IN THE HIGH COURT OF SINDH BENCH
AT SUKKUR
Criminal Misc. Application
No.S-378 of 2021
Applicant: Ali
Akbar Almani & others, through Mr. Manzoor Hussain Halepoto, Advocate.
Respondent: Mr. Shoukat
Ali Makwal, 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 26.05.2021, passed by
learned Additional Sessions Judge-IV, Khairpur, in Cr. Misc. Application No.1672/2021,
whereby an application filed by Respondent No.4 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 26.05.2021, 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.45/2021, registered at P.S. Kumb, for an offence punishable
under Section 341, 353, 147, 148, 149 PPC (lodged by State through ASI Muharram
Ali Shar against the Respondent No.4 and others for blockage of road, scuffled
with police party as well as causing injuries to each other; however,
Respondent No.4 wants to save skin of his own 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.4 submits that learned Additional Sessions Judge-IV, Khairpur, has rightly
passed the order dated 26.05.2021, 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.45 of 2021 was lodged by police against the Respondent No.4
& others for blockage of road over picking of passengers created hindrance
to other citizens/transports; besides scuffled with the police and fought with
each other and resultantly caused injuries, which is pending adjudication
before the concerned Court however, Respondent No.4, by filing Cr. Misc.
Application No.1672/2021 before learned trial court, prayed for lodgment of FIR
against the proposed accused/present applicants as, according to him, he was
maltreated by the Applicant No.1 with the help of Respondents No.2 & 3. 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 said FIR, 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.45 of 2021 was registered at P.S. Kumb,
District Khairpur, on 23.03.2021 by State through ASI Muharram Ali Shar against
the Respondent No.4 and others in respect of quarrel between the transporters
over picking the passengers, blocked the road, scuffled with the police so also
causing injuries to each other, which is pending adjudication before the
concerned trial Court; however learned Additional Sessions Judge-Iv, Khairpur has
ordered for registration of second FIR in respect of same incident by ignoring
the Judgment of Honourable Supreme Court of Pakistan in the case of Sughran Bibi supra.
6. The Respondent No.4 approached the justice of peace for
registration of FIR with the version that present applicants have taken him in
the police station, robbed Rs.6200/- with mobile phone and on resistance,
proposed accused/present applicants, by breaking his arm, caused kicks and
fists blows, therefore, his statement may be recorded under Section 154 Cr.P.C.
It is noted that this version was available with the Respondent No.4 at the
time when the investigation of FIR 45/2021 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 26.05.2021. 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. 45/2021. 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) (V)
and (VII) of the said judgment. Resultantly, this application is hereby allowed.
Consequently, the impugned order dated 26.05.2021, passed by learned Additional
Sessions Judge-IV, Khairpur, is set-aside; however, the Respondent No.4 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