was registered by the Police & the instance of Haq Nawaz Sial, the then S.H.O Clifton, Karachi, on the same day at Police Station -Clifton, wherein injuries to the said persons were shown to have been caused as a result of an alleged encounter between them and the police. However, on 24-9-1996 another report was registered by the police at the instance of one Asghar Ali, a private servant of Mir Murtaza Bhutto, who was then in custody of the police, indicating that the deceased had been murdered on cold blood by the police. 3 After the said incident, on 20-9-1996, petitioner Ghanwa Bhutto directed one Ahsan .Bhatti and Abdullah Baloch, Members of the Central Committee of the party to reduce the information in writing and accompany one Noor Muhammad to lodge an F.LR against certain Police Officers, named in the complaint, but tire next day she was informed that the Police Officers at the said police station had declined to record such F.I.R. as, according to them, the same was directed against the police. The petitioner therefore, feeling aggrieved, have filed the present petition 4 Mr. Abdul Hafeez Pirzada and Mr. Abdul Mujeeb Pirzada, learned counsel for the petitioners, have argued that the petitioners' fundamental rights as envisaged in Articles 4 and 25 of the Constitution, to be treated in accordance with law or to be entitled to equal protection of law, have been violated by the respondents. 5 The petition has been resisted by Mr. K.M. Nadeem, learned Additional Advocate-General, who has appeared on behalf of the two respondents in this petition. The petition, according to him, is not maintainable as two F.I.Rs. in respect of the same incident have already been registered by the police, therefore, according to him, there was no provision in the law for registration of a third F.I.R. Besides that, according to Mr. K.M. Nadeem, law provided an adequate and equally efficacious alternate remedy to the petitioners, as they could file a private complaint as contemplated by section 190 of the Criminal Procedure Code. Mr. K.M. Nadeem has been fully supported by Mr. Farooq H. Naek, Deputy Attorney-General who, while appearing on Court notice, has also addressed us on the different issues involved in this case. 'tee learned A.A.-G. and the learned D.A.-G. have been further supported by Mr. Karim Khan Agha, who has addressed us on behalf of Police Officers, Wajid Ali Khan Durrani, Shahid Hayat Khan and Rai Muhammad Tahir. They wanted to be formally impleaded as respondents in the Constitutional petition, but their request was declined as their counsel was permitted to address us on the various issues involved in this case. 6 Section 154 of the Code of Criminal Procedure, around which the controversy has mainly revolved, provides that substance of every information relating to the commission of a cognizable offence, given to an officer incharge of the Police Station, shall be entered in a book to be kept by such officer in such form as the Provincial Government may prescribe in this behalf. Therefore, as is indicated by the said section criminal law may be set in motion by any person by lodging of a report under the said section. Such information given is commonly referred to as a first information report. The language employed by the Legislature in section 154 further indicates that a police officer receiving such information, relating to the commission of a cognizable offence, is bound to enter the substance thereof in the book maintained for such purpose at the Police Station. However, the main question, that requires to be determined is, if such information has already been recorded by a Police officer incharge of a Police Station, whether he would be bound to record a second F.I.R. at the instance of an aggrieved party. 7 In Kaura v. The State (1983 SCMR 436), it was observed by the Supreme Court that once a case was registered by the police, registration of a fresh report, notwithstanding the divergent version contained therein, was not called for. It was further observed that the police was nor only competent that also duty bound to unearth tile the facts and trace the real culprits. Similar view was taken in Mushtaq Ahmed v. The S.H.O., Police Station Munawan 1984 PCr.LJ 1454 by a Division Bench of the Lahore High Court. It was held that said case that, when a case had been registered in respect of an occurrence, no wing a counter-version thereof by the accuse second case could be registered giving a counter version thereof by the accused persons. It was further observed that an aggrieved party also had an alternate remedy by way of filing a complaint. Reference may also 'be made w the case of Atta Muhammad v. Inspector-General of Police PLD 1965, Lah.

734. It was observed in this case that the statutory functions of the police and the Courts W find out tree truth in respect of the crime were complementary to each other and in case the previous investigation had yielded certain results, the same should not act as a hurdle or a deterrent for the police in reaching tire truth. If additional facts and additional circumstances brought to light could help in then discovery, there was no bar to the investigation by the police after the submission of a final report under section 173 of the Criminal Procedure Code It was further observed that the police was competent to file, if it was so disposed, a second report as a result of a subsequent investigation into the case. In Sadiq Masih v. S.H.O. and others 1994 PCr.LJ 295, the Lahore High Court declined to issue directions for registration of a second. F.I.R. based on cross-version of the case put forth by the complainant. It was held that, if the police found that free fight had taken place and that both the parties to the case ought to be challaned, then it could do so even in the absence of registration of a second F.I.R. The view propounded in Atta Muhammad's case had earlier found favour with the Privy Council in Emperor v. Khwaja Nazir Ahmed AIR 1945 PC 18, as their Lordships had observed: "But in any case, the receipt and recording of an information report is not a condition precedent to the setting in motion of a criminal investigation. No doubt, in the, great majority of cases, criminal prosecutions are undertaken as a result of information received and recorded in this way but their Lordships see no reason why the police, if in possession through their own knowledge or by means of credible though informal intelligence which genuinely leads them to the belief that a congnizable offence has been committed, should not of their own motion undertake an investigation into the truth of the matters alleged Section 157, Criminal Procedure Code, when directing that a police officer, who has reason to suspect from information or otherwise that an offence which he is empowered to investigate under section 156 has been committed shall proceed to investigate the facts and circumstance, supports this view. " Reference may also be made in this connection to the case of Ghulam Qadir v The State 1995 PCr.LJ 1239. In this case, it was held that although registration of cross F.I.Rs. in respect of the same incident was not uncommon, but registration of two F.I.Rs. in respect of the same transaction was normally not justified.

8. It has, however, been noticed that divergent view have been expressed by the Courts in this regard. In Muhammad Latif v S.H.O., Police Station Saddar 1993 PCr.LJ 1992, the Lahore High Court permitted registration of a second F.I.R. in case where a new case was made out and allegation of a cognizable case were levelled showing a genuine grievance. In such case, the aggrieved party was held to be entitled to have its case registered and investigated. In Abdul Ghani v S.H.O., P.S. Saddar 1983 PCr.LJ 2172, it was held that, notwithstanding registration of .a case earlier, which was for different offence, a second F.I.R. in respect of the same occurrence containing a cross version of the case was permissible under the law. More or less similar view was taken in Shahid Hussain v Superintendent of Police (1986 MILD 1155), where a Division Bench of this Court directed the police officer concerned to register a second F.I.R., as the allegations made by the petitioner were found to be of serious nature and prima facie case disclosing commission of a cognizable offence had been made out. Similar view was once again taken by this Court in Ghulam Hussain v Sirajul Haq 1987 PCr.LJ 1214 and Muhammad Ilyas v. Senior Superintendent of Police 1989 PCr.LJ 1129. In Haji Muhammad Khan v. Ch. Khizar Hayat PLD 1977 Lah. 424 and Muhammad War Iqbal v. Manzoor Ahmad 1986 PCr.LJ 2658, it was held that the Police Officer waLs bound to record an F. I. R. if it disclosed a cognizable case.

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.

10. The next question which requires to be determined is, whether relief by way of a private complaint which is available to an . aggrieved party under section 190, Cr.P.C. is an adequate relief. Learned Additional Advocate General has invited our attention to two cases earlier decided by the Supreme Court in this regard. In Jamshed Ahmad v. Muhammad Akram Khan and another 1975 SCMR 149, the Supreme Court while declining leave to the petitioner against the order of the High Court, observed as follows: "

4. The petition could be thrown out on the short ground that; the High Court was under no obligation to grant the relief prayed for by the petition. It was a matter resting entirely in its discretion and there is nothing to indicate that it was improperly exercised. Even otherwise, by no means does the impugned order shut the door on the petitioner who is at liberty to initiate criminal proceedings by lodging a complaint. " Similar observations were made by the Supreme Court in the case of Muhammad Ijaz v. The S.H.O. 1979 SCMR

490. It may be pointed out that the contention on behalf of the petitioners in the said cases was that under ,A section 154, Cr.P.C., the officer incharge of a police station was duty bound to record an F.I.R. whenever a report regarding commission of a cognizable offence was made to him. Consequently, when a petition for enforcing such duty of the police officer was made in the High Court, the Court was under an obligation to issue a writ of mandamus on such grievance, regardless of any other facts or circumstances of the case. However, the contention was repealed, as would appear from the foregoing observations in the two cases. Reference in this regard may also he made to the judgment of this Court in Constitutional Petition No.D-104/1988 Wazir Ahmed v. Government of Sindh, wherein one of, us (Mamoon Kazi, J. had observed as follows: "It may be pointed out that the relief which can be granted under Article 199 of the Constitution of Pakistan is purely discretionary and the same can be declined if there is an equally adequate and efficacious r alternate remedy available to. the petitioner. No doubt, according to section 154, Cr.P.C. a police officer is bound to record an F.I.R. if the same discloses a cognizable case, as was held in the two judgments of the Lahore High Court to which we have just referred, but the question is, whether this Court should invariably grant relief to the petitioner in the case by directing the police officer concerned to register the petitioner's F.I.R. when, as pointed out above, there is an alternate remedy available to the petitioner. In our view, no hard and fast rule can be laid down and the decision of the Court would depend upon the circumstances of each case. However, in the instant case, we are clearly of the view that the petitioner can seek his remedy before a competent Court having jurisdiction in the matter. We are clearly fortified in this view by the judgment of the Supreme Court in the case of Jamshed Ahmed v. Muhammad Akram Khan and another." Similar view was expressed in C.P.No.D-66/1988 (Sachedino v. S.S.P., Sukkur), C.P.No.D-94/1988, (Ali Gul Sangi v. Incharge Military Operation Cell and C.P.No.D-102/1988, (Nazar Muhammad v. S.S.P., Sukkur). In C.P.No.D-2472/1995, (Altaf Hussain v. Government of Sindh and another) decided on 9-6-1996, remedy by filing of a private complaint was considered to be an adequate remedy and the Court declined to exercise its discretion in favour of the petitioner.

11. Mr. Abdul Hafeez Pirzada, learned counsel for the petitioners, while referring, to the said case, has argued that alternate remedy must be a complete. practical and an equally efficient remedy to meet the ends of justice. Reference has been made by him to Black's Law Dictionary, 6th Eon., page 40, where the expression "adequate remedy at law" has been interpreted as follows: ' Adequate remedy at law. For purposes of rule that a litigant who fails to avail himself of a remedy provided by law and who is subsequently barred from pursuing that remedy because of his own lack of diligence cannot rely on the absence of remedy at law as a basis for equitable Jurisdiction, is one which is as complete, practical and as efficient to the ends of justice and its prompt administration as a remedy in equity, and which is obtainable as of right. In re: Wife, K., Del. Ch.,297 A.2c 424,

426. As preventing relief by injunction, means a remedy which is plain and complete and practical and efficient to ends of justice and its prompt administration as a remedy in equity, and although an injunction will issue when legal remedy is inadequate, injunction should not be granted where complainant has an adequate remedy at law. Hancock v. Bradshaw. Tex. Civ. App. 350 S.W.2d 955,

957. A remedy that affords complete relief with, reference to the particular matter in controversy, and is appropriate to the circumstances of the case, Such must reach end intended, and actually compel performance of duty in question. Simpson v. Williams Rural High School, Dist., Tax. Civ. App., 153 S.E.2d 852, 856."

12. We would like to point out that, when reference in the said judgments was made to the remedy by way of a private complaint as an adequate remedy, it was not in the same context as the said expression is understood in connection with Article 199 of the Constitution, but reference was made to it only as a' remedy which could be resorted to by an aggrieved party as an alternative to filing of a police report. As is provided by section 190 of the Code of Criminal Procedure, cognizance of an offence tray be taken cry any Judicial Magistrate, especially empowered tit this behalf by tare Provincial Government, either upon receiving a complaint of facts which constitutes such offence or upon a police report tit writing of such facts made by any police officer or upon information received from any person other than a police officer. According to section 156 of the Code of Criminal Procedure, any officer incharge of a police station may, without an order of a Magistrate, can investigate any cognizable case anti after completion of such investigation by him, a report as contemplated by section 173, Cr.P.C. may be far warded by the officer incharge of the police, station to a Magistrate empowered to. take cognizance of the offence on such report. On the other hand, section 200, Cr.P.C. provides that a Magistrate taking cognizance of an offence on a complaint shall at once' examine tire complainant upon oath and tire substance of the examination shall be reduced to writing. Section 202, Cr.P.C. further empowers such Magistrate to postpone the issue of process for compelling the attendance of a person complained against and to either enquire: into the case himself or to direct an enquiry or investigation to be made by any Justice of the Peace or a Police Officer or any such other person, as lie thinks fit, for the purpose of ascertaining the truth or falsehood of the complaint. It would thus appear from the said provisions of the Code of Criminal Procedure that different modes have been provided for to the criminal law into motion. The two remedies, one by way of lodging of a report with the police in respect of commission of a cognizable offence and the other, by filing of a complaint before a Magistrate, are parallel remedies, which appear to be equally efficacious and practical remedies. In case of a private complaint, the Magistrate to whom a complaint is made is empowered either to, enquire into the case himself or direct an enquiry or investigation by a police, officer or any other person referred to in section 202 of tire Code of Criminal B Procedure, depending upon the circumstances of each case. Therefore, remedy by way of a private complaint is equally an effective and a practical remedy and 18 thus, an adequate remedy.

13. A question therefore arises, when can discretion be exercised by the High Court in favour of an aggrieved party. It may not be out of place to mention that, according to the principles laid down by the superior Courts, discretionary power must be exercised in good faith having regard to all relevant considerations and it should be exercised justly, fairly and reasonably. Therefore, although an alternate remedy is provided for to an aggrieved party under the law, by way of a complaint, yet, the mere fact that an alternate remedy has been provided for, may not deter the Court from giving directions to the police to record an F.I.R. in an appropriate case. In Altaf Hussain's case allegations had been made that, the President and the Prime Minister of Pakistan, alongwith some other functionaries of the Government were guilty of causing death of the petitioner's brother. Neither any material had been placed in support of the said contention to satisfy the conscience of the Court, nor any role had been attributed to the said persons named as accused, to establish a prima facie case against them, therefore, discretion was not exercised in the petitioner's favour. When a person is attributed a definite role by the complainant in the commission of a crime to indicate his participation therein, a prima facie case for registration of an F.I.R. may be made out, but when the accused named by the petitioner in the F.I.R. has neither been seen by any one while committing the alleged crime, nor any particular role has been attributed to him, yet the petitioner believes that he was involved in the commission of the alleged crime, then unless such belief is a reasonable belief, directions sought by the petitioner for registration of an F.I.R. may not be issued and he may be left to have resort to such alternate remedy, if so desired by him. A person can even be named as a suspect by the complainant but although, there is no bar in respect of including his name in the F.I.R. registered by the police, but a prima facie case may be established against him only after investigation is conducted by the police. Therefore, discretion may not be exercised by the Court in favour of the petitioner in every case where an F.I.R. has not been registered by the police.

14. Turning now, to the facts of the present case there is no controversy, in respect of the fact that two reports in respect of the said occurrence have already beers registered by the police and in the second report registered at the instance of Asghar Ali, the servant of the first petitioner, police officers have been charged with murder of Mir Murtaza Bhutto. No doubt . as has been pointed out by the learned counsel for the respondents, section 154 of the Criminal Procedure Code postulates registration of only one F.I.R in respect of an offence and in any case an F I.R. indicating commission of Qatl-e-Amd hat, already been registered at the instance of the said servant of the first petitioner- Even the first F. I. R. registered at the instance of Station House Officer, Haq Nawaz Sial, according to the respondents' counsel, was sufficient to set the criminal law into motion. Therefore, is registration of a third F.I.R. warranted under the law? The circumstances of the present case, however, indicate that while the first F.I.R. was registered at the instance of a police officer who was I suspected of being an accused himself in the case by the petitioners, the second F.I.R. was registered at the instance of Asghar Ali, the private servant of petitioner No. I, after four days of the occurrence when he was still in the custody of the police. Therefore, the contention of the petitioners that the two F.I.Rs, registered by the police do not reflect the true facts of the case, does not appear to be unreasonable. it is also pertinent to point out that the petitioners wanted to name certain police officers as some of the culprits, who, according to the petitioners, had participated in the said crime and a definite role has been attributed to them in the proposed F.I.R. Therefore, a prima facie case appears to have been made out against the said persons for the purpose of recording an F.I.R. However, some other police officers have been named as suspects but not definite role has been attributed to them by the petitioners Therefore, the petitioners have failed to satisfy the conscience of the Court so far as the said police officers are concerned. We are, therefore, firmly of the view that circumstances of the present case are distinguishable from those of the cases earlier decided by this Court, reference to which is made in this judgment,.

15. It is also pertinent to point out that an application was made on behalf of the Wajid Ali Khan Durrani, Shahid Hayat Khan and Rai Muhammad Tapir, as they had sought an order from the Court to be impleaded as respondents to this petition. However, since we have refrained from touching upon the merits of the case, as by doing so the case of either the petitioners or the respondent could have been prejudiced, it was not considered proper to join the said police officers respondents to this petition. Therefore, Mr, Karim Khan Agha, their learned counsel, was permitted to address us on the question involved in this petition.

16. In the result, subject to the observations made by us in this petition, this petition is allowed and the respondent No.2 is directed to perform his legal obligation and register the F.I.R, which may be lodged on behalf of the petitioners in this case. The other request regarding supervision of the investigation by this Court is premature as such a plea cars only be raised when investigation in the case is carried out by the police after registration of the petitioners' F. I. R.

17. Before parting with this case, we would like to point out that at the request of the learned counsel for the petitioners vide order dated 7-10-1996, record of the investigation partially conducted by the police was summoned by this Court which is still lying sealed in the custody of the Registrar of this Court. The said record, in view of this judgment, may be released to the police through the Advocate-General. N.H.Q./G-20/K Petition allowed.