1998 PLP 1161 (MLD)

MIAN MUHAMMAD AJMAL, J.

Shafiur Rehman petitioner has filed this Writ Petition against Jan Bahader Khan, and four Constables, Police Station Zaida, who while on patrol duty killed his son Mafahid Khan, who was returning home from the house of his in-laws. The S.H.O (respondent No. 1) lodged the report against the deceased and others alleging' it to be an encounter vide F.I.R. No. 428, dated 15-8-1995 in the same Police Station.

2. Brief facts of the case as narrated in the petition are that on 15-8-1995 the petitioner's son Mafahid Khan (Mowaid Khan) had gone to the house of his father-in-law situated in Rag Banda at a distance of about 2 kilometres from his village Musa Banda alongwith Sherzada S/o Umer Said on a bicycle; that at about 5-00 p.m. while returning home when they reached near the turn of Rana Dheri, two Datsuns of the police confronted them, Mafahid Khan got down from the bicycle, respondents 1 to 5 started firing at him with which he was hit and breathed his last on the spot; that the police party took his dead body to the Police Station in the datsun; that after the occurrence, Sherzada, companion of the deceased came to his village and informed Sher Aman, brother of the deceased about the occurrence, whereafter Sherzada alongwith the brothers of the deceased went to Police Station, Zaida, where they were informed that the deceased had been taken to hospital, therefore, they left for the hospital, where the dead body of the deceased was lying and they took it to their village; that after learning about the occurrence, the people of the surrounding villages protested against police by blocking the road; that the higher authorities were approached to take necessary action against respondents 1 to 5 for committing brutal murder and their highhandedness; that the Deputy Commissioner, Swabi assured that a case would be registered against respondents 1 to 5 and the investigation would be carried out through Crimes lixanch; that the petitioner approached time and again the Police Station to register a case against respondents 1 to 5, but in vain; that the mandatory provision of law under section 154, Cr.P.C. is being violated by the police by not registering a case against respondents 1 to 5, therefore, the petitioner has approached this Court.

3. We have heard the learned counsel for the parties and gone through the file with their assistance.

4. The opinion submitted by the Prosecution Branch is worth mentioning, which reads:- "The perusal of case file shows that there are two sets of evidence contradicting each other on material points and as such I will like to discuss each set before forming decisive opinion in the matter. In the first instance it has been pointed out by the local police that deceased was a proclaimed offender but subsequently it was transpired that he was not at all a wanted person to any criminal case. Besides this one Khalil-ur-Rehman was also shown as P.O. But he too was not a P.O. in any case of criminal nature and that is why he was released on bail by the Court of Sessions. Even the presence of the rest of the P.Os. named in the F.I.R. could not be established through any independent source. Besides this the question of positive identification of the referred P.Os. is also highly improbable as to the police identified them viewedly while P.Os. are always try to hide their identity. As far the recovery of pistol from the immediate possession of the deceased and that of five rounds are concerned, no independent witness was asked by the police to stand witness to the recovery proceedings and this could easily be termed as an eye wash to justify the unwarranted killing of an innocent person. Similarly recovery of empties from alleged places of respective proclaimed P.Os. and does not stand to reason that despite opening of firing with sophisticated weapons no person from the police sustained injuries or even a seratch being in less number against the P.Os. As regards the other set of evidence which was subsequently brought on record clearly contradict the version of the local police and rather gives a quite different story which appeals to the mind and seems true. The statement of P. Ws. Muhammad Salim driver of the Datsun pick up, Sher Zada and Daraz Khan Couchwan are worth perusal, as maker of these statements are independent and also not related inter se. It also reveals that deceased was all alone when he was shot dead by the police party. The statement so far recorded corroborates each other and do not cast aspersion on the veracity of the second story of the case. I have gone through the entire case file with utmost care and have come to the following conclusion:- As far as the first version is concerned, that lacks corroboration through any independent source thus in the given circumstances it is not worth to be relied upon without any reservations. Whereas subsequent version which altogether is different from the earlier appeals to the mind that the death of deceased ensued due to the fire shots of the police was unwarranted and attempt was made to give it a legal cover by showing the deceased as P.O. only one question which stirs the mind is that what for the deceased was killed by the police party because the investigation so far conducted has not suggested any motive for the occurrence The police party was being led by a responsible police officer no less than S.H.O. and he was not supposed to kill innocent person on trifles and as such it would be in the fitness of things that further investigation in this case be made so that the real facts could be brought to light " From the above opinion it is clear that the deceased was done to death by the Police party. The police has stated that he was P.O. and he opened p fire at the police party, and the police in self defence fired at him: The material on record belies police version and, thus, it is evident that the police in order to cover their crime concocted the story as given in its F. I. R.

5. Section 154, Cr.P.C. provides that every information relating to the commission of the cognizable offence given to Officer Incharge of the A Police Station shall be reduced into writing by him. The language used in the aforesaid section is mandatory and as such, S.H.O: was legally bound to record the information regarding commission of cognizable offence into writing and its refusal amounted to denial of the lawful duty conferred on him by law. In case of Muhammad Ibrahim. v. S.H.O Police Station. Mansehra (PLD) 1983 Peshawar 229), this Court has held as under:- "3 ................................................................................ the S.H.O. was duty bound to register the case when an information regarding the commission of a cognizable offence was conveyed to him. Under section 154, Cr.P.C. the report should have been reduced into writing by the officer incharge of the Police Station and should have been entered in the First Information Report Register. Thereafter, the Police Officer was bound to investigate into the offence and in case after the investigation it was found that the evidence adduced by the petitioner did not make out a case, he could have submitted a report to the Magistrate for the cancellation of the case. In Ch. Attaullah v. Ch. Mumtaz Ahmad and others (1993 P Cr. L J. 69) it was held that even if the police have made investigation in a case with reference to particular evidence produced by one party, another report with reference to the same incident is not barred. In the circumstances we are of the view that the S.H.O. (respondent No. 1) has failed in his duty by not registering and investigating the counter-version of the case given in the report of the petitioner. He should not have arrogated to himself the functions of a Court of Law to decide upon the question as to which party was the aggressor that one party had caused injuries to the other in the exercise of their right of self- defence. " In view of the aforesaid discussion, this Writ Petition is accepted with costs. S.H.O. Police Station Zaida is directed to register the report of Shafiur Rehman petitioner forthwith. The D.I.G./S.S.P. is directed to hand g over the investigation of the case to the independent and impartial Investigation Team preferably headed by a senior rank officer to investigate the case. H.B.T./56/P Petition dismissed.