IN THE HIGH COURT
OF SINDH BENCH AT SUKKUR
Cr. Misc.
Application No.S-130 of 2022
Cr. Misc.
Application No.S-137 of 2022
Applicant: Jehangir Khan Mahar through Mr. Mehfooz
Ahmed Awan, Advocate, in Cr. Misc. Application No.S-130 of 2022.
Applicants: Inspector
Yar Muhammad and others through Mr. Ghulam Shabbir Shar, advocate, in Cr. Misc. Application No.S-137
of 2022.
Respondent No.5: Hakim Ali through
Mr. Sardar Akber F. Ujjan, advocate in both Cr. Misc. Applications
State: Through Mr. Aftab
Ahmed Shar, Addl. PG
Date of hearing: 15.04.2022
Date of decision: 09.05.2022
O
R D E R
Zulfiqar
Ali Sangi, J: Through above captioned applications,
the applicants have assailed the order dated 04.03.2022 (impugned herein)
passed by learned Additional Sessions Judge/Ex-Officio Justice of Peace, Kandiaro, in Cr. Misc. Application No.4597/2021, whereby
application filed under Section 22-A & B Cr. P.C by the Respondent No.5 was
allowed and directions were issued for recording statement under section 154
Cr.P.C of respondent No.5.
2. Succinctly stated the facts of the case are that on 14.11.2021,
applicants, being police officials of A- Section Sukkur, had abducted Liaquat and Zahroor, who are son
and grandson, respectively, of the Complainant/respondent No.5; besides his
nephew namely Irshad from the jurisdiction of P.S. Halani and on protest on a road, the police officials
promised to release the abductees; however they failed to release, hence he
filed an application under Section 22-A & B Cr.P.C regarding abduction,
which was pending and during pendency on 15.11.2021, the complainant has filed
further statement wherein he stated that he met with police officials, who
demanded illegal gratification/bhung and on failure,
they murdered son of Complainant/respondent No.5 Liaquat Ali Rind. Vide order
dated 25.11.2021, learned Ex-officio Justice of Peace allowed the same; however
applicant Jehangir Khan Mahar,
assailed the same order by filing an application bearing No.S-824 of 2021,
which was allowed by this court vide order dated 07.02.2022, whereby impugned
order dated 25.11.2021 was set aside and the matter was remanded to learned
Ex-Officio Justice of Peace with direction to provide the opportunity of
hearing to all the parties and then pass order afresh. Subsequently, on remand
of matter, learned Ex-Officio Justice of Peace, has passed the impugned order
dated 04.03.2022, hence this application.
3. Mr. Awan, learned
Counsel for the Applicant, at the very outset, submits that the impugned order
is illegal, unlawful and bad in law against the facts also; that learned
Ex-Officio Justice of Peace while passing the impugned order has failed to
consider the report of DSP Complaint Cell Naushahro Feroze wherein it is
submitted that deceased Liaquat Rind is notorious criminal and was involved in
29 heinous offences; that learned Justice of Peace has also failed to consider
that the copy of report submitted by DSP Complaint Cell was supplied to
Respondent No.5; however despite that Respondent No.5 failed to approached the
Investigation Officer of Crime No.229/2021 of P.S. A-Section, Sukkur for
recording of his version as observed by Hon’ble Supreme Court in the case of Sugha Bibi vs. The State (PLD
2018 SC page 595); that learned
Ex-Officio Justice of Peace has also failed to consider that after filing of
further statement by the Respondent No.5, no notice has been issued against
present applicant; besides no right of audience has been provided to the
remaining proposed accused persons as earlier order passed by this Court was
very evident wherein specific and categorical directions were issued to learned
Justice of Peace to provide opportunities of hearing to all the parties but
learned Justice of Peace has committed error while passing the impugned order
without providing right of audience to present applicant; that the contents of
memo of Cr. Misc. Application are contradictory with the further statement of
Respondent No.5 as the name of the present applicant does not transpire in the
memo of application; that learned Justice of Peace while passing the impugned
order has failed to consider that the son of Respondent No.5 namely Liaquat
Rind has deterred the police party while discharging their lawful duties, hence
such encounter took place on 16.11.2021 within the jurisdiction of PS “A”
Section and in this regard FIR bearing Crime No.229 of 2021 has already been
lodged and this fact also disclosed by the respondent No.5 in his further
statement; that Respondent No.5 neither complaint against the applicant and
other police officials before high-ups nor he filed an application under
Section 491 Cr.P.C for issuance of rule-nisi
for recovery of the alleged abductee. In the last, he submitted that this
application may be allowed and the impugned order dated 04.03.2022 passed by
learned Justice of Peace may be set-aside.
4. Mr. Ghulam Shabbir Shar, advocate representing
the applicants in Criminal Misc. Application No.S-137 of 2022, has adopted the
arguments advanced by Mr. Awan and in addition, he submitted that Respondent
No.5 has levelled frivolous and fabricated
allegations of abduction and demand of ransom for the release of his son Liaquat and nephew Sajjad
Hussain, who were neither arrested by applicants/police officials nor they were
kept in the police station under illegal custody; that the impugned order is
based upon the hypothetical story of Respondent No.5; besides prior to
approaching learned Justice of Peace, Respondent No.5 did not move an
application to SSP, which is a mandatory provision of law; that no role of
kidnapping or encounter with the son of Respondent No.5 has been attributed to
the applicants. Learned Counsel also prayed for setting aside the impugned
order.
5. Mr. Sardar
Akbar F. Ujjan, advocate has filed Vakalatnama on behalf of Respondent No.5 and submits that
learned Justice of Peace has rightly passed the impugned order as the
applicants had abducted three persons from a hotel and thereafter committed the
murder of the son of Respondent No.5 by showing fake encounter, hence impugned
order is well-reasoned and does not require any interference of this court. He
prayed that the applications may be dismissed.
6. Learned DPG has
supported the impugned order and submits that learned Justice of Peace has
rightly directed concerned SHO for recording the statement of Respondent No.5
under Section 154 Cr.P.C as a heinous offence has been committed by the police
officials wherein an innocent person has been murdered and in order to save
their skin the police had registered the FIR bearing Crime No.229 of 2021, at
P.S. A-Section Sukkur for an offence punishable under Section 401, 353, 324,
301 PPC.
7. I have heard
learned Counsel for the parties and have gone through the material available on
record.
8. It is observed
that while allowing the application under Section 22-A & 22-B Cr.P.C,
learned Ex-Officio Justice of Peace has observed as under:-
“I
have heard counsel for the applicant, learned counsel for proposed accused Jahahngir Khan Mahar, learned DDPP
for the State and perused the record. The applicant has alleged that on
14.11.2021 at about 10:00 am, two police mobiles bearing Registration No.5119
& 5923 and one Vego vehicle having registration
No.7656 came at Hotel of Halani Stop. Police of
police station A-Section, Sukkur got down from the said vehicles, who abducted
the applicant's son Liaquat, grandson Zahoor and nephew Irshad and took
away them in those vehicles. On the very
same day the applicant moved such application to the S.H.O P.S Halani, which was duly received by the police. Later on,
the police of police station A-Section Sukkur committed murder of applicant’s
son Liaquat Rind by showing fake police encounter. On 15.11.2021 police of
police station A-Section of District Sukkur released the Zahoor
and Irshad, while committing murder of applicant's
son Liaquat Rind in alleged police encounter. The applicant stated that the
police officials of police station A-Section Sukkur had abducted his son Liaquat, grandson Zahoor and nephew
Irshad from jurisdiction of PS Halani
and after committing murder of his son Liaquat by showing fake police
encounter, released the abductee Zahoor and Irshad Rind and also handed over the dead body of his son
Liaquat Rind, hence, the proposed accused alongwith other police personnel of
police station A-Section Sukkur have committed the cognizable offence within
the jurisdiction of P:S Halani. In view of above the
applicant has sought for registration of FIR against the police officials who
are involved in the offence of abduction and Qatl-e-Amd of his son Liaquat. So far as the contention of learned
counsel for proposed accused regarding involvement of deceased Liaquat in
series of cases is concerned, it is suffice to say that the police cannot given license to kill the person who is involved in the
cases. However, the police in order to save their skin had registered the FIR
bearing crime No.229 of 2021 U/S 401, 353, 324, 301 PPC on 16.11.2021 at 0140
hours at police station A-Section Sukkur, while showing the story of police encounter
alleged to have occurred on same day at 0005 hours.
It is apparent from
record that applicant's son Liaquat, grandson Zahoor and nephew Irshad were
abducted away from local limits of police station Halani,
therefore, the initial act of abduction took place within local limits of
police station Halani, hence, this court has
jurisdiction to entertain the matter in terms, of section 179 Cr.P.C. It is worthwhile to mention here the
applicant Hakim Ali Rind moved the application to Station House Officer of P.S Halani on the very first day of the incident i.e.
14.11.2021 after abduction of his son Laquat , grandson Zahoor and nephew Irshad but the police did not register his case with
intention to save their colleagues. Moreover, the further contentions raised by learned counsel for appearing on behalf of
Jahangir Khan Mahar, the S.H.O police station A-Section Sukkur, requires
investigation, which will be initiated after registration of FIR. However, the
case laws cited by the learned counsel are distinguishable with the facts of
the case-in-hand as the Station House Officer is bound to record the statement
of application U/S 154 Cr.P.C and register the case against the accused if the
cognizable offence is made out within the jurisdiction of the police station
concerned”.
9. It is alleged
by the Respondent No.5 that on 14.11.2021, applicants along with other police
officials came on police mobiles and a private Vego
at Hotel of Halani Stop where he was available with
his son Liaquat, grandson Zahoor
and nephew Irshad and took away them and in this
regard Respondent No.5 moved an application to SHO P.S. Halani
on the same day which was duly received; however on the next date i.e.
15.11.2021, police officials of the police station ‘A’ Section, Sukkur released
abductee Zahoor and Irshad
but committed the murder of Liaquat. The record reflects that the offence was committed
within the jurisdiction of P.S. Halani but SHO P.S. Halani did not record the statement inspite
of receiving of application of Respondent No.5, wherein he sought for
registration of FIR, owing to which he approached concerned learned Justice of
Peace by filing an application under Section 22-A & B Cr.P.C, which was
allowed and the SHO P.S. Halani was directed to
record the statement of Respondent No.5 under Section 154 Cr.P.C and register
the case against the accused if the cognizable offence is made out. Insofar as
the contention of learned counsel regarding registration of FIR bearing Crime
No.229 of 2021 wherein police officials of ‘A’ Section Sukkur by showing the
story of police encounter alleged to have occurred and FIR was registered on
16-11-2021, it seems to safeguard the police officials from clutches of law,
who have committed murder. Regarding the involvement of the deceased in a
series of cases it is observed that police has no power/license to kill the
persons involved in the cases but to arrest them and produced them before the
court (s) where they are required.
10. In the case in hand it is alleged that police arrested
three persons on 14-11-2021 and on the same day an application was filed before
the S.H.O for registration of FIR and on refusal an application was filed
before justice of peace on 15-11-2021, however, the police has registered the
FIR No. 229/2021 showing an encounter on 16-11-2021, which reflects that the
first version is of respondent No. 5 and the police has not registered the same
and violated the law.
11. No illegality,
irregularity or infirmity has been pointed out in the impugned order, which is
well-reasoned, and does not require any interference
by this Court. Resultantly, the impugned order dated 04.03.2022, passed by
learned Additional Sessions Judge/Justice of Peace, Kandiaro,
is hereby maintained and the captioned applications of the applicants are
hereby dismissed.
JUDGE
Faisal
Mumtaz/PS