ORDER-SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Constt.  Petition No. S-   938 of 2012.

Date of hearing

Order with signature of Judge

17.12.2012.

For Katcha Peshi.

            Mr. Sarfraz Khan Jatoi, Advocate for petitioner.

            Mr. Muhammad Yaqoob Dahani, State Counsel, alongwith PSI Raza Muhammad Sohu for S.S.P Kamber-Shahdadkot and ASI Ghulam Rasool of PS Warah.

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Naimatullah Phulpoto, J:   Through this constitutional petition, the petitioner Mst. Murad Khatoon has prayed for the following relief (s) :-

· To direct the respondent No. 1 to record the statement of the petitioner and act in accordance with law in terms of section 154 Cr.P.C and register the FIR of the petitioner because the cognizable offences punishable  under section 302, 148, 149 PPC is made out.

· Any other equitable relief.

2.         Brief facts leading to the filing of the present petition are that, petitioner alongwith her grand son namely Fahad son of Liaquat Ali aged about 20/21 years left home at 12.00 noon for getting medicine from the hospital at Warah, when they reached near village Mangio Khan they were confronted with proposed accused Abdul Ghaffar, Tariq, Khalid, Mujeed, Murtaza, Ali Jan, Deedar and Zahid. It is alleged that proposed accused Abdul Ghaffar fired upon Fahad, which hit him and he fell down. Petitioner raised cries, which attracted P.Ws: Hussain Ali, Muhammad Ali, Ameer Bakhsh and Ghulam Ali, who also witnessed the incident, thereafter, culprits ran away. Petitioner alongwith prosecution witnesses informed the incident to SIP Badal Panhwar, the SHO PS Warah on telephone, who alongwith his staff came to place of incident; shifted dead body of Fahad and took the petitioner and witnesses in the police mobile to the hospital, thereafter, the SHO brought petitioner at police station and obtained her thumb impression and told her that her FIR has been registered and she was returned back. It is further stated that SHO PS Warah alongwith his staff went to the house of the petitioner and  arrested one  Sajjad alias Marshalla son of Roshan Ali Choliyani. ASI Ghulam Rasool of PS Warah lodged FIR of above incident, bearing crime No.109/2012, under Section 302 PPC on behalf of the State against accused Sajjad alias Marshalla instead of real culprits of the incident. Petitioner came to know about registration of the FIR by ASI on behalf of the State, then she approached SHO for registration of her FIR as per her version, but SHO was reluctant to register FIR and finally refused.

3.         Petitioner invoked the constitutional jurisdiction of this Court under Article 199 of the Constitution.

4.         Notice was issued to the respondents, as well as A.A.G. Comments have been filed by the S.S.P, Kamber-Shahdadkot and SHO PS Warah.

5.         Learned Counsel for the petitioner contended that petitioner approached to the SHO, PS Warah, for registration of the FIR in respect of murder of her grand son Fahad against the real culprits of the incident, but SHO refused to perform his statutory duty. He has further argued that one ASI Ghulam Rasool lodged FIR bearing crime No.109/2012, against accused Sajjad alias Marshalla on behalf of the State, under Section 302 PPC, regarding murder of Fahad, only to save the real culprits. Lastly it is submitted that it was the duty of the SHO to register FIR in the cognizable offence. In support of the contentions he relied upon the case of Mst. Anwar Begum v.  Station House Officer PS Kalri West Karachi (P L D 2005 Supreme Court 297), Muhammad Bashir v. SHO PS Okara Cantt (P L D 2007 Supreme Court 539), Jamshed Khan and another v. Government of Sindh (1999 P.Cr.L.J 512),  and Human Rights case No. 3212 (2006 SCMR 1547).

6.         Learned State Counsel submitted that petitioner never approached SHO PS Warah for registration of the FIR. He referred to the statement filed by the S.S.P, Kamber-Shahdadkot, the respondent No.2, in which he has stated that petitioner did not approach the concerned SHO. Learned State Counsel further argued that when the legal heirs of the deceased did not appear at the Police Station, ASI Ghulam Rasool lodged the FIR on behalf of the State, under Section 302 PPC.

7.         Section 154, Cr.P.C. lays down that when information with regard to a cognizable offence is laid before the Incharge of a Police Station he has to incorporate the same in a book prescribed by the Provincial Government. It will be pertinent to reproduce herein below section 154 Cr.P.C. for the sake of convenience:-

                        “154. Information in cognizable cases. __ Every information relating to the commission of a cognizable offence if given orally to an officer-in-charge of a Police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the Provincial Government may prescribe in this behalf.”

8.         The plain reading of above provision clearly shows that incharge of a Police station is duty bound and it is his statutory obligation that on receipt of information whether orally or in writing he has to record the same in the book prescribed for that purpose and no option or discretion is left with him in this regard.

9.         A question therefore arises, when a discretion can be exercised by the High Court in favour of an aggrieved party. It may not be out of place to mention here that, according to the principles laid down by the superior Courts, discretionary power must be exercised in good faith having regard to all relevant considerations and it should be exercised justly, fairly and reasonably. Therefore, although an alternate remedy is provided to an aggrieved party under the law, by way of Direct complaint yet, the mere fact that an alternate remedy has been provided for, may not deter the Court from giving directions to the police to record a FIR in an appropriate case.

10.       Petitioner’s grand son has been murdered and the incident was witnessed by the petitioner and her witnesses. Accused Abdul Ghaffar, Tariq, Khalid and others  have been specifically named in the petition. Motive for commission of offence has also been mentioned in the petition, as such petitioner is an aggrieved person.  Therefore, in the above stated peculiar circumstances, a case for registration of another FIR is made out. Petitioner had approached to the SHO for registration of FIR but SHO has failed to perform his statutory duty.  Entirely different version has been narrated by ASI in his FIR lodged on behalf of State. Petitioner cannot be deprived from recording her statement by SHO on this ground alone.

11.       In view of the case law referred by learned Advocate for the petitioner and for the aforesaid reasons, petition is allowed. The SHO PS Warah is directed to perform his legal obligations and register fresh FIR on the basis of statement of Mst. Murad Khatoon in accordance with law. The S.S.P, Kamber-Shahdadkot shall depute honest police officer of the District, for investigation of the case strictly in accordance with law.

12.       Petition is accordingly disposed of.

Judge