IN THE HIGH COURT OF SINDH BENCH
AT SUKKUR
Criminal Misc. Application
No.S-286 of 2021
Applicant: Muhammad
Bux & another, through Mr. Alam Sher Bozdar, Advocate.
Respondent: Mr. Gul
Feroze Kalwar, Advocate.
State: Through Syed Sardar
Ali Shah, D.P.G.
Date of hearing: 16.08.2021.
Date of short order: 16.08.2021.
Date of reasons: 23.08.2021.
O
R D E R
Zulfiqar
Ali Sangi, J:
Through this Cr. Misc.
Application, the Applicants have assailed the order dated 24.04.2021, passed by
learned Additional Sessions Judge-III/Ex-Officio Justice of Peace, Mirpur Mathelo, in Cr. Misc. Application No.645/2020, whereby an
application filed by Respondent No.3 for lodging of FIR against the proposed
accused/present applicants was allowed.
2. Learned counsel for the applicants, at the very outset, submitted
that an order dated 24.04.2021, passed by learned 3rd Additional
Sessions Judge/Ex-officio Justice of Peace, Mirpur Mathelo, impugned herein, is
illegal without applying his judicil mind as well did not consider the view
taken by Hon’ble Supreme Court of Pakistan in the case of Sughran Bibi; that
earlier an FIR No.212/2020, registered at P.S. Mirpur Mathelo, for an offence
punishable under Section 302, 34 PPC (lodged by State through ASI Bashir Ahmed
Shaikh) against the son of Respondent No.3 for committing murder of his sister
in the name of honour killing; however, Respondent No.3 wants to save skin of
his son from the clutches of law, succeeded to get impugned order from learned
trial Court; that in view of observations made by Hon’ble Supreme Court in the
case of Sughran Bibi, mentioned supra, that the second FIR cannot be registered
if the applicant has another version regarding the same incident. In the last,
he prayed that instant application may be allowed and the impugned order passed
by learned trial Court may be set-aside.
3. On the other hand, learned Counsel representing the Respondent
No.3 submits that learned 3rd Additional Sessions Judge/Ex-Officio
Justice of Peace, Mirpur Mathelo, has rightly passed the order dated
24.04.2021, which is well-reasoned, does not suffer from any illegality or
irregularity, hence liable to be maintained.
4. Learned DPG appearing for the State contends that earlier an
FIR bearing Crime No.212 of 2020 was lodged by police against the son of the Respondent
No.3 for committing murder of his sister in the name of honour killing, which
is pending adjudication before the concerned Court however, Respondent No.3, by
filing Cr. Misc. Application No.645/2020 before the Court, prayed for lodgment
of FIR against the proposed accused/present applicants as, according to him,
his daughter was murdered by the present applicants. He further submitted that
in view of recent judgment passed by Full Bench of Hon’ble Supreme Court of
Pakistan reported as PLD 2018 SC 545, whereby it has been observed that the
second FIR cannot be registered if the applicant has another version regarding
the same incident, he may approach the Investigating Officer of FIR No. 212 of
2020, who shall record his statement and if found some material, file a report
before the concerned court. In the last, he submitted that the impugned order
passed by learned trial court is not sustainable and liable to be set-aside.
5. Admittedly, an FIR bearing No.212 of 2020 was registered at P.S. Mirpur
Mathelo, District Ghotki, on 19.10.2020 by State through ASI Bashir Ahmed
Sheikh against one Khalique Dino @ Khalid (son of present Respondent No.3) in
respect of causing murder of his sister Mst. Mithi wife of Abdul Qadir in the
name of honour killing, which is pending adjudication before the concerned
trial Court; however learned Ex-Officio Justice of Peace has ordered for
registration of second FIR in respect of same incident.
6. The Respondent No.3 approached the justice of peace for
registration of FIR with the version that present applicants have caused murder
of his daughter, therefore, his statement may be
recorded under Section 154 Cr.P.C. It is noted that this version was available
with the Respondent No.3 at the time when the investigation of FIR 212/2020 was
in field; however, at that time he had not recorded his version before the
Investigation Officer and moved an application before Justice of Peace for
registration of another FIR regarding same incident, which was allowed by
impugned order dated 24.04.2021. It is further noted that in the averments of application
under section 22-A and B Cr.P.C, the date of incident, time of the incident and
the place of incident is mentioned same as mentioned in the FIR No. 212/2020. The Hon’ble Apex Court in the case of Sughran Bibi reported as PLD 2018 Supreme Court 595 has held in
paragraph-27 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.
7. In my humble view, the case of the present applicants falls
within the parameters as settled by Hon’ble Apex Court in the case of Sughran Bibi supra in paragraph-27 (IV) of
the said judgment. Resultantly, this application is hereby allowed.
Consequently, the impugned order dated 24.04.2021, passed by learned 3rd
Additional Sessions Judge/Ex-Officio Justice of Peace, Mirpur Mathelo, is
set-aside; however, the Respondent No.3 may approach the Investigation Officer who
may record his statement under Section 161 Cr.P.C and proceed further in
accordance with law. If the investigation officer collected some evidence which
constitute an offence he is at liberty to file fresh report before the
concerned Magistrate.
8. Above are the reasons of my short order dated: 16-08-2021.
Judge
Faisal Mumtaz/PS