Through this petition, Mst. Allah Rakhi - unfortunate mother of Naeem alias Naeema Butt, who, apparently, was killed in a false police encounter, has filed this petition with the following prayer besides other consequential relief: In view of the above submissions, it is, therefore, most respectfully prayed that this petition may kindly be accepted and Respondent No 2 may kindly be directed to register a criminal case against the Respondents No 3 to 6, in the interest of justice."
2. Brief facts of the case, which forced the petitioner to knock the door of this Court, were/are that on 9-9-2007, Imran Abbas, Respondent No, 3, got a case registered with Police Station, Satellite Town, Gujranwala, with the allegation that in a police encounter, which took place between the police and four robbers, who had snatched Car No, LEB-06/2911, Naeem alias Naeema Butt was wounded by the firing, returned by the police contingent. He further alleged that the cohorts of the injured robber managed their escape after leaving Naeem in the robbed car, in injured condition.
Once the encounter was over Naeem - petitioner's son was found dead in the said car. According to the police, after the encounter, he was identified as Naeem alias Naeema Butt - a proclaimed offender.
3. The petitioner claims that she submitted an application before Respondent No, 2 for the registration of the case against Respondents No, 3 to 6 but he sided with his colleagues/department fellows and refused to register the case. According to the petitioner, her son Muhammad Naeem Butt (deceased), who was a proclaimed offender, was arrested by Respondent No, 3 on 07-09-2007, after raiding her house; that on 08-07-2008, she, along with her relative Shehroze Butt, visited her son, who was detained in Police Station, Satellite Town and gave him food; that Amer, Umar and Razi-Respondents No 4 to 6 asked Respondent No 3 that Naeem Butt, who is the murderer of their brother, be eliminated in a fake police encounter. The petitioner beseeched Respondent No, 3 for restraining him to commit such a heinous act but he demanded an amount of Rs, 10,00,000/- to accommodate her. On her refusal he told her that Naeem Butt's foes were ready to pay a lot of amount to lynch Naeem Butt in fake police encounter; that on the fateful day, the petitioner's son Naeem Butt was gunned down by Respondents No, 3 to 6 in a fake police encounter, after bringing him out from the police lockup and that the petitioner herself witnessed the said occurrence.
4. Learned counsel for the petitioner has contended that one Usman, real brother of Respondents No, 4 to 6, was murdered on which a case F.I.R.No, 297/2004, dated 16-5-2004, was registered at the Police Station, Model Town, against petitioner's son Naeem Butt (deceased); that after being arrested, the petitioner's son was sent to the judicial lock; that on a date of hearing of the said case, the petitioner's son was brought to the Court and in this process somebody resorted to firing, which caused the death of two police officials; that during the said firing, Naeem Butt managed good his escape and, thereafter, became a proclaimed offender; that Zafar, brother-in-law of Naeem Butt, who was suspected to be the murderer of the two police officials, also became an absconder; that, after arresting Naeem Butt (deceased), the police officials, who wanted to avenge the murder of their colleagues, joined hands with Respondents No, 4 to 6, whose brother had been murdered by Naeem Butt in an earlier occurrence and made a plan to wipe out Naeem Butt in a fake police encounter; that Umer Butt-Respondent No, 5, hired a Suzuki Car No, LEB-06/2911, from Bhatti Rent A Car' and provided the same to the police; that a receipt dated 08-09-2007 in this regard has been placed on the record along with CM. dated 17-7-2008 filed by the petitioner; that the story, as narrated in the F.I.R lodged by Respondent No, 3 to give the murder of the petitioner's son the colour of an encounter, is totally false and fake; that, interestingly enough, the murderer of Naeem Butt himself became the complainant of the case; that the petitioner being the mother of the deceased has got every right to get a case registered; that the occurrence did not take place at the place where Respondent No, 3 claims it to have taken place; that the application submitted by the petitioner for the registration of the case shows that commission of a distinct cognizable offence, therefore, Respondent No, 2 was bound to register a counter case but he has failed to perform his mandatory duty. To augment his contentions, learned counsel for the petitioner has placed reliance on the cases of Wajid Ali Durani and another v. Government of Sindh and others (2001 SCM R 1556), Muhammad Bashir v. Station House Officer Okara Cantt and others (PLD 2007 SC 539), Muhammad Azam v. Inspector General of Police Islamabad and 2 others (PLD 2008 Lahore 103), Mst. Malka Jan v. Inspector General of Police N.W.F.P., Peshawar and 2 others (2000 P.Crl.LJ 320), Sakina Bibi v. Sessions Judge, Gujrat and 10 others (2007 PCr.LJ 1939), Mrs. Ghanwa Bhutto and another v. Government of Sindh and another (PLD 1997 Karachi 119) and an unreported order dated 11.9.2007, passed by this Court on W.P. No, 8560/2007.
5. Conversely, learned counsel appearing on behalf of Respondents No, 4 to 6 has opposed this petition, contending that the petitioner has failed to avail the remedy of filing application under Section 22-A/22-B, Cr.P.C; that the allegations levelled by the petitioner are totally frivolous and that as the case has already been registered, therefore, at the most, a counter-version can be recorded in the case.
6. The learned AAG has not opted to oppose this petition, however, he has stated that the petitioner never approached Respondent No, 2 to get the case registered. He further states that in case the petitioner approaches the said respondent, he shall perform his duty, cast upon him under Section 154, Cr.P.C.
7. Despite receiving notices, issued in his name by this Court on more than one occasion, Respondent No, 3 did not opt to come forward to, contest this petition.
8. After hearing the learned counsel for the parties and going through the record, first of all, I would like to take up the objection raised by the learned counsel for Respondents No, 4 to 6, regarding the availability of alternate remedy. While doing so, I would like to observe that the availability of adequate remedy is not an absolute bar against the exercise of constitutional jurisdiction by this Court. In exceptional cases, this Court can entertain the constitutional petition directly, therefore, the objection in this regard, is spurned.
9. Now coming to merits of the case, prima facie, it appears that it is a case of two versions. On the one hand Respondent No, .3 claims that petitioner's son was killed in a police encounter but on the other, the petitioner vehemently asserts that her son was wiped out like a lame duck in a fake police encounter. The petitioner has sought registration of an independent F.I.R on the basis of the facts and assertions, which are entirely different from those, as narrated in the F.I.R, lodged by Respondent No,
3. Regarding the place of occurrence also, the parties are at variance. The grievance of the petitioner is, that to avenge the murder of two police officials, when Respondent No, 3 succeeded in arresting the petitioner's son, he eliminated him with the active connivance, help and assistance of Respondents No, 4 to 6, who had also a background of enmity against Naeem alias Naeema Butt (deceased). The said respondents, allegedly, provided a car, after procuring the same on rent, which was provided to the police in which Naeem alias Naeema Butt was gunned down. The petitioner further asserts that as a part of the said plan, a false case of the robbery, regarding the said car, was got registered by Respondent No, 3, after conniving with another police officer. As the petitioner seeks registration of the case on the basis of entirely different facts, therefore, Respondent No, 2 was under bounden duty under Section 154, Cr.P.0 to register the case. Therefore, while refusing to register an independent F.I.R, the said police officer committed an illegality.
10.The statement of the learned A.A.G is also of significance, because he in the peculiar circumstances of the case has not opposed this petition.
11.Insofar as the registration of the second F.I.R. is concerned, by now, it has been settled that there is no bar against the registration of Ft second F.I.R. regarding the same occurrence, rather, in the case of Mrs. Ghanwa Bhutto (supra), the order of registration of third F.I.R was passed by Hon'ble Karachi High Court, which was upheld by the Hon'ble Supreme Court in the case of Wajid Ali Durani and another (supra).
12.Consequently, while placing reliance on the case law, cited by the learned counsel for the petitioner, I am inclined to accept the petition, in hand. Resultantly, Respondent No, 2 is directed to entertain the application of the petitioner and register a case against Respondents No, 3 to 6. After the registration of case, the same shall be investigated by the investigating officer, honestly, fairly, independently and without being influenced by the observations made in this order. It goes without saying that in case the version narrated by the petitioner is found false, she would be liable to be prosecuted under Section 182, Cr.P.C.