2016 P Cr (PLP)

MUHAMMAD GHAZANFAR KHAN J.

The petitioner, namely, Jehangir Khan, through the instant Constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan 1973, has sought the indulgence of this Court to direct the S.H.O. of police station Basya Khel, Tehsil and District Bannu, respondent No.8 herein, to register a criminal case against Muhammad Saeed Khan, respondent No.10 herein, for committing the murder of deceased Meraj Khan in view of his subsequent version taken before the police under section 161, Cr.P.C. and also before the learned Justice of Peace/Additional Sessions Judge-II, Bannu agitated under section 22-A(6), Cr.P.C. but it was declined vide order dated 20/2/2015.

2. Summarized facts of the case leading to filing of the instant petition are that on 21/12/2014 Muhammad Siraj Khan lodged a report in police station Basya Khel, Tehsil and District Bannu to the effect that on the eventful day he along with his brother Meraj Khan and cousin Fakhre Alam son of Abdul Haleem Khan were busy in constructing the water channel (Verkha) which was bypassed on their "Chowk" when in the meanwhile at 0930 hours, Jehangir Khan son of Sherin Jan, armed with Kalashnikov came, started hot words with his brother Meraj Khan and simultaneously opened firing at him with which he was hit, fell down to the ground and expired on the spot, where after he (the accused) fled away from the spot. Being empty handed, the complainant could do nothing. Motive for the offence was described to be dispute over construction of aforesaid Verkha/water channel.

3. On the same day, the accused/petitioner Jehangir Khan recorded his statement under section 161, Cr.P.C. before the police to the effect that there was a dispute between him and Muhammad Saeed Khan, Bank Manager over the construction of water channel and when he complained about the same, Muhammad Saeed Khan infuriated, 7/8 persons of his companions caught hold and gave fist and kick blows to him, whereafter he (Muhammad Saeed Khan) made aerial firing with which Meraj Khan was hit and died. Thereafter, the said 7/8 persons locked him in a Hujra, whereafter the SHO came and arrested him. He stated that he was falsely charged and he will produce defence evidence in the Court. Thereafter, on 5/1/2015, he procured affidavits of Umer Shad Khan, Dilfayaz Khan, Raham Subhan, Asghar Ali Khan, Riaz Khan and Noor Qadir Khan wherein they stated about the innocence of the petitioner Jehangir Khan and involvement of Muhammad Saeed Khan in committing murder of the deceased Meraj Khan.

4. Subsequently on 29/12/2014, the accused/petitioner applied to Superintendent of Police, Investigation Bannu for conducting impartial inquiry in the case which was marked to Incharge Investigation of police station Basya Khel for fair investigation.

5. Then the petitioner took a somersault when he moved an application to the learned Justice of Peace/Additional Sessions Judge-II Bannu under section 22-A(6), Cr.P.C. for registration of case under section 302, P.P.C. against the said Muhammad Saeed but this time his stand was quite on different footings. His assertion was that on 21/12/2014 at 0830 hours he was coming on motorbike from his house to the bargain and when reached on the thoroughfare towards the village, accused Muhammad Saeed armed with Kalashnikov, Shahid Khan empty handed, sons of Saeed-ur-Rahman, Fakhre Alam armed with pistol, Ubaidullah armed with Kalashnikov, sons of Abdul Haleem, Ziyad son of Umer Sali, armed with Kalashnikov, Saif-ur-Rahman son of Hazrat Umer and Meraj (the deceased) son of Hazrat Bilal, empty handed, residents of Pak Ismail Khel, were watching the work on the disputed Verkha (water channel). He (the petitioner) thus asked them to stop work on the said Verkha till the decision of its dispute, but they became angry over it and under the command of Muhammad Saeed, all the remaining accused gave him kick and fist blows with which he was seriously injured and meanwhile accused Muhammad Saeed fired at him with Kalashnikov but luckily he escaped unhurt. However, with the firing of all said accused, their companion Meraj Khan son of Hazrat Bilal got hit and fell to the ground. In the meantime, Riaz Khan son of Awal Khan, Raham Subhan son of Mir Sardar, Dilfayaz Khan son of Bahadur Khan, Umer Shad Khan son of Amir Muhammad Khan and other co-villagers came to the spot, rescue him (the petitioner) from the clutches of the accused and in order to save his skin locked him in the nearby hujra of Hazrat Bilal. In order to kill him, the accused tried to broke up the door of the Hujra but the co-villagers saved him and simultaneously Nabi Shah, SHO of police station Basya Khel was called on mobile phone who along with the police party reached to the spot within 30/40 minutes and took him to the police station in the official vehicle. Thereafter, the accused party joined hands with the said Nabi Shah SHO and thus maliciously and against the true facts charged him for the murder of Meraj Khan and further by planting Kalashnikov against him, he was implicated for an offence under section 15-AA vide FIR No. 591 which was totally false and fabricated about which he has applied to the Superintendent of Police Investigation. The petitioner alleged that such act of the SHO Nabi Shah falls within the ambit of section 156 of Police Order, 2002 coupled with section 182, P.P.C. He further alleged that when he tried to lodge report with the said SHO Nabi Shah, he flatly refused, hence the petition under section 22-A(6), Cr.P.C. However, the said petition too did not find favour with him which was dismissed vide order dated 20/2/2015.

6. Still not contented with the above order, the petitioner has now chosen to assail the aforesaid facts and circumstances of the case before this Court through its extra ordinary constitutional jurisdiction mainly on the grounds that he is innocent and falsely implicated in the case in hand and that actually Muhammad Saeed Khan, respondent No.10, is the actual culprit who has committed the murder of the deceased Meraj Khan and thus the SHO concerned should be directed to register a case against said Muhammad Saeed Khan and in consequence the registration of FIRs Nos.590 and 591 under section 302, P.P.C. and 15-AA against him both dated 21/12/2014 of Police Station Basya Khel, Tehsil and District Bannu be declared null and void ab initio/quashed.

7. Pir Liaqat Ali Shah, the learned counsel appearing on behalf of the petitioner vociferously criticized registration of FIRs No.590 under section 302, P.P.C. and FIR No.591 under section 15 AA both dated 21/12/2014 of police station Basya Khel, District Bannu against the petitioner on variety of grounds. He contended that on the day of occurrence, i.e. 21/12/2014, the petitioner has recorded statement before the local police under section 161, Cr.P.C. wherein he categorically stated that over the dispute of Verkha (water channel), 7/8 persons after catching hold had given kicks and fist blows to him where after they opened aerial firing with which Meraj Khan was hit and died, whereafter they locked him in a Hujra and then the SHO arrested him in the occurrence. His submission was that innocence of the petitioner gets ample support from the affidavits of six notables of the locality and accusation of Muhammad Saeed Khan for the murder of deceased Meraj Khan. He argued that soon after the occurrence, i.e. 29/12/2014, the petitioner had applied to Superintendent of Police Investigation Bannu for conducting an impartial inquiry in the matter. His contention was that in view of statement of the petitioner coupled with statements of those who have sworn on affidavits under section 161, Cr.P.C. about the innocence of the petitioner and accusation of respondent Muhammad Saeed Khan, the SHO of Police Station Basya Khel was legally bound to have registered a case against the accused/respondent Muhammad Saeed Khan for committing the murder of the deceased Meraj Khan. The last limb of his submissions was that the petitioner has brought the real facts on surface about the death of deceased Meraj Khan by moving an application to the learned Justice of Peace under section 22-A(6), Cr.P.C., but it has wrongly been turned down through the impugned order dated 20/2/2015. The learned counsel thus argued that registration of both the FIRs No.590 under section 302, P.P.C. and FIR No.591 under section 15-AA, both dated 21/12/2004(sic.) being based on malice are, therefore, liable to be declared null and void ab initio/quashed and that the local police be directed to register a case for the murder of deceased Meraj Khan against the accused Muhammad Saeed Khan. In support of his contentions, the learned counsel placed reliance on the case law reported as Ward Ali Khan Durani and others v. Government of Sindh and others (2001 SCMR 1556), Muhammad Bashir v. Station House Officer Okara Cantt. and others (PLD 2007 Supreme Court 539) and Human Rights Case No. 19526-G of 2013 decided on 24th July 2013 (2014 SCMR 83).

8. On contrary, Mr. Anwar-ul-Haq, the learned counsel representing the complainant/respondents hotly refuted the contentions of learned counsel for the petitioner. He argued that when an alternate remedy in the shape of applying to the trial Court under section 265-K, Cr.P.C. is available to the petitioner, then in such circumstances, the filing of instant constitutional petition was unjustified and unwarranted under the law. He contended that each and every case is to be decided on its own peculiar facts and circumstances. He argued that though there is no legal bar on registration of another FIR, but mere assertion of the petitioner before the local police taken under section 161, Cr.P.C. on altogether different footings could not be made basis for registration of a criminal case against the complainant for the murder of deceased Meraj Khan. He urged that the persons who have sworn on affidavits about innocence of the petitioner and accusation of the respondent Muhammad Saeed Khan are highly interested and inimical which have no sanctity in the eyes of law. His submission was that on the application of the petitioner moved on 29/12/2014 to the Superintendent of Police Investigation Bannu, an impartial inquiry was conducted in the matter but there is nothing on record to show that the petitioner has been held/declared innocent in the occurrence. The learned counsel further submitted that the story narrated by the petitioner in his application under section 22-A(6), Cr.P.C. before the learned Justice of Peace is not in consonance with his version taken before the police in his statement under section 161, Cr.P.C. and the witnesses who have sworn affidavits about his innocence and accusation of the respondent Muhammad Saeed Khan. His last submission was that not only application of the petitioner dated 29/12/2014 before the Superintendent of Police Investigation Bannu was at a belated stage but even his application dated 28/01/2015 under section 22-A(6), Cr.P.C. before the learned Justice of Peace was an afterthought and hopelessly time barred, i.e. having been moved after the lapse of about one month. He contended that the submissions made at the bar by the learned counsel for the petitioner relate to facts which cannot be gone into by this Court in exercise of its extra ordinary constitutional jurisdiction. The learned counsel thus urged that the petitioner is the real culprit who is responsible for committing the murder of deceased Meraj Khan and the registration of both the FIRs No.590 and 591, referred to above, are based on correct legal footings and needs no interference by this Court in exercise of its constitutional jurisdiction. In support of his contentions, the learned counsel placed reliance on the case law reported as Rai Ashraf and others v. Muhammad Saleem Bhatti (PLD 2010 Supreme Court 691).

9. The learned Additional Advocate General representing the State supported the arguments of learned counsel for the respondents.

10. We have thread-barely gone into the available record of the case and anxiously considered the valuable arguments addressed at the bar by the learned counsel for the parties.

11. Without dilating upon merits/demerits of the case as it could certainly prejudice case of either party during trial, the moot questions for determination in the case in hand are Firstly; that whether defence plea of an accused person can be converted into an FIR and Secondly; that whether defence taken by an accused in his statement under section 161, Cr.P.C. can be made basis for registration of an FIR.

12. Under the law, statement of an accused cannot be made basis for registration of a case even if discloses commission of a cognizable offence. In such an eventuality, it will open a new flood gate for every accused to charge the complainant for commission of an offence, or for committing murder of his near and dears. So no accused in such a scenario would be seeing doom day, though registration of second FIR is not prohibited as has been held in the case of Ward Ali Khan Durani and another v. Government of Sindh and others (2001 SCMR 1556) etc., referred to above by the learned counsel for the petitioner, but in all those rulings, the FIR was registered at the instance of the complainant or his allies, but there is no example for registration of a case on the defence plea of an accused, that too against maker of the FIR, whose near-one has been murdered by the accused within his seeing.

13. In the present case, the complainant Muhammad Siraj Khan has directly and singularly charged the accused/petitioner for committing murder of the deceased Meraj Khan with Kalashnikov. The charge is duly supported by a motive that there was a dispute between the parties over the construction of a Verkha/water channel coupled with the eye-witness account of Fakhre-Alam son of Abdul Haleem. As stated above, there is no legal harm on registration of another FIR about the same occurrence, but if the so-called statement of the petitioner recorded under section 161, Cr.P.C. before the police coupled with those of the persons who have sworn affidavits about his innocence are taken into consideration, it would tantamount to establish and prove his presence on the spot at the relevant time. Moreover, there are glaring contradictions between the contents of statement of the petitioner recorded under section 161, Cr.P.C. of the petitioner, his application to Superintendent of Police Investigation Bannu for fair and impartial investigation and those narrated in the application moved before the learned Justice of Peace under section 22-A(6), Cr.P.C. The subsequent stance of the petitioner is also at a belated stage and thus it amounts to an afterthought. Above all, the points agitated in the petition and those addressed at the bar by the learned counsel for the petitioner pertains to facts of the case which cannot be gone into by this Court in exercise of its extra ordinary Constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.

14. Therefore, on tentative assessment of the available materials, prima facie, the petitioner is reasonably linked with the commission of offence and any observation made by this Court at this stage would certainly prejudice case of either party during trial. The innocence or otherwise of the petitioner could properly be adjudged when pro and contra evidence come on record during trial of the case. The genuineness or otherwise of the affidavits sworn by the persons concerned about the alleged innocence of the petitioner would also properly be thrashed out when the said witnesses face the test of cross-examination at trial. Even otherwise, when the petitioner can move the trial Court under section 265-K, Cr.P.C., then the maintainability of present writ petition in the given circumstances and facts of the case is a question mark.

15. As stated above, the above observations are tentative in nature which shall not prejudice the mind of the learned trial Judge in any manner during trial of the case.

16. As a corollary to what is discussed above, we find no substance in this writ petition which is hereby dismissed. HBT/75/P Petition dismissed.