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