Through this single order, I decide Writ Petition No,11127/07, Rana Ghulam Mustafa Vs. SHO, etc. and Writ. Petition No,11262/07, Dr. Salah ud Din Vs. The State, etc.
2. Writ Petition No, 11127/07 was filed to call in question an order of the learned Addl. Sessions Judge/Ex-Officio Justice of. Peace, dated 28.3.2007.
3. According to the learned counsel for the petitioner, the petitioner filed an application (un-dated) before the learned Addl. Sessions Judge/Ex-Officio . Justice of Peace under Section 22-A(6) Cr.P.C. for registration of an F.I.R. His application u/S. 22-A failed, whereupon, petitioner filed another application under Section 22-A(6) Cr.P.C. before the learned Ex-Officio Justice of Peace on 12.7.2007. The said application was decided on 26.7.2007. The order reads as under-- "Petition under Section 22-A and 22-B Cr.P.C. has been filed for registration of criminal case. A report was sought which has been submitted by the SHO concerned, but the same is not satisfactory. However, the petitioner is directed to approach the SHO concerned with all (proof) proves and the SHO concerned is strictly directed to took into the matter personally and if the cognizable offence is made out, then to register the criminal case in accordance with law.
Disposed of. File be consigned to the record room after its due completion."
4. Despite order dated 26.7.2007, the F.I.R was not registered, whereupon, the petitioner filed another application complaining non compliance of the order. In reply dated 21.7.2007, the SHO stated that petitioner had not presented any application to him, hence F.I.R was not registered. It was also stated by the SHO that if petitioner approached him, the order dated 26.7.2007 would be implemented. The application was disposed of on 15.9.2007, yet the petitioner failed to achieve registrant of the F.I.R; resultantly, another application was filed before the learned Ex-Officio Justice of the Peace, to seek registration of an F.I.R against the SHO under Article 155 of Police Order, 2002.
The said application was also dismissed which order has been impugned in this petition.. The impugned order reads as under: "Arguments heard. I have also perused the police report and my earlier order dated 26.7.2007. I have also perused order dated 15.9.2007 for implementation of my order dated 26.7.2007. In fact it is not a direct order of registration of criminal case. This Court directed the SHO concerned as below :-- "The SHO concerned is strictly directed to look into the matter personally, and if the cognizable offence is made out then to register the criminal case In accordance with law.
The SHO has submitted the report which I have perused, hence in light of the report of SHO. I find no force in this petition, which is hereby dismissed. Be consigned."
5. It may be pointed out that the above impugned order was passed after considering the report submitted by the SHO in application filed seeking registration of case under Article 155 of Police Order, 2002 against the SHO. Briefly, according to the report of the SHO, the F.I.R could not be registered in pursuance of order of the learned Ex-Officio Justice of Peace dated 26.7.2007 as F.I.R No, 547/07, dated 30.5.2007 already stood registered against Rana Ghulam Mustafa (petitioner) and 6 others regarding the same property and occurrence, therefore, version of the petitioner could be recorded and investigated, in the same F.I.R.
6. According to the learned counsel for Salah ud Din, Respondent No, 3, the application of the petitioner to the SHO seeking registration of the F.I.R, possession was shown to have taken on 27.5.2007 but this content of the application is in conflict with the contents shown on page 2 of the application under Section 22-A (Annex-B). He also referred to sale-deed in the above context, according to which, possession was taken over by the petitioner on 10.3.2007 but in proposed F.I.R and in this petition, it was handed over on 27.5.2007. He also pointed out that sale-deed mentions names of Dr. Dawood and Abdul Majid as seller but said Abdul Majid undisputedly had died in 1996.
According to him. Dr. Sohail is a step brother of Respondent No, 3 who in active collusion with petitioner, etc. deprived the Respondent No, 3 and other family members of a valuable property by forging documents etc. which resulted into registration of F.I.R No, 547/07. According to him, the investigation in the above F.I.R has been completed and petitioner and others have been found guilty and to frustrate the above, present writ petition has been filed. In context of Writ Petition No, 11262/07, wherein the learned counsel is representing petitioner, referred to a suit filed by the petitioner and pointed out certain contradictions in the said suit and the Writ Petition No, 11127/07.
The learned counsel also referred to PLD 1998 Lahore 772 and PLD 1992 Lahore 167. The learned counsel further contended that in constitutional jurisdiction, a person who invokes constitutional jurisdiction with unclean hands cannot be granted relief, even if the contentions are factually correct, etc.
7. The learned Additional Advocate General, Punjab has submitted a report on behalf of the SHO and also supported the contentions of the learned counsel for Respondent No, 3.
8. I have heard the learned counsel for all the parties and carefully considered their contentions.
The learned counsel for the petitioner has impugned the order of the learned Ex-Officio Justice of Peace/ASJ, Lahore, dated 28.9.2007, whereas, the learned counsel for Respondent No, 3 in this writ petition, but representing petitioner in Writ Petition No, 11262/07, has supported the above order.
Therefore, the relevant controversy is order of the learned Addl. Sessions Judge dated 28.9.2007.
The basis of the said order, is report of the SHO dated 22.9.2007. According to this report, since F.I.R No, 547/07 was registered on 30.5.2007 under Sections 420, 468, 471, 419, 452 and 148 PPC against the petitioner, Rana Ghulam Mustafa and 6 others about the same occurrence, second F.I.R in the same occurrence cannot be registered. The learned Addl. Sessions Judge accepted the contention of the SHO and passed the impugned order dated 28.9.2007. This report, as a matter of fact exposes the stance of SHO as well as contradiction in the impugned order dated 28.9.2007 and order dated 26.7.2007 passed by the learned Addl. Sessions Judge, Lahore. According to the report of the SHO, if F.I.R No, 547/07 already stood registered on 30.5.2007, why did the learned A ddl.
Sessions- Judge fail to mention this fact in his order dated 26.7.2007? Why did the learned Addl.
Sessions Judge observe in his order dated 26.7.2007 that the report of the SHO was not satisfactory? Why did the SHO fail to point out to the learned Addl. Sessions Judge that F.I.R No, 547/07 was already registered on 30.5.2007 while submitting report which was found dissatisfactory in order dated 26.07.2007? The reason which is made basis for order dated 28.9.2007 could also be basis/ground for order dated 28.7.2007 and the learned Addl. Sessions Judge should have dismissed the application of the petitioner instead of passing order as under:-- "However, the petitioner is directed to approach the SHO concerned with all (proof) proves and the SHO concerned is strictly directed to look into the matter personally and if the cognizable offence is made out, then to register the criminal case in accordance with law."
9. Unfortunately, the parties have not disclosed the true facts including government officials i,e, SHO P.S. Civil Lines, Lahore appearing in this case. The learned counsel appearing for the petitioner conceded that one Abdul Majid son of Atta. Muhammad mentioned in the sale-deed dated 10.3.2007 as one of the sellers had died in 1996, then how could he sell the property/clinic in the year 2007?
10. It is correct that a person, who does not approach this Court in constitutional jurisdiction with clean hands, does not deserve relief, but what option is left with the Court when both the, parties resort to this Court with unclean or sullen hands? As I pointed out above, in my opinion both parties have suppressed the truth. Even the learned Addl. Sessions Judge has tried to hide something in the impugned order, the tenor of his both orders dated 28.9.2007 and 26.7.2007 is inconsistent and different from each other. Learned counsel for Respondent No, 3 and learned Addl. Advocate General, Punjab, have conceded that apparently there is some negligence or suppression of facts on the part of the SHO by not submitting in his report dated 21.07.2007 and 15.09.2007 fact of registration of F.I.R No, 547/2007 dated 30.05.2007.
11. What I have mentioned in the preceding paras is evident from the record, I did not have to hold any inquiry. I just had to read the record with caution in view of the prevailing atmosphere and environment. From reading the language of Section 154 Cr.P.C. it is clear that information can be laid before the SHO about an occurrence at any time even if already an F.I.R stands registered about the same occurrence. In such circumstances, there is no bar laying information one after the, other, to be recorded as FIR if such an information discloses commission of a separate cognizable offence. The second or latter information should not be merely an amplification for the first F.I.R but it should be a disclosure of a different criminal activity. Recording of a second F.I.R or a direction to that effect, therefore, depends upon the facts and circumstances of each case. No hard and fast rules or principles can be laid down as to when a second F.I.R can or should be recorded. The matter has to be seen in the context of the totality of the circumstances and the allegations.
12. According to a Division Bench judgment of this Court:-- "If an occurrence is reported and F.I.R recorded, then any information in elaboration thereof, its explanation or amplification will not call for recording of a fresh or second F.I.R. The information is there. All its contents and aspects have to be investigated. All facts newly found, alleged, added etc will be taken into account. Information supplied or statements made in that behalf will be recorded under Section 161 Cr.P.C. No new F.I.R need be recorded. But if a new case is made out or allegations of a cognizable case are levelled showing a genuine grievance, then the 'aggrieved party is entitled to have his case registered and investigation made. Allah Pitta and 3 others Vs. The SHO, P.S, Basirpur, District Okara and 3 others (PLD 1987 Lahore 300).
On the same points mention may also be made of Mrs. Ghanwa Bhutto and another Vs. Government of Sindh and another (PLD 1997 Karachi 119). There are several other instances where second F.I.R was refused in different circumstances. For example, (PLD 1975 SCMR 149).
12-A. According to petitioner's version, he bought clinic from Dr. Dawood against consideration of Rs,90,00.000/-. the sale-deed was completed in presence of Dr. Dawood and his three sons, Dr. Salah-udDin, Sohail Dawood and Azhar-ud-Din Babar. The Dawood and his sons requested for some time for handing over the possession as they wanted to remove the machinery from the clinic. It was decided between the parties that the possession would be handed over on 27.05.2007.
The possession was accordingly handed over to the petitioner by Dr. Dawood and his sons on 27.05.2007, but at night, the same day they called police, who took employees of the petitioner, Muhammad Nadeem Zafar to the Civil Lines Police Station. The police handed over the possession to Dr. Dawood etc and also registered a false case against the petitioner. This way they deprived petitioner of Rs, 90 lacs as well as the property i,e, Dr. Dawood Clinic. On the other hand, version, which formed the basis of F.I.R No, 547/2007 dated 30.05.2007 registered at Police Station Civil Lines, Lahore, is that complainant's father Dr. Dawood and Abdul Majeed were co-owners of property No, S-60-R-25/4/D, Mozang Addah, Lahore known as Dawood Dental Clinic. On 25.08.2007 at about 1.30 a.m. (night) his servant Aurangzeb, who lives In the same building informed the complainant that some armed persons, after breaking locks of the clinic had forcibly entered into the building. The same servant Aurangzeb also informed the police on Emergency No,
15. The police arrested the accused persons including Rana Ghulam Mustafa (present petitioner). The accused persons claimed that they had bought the property vide Registry No, 1913, The said Registry was forged one, the complainant's father had neither sold the said property nor gave its possession to any one. It was also alleged that the co-owner Abdul Majeed had died 12 years ago whose thumb impression was also affixed on the Registry and other documents. The narration of above two versions show that they are distinct from each other and version of the petitioner cannot be treated as an amplification of the version of complainant of F.I.R No, 547/2007.
13. In view of the above reasons and as a result of foregoing discussion, the SHO Police Station Civil Lines, Lahore, is directed to implement the orders of the learned Addl. Sessions Judge/Ex-Officio Justice of Peace dated 26.7.2007 and register an F.I.R on the complaint of the petitioner. However, the I.O. is directed to investigate the second F.I.R without being influenced or prejudiced from this order. He is further directed to adhere to the requirements and mandate of provisions of Rule 25.2 of Police Rules, 1934. The concerned S.P Investigation is directed to personally supervise the investigation. This writ petition is allowed in the above terms.