ORDER SHEET
IN THE HIGH COURT OF SINDH CIRCUIT COURT LARKANA
Const. Petitio No.S- 949 of 2012
|
DATE |
ORDER WITH SIGNATURE OF JUDGE |
21.01.2013
Mr. Habibullah G. Ghouri, advocate for the petitioner.
Mr. Ghayoor Abbas Shahani, counsel for the proposed accused.
Mr. Naimatullah Bhurgri, State counsel.
-------------
Muhammad Shafi Siddiqui. J.- This petition has been filed by the petitioner whereby it is prayed that the respondent No.1 be directed to register the FIR of the petitioner against proposed accused for offence under section 302, 324, 347, 149, PPC read with Section 13-D of West Pakistan Arms Ordinance, 1965.
2. Brief facts as stated by learned counsel for the petitioner are that the petitioner is running old dispute over matrimonial affairs with proposed accused i.e. Himat Ali and deceased/proposed accused Asif Ali. It is contended that all nominated proposed accused are known to the petitioner and his witnesses namely Bashir Ahmed s/o Muhammad Sharif Mahar r/o Eid village Bado Taluka Lakhi Ghulam Shah district Shikarpur and PW Khadim Hussain, the brother of petitioner. It is alleged that on the night of 23.9.2012 the petitioner, the witnesses and the other inmates of house were available in the house at about 2-00 a.m. when there was commotion outside the house, they got up and came out of their house and Mst.Kiran daughter of Khadim Hussain also followed them. On the light of bulbs the petitioner and witnesses saw and identified clearly all proposed accused available in front of the house of the petitioner. It is contended that all inmates and petitioner saw Himath Ali and deceased Accused Asif Ali had TT Pistol, proposed accused Imdad Ali had 9 MM pistol, the proposed accused Behram @ Kuraro had TT Pistol, the proposed accused Muhammad Ayub had TT Pistol, and the proposed accused Pervaiz Ahmed had TT Pistol while the two unknown persons would be identified as alleged if seen, also had TT Pistols. It is urged that all those proposed accused came to avenge the matrimonial dispute. It was urged that proposed accused Asif Ali made indiscriminate firing at the petitioner party and the fires made by the other proposed accused hit one proposed accused Asif Ali Sarki who fell down and also hit Mst.Kiran daughter of Khadim Hussain who was standing in the courtyard of the house. That after such incident all the proposed accused ran away.
3. Learned counsel submits that earlier they have moved application under section 22-A, 22-B Cr.P.C on the same facts and grounds however same was dismissed vide order dated 09.10.2012. Learned counsel submits that earlier an FIR of the same incident was registered vide Crime No.68/2012 however the correct facts were not mentioned in the said FIR hence they have moved this petition with permission to lodge the second FIR. Learned counsel has relied upon the case of Muhammad Bashir v. SHO reported in PLD 2007 SC 559 and PLD 2005 Karachi 261 and submitted that since it is a second version of the same incident, therefore, the respondent be directed to lodge second FIR in terms of the version as alleged by the petitioner.
4. On the other hand, the proposed accused who have appeared to assist this Court submitted that on the face of it, this is a false story. The FIR has already been registered against the petitioner and other accused who are facing trial. Learned counsel on behalf of the proposed accused submitted that there is no necessity of lodging second FIR as the version of the petitioner can be considered by the I.O and such investigation can be placed before the Court trying the offence. It is not the case of petitioner that the investigating officer is not investigating the crime in accordance with law.
5. I have heard the learned counsel and perused the record.
6. Although there is no bar in general for lodging the second FIR but such order are to be passed after considering the facts and circumstances of the case and in general it cannot be passed as a rule. Ordinarily the second FIR with regard to same incident or offence would not be recorded where once FIR has been recorded under section 154, Cr.P.C where-under investigation was set into motion and all subsequent statements were recorded under section 161 or 164 of the Criminal Procedure Code. Reliance is placed on Muhammad Anwar v. SHO Railway Police reported in PLJ 1999 Lah. 157 and PLD 1999 Lah. 50. The matter has to be seen in the context of the totality of the circumstances and the allegations. Thus there has to be strong and sound reasons behind the order to direct police to record the second FIR in the circumstances of the case.
7. While perusing the contents of the statement on the basis of which the FIR claimed are chronologically does not seems to be in accordance with the facts narrated and does not inspire confidence. Firstly, prima facie it has not been explained as to what were those witnesses doing in the house. It is also very surprising to note that Asif Ali who came outside the house of the petitioner with deadly weapons had not raised any hue and cry nor they claimed to have fired at the petitioner and other inmates so as to cause even a minor injury. It is also very surprising to note that in terms of petitioners contention when bullet was hit to the Asif Ali, the other persons who came with weapons ran away leaving behind the body of Asif Ali as against these who were unarmed. It seems to be a case where the petitioner intends to lodge the FIR as a counter blast and in fact counter defence version of the accused of the previously registered FIR. The version could very well be taken care of in terms of their statement under section 161 and 164, Cr.P.C. but the registration of case on account of the version as mentioned above is not confidence inspiring and is not permissible. It can be seen that the earlier FIR is under investigation wherein the version of the petitioner can be recorded and thus there is no legal and factual necessity to pass the order for the registration of second FIR. Reliance can be placed on the case of Mst. Razia Sultana alias Gogi Butt v. D.I.G Police PLJ 1999 Lah. 285, 1999 P.Cr.L.J 694. I may observe that the version of the petitioner and the complainant could be different and must be recorded by the police but not necessarily through second FIR in each and every case. Reliance may be placed on the case of Malik Asghar v. State 2005 MLD 1114 and Muhammad Ashiq v. S.H.O 2005 YLR 1879. It has been observed by a bench of this Court that where a case has been registered on an FIR, the registration of a fresh report notwithstanding the diversion contained therein is uncalled for inasmuch as the ball had already been rolling and the police was not only competent but also duty bound to unearth the true facts and trace the real culprit. Reliance is placed on 1999 P.Cr.L.J 694, NLR 1979 Criminal 985 (SC), 1983 SCMR 436, 1988 P.Cr.L.J 41, PLD 1983 Pesh. 229. In my view the statement given by the petitioner in terms of the application under Section 22-A, Cr.P.C does not inspire the confidence. I would not comment further as any comments on merits would cause prejudice to the rights of the petitioner. Even otherwise as already observed that such version of the petitioner and his witnesses can be looked into and considered by the I.O who is investigating in pursuance of earlier FIR No.68/2012 of the same incident and if any of his statements is not adhered, recorded or not considered or I.O does not perform his duty in accordance with law, the position would be at liberty to take appropriate steps in recognition of his rights and in placing his version and defence in accordance with law. In my view such registration of second FIR would only complicate the issue rather than resolving the same.
7. In view of the above findings and reasoning I find no substance in the petition which is accordingly dismissed with the observation that the I.O shall also enquire and investigate in terms of the version of the petitioner as well as of his witnesses and after probe shall further submit report/challan admissible under the law. This may be clarified that any observation hereinabove are only tentative and shall not influence I.O or cause prejudice to the rights of any party concerned.
Judge
Abid H. Qazi