ORDER SHEET

IN THE HIGH COURT OF SINDH,

CIRCUIT COURT, HYDERABAD.

C.P.No.D- 1977 of 2016

DATE ORDER WITH SIGNATURE OF JUDGE

18.10.2017.

Mr. Shabeer Hussain Memon, Advocate for petitioner.

Mr. Parvez Tarique Tagar, Advocate for proposed accused No.1.

Mr. Muhammad Ismail Bhutto, Additional A.G. alongwith SIP Ahsan Ali Jamali Police Line, Mirpurkhas.

Through instant constitutional petition, the petitioner has challenged the order dated 18.5.2016 passed by learned Additional Sessions Judge-II/Ex-Officio Justice of Peace, Dadu, in Criminal Miscellaneous Application No. 620/2016, whereby his prayer for direction to SHO to register his FIR has been declined.

2. The facts giving rise to this petition are that on 02.05.2016 at 00.45 am the proposed accused No. 1 to 8 being armed with official weapons entered the house of the petitioner, caused injuries to him and forcibly took away his gold ornaments, cash and licensed TT pistol. It is further stated that proposed accused took away two sons of the petitioner, namely, Ghulam Muhammad and Ghulam Rasool and left Ghulam Muhammad at some distance but murdered Ghulam Rasool showing false encounter and registered such FIR. The petitioner approached respondent No. 2 for lodging the FIR but he declined, therefore, he approached the learned Justice of Peace, who also dismissed the application of petitioner.

3. Learned counsel for the petitioner submits that the proposed accused have committed not only a cognizable offence but a heinous offence. He further submits that son of the petitioner was murdered by the proposed accused while firing upon him which fact has been corroborated by postmortem report of the deceased Ghualm Rassol. He also submits that the FIR of false encounter has been registered by the police in which none from the police party has sustained injury but respondent. No.2 avoided to lodge FIR of the petitioner. He adds that since the proposed accused entered the house of petitioner, robbed valuable property, abducted two sons of the petitioner and thereafter murdered Ghulam Rasool which is a cognizable offence, therefore respondent No. 2 was bound to register the FIR of the petitioner. He submits that the impugned order is also against the law, hence is liable to be set aside.

4. Conversely, learned counsel for the proposed accused supported the impugned order and submitted that the son of the petitioner was criminal and involved in number of cases and he was murdered during encounter by the Police officials/proposed accused while they were discharging their lawful duties and such FIR has already been lodged by the police, therefore, he prayed that instant petition may be dismissed.

5. Learned A.A.G adopts the arguments advanced by learned counsel for the proposed accused.

6. Perusal of record reflects that there are serious allegations against the police officials/proposed accused that they entered the house of petitioner, committed robbery and murdered Ghulam Rasool, the son of petitioner, by firing upon him which fact has been admitted by them in their FIR that during encounter with the police Ghulam Rasool lost his life. Postmortem report of Ghulam Rasool reveals the cause of death by sustaining firearm injuries, caused from a short distance which is not the case of proposed accused. Prime facie, it appears that a cognizable offence has been committed and as per section 154 Cr.P.C no discretion is left with SHO to avoid the lodging of FIR, if the information transpires that a cognizable offence has been committed.

7. In the circumstances of the case, this petition is allowed and order dated 18.5.2016 passed by learned Additional Sessions Judge-II /Ex-Officio Justice of Peace, Dadu in Criminal Miscellaneous Application No. 620/2016 is set aside. The respondent No. 2 is directed to record the statement of petitioner and if such statement narrates story of a cognizable offence, he shall incorporate the same into 154 Cr.P.C Book. However, no coercive action shall be taken against the accused till the tangible evidence comes on record.

The petition stands disposed of in above terms.

JUDGE

Tufail