2007 PLP 2172 (YLR)

Instant I.C.A. is filed to recall the order dated 23-4-2007 passed by .the learned Single Judge in Chambers in Writ Petition No.1951 of 2007.

2. Brief facts succinctly required for the adjudication of the instant appeal are that the appellant is complainant of a criminal case F.I.R. No.78 dated 24-3-2007 under section 406, P.P.C. registered at Police Station City Dunyapur. The allegations against respondent No.3 in the said F.I.R. are that the appellant got booked hundred bales of cotton worth Rs.11,040,62 and the same were loaded in vehicle No.2654/LHP owned by Bao Ehsanullah, which was driven by Muhammad Ishfaq. Thereafter on 21-3-2007 at 2-30 a.m. Bao Ehsanullah informed the appellant telephonically that cotton bales have been looted on account of dacoity. The appellant along with others reached Dunayapur and on probe, the appellant got suspicion that no dacoity has been committed. The driver Muhammad Ishfaq, Bao Ehsanullah, Muhammad Younis and two unknown helpers have confessed that they with common intention 'have committed theft of the cotton bales, as such the said case was registered against respondent No.3 and others.

3. On the registration of the above said case, respondent No.3 Muhammad Ishfaq driver of the bus filed a petition under section 22-A, Cr.P.C. before the learned Additional Sessions Judge/Justice of Peace Lodhran, seeking registration of a criminal case regarding the occurrence of dacoity. The comments were called and thereafter the petition of the respondent under section 22-A, Cr.P.C. was dismissed vide order dated 2-4-2007. Thereafter the respondent filed Writ Petition No.1951 of 2007 and the same was accepted by the learned Single. Judge in Chamber vide his order dated 23-4-2007 and the D.P.O., Lodhran was directed to get a case registered on the complaint of respondent No.3 and to ensure its fair and impartial investigation. Hence this appeal.

4. It is contended on behalf of the appellant that F.I.R. No. 78 dated 24-3-2007. under section 406, P.P.C. has been registered at Police Station City Dunyapur and registration of the second F.I.R. on behalf of the respondent is simply a drama to create a defence and to usurp cotton bales worth Rs.11,04,062 and the learned Additional Sessions Judge/Justice of Peace Lodhran was justified in rejecting the petition for registration of a case about the same occurrence, for which an F.I.R. has already been registered; that the learned Single Judge in Chambers, without hearing the appellant, ordered for registration of the case which has caused prejudice to the appellant; that the counter version of respondent No.3 could have been easily recorded in the above-said F.I.R., as such the second F.I.R. cannot be lodged and in this respect reliance is placed upon Habibullah v. Political Assistant, Dera Ghazi Khan and others (2005 SCMR 951) and that the appellant being a necessary party has not been made a party in the writ petition before the issuance of the direction for registration of the F.I.R., as such he was condemned unheard and in this respect, reliance is placed upon Sajjad Ahmad v. S.H.O. Police Station, Kunjah and another (PLD 1993 Lahore 18).

5. We have heard learned counsel for the appellant and perused the impugned order.

6. The learned Single Judge in Chambers had taken into consideration the version of respondent No.3 in an independent perspective. The case of the appellant is that respondent No.3 along with his co-accused had committed theft of the cotton bales and in order to create defence, the respondent is seeking the registration of the case while the case of the respondent is that a dacoity had taken place in which 10/12 persons were involved, who came on an unnumbered truck and took the respondent and his two helpers in deserted place on gun point and looted the goods from the truck of the respondent, as such his case is based on independent set of witnesses and accused persons. Under these circumstances, there is no bar in registering the second F.I.R. as has been held in Mst. Anwar Begum v. S.H.O. P.S. Kalri West Karachi and 12 others (PLD 2005 SC 297) and Mrs. Ghanwa Bhutto and another v. Government of Sindh and another (PLD 1997 Karachi 119).

7. In view of the above circumstances, we are of the view that the learned Single Judge in Chambers was right in giving direction for registration of a criminal case. Therefore, this appeal is dismissed. H.B.T./M-311/L Appeal dismissed.