IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

 

 

Cr. Misc. Application No.S-478 of 2020

 

 

Applicant:                                          Abdul Wahid Gabol through Mr. Achar Khan Gabol, Advocate.

 

Respondents No.4,5,7 to11:              Through Mr. Amir Mustafa Kamario, Advocate

 

Respondent No.6:                              Wazeer Ahmed Ghoto, Advocate

 

Respondents No.12 & 13:                  Mr. Ali Asghar Panhyar, Advocate

 

State:                                                 Ms. Shabana Naheed, APG               

Date of hearing:                                 08.11.2021

Date of decision:                                14.01.2022 

 

O R D E R

 

Zulfiqar Ali Sangi, J:              Through this application, the applicant has impugned the order dated 03.09.2020, passed by learned 1st Additional Sessions Judge/Justice of Peace Ghotki, whereby an application under Section 22-A(6)(i) Cr.P.C, filed by the applicant, was dismissed.

 

2.                 Learned Counsel for the Applicant, at the very outset, submits that from the facts as averred in the application under Section 22-A (6)(i) Cr.P.C, a case for cognizance is made out as the offence is heinous in nature; that learned Ex-Officio Justice of Peace has not applied his judicial mind while pronouncing the impugned order; besides did not discuss the merits of the case; that in the application it is clearly mentioned that proposed accused/Respondents No.4 to 13 unlawfully and intentionally have committed the cognizable offence by causing fire shot on the knee of brother of applicant; that SHO of the police station concerned is duty bound to register the FIR under Section 154 Cr.P.C and there is no any provision under the law for its refusal. In support of his contentions, learned Counsel has placed reliance upon unreported cases of this Court viz order dated: 06-09-2021 passed in Cr. Misc. Appl. No. S-566 of 2021, order dated: 30-08-2021 passed in Cr. Misc. Appl. No. S-360 of 2020, order dated: 15-02-2021 passed in Cr. Misc. Appl. No. S-821 of 2018 and order dated: 15-04-2019 passed in Cr. Misc. Appl. No.S-940 of 2017. As to query regarding applicability of Sughran Bibi case reported as PLD 2018 SC 595, learned Counsel submitted that such case is not applicable as the case registered by the police has been challaned. Lastly he prayed that this application may be allowed and direction may be issued to the concerned SHO for registration of FIR of the applicant.  

 

3.                 Learned Counsel representing the Respondents No.4 to 11, at the very outset, submits that a series of cases are registered against the alleged injured; that inquiry report of DSP Complaint redressal Center, Ghotki is also resulted in negative wherein it is mentioned that applicant has managed / arranged such false story only for implicating the proposed accused / police officers / officials in criminal litigation; that a direct complaint has also been filed by present applicant against Respondents No.4 to 6, 12 & 13 before learned Special Judge, Anti-Corruption (Provincial) Sukkur Division, Sukkur, which was met with dismissal vide order dated 05.03.2021. Learned Counsel further submits that in view of Sughran Bibi case, learned Ex-Officio Justice of Peace has rightly dismissed the application under Section 22-A(6)(i), hence this application, being meritless, is liable to be dismissed. In support of his contentions, learned Counsel has placed on record copy of statement dated 08.11.2021 alongwith certified copy of order dated 05.03.2021, passed by Special Judge Anti-Corruption, Sukkur as well as inquiry reports of SSP Khairpur and Circle Officer, Anti-Corruption Office, Ghotki.

 

5.                 Learned Counsel representing the private Respondents No.12 & 13, while adopting the arguments of learned Counsel for Respondents No.4 to 11, submits that there are twelve cases registered against the brother of applicant; that FIR No.267 of 2019 has been registered at P.S. A-Section, Ghotki against unidentified accused; that learned Ex-Officio Justice of Peace has passed the order in accordance with law, hence requires no any interference by this Court.  

 

6.                 Learned DPG representing the State, by supporting the impugned order, submits that the brother of applicant (injured) is nominated in a series of cases and in order to save his skin from the clutches of law has filed a false and forged application, which was resultantly failed, hence no any illegality or infirmity has been pointed out in the impugned order and the same is liable to be maintained.  

 

7.                 I have heard the learned Counsel for the applicant, Respondents and DPG for the State and carefully perused the impugned order with their able assistance.

 

8.                The applicant wants to register an FIR of the incident in which as per his version incident took place on 27-07-2020. Applicant alleged that he along with his brother Abdul Raheem and his relatives Shamasuddin went to Pano Akil for condolence of their one friend, after getting free they were returning back on public transport and when they reached at Mohammad Pur Bus Stop main National Highway Mohammad Pur Police Post, where proposed accused along with some unknown police personnel were available, they stopped the vehicle and  alighted the applicant, his brother Abdul Raheem and relative Shamasuddin, they forcibly took away them and confined them in the police lockup of Police Station “A” Section Ghotki. It is further alleged that in the evening time accused demanded rupees five lacs for release and issued threats of half fry on which applicant requested them that if he will be released then he can arrange the amount, on release applicant arranged amount of three lacs for release and paid the police officials who said that Abdul Raheem will be released after some interrogation and after permission of SSP Ghotki. Thereafter the applicant party heard on 28-07-2020, that the police officials made an encounter and caused firearm injuries to Abdul Raheem hence they approached justice of peace for obtaining an order regarding registration of FIR of the said incident and the said request was turned down vide the impugned order.

 

9.                The facts of the case of Sughran Bibi PLD 2018 SC 595 are almost same as of the present case and the same are mentioned in para No. 2 of the judgment which is re-produced as under:-

  “On 21.03.2008, more than a decade ago, one Mohsin Ali had lost his life through the hands of the police and FIR No. 177 was lodged by Zulfiqar, SI in respect of the said incident on the same day at Police Station Shahdara Town, District Lahore for offences under sections 324, 353 and 186, P.P.C. read with section 34, P.P.C. and section 13 of the Pakistan Arms Ordinance, 1965. It was alleged in that FIR that Mohsin Ali and others had launched a murderous assault upon a police party and in exercise of its right of private defence the police party had fired back resulting in death of Mohsin Ali. After completion of the investigation a Challan was submitted in that case before the Court of Session, Lahore for trial of the accused persons implicated therein. On 12.01.2010 the present petitioner namely Mst. Sughran Bibi (mother of Mohsin Ali deceased) instituted a private complaint in respect of the self same incident alleging that as a matter of fact Mohsin Ali had cold bloodedly been murdered by the local police by managing and staging a fake encounter. On 19.05.2010 a learned Additional Sessions Judge, Lahore seized of the case summoned 16 accused persons to face a trial in connection with the said private complaint. As per the legal norms the private complaint filed by the petitioner was taken up first for trial and on 18.06.2015 a Charge was framed against the summoned accused persons and, we have been informed, no progress has so far been made in that trial of the complaint case. Now through the present petition filed as a Human Rights Case under Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973 Mst. Sughran Bibi petitioner has sought issuance of a direction to the local police to register a separate FIR containing the different version of the same incident being advanced by her.”

 

10.              The Honourable Supreme Court settled a point for determination in the said case of Sughran Bibi as per para No.3 as under:-

“ The issue before us, to put it very simply, is as to whether a separate FIR can be registered for every new version of the same incident when commission of the relevant cognizable offence already stands reported to the police and an FIR already stands registered in that regard or not. An ancillary issue is that if no separate FIR can be registered for any new version of the same incident then how can such new version be recorded and investigated by the police.”

 

          After detail discussion on the pervious judgments on issue it was held in para No. 27 of judgment as under:-

 

27.       As a result of the discussion made above we declare the legal position as follows:

(i)         According to section 154, Cr.P.C. an FIR is only the first information to the local police about commission of a cognizable offence. For instance, an information received from any source that a murder has been committed in such and such village is to be a valid and sufficient basis for registration of an FIR in that regard.

(ii)        If the information received by the local police about commission of a cognizable offence also contains a version as to how the relevant offence was committed, by whom it was committed and in which background it was committed then that version of the incident is only the version of the informant and nothing more and such version is not to be unreservedly accepted by the investigating officer as the truth or the whole truth.

(iii)       Upon registration of an FIR a criminal "case" comes into existence and that case is to be assigned a number and such case carries the same number till the final decision of the matter.

(iv)       During the investigation conducted after registration of an FIR the investigating officer may record any number of versions of the same incident brought to his notice by different persons which versions are to be recorded by him under section 161, Cr.P.C. in the same case. No separate FIR is to be recorded for any new version of the same incident brought to the notice of the investigating officer during the investigation of the case.

(v)        During the investigation the investigating officer is obliged to investigate the matter from all possible angles while keeping in view all the versions of the incident brought to his notice and, as required by Rule 25.2(3) of the Police Rules, 1934 "It is the duty of an investigating officer to find out the truth of the matter under investigation. His object shall be to discover the actual facts of the case and to arrest the real offender or offenders. He shall not commit himself prematurely to any view of the facts for or against any person."

(vi)       Ordinarily no person is to be arrested straightaway only because he has been nominated as an accused person in an FIR or in any other version of the incident brought to the notice of the investigating officer by any person until the investigating officer feels satisfied that sufficient justification exists for his arrest and for such justification he is to be guided by the relevant provisions of the Code of Criminal Procedure, 1898 and the Police Rules, 1934. According to the relevant provisions of the said Code and the Rules a suspect is not to be arrested straightaway or as a matter of course and, unless the situation on the ground so warrants, the arrest is to be deferred till such time that sufficient material or evidence becomes available on the record of investigation prima facie satisfying the investigating officer regarding correctness of the allegations levelled against such suspect or regarding his involvement in the crime in issue.

(vii)      Upon conclusion of the investigation the report to be submitted under section 173, Cr.P.C is to be based upon the actual facts discovered during the investigation irrespective of the version of the incident advanced by the first informant or any other version brought to the notice of the investigating officer by any other person.

The result of the above detailed judgment was that a request of the Sughran Bibi in respect of second FIR of the same incident was turned down by the Honourable Supreme Court and her petition was dismissed.

11.              Honourable Supreme Court in para No. 27 (ii) has declared that “version of the incident is only the version of the informant and nothing more and such version is not to be unreservedly accepted by the investigating officer as the truth or the whole truth.” The definition of the word version is “a particular form of something differing in certain respects from an earlier form or other forms of the same type of thing.” It is clear from the above that every different version/plea for the offence under investigation if raised, no separate FIR is to be registered; however, any version introduced after the first FIR, the same is to be investigated alongwith the first version.    

 

 

 

 

12.              Turning to case in hand it is observed that on 28-07-2020, two FIRs bearing No. 210 and 211 of 2020 were registered by the police under section 399, 402, 324, 353 and 25 SAA 2013, at police station “A” section Ghotki in respect of an encounter in which said Abdul Raheem received fire arm injury. The applicant filed application before Justice of Peace on 19-08-2020 and on his application report was called from DSP Complaint Redressal Center, Ghotki, who after an inquiry/investigation submitted detailed report which is re-produced as under:-

 

R E P O R T

                        I, In-charge Complaint Redressal Centre, Ghotki respectfully submitted before this Hon’ble Court that I have gone through the contents of application u/s 22-A 6 (i) Cr.P.C & submit detailed report as under:-

 

i/-                    That in the compliance of Hon’able Court order / direction, the undersigned called both parties viz: applicant & proposed accused for recording their statements as well as to determine the veracity of allegations mentioned in this petition regarding “on 27.7.2020, applicant along with his brother namely Abdul Raheem and his relative Shamsuddin s/o Khlid Dad Gabol were coming from Pano Akil when they reached at Muhammadpur Bus Stop where proposed accused Insp. Abdul Malik Bhutto, the then SHO PS A/Section Ghotki and other got stopped the vehicle of applicant party, arrested them and confined them at PS Lockup, then on 28.7.2020 at about 10.40/45 the proposed accused caused fir shot upon the brother of applicant namely Abdul Raheem on knee of leg in which he sustained injuries and his leg was amputated and also registered case FIR No.210/2020 at PS A/Section Ghotki.

 

ii/-                   That applicant Abdul Wahid s/o Habat @ Habib @ Bangul Gabol failed to join the enquiry while proposed accused/ Officials Respondents, Insp: Abdul Malik Bhutto, SHO PS Mirpur Mathelo, the then SHO PS A-Section Ghotki along with CDRs of Police official, private persons, ASI Khbhar Khan Ghoto, PC/514 Farooque  Ahmed Bhayo, WHC/Noor Muhammad Kolachi, PC/2844 Naveed Ahmed Kolachi, PC/2989 Abdul Haleem Mahar, DPC/Muhammad Iqbal Kalhoro, PC/2395 Abbas Ali, all of PS A/Section Ghotki appeared and recorded their statements and also going through the relevant record, it has come surface that applicant’s brother namely Abdul Raheem s/o Habat is active criminals and he is challaned in following cases.

 

1.                     Cr.No.60/2005 u/s 324, 353 PPC of PS Khanpur Mahar.

2.                     Cr.No.70/2005 u/s 324, 353 PPC of PS Khanpur Mahar

3.                     Cr.No.08/2006 u/s 395,  PPC of PS Khanpur Mahar

4.                     Cr.No.88/2006 u/s 395,  PPC of PS Khanpur Mahar

5.                     Cr.No.84/2008 u/s 324, 353 PPC of PS Khanpur Mahar

6.                     Cr.No.158/200 u/s 302 PPC of PS Khanpur Mahar

7.                     Cr.No.88/2008 u/s 302 PPC of PS Khanpur Mahar

8.                     Cr.No.43/2018 u/s 395 PPC of PS Belo Mirpur

9.                     Cr.No.219/2019 u/s 395 PPC of PS Rohri, District Sukkur

10.                   Cr.No.267/2019 u/s 395 PPC of PS A/Section Ghotki

11.                   Cr.No.210/2020 u/s 324, 353 PPC of PS A/Section Ghotki

12.                   Cr.No.211/2020 u/s 25, SAA of PS A/Section Ghotki

 

Iii/-                  During probing the matter, it has been observed that the applicant’s brother has not good company. He is active criminal and during encounter between police party and armed criminals in which applicant’s brother namely Abdul Raheem Gbol sustained injuries of fire arm at hands of co-accused/own accomplice and he was arrested in injured condition along with illicit pistol, such case FIR No.210/2020 u/s 399, 402, 324, 353 PPC and case FIR No.211/2020 u/s 24 Sindh Arms Act have been registered at PS A/Section Ghotki on behalf of state, but applicant malafidely by cancelling the above criminal record of his brother  and diverting the above  real facts, by making false and fabricated story has filed instant application and intends to implicate the proposed accused/officials respondents in false criminal litigation by using the shoulders of this Hon’ble court as well keep pressure/blackmailing the police officers/officials for obtaining un-due relief in state cases. While office of arresting of applicant’s brother namely Abdul Raheem Gabole wrongfully confined and caused hurt by fire arm have no occurred on 28.7.2020 and story mentioned in this application is absolutely concocted, fabricated, null and void and un-believable, just like of harassment.

 

iv/-                  During robing the matter, the call data record/ CDRs / digital evidence were collected of proposed accused / officials respondents including private persons have not been found / located  at on spot of Bus stop of Muhammadpur, NHW (Place of incident shown by the applicant in his petition), which clearly discloses that petitioner has managed / arranged such false  story in his petition only for implicating the proposed accused / police offices / officials in false criminal litigation for obtaining any undue advantage / desirable result. The offence is not made out. The CDRs are submitted herewith for the perusal of Hon’able Court, which are itself relevant fact as per Evidence Act 1984.

 

v/-                   The undersigned called report from concerned SHO PS A. Section Ghotki, which is submitted herewith for the perusal of this Hon’ble Court.

 

                        This is submitted for the perusal of this Hon’ble Court.

 

 

13.              It is further observed that the applicant filed direct complaint No. 25 of 2020 under section 200 Cr.P.C against the same proposed accused on the same facts in which applicant was examined under section 200 Cr.P.C and preliminary inquiry under section 202 Cr.P.C was also conducted, after considering the evidence recorded during preliminary inquiry the Special Judge Anti-Corruption (Provincial) Sukkur, Division, Sukkur dismissed the same vide order dated: 05-03-2021.

 

14.              Record reflects that the version of applicant has been investigated thrice; firstly, on the FIR registered by the police, in which after the FIR investigation was conducted and the version of complainant of said FIR was found correct and case was challaned, during investigation of said FIR no efforts were made by the applicant before the investigation officer for investigation of his version, secondly, on the application of applicant filed before Justice of Peace when report was called from the police by the Justice of Peace an inquiry/investigation in respect of the version of applicant was conducted by the officer of DSP rank and thirdly, in the direct complaint filed by the applicant in respect of the same version of applicant for the same incident. In all the three inquiries/investigation the applicant has not produced any independent evidence in support of his version and all the three inquiries/investigations supported the version of proposed accused persons. There is criminal record against the brother of applicant which has not been denied by the applicant; however it is alleged that in those cases he was either acquitted or he is facing trial before the courts having jurisdiction. The details of the criminal cases is available on the report of DSP as discussed in the para No. 12 above.

 

15.              In view of the facts and circumstance as discussed above the impugned order dated: 03-09-2020 passed by Additional Session Judge-1/Justice of Peace Ghotki is hereby maintained and the application of applicant is dismissed.

 

JUDGE