' MUHAMMAD NAWAZ BHATTI, J.--- Brief facts leading to this writ petition are that on 11-4-2005 at about 4-00 a.m. Waqas Ahmad alias Khurram son of Abdul Qayyum (respondent No,3) committed murder of one Ashfaq Ahmad Bhatti a police official and a case F.I.R. No,138 dated 11-4-2005 was registered under sections 302 and 380, P.P.C. Against said Waqas Ahmad at Police Station Sadar Kabirwala District Khanewal on the complaint of Ghulam Husain, father-in-law of Ashfaq Ahmad.
On 12-5-2005 respondent No,3 filed a petition for registration of case against the petitioner, Sajid son of Muhammad Nawaz, Ejaz, Ashfaq Ahmad deceased and Dilawar, under section 22-A, Cr.P.C.
Before the Justice of Peace/Additional Sessions Judge, Kabirwala, wherein it was alleged that his son Waqas Ahmad had acquaintance with Arif Baloch petitioner. On 10-4-2005 at 4-30 p.m. The petitioner along with Ashfaq Ahmad hcadconstable, Sajid son of Muhammad Nawaz and Ejaz came on a car which was being driven by Dilawar and took Waqas Ahmad to Police Post Pull Mahni Siyal, where all of them committed sodomy with Waqas Ahmad When his son (Waqas Ahmad) came to his senses Ashfaq Ahmad again compelled him to allow to commit sodomy with him, whereupon Waqas Ahmad denied. There was scuffle between the two and Waqas Ahmad in his self-defence inflicted a rod blow on the head of Ashfaq Ahmad, who died. Vide order dated 20-6- 2005, the learned Additional Sessions Judge, Kabirwala accepted the petition of respondent No,3 and directed respondent No,2 S.H.O. Police. Station Sadar Kabirwala to record F.I.R. In the light of allegation made in the petition of respondent No,3. Feeling aggrieved by the said order, the petitioners has filed the instant writ petition.
2. Learned counsel for the petitioner has contended that the petitioner and other persons nominated in the application of respondent No,3 had close and friendly relations with the complainant of case F.I.R. No,138 of 2005 as well as with the deceased Ashfaq Ahmad and supported the above mentioned F.I.R. And because of that reason they were implicated in the defence plea of the son of respondent No,3; that in order to save his son Waqas Ahmad from punishment, respondent No,3 filed a petition for registration of case against the petitioner and four others before the learned Additional Sessions Judge, who had sought the comments from respondent No,2, which were submitted before the learned Additional Sessions Judge on 23-5- 2005, wherein it was stated that the application of respondent No,3 for the registration of the case is fake and frivolous just to save the skin of his son Waqas Ahmad from the murder of Ashfaq Ahmad as according to the report of the Chemical Examiner, swabs were not stained with semen and as such no sodomy was done and that the learned Additional Sessions Judge committed material irregularity and illegality while passing the impugned order because an F.I.R. No,138 of 2005 had already been registered in respect of the same occurrence and in the said case only cross-version could be recorded. Reliance in this behalf reliance is placed upon Ghulam Siddique v. S.H.O. Sadar D.G. Khan and 8 others PLD 1979 Lah. 2:63; Kaura v. The State 1979 PCr.LJ 521; Kaura v.
The State 1983 SCM R 436 and Mushtaq Ahmad v. The S.H.O. Police Station Munawan 1984 PCr.LJ 1454 and that the impugned order is arbitrary and based on conjectures and surmises.
3. On the other hand, the learned A.A.-G. Assisted by learned counsel for respondent No,3 has supported the impugned order and submitted that after the arrest of the accused in the said F.I.R., namely, Waqas Ahmad son of respondent No,3, his first version before the police was that the petitioner party had committed sodomy with him but the police did not record version of the petitioner with mala tide intention, therefore, respondent No,3 filed a petition under section 22-A, Cr.P.C. For registration of case against the petitioner and four others before the learned. Additional Sessions Judge, who had rightly made a direction to respondent No,2 to record F.I.R. And that respondent No,3 filed a petition before the Area Magistrate on 12-4-2005 for medical examination of Waqas Ahmad but the police did not care about the orders of the Area Magistrate and the swa bs were taken on 14-4-2005 and report of the Chemical Examiner that the swabs were not stained with semen would not exonerate the petitioner party from their crime and under section 154, Cr.P.C. The police is bound to record F.I.R. And refusal of the police to register the case is against law and facts. In this behalf, reliance is placed upon. Wajid Ali Khan Durani and others v.
Government of Sindh and others 2001 SCM R 1556.
4. Arguments heard. Record perused.
5. The only point in this case which requires determination is whether in presence of first F.I.R., second F.I.R. Can be registered or not. On 11-4-2005 a case F.I.R. No,138 was registered against Waqas Ahmad alias Khurram son of respondent No,3 Abdul Qayyum under sections 302 and 380, P.P.C. At Police Station Sadar Kabirwala on the complaint of Ghulam Hussain, a close friend of the petitioner, as his son in-law Ashfaq Ahmad was murdered. In order to save his son Waqas Ahmad from the consequences of his criminal liability for committing the murder, respondent No,3 filed a petition under section 22-A, Cr.P.C. On 12-5-2005 i,e, after one month of the lodging of the said F.I.R., for registration of case against the petitioner and four others, namely, Sajid Ejaz, Ashfaq Ahmad deceased and Dilawar, as they had allegedly committed sodomy with his son Waqas Ahmad. The date of occurrence was. 10-4-2005. The learned Additional Sessions Judge accepted the petition of respondent No,3 and made a direction to respondent No,2 to record F.I.R. Perusal of the petitioner filed by respondent No,3 before the learned Additional Sessions Judge, Kabirwala shows that it is an off shoot of F.I.R. No,138 of 2005 and that on 11-4-2005 Waqas Ahmad son of respondent No,3 was arrested and on 12-4-2005 an application for his medical examination was made, before the Judicial Magistrate Kabirwala, who had sought a report from respondent No,2. Perusal of the comments of respondent No,2 reveals that on 14-4-2005 swabs of Waqas Ahmad, son of respondent. No,3 were taken by the doctor and the same were sent to the Chemical Examiner and according to the report of the Chemical Examiner, swabs were not stained with semen, and it was found in the police report that the M.O. Had opined that no sodomy was done. It also reveals from the report of respondent No,2 that the application of respondent No,3 for the registration of case against the petitioner and four others was fake and frivolous just to attempt to save the skin of his son from the murder case of Ashfaq Ahmad deceased. The 'medical examination of Waqas Ahmad son of respondent No,3 was conducted within 72 hours' and was in accordance with law and the report of the Chemical Examiner was in the negative, therefore, version of respondent No,3 clearly proves incorrect and concocted one.
6. It appears from the above facts that the version of respondent No,3 is an information with regard to the occurrence of F.I.R. No,138 A of 2005 coming out later in point of time which has to be taken down as statement under section 161, Cr.P.C. Only.
7. Rule 24.1 of the Police Rules, 1934, deals with the recording of the first information relating to an offence, whether cognizable or non-cognizable. It is provided therein that every such information shall be recorded in writing, by the officer incharge of the police station. The Police Officer thus, is obliged to record in writing every information relating the commission of any offence. The only distinction made here is that the information disclosing commission of a cognizable offence is to be recorded in the First Information Report Register as well as station diary under Rule 24.1(2) while the information with regard to non-cognizable offence is to be recorded in the station diary only under Rule 24.3. The information given by respondent No,3 in the shape of cross-version disclosed a commission of non-cognizable offence, as such it should have been considered as a statement under section 161, Cr.P.C. the order to register a second F.I.R. In that situation was not justified in law.
I am supported by the authorities relied upon by learned counsel for the petitioner.
8. The authority relied upon by learned counsel for the respondent i,e, 2001 SCM R 1556, with due regards, is distinguishable from the case of the petitioner as in that case two F.LRs, were recorded for the same occurrence and being not satisfied with the said F.I.Rs,, widows of the deceased Mir Murtaza Bhutto and Ashiq Jatoi had applied for registration of third F.I.R. Which was registered but here in this case on the complaint of Ghulam Hussain, a case F.I.R. No,138, dated 11-4-2005 for the murder of Ashfaq Ahmad was registered against Waqas Ahmad accused, son of respondent No,3, who while taking "the plea that as sodomy was committed on him, so, in revenge, he inflicted injury to Ashfaq Ahmad in his defence, thus, plea was to be investigated and recording of cross-version, if any, was the proper answer rather than registering a separate F.I.R. In Mst. Anwar Begum v.
Station House Officer Police Station Kari West, Karachi and 12 others PLD 2005 SC 297, the Honourable apex Court while allowing the registration of the third F.I.R., had heldthat "This Court in the case of Wajid Ali Khan Durani and others v. Government of Sindh and others 2001 SCM R 1556 maintained the order of High Court whereby registration of third F.I.R. Was allowed on the ground that the two F.I.Rs, earlier registered by police do not reflect the true facts of the case. It has also been held in this case that if information given to a Police Officer, which discloses a different offence was also cognizable by the police, then unless it is a mere amplification of the first version, must be recorded by the police."
' The case in hand is just a mere amplification of the first version, in the above mentioned case.
9. In view of the above circumstances, I am of the view that the learned Additional Sessions Judge was not justified in giving direction to respondent No,2 to record F.I.R. As it was a case of cross- version which was ordered to be recorded. It is also not out of place to point out that respondent No,3 in his application filed under section 22-A, Cr.P.C. Appended with this writ petition as Annexure "B", had also prayed for recording of the cross-version of Waqas Ahmad accused, the son of the respondent No,3, in the case already registered. Even otherwise with the respondent's son Waqas Ahmad the alternate remedy of filing a complaint was also available.
10. In view of the above mentioned circumstances and the case-law discussed, above, the writ petition is accepted and the impugned order, dated 20-6-2005 passed by the learned Additional Sessions Judge, Kabirwala is set aside.