1999 P Cr (PLP)

Ch. Muhammad Zahoor Nasir for Petitioner Imtiaz Kaifi, A.A. -G. for the State. This petition is moved under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 for the registration of case against respondents Nos.2 to 18 for an occurrence in which son of the petitioner namely Amjad Shah and one other namely Sakher Khan alias Saghir Khan were killed. In this respect, it is submitted that both the deceased were earlier arrested by the S.H.O., Police Station, Factory Area, Sheikhupura, but later on during night were killed in police encounter, which amounted to their murder by the police concerned. In order to save their skin, a case of dacoity was registered vide F.I.R. No.784 of 1998 saying that the deceased alongwith others wanted to commit dacoity in an Engineering Factory and were killed in police encounter when they were surrounded by the police and they opened fire on the police party. The police returned the fire which killed the deceased. It was contended that the aforesaid F.I.R. was concocted in order to save the police officials, who had murdered both the deceased. The petitioner allegedly made an application before the Senior Superintendent of Police, Sheikhupura (Annexure "C"), but no action was taken on it uptil now.

2. Notices were issued calling upon respondents Nos. 1 and 2 to submit their parawise comments. Respondent No.l i.e. S.S.P., Sheikhupura has submitted his comments in which he has contended that a case was registered vide F.I.R. No.784 of 1998, dated 20-10-1998 under sections 395, 324, 353, 148, 149, P.P.C. read with section 13 of Arms Ordinance, 1965 at Police Station, Factory Area, Sheikhupura for an occurrence, which took place on the morning of 20th October, 1998 regarding the police encounter. The S.S.P. Sheikhupura has submitted that he rushed to the spot on receiving the information and verified the facts mentioned in the F.I.R. However, he denied that the petitioner ever submitted any application to him for the registration of case against respondents Nos.2 to 18.

3. The S.H.O., Police Station Factory Area, Sheikhupura, i.e. respondent No.2 also offered his comments in which he denied that he had ever arrested both the deceased. On the contrary, he came up with the plea that he had received an information that a dacoity was being committed at Bashir Engineering Factory, whereupon he alongwith his subordinate police officials reached the spot and encircled the said Factory. The culprits, on seeing the police party started indiscriminate firing with their fire-arms. The firing made by the culprits was replied by the police and in exchange of firing from both sides for about 20/25 minutes, there was silence from the side of intruders in the Factory. It was discovered after the cease of fire through search light that deceased were killed in the encounter whereas the remaining intruders escaped. A 7 mm rifle and a mouzer were recovered from near the dead bodies of deceased persons after the police entered the Factory. It is in the light of aforesaid facts that a case was registered vide F.I.R. No.784 of 1998, dated 20-10-1998. It was denied that the deceased were earlier arrested and later on killed in the police encounter as stated in the writ petition.

4. I have heard the learned counsel for the petitioner, who has submitted that an affidavit in support of the writ petition is attached apart from the affidavits i.e. Annexures A/1, A/2, A/3, A/4, A/5 and A/6 to support the contents of the writ petition, in proof of killing the deceased by the police party in a fake police encounter. It was, therefore, contended that a cognizable offence was made out for which S.S.P., Sheikhupura was also moved vide petition Annexure "B", but no action was taken. It was, therefore, contended that there was sufficient evidence to show that respondents had murdered the deceased persons aforenamed.

5. The learned A.A.-G. has however, submitted that police encounter was genuine as the intruders in the Engineering Factory had opened fire on seeing the police party for which a prompt F.I.R. No.784 of 1998, dated 20-10-1998 was got registered and is under investigation. Apart from that the matter is now entrusted to the Assistant Commissioner, Ferozewala for an inquiry which too is sub judice before him.

6. I have considered the foregoing facts and find that the matter is sub Judice before an Inquiry Officer i.e. Assistant Commissioner, Ferozewala. Needless to say that the petitioner has been provided with a legal forum to put up his version before the Inquiry Officer who after taking down his version can come to some positive conclusion, in respect of the grievance of the petitioner against the police officials. Since the version put up in this writ petition is denied from the other side which has also come up with a different story, therefore, the matter cannot be clinched without recording and appreciation of the evidence which would not be, within the scope of Constitutional petition moved in this Court. Since a forum has already been provided to both sides, before an Inquiry Officer, therefore, it will be inexpedient to touch the merits of the case as disclosed in this petition. The petition is accordingly disposed of with the direction that the petitioner may appear before the Inquiry Officer to put up his version, which if so put before him, will be taken into consideration while disposing of the inquiry on its merits in accordance with law. Q.M.H./M.A.KJA-45/L Order accordingly.