' ZAFAR IQI3AL CHAUDHRY, This single order will dispose of Crl. Misc. No, 506-H of 2008 filed by Abdur Razzaq petitioner for the recovery of Babar Jatt his son and Writ Petition No, 2619 of 2009 filed by Nisar Ahmad petitioner to withdraw the investigation of case F.I.Rs, No, 269/2008, 223/2008 and other related cases from respondent No, 3 as common question of law and facts are involved in both the cases.
2. Abdur Razzaq petitioner by way of filing of this Habeas Petition No, 506-H of 2008 had sought indulgence of this Court for the recovery of his son namely, Babar Jatt detenue who was allegedly abducted by S.H.O. Police Station Sadar Wazirabad respondent No,2. This petition came up for hearing before my learned brother Muhammad Akram Qureshi, J on 29-5-2008 and respondent No, 2, i.e, S.H.O. Police Station Sadar Wazirabad was directed to appear before this Court along with Babar Jatt detenu on 3-6-2008. On the said date, it was complained by the learned counsel for the petitioner that after acquiring knowledge about filing of this petition, respondent No,2 in retaliation also apprehended two nephews of the petitioner namely, Imtiaz and Kashif. Consequently, respondent No,2 was directed to remain within the four corners of law and refrain himself from involving in any illegal activities. He was further directed to produce said Babar Jatt detenu before this Court on 6-6-2008, who failed to produce the alleged detenu on the said date. Then S.P. Sadar Gujranwala was directed to personally appear before this Court on 9-6-2008 with the 'direction to get recovered Imtiaz, Kashif and Babar Jatt, detenus from the custody of Muhammad Afzal, Inspector/S.H.O. Police Station Sadar, Wazirabad and to take appropriate legal action against the said Inspector.
3. On 9-6-2008, S.P. Sadar Gujranwala appeared and stated that the above-said detenus were not in the custody of Muhammad Afzal S.H.O. Whereupon the case was adjourned to 16-6-2008 with the direction to said S.P. To get recovered the alleged detenus and in failure thereof to register the case against respondent No,2 on the allegations levelled by the petitioner and copy of the F.I.R. Was also directed to be produced in the Court on the said date.
4. On 16-6-2008 respondent No,2 again appeared before this Court and it was observed by this Court that he had not released the detenus till that time in spite of the fact that sufficient evidence was available on the record to prima facie conclude that the detenus mentioned in the order were in the custody of respondent No,2. Again on the said date, S.P. Sadar Gujranwala was directed that if the said detenus were not released by the next date of hearing he would register the case against respondent No,2 and also produce copy of the F.I.R. In the Court. The case was adjourned for 18-6-2008.
5. On 18-6-2008, S.P. Sadar Gujranwala appeared in the Court without' copy of the F.I.R. In spite of repeated direction of this Court, who was directed to comply with the order of this Court and also appear before this Court on 19-6-2008 when respondent No, 2 along with S.P. Sadar Gujranwala appeared in the Court. On the query of this Court whether the orders of this Court had been complied with or not? It was noted that the behaviour of SP was contemptuous towards this Court, who stated to the effect that "I am commander. If the Court orders to register the case against respondent No,2, firstly the case may be registered against him also." The Court tried to make him understand that the orders of this Court were judicial orders and that he was required to comply with the same. The S.P. Was also directed to remove respondent No,2 from his present place of posting and after registration of the case to bring a copy of the F.I.R. On the same day. In the later part of the day, the case was repeatedly called and the said S.P. Made two telephone calls that he had registered the case and he was on his way to Lahore to produce the copy of F.I.R. Up till 8-15 p.m. Said S.P. Did not turn up and keeping in view the behaviour of the said S.P. Which was ex-facie highly contemptuous as he had wilfully defaulted to obey the orders of this Court, show-cause notice was issued to him that why proceedings under the Contempt of Courts Act may not be initiated against him and a copy of said order was directed to be sent to Inspector-General of Police Lahore and D.P.O., Gujranwala to take appropriate action against Athar Ahmad, S.P. Sadar Gujranwala and Rana Muhammad Afzal, S.H.O. Police Station, Sadar Wazirabad.
6. Before signing the above said order, S.P. Sadar Gujranwala entered appearance and produced copy of F.I.R. No, 269/08 registered under section 342, P.P.C. Against respondent No,2 and the case was adjourned for the next day, i.e, 20-6-2008. The other orders passed by my learned brother shows that investigation in the above said F.I.R. No, 269/08 was not properly conducted and the Court had no alternate but to refer this matter to Addl: I.G. (Investigation) to transfer the investigation of case F.I.R. No, 269/08 to some gazetted police officer outside the jurisdiction of C.P.O. Gujranwala. In compliance of the above-said order, Addi: I.G (Investigation), transferred the investigation of case F.I.R. No, 269/08 to S.P. Range Crime, Sheikhupura (Mr. Muhammad Nawaz Warraich). The above-said S.P. Was directed to apprise the Court above the investigation of the said case but on various dates despite the orders of this Court, he did not bother to appear in the Court. At last, on 13-8-2008, he appeared in the Court and stated that the above-said investigation was entrusted to him and he was still investigating the case and collecting the evidence. The learned counsel for the petitioner was directed to amend his petition in view of the special circumstances and bring on record the evidence and he was also directed to establish contact with S.S.P. Range Crime, Sheikhupura and produce all the evidence which was available to him and the S.S.P. Was also directed to expedite the investigation of the case and conclude the same within shortest possible time.
7. Vide order dated 1-9-2008, S.S.P. Range Crime Sheikhupura again failed to appear before the Court and he was directed to appear before this Court along with the record of case F.I.R.
No,269/2008 dated 13-8-2008 registered under section 342 P.P.C. At Police Station Sadar Wazirabad on the text date of hearing.
8. It is pertinent to point out here that during the pendency of this petition, Babar Jatt detenu, son of the petitioner was murdered and his dead body as unknown at that time was found lying within the jurisdiction of Police Station Satra District Sialkot and the S.H.O. Concerned registered the case in this behalf against unknown persons mentioning therein that the dead body of unknown person had been found. According to the report, the fire-arm injuries on the chest of the deceased were fresh and blood was found oozing which showed that the occurrence was fresh and he received information immediately after the occurrence and visited the spot. The postmortem report also shows that the probable time between death and injury was 10 to 24 hours. The postmortem examination was conducted on 9-7-2008 at 5-00 p.m. As such the occurrence most probably had taken place in between the night of 8th and 9th July, 2008. Then for the identification of the dead body of the deceased citation was made through various newspapers. It is found that the dead body was buried by the Investigating Officer without completing the mandatory codal formalities as required by sections 174, 175 and 176, Cr.P.C. As has been admitted by the Inspector in the Court.
Subsequently, on account of citation made by the police officers dead body was identified by the petitioner as his son Babar Jatt, who submitted an application for exhumation and with the permission of the learned Ilaqa Magistrate the dead body was handed over to him. The petitioner submitted an application to S.P. Sheikhupura for registration of the case against the police officers because initially he had filed habeas petition showing his apprehension that his son would be murdered by respondent No,2 and his apprehension later on proved to be true after the death of his son who had received fire-arm injuries according to the Medico-legal Report but his request for registration of the case under sections 302 P.P.C. And other relevant provisions of law was not acceded to by the said S.P., Sheikhupura. Then he submitted an application for amendment in the petition and requested that the concerned S.P. Be directed to register the case against the delinquent persons for committing the above-said offences. During the pendency of this petition taking into consideration the peculiar circumstances of this case and keeping in view the excellent reputation of Major Mubashar Ullah, S S . P. /PTS , Chung, Lahore in the department as well as in the public, AIG (Investigation), under the directions of this Court transferred the investigation of case F.I.R. No,269/08 dated 19-6-2008, registered under section 342, P.P.C. At Police Station Sadar Wazirabad District Gujranwala to the above-said officer as the petitioner showed lack of confidence in Muhammad Nawaz Warraich. S.P. And this Court was also not satisfied due to this attitude. Now the grievance voiced by the petitioner is that his version is not being brought on the record and no action has been taken against the accused nominated by him in the application copy whereof is available on this file. The learned counsel for Abdur Razzaq petitioner submits that F.I.R. No, 223/08 registered at Police Station Satra District Sialkot does not cover the allegations levelled by the petitioner, but the same was manoeuvred only to save the skin of their colleagues.
As such direction may be issued to register the second F.I.R. On the allegations levelled by the petitioner.
10. This Court has considered that whether in the presence of F.I.R. No, 223 dated 9-7-2008 registered under section 302 P.P.C. At Police Station Satra District Sialkot for the murder of Babar Jatt deceased, second F.I.R. Is permissible under the law? As mentioned above, the petitioner was utterly dissatisfied from the very first day with the attitude of respondent No,2 and other higher officers, who did not behave properly during the proceedings of this case as mentioned above and the petitioner apprehended that his son would be done to death by the local police, who prima facie produced sufficient evidence before the Court as well as before the Investigating Officer in this regard but no heed was paid by the respective police officers to redress the grievance of the petitioner, but ultimately son of the petitioner namely Babar Jatt was mercilessly murdered during the pendency of this petition.
11. So far as the point for registration of second F.I.R. Is concerned, this matter has been resolved by this Court as well as the august Supreme Court of Pakistan in numerous case. In NLR 1997 Criminal 655, Mst. Pari v. S.H.O. Police Station 'A' Section, Sukkur and another, a Division Bench of the Honourable Sindh High Court has held asunder:-- "It is true that ordinarily a second F.I.R. Of the same incident, is not registered. However, in this case the F.I.R. Said to have been registered at the instance of the petitioner is completely disowned by her and if allowed to stand as her version of the incident would undoubtedly have adverse effect on the case as set out by her in her petition. There is no cavil that one of the purpose of F.I.R. Is to give information of a cognizable offence and to set the law into motion. The other purpose is to provide a reliable base for initiation of investigation of the crime in the right direction, but, this would be possible only if the F.I.R. Is recorded truthfully in accordance with the information provided by the informant moreso when the informant is also an eye-witness. Accordingly it is the bounden duty of the police to record such information, correctly and, honestly, for, only then a proper investigation would be possible."
'Similarly, in 2002 PCr.LJ 247 [Karachi] Mevo v. The State and 2 others, it has been held:- "There is no hard and fast rule that a second F. I. R. Cannot be registered in respect of a different version given by an aggrieved party of the same occurrence. If information is subsequently given to a Police Officer, which discloses a different offence, also cognizable by the police, then unless it is a mere amplification of the first version, it must be recorded by the police. Therefore, direction to the police ,to record a second F.I.R. Would depend upon the circumstances of each case. If true facts in respect of an occurrence are not reflected by the first F.I.R. Then refusal to record a genuine version of the same occurrence would not be justified. The question has, therefore, to be examined in the light of the circumstances of a particular case."
' In Wajid Ali Khan Durani and others v. Government of Sindh and others, (2001 SCM R 1556), even 3rd F.I.R. Was allowed to be registered by the august Supreme Court ,of Pakistan and the petition for leave to appeal against the judgment of this Court was dismissed. The relevant portion is reproduced as under:-- "6. We see no force in the contentions raised by the learned counsel. Perusal of the impugned judgment passed by the learned High Court would show that the first contention of the learned counsel was precisely raised before the learned High Court, who dealt with it elaborately and repelled it for the reasons shown in the judgment, to which no exception can be legitimately taken and the learned High Court in the circumstances of the case, was within its jurisdiction in giving the direction to the police for registering another F.I.R. At the instance of the aggrieved widows of the deceased. Moreover, admittedly, since lodging of the third F.I.R. Regular challan has been submitted in the Court in which the petitioners have been named as accused persons, and the trial is yet to take place. The only question before the learned High Court, therefore being whether on the facts and circumstances of the case direction be given for lodging their F.I.R. At the instance of aggrieved parties. The learned High Court was justified in not impleading the petitioners in the petition for the reason of avoiding causing prejudice to the case of either party on merits. Indeed, F.I.R. Merely sets in motion the criminal law and it cannot be used as a substantive piece of evidence against any accused person and even observations made in respect of the F.I.R.
Pertaining to the merits of the case which is yet to be tried, cannot be used against any accused persons at the trial."
12. In the case in hand as alleged by the petitioner, Babar Jatt deceased had been abducted from the territorial jurisdiction of Police Station Sadar Hafizabad and in this behalf sufficient evidence was produced by the petitioner before the Investigating Officer as well as before this Court and during the pendency of this habeas petition he was murdered which shows that the offence of murder was in continuation of the offence of abduction. Keeping in view A such facts and peculiar circumstances of this case, S.H.O. Police Station Sadar Hafizabad is directed to register the case against the delinquent persons on the written application of the petitioner today without any further delay.
13. Muhammad Ahsan Javed, AIG (Legal) present in Court will inform the said S.H.O. Who after registration of F.I.R. Will produce copy of the same before this Court tomorrow, i.e, 26-2-2009.
Moreover, as the allegation is being levelled against the police officers for the murder of the son of the petitioner, keeping in view the apprehension of the petitioner that he will not get justice from the local police, it is directed that after registration of the case at Police Station Saddar Hafizabad as directed above, AIG (Legal) present in Court will hand over the file to Major Mubashar Ullah, S.S.P.
To, further proceed with the case, who is already seized with the investigation of case F.I.Rs No, 269/2008 and 223/2008, and will conduct the investigation strictly in accordance with law.
Adjourned for tomorrow , I . e . 26-2-2009.
14. So far as W.P. No, 2619 of 2009 is concerned, Muhammad Nisar petitioner has challenged the order dated 24-1-2009 passed by the Addl: I.G.P, Investigation Branch Punjab for transfer of investigation to Major Mubashar Ullah, S.S.P. On the ground that he has relations with one Muhammad Afzal Tarar, Exh. MNA and presently his daughter is sitting MNA who is siding with Abdur Razzaq petitioner in Cr1. Misc. No, 506-H of 20'08 and that the said political figures are also related to S.S.P. He has apprehension that the investigation of this case will not be conducted fairly due to the influence of the said personalities, who are at the back of the petitioner. It is further submitted that the said S.S.P. Presently is also not holding a field posting and is serving as Principal Police Training School, Chung who has no concern with the investigation branch. So entrustment of the above-said investigation be withdrawn from him and be restored to Muhammad Naw az Warraich, S.S.P. Or some other independent police officer in the police hierarchy.
15. I have heard the learned counsel for the parties. On the query of this Court, the learned counsel has frankly admitted that Muhammad Afzal Tarar ex-MNA and her daughter who is sitting MNA belong to Pakistan Muslim League (N) which is presently ruling party in the Province of Punjab. If this argument of the learned counsel for the petitioner is accepted, at this stage, it is obvious that the entire police hierarchy would not dare to disobey his orders. So I feel no force in the above-said argument.
16. So far as appointment of Major Mubashar Ullah, S.S.P. As Principal Police Training School, Chung is concerned, this is also not a disqualification for conducting investigation of this case as Major Mubashar Ullah is essentially a Police Officer (Senior Superintendent of Police) and it is in this capacity that he is serving as Principal of Police Training School, who is, therefore, not precluded to carry out investigation of a criminal case. Admittedly, he has excellent reputation in the department as well as in the public and keeping in view such qualities the investigation was transferred to him. I feel that he will perform his duties honestly without being influenced from any quarters. Even otherwise the purpose of the investigation is only to collect the evidence and it is settled law that the finding of the police is not binding on the Courts, which decides the cases finally on the basis of the B evidence adduced before it. Hence, W.P. No, 2619/2009 having no merits is hereby dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.