P L D 1999 Lahore 50 (PLP)

Shahid Saeed, Standing Counsel for Respondents Rao Tajamal Abbass and Mahmood Ahmad for the Complainant Dates of hearing: 23rd and 24th July, 1998 Through this writ petition a direction .has been sought to be given to the respondents‑police officers to register a case on the basis of the application appended with the petition as Annexure 'F', addressed to the S.S.P., Pakistan Railways. It is stated, inter alia that certain land belonging to Pakistan Railway had been occupied by some trespassers and squatters. At the instance of Station Master, Railway Station Basirpur, a case F.I.R. No.48 of 1998 was registered against the accused persons. Pursuant to that F.I.R., one Shaukat Ali Constable was deputed to effect arrest of the accused. However, he was given severe beating by the accused persons and others and as such he was prevented from discharging his official duty. On his statement a case F.I.R. No.49 of 1998 was registered with Railway Police Station, Kasur. The S.H.O. constituted a police party to arrest the accused persons nominated in the F.LR. who gave beating to Shaukat Ali Constable. Three of the accused were arrested and they were brought to Police Post Basirpur. It is further alleged that thereafter an unlawful assembly was constituted by about 500 persons who were led by 15 persons. They resorted to firing at the police post as a result whereof Muhammad Iqbal, A.S.I. was shot who subsequently succumbed to the injury. Shaukat Ali Constable also received bullet injury on his chest who is stated to be in precarious condition. Although allegedly an A.S.I. had been murdered and one constable had been injured yet no case was registered. Therefore, the petitioner was constrained to move this Court through the instant petition.

2. Since the contents of the application (Annex.'F') and that of the writ petition disclosed commission of cognizable offence, the respondents were asked to appear in person in Court and to state as to why the case was not registered. Learned Deputy Attorney‑General was also called upon to enter appearance.

3. On 23‑7‑1998 arguments were addressed in part. Rao TaJammal Abbas and Mr. Mehmood Ahmad Chaudhry, Advocates put up appearance on behalf of Bashir Ahmad Saleemi, complainant in case F.I.R. No.204 of 1998, under section 302/324/148/149, P.P.C. registered with Police Station Basirpur, District Okara. With a view to ascertain and to determine the controversy, the file of case F.I.R. No.204 of 1998 as well as other relevant record was requisitioned. S.S.P., Okara was also directed to appear in Court in person. Pursuant to the order, S.S.P. Railway Police alongwith other officers as well as S.S.P., Okara appeared in Court. Learned A.A.‑G. appearing on behalf of the officials from Punjab Police submitted that, since a case vide F.I.R. No.204, under section 302/324/148/149, P.P.C. stood already registered on the statement of Bashir Ahmad Saleemi with Police Station Basirpur, District Okara, therefore, second F.I.R. could not be registered. In order to appreciate the contention, the narration of facts made in F.I.R. No.204 have to be taken into account. It was stated inter alia that Hafiz Bashir Ahmad Saleemi complainant was holding a meeting at his shop. His son Muhammad Ajmal Bashir, nephew Zaigham Hassan Riaz Ahmad, Haji Ghulam Rasul, Sikandar Khan, Mirza Izzat Baig and few other shopkeepers of the locality were in attendance. In the meanwhile, Muhammad Iqbal H.C./Incharge Railway Police Post Basirpur, Muhammad Yousaf and Shaukat Ali Constables all in plain clothes armed with rifles alongwith Muhammad Yousaf, A.S.I., a previous Incharge of Police Post Basirpur also in plain clothes armed with rifle, Muhammad Anwar, S.I. of Railway Police Station, Kasur, Muhammad Iqbal, A.S.I. Bashir Ahmad and Muhammad Boota Constables of Railway Police in police uniform alongwith some other police officials came to his shop. Muhammad Yousaf, A.S.I. caught hold of the complainant from his collar and dragged him out of the shop remarking that he will teach him a lesson to become a leader in the area. The complainant however, protested, on which the police officials got infuriated and started manhandling the complainant. His son Ajmal Bashir and nephew Zaigham Hussain tried to intervene but they were also slapped on their faces. Muhammad Anwar, S.I./S.H.O. shouted that all should get aside otherwise he will fire and simultaneously Muhammad Yousaf, A.S.I. inflicted a Butt blow on the head of Ajmal Bashir who fell down on the ground. The police officers tried to forcibly drag the complainant out of the shop. The respectables present at the shop entreated that they should refrain from resorting to lawlessness but the S.H.O. stated that they will mend Hafiz Bashir Ahmad and dragged him towards the police post. He was followed by his aforesaid relations as well as a number of other persons. In the meanwhile Muhammad Yousaf, A.S.I. exhorted his companions that they should eliminate the family of Hafiz Bashir Ahmad. Muhammad Iqbal fired a shot hitting Ajmal Bashir on; his chest who fell down. Zaigham Hussain went forward to rescue him. Shaukat Ali Constable fired a straight shot at Zaigham Hussain who was also seriously injured. The respectables and inhabitants of the locality strongly protested and out of the mob which was emotionally packed, some persons fired three or four shots whereupon Muhammad Azam alias Tedi sustained injuries. To protest against the lawlessness of the police officials, a number of persons were collected who raised slogans on which the complainant was released and the police staff locked themselves in the premises of police post. The police officers climbed up the roof and started indiscriminate firing on the mob. The complainant saw that his son Ajmal Bashir as well as nephew Zaigham Hussain succumbed to the injuries and Muhammad Azam was seriously injured. It was alleged as motive that the police officials used to receive 'Ghunda Tax' from the shopkeepers which was objected to. As a result of the same, the complainant's family was victimized. On the statement of the complainant, case F.I.R. No. 204 of 1998 was registered on 28‑6‑1998, as narrated above. The same was investigated upon and challan has been submitted in the Court of learned Special Judge, Anti‑Terrorism No.2, Lahore wherein I have been informed that the next date of hearing is 27?7‑1998.

4. It has been argued by the learned A.A.‑G. on behalf of the respondents? police officers from Punjab Police that since F.I.R. No.204 of 1998 has already been registered, therefore, the second F.I.R. with regard to the same incident or transaction cannot be recorded. It has however, been admitted that the petitioner's application has also been received by the S.S.P., Pakistan Railway Police which was forwarded by him to the S.S.P., Okara for legal action. The petitioner claims that he was the first to lay information, therefore, the case should have been registered on the basis of application submitted by him which discloses commission of cognizable offence, as one A.S.I. had been murdered and one constable was seriously injured, and that too within the premises of the police post and during the performance of official duties. It is true that ordinarily second F.I.R. with regard to the same incident or offence is not recorded because once an F.I.R. is recorded under section 154, Cr.P.C., the investigation is set into motion and all the subsequent statements are recorded under section 161, Cr.P.C. or may be under section 164, Cr.P.C. but second F.I.R. under section 154, Cr.P.C. cannot be registered. In support of this proposition the judgments reported as Jamshed Ahmad v. M. Akram 1975 SCMR 149 and Mst. Bashiran Bibi v. S.H.O. PLD. 1978 Lah. 1323 have been cited. There is no cavil with the proposition that when two or more versions with regard to one incident or offence arc given after recording of the F.I.R., second F.I.R. cannot be recorded on the basis of every subsequent version but if in a case it is found that a counter version is given by a party which discloses a distinct and separate offence, another F.I.R. will have to be registered and shall be investigated upon. Considering the attending circumstances and narration of facts made in the two versions, the first F.1.R. i.e. 204 of 1998 does not, in any manner, disclose or specify as to how Muhammad Iqbal, A.S.I. was killed and Shaukat Ali Constable received bullet injury on his chest. The application moved by the petitioner before the S.S.P., Pakistan Railway Police clearly discloses a distinct and separate offence which is not the subject‑matter of F.I.R. No.204 of 1998. Two distinct and opposite versions have come on the record wherein the manner of commission of the crime, place of occurrence and other details are not A only different from each other but on certain points are diametrically opposed to each other. The interest of justice as well as fair investigation, therefore, demands that a separate F.I.R. on the basis of the 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 upon as to which of the versions is wholly or partly correct and which of the accused persons are guilty and liable to be convicted. In support of this proposition, Allah Ditta v. S.H.O. PLD 1987 Lahore 300, a D.B. judgment of this Court may be referred. It was observed by their lordships that once an F.I.R. is recorded all other information subsequently supplied can be looked into and no second F.I.R. need be recorded but the same is subject to exceptions. The observation has been clarified that information can be laid one after the other, to be recorded as F.I.Rs. if these disclose separate cognizable offence, the second or later not being the mere amplification of the first but the disclosure of other criminal activities. Recording of a second F.I.R. or a direction to that effect therefore, depends upon the circumstances of each case. Their lordships also observed that if the same is not done, the same may result in serious miscarriage of justice. An example was also quoted that if a person whose finger is injured gets an F.I.R. recorded, then the opposite‑party whose man has been murdered cannot be estopped from getting a case registered and investigated upon merely because in F.I.R. has already been registered. In another case reported as Abdul Ghani v. S.H.O. 1983 PCr.LJ 2172 this proposition was upheld. It was held that the occurrence reported about may be same but there are two cross‑versions of the occurrence. The S.H.O. is under statutory duty to reduce into writing information given to him by the petitioner about commission of cognizable offence and investigate the matter. His lordship has referred to a number of judgments and precedents wherein second F.I.R. was ordered to be registered as separate and distinct offence was disclosed. In another case reported as Akram Ali Shah v. S.H.O. PLD 1979 Lahore 320 it was held that if an accused of a particular case have a counter‑version for purposes of defence only then it is obvious that they are not handicapped in any manner whatsoever, even if a formal F.I.R. containing that version is not in existence but if the accused of a particular case have a counter‑version by way of a grievance then unless a formal F.I.R. containing that grievance exists, the accused of the counter‑case could get away without any punishment, therefore, in a situation of the latter type the existence of a counter F.I.R. would appear to be equitable. The controversy resolved through this precedent is applicable on all fours in the facts and circumstances of the present case. To further elaborate and elucidate this proposition, the judgment delivered in Sawant v. S.H.O. PLD 1975 Lahore 733 is extremely relevant wherein it was held that the police cannot refuse to register a case on the ground that they considered the version to be false. The provisions of section 154, Cr.P.C. are imperative in nature. The information relating to the commission of a cognizable offence has to be reduced by the S.H.O. into writing and investigation has to be conducted therein.

5. During the course of arguments, a reference was made to the case of Kaura v. The State 1979 PCr.LJ 521 whereby a review petition was disposed of by this Court on the direction of the Hon'ble Supreme Court in the same case i.e. Kaura v. State 1983 SCMR 436 wherein their lordships of the Hon'ble Supreme Court held that second F.I.R. with regard to the same incident cannot be ordered to be registered merely on the counter‑version. The facts and the attending circumstances of the case are different from the facts and circumstances of the present case. The crux of the matter which boils down after going through all the cited cases is that if counter‑version is merely restricted to a defence version, the second version or a different version of incident, second F.I.R cannot be recorded. But if a distinct and separate cognizable offence is 8 disclosed and no effective inquiry or trial can be held without properly appreciating and considering the two versions, then another F.I.R. is to be recorded. I am, therefore, of the view that the respondents have illegally refused to register the case. They are, therefore, directed to register the F.I.R. and, thereafter, to conduct the investigation therein.

6. Before parting with the judgment, I would refer to another aspect of the case which has been pointed out by the respondents that both the incidents, the one asserted by the petitioner and the other by Haji Bashir Ahmad Saleemi maker of F.I.R. No.204 were in fact series of one and the same transaction, therefore, recording of second F.I.R. was not called for. The contention cannot be accepted because it is only the version given by Haji Bashir Ahmad according to which the whole occurrence is series of one transaction but according to the petitioner's contention the same is not in conformity with the true facts. According to them two F.I.Rs. were recorded previously as well with the Railway Police showing that the police officials went to remove the trespassers or squatters but they were manhandled, therefore, an F.I.R. was recorded against them. The second F.I.R. was recorded when the accused persons named in the first F.I.R. (48 of 1998) were rounded up and apprehended but they were got released. Both these F.I.Rs. have been recorded prior to the present incident. The third incident according to the petitioner took place in the premises of police post as a sequel to the incidents enumerated in the previous two F.I.Rs. Be that as it may, I am not in a position to hold as to which of the two versions is correct but truth can be ascertained only if both the cases are registered and are investigated upon together and thereafter report or reports are submitted by the Investigating Agency. Unless both these versions are placed before the Court no proper adjudication of the respective contentions can be made. To submit challan in one case and to ignore the version given in another case is not at all conducive to the interest of justice. During the investigation a difficulty may be confronted by the Investigating Agency, as to which of the police force i.e. the Railway Police or the Punjab Police is to hold investigation. The same can be resolved by availing of and following the provisions contained in Chapter XXV pertaining to 'Investigation' in Police Rules, 1934.

7. The upshot of the above discussion is that the writ petition is accepted and a direction is issued to respondents Nos.2 and 3 to register a case on the basis of application (Annexure 'F'), conduct the investigation, place both the versions alongwith opinion of the Investigating Officers/Agencies before the trial Court so that they may be placed in juxtaposition and the judgment is delivered accordingly. N.H.Q./M‑811/L ??????????????????????????????????????????????????????????????????????????????????????????? Petition accepted