' SHAHID HAMEED DAR, J.---Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1997, the petitioner challenges the validity of order dated 15-9-2009 passed by learned Sessions Judge, Nankana Sahib, whereby, the application for registration of criminal case under sections 22-A/22-B, Cr.P.C. Moved by Muhammad Idrees respondent No,6 has been allowed.
2. Brief facts germane to the filing of the instant petition are that Muhammad Idrees, respondent No,6 filed a petition under sections 22-A/22-B, Cr.P.C. Before the learned Sessions Judge, Nankana Sahib, respondent No,7 for the registration of a criminal case against Rahat Javed petitioner and others regarding the murder of his real brother Muhammad Javed, in a fake police encounter. The comments were called for from respondents Nos.3 and 4 who submitted the same and the learned Sessions Judge, after hearing the parties accepted the application and directed the SHO, Police Station Shah Kot,' District Nankana Sahib to record the statement of respondent No,6 and if any cognizable offence was made out therefrom, he was directed to proceed in accordance with law.
3. Muhammad Idrees, respondent No,6 briefly, contended in his application under sections 22- A/22-B, Cr.P.C. That his brother Muhammad Javed was arrested at 8:00 a.m on 26-2-2008 by police of Police Station, Shah Kot in case F.I.R. No,469 of 2005 and was taken to Police Station Shah Kot where Rahet Javed, the petitioner and others were chatting with SHO, Police Station Shah Kot, respondent No,3; a little while thereafter, they boarded Muhammad Javed in an official vehicle and proceeded to CIA Stop Chander Kot followed by Rahet Javed etc. In a private vehicle; Muhammad Idrees along with his cousins and others also followed them, when, they reached across Jender Kot bridge of canal they witnessed a police mobile and a private car; the respondent No,6 enquired fr6m a police official about his brother, who told that he had been taken with him by DSP, Aashaq Marth, a notorious police encounter specialist; the petitioner and his companions reached the place where the police had taken his brother Javed and found Ahmad Yar Wattoo Inspector, present there who ordered him to get away; he also found Rahet Javed, Khalid Javed, Aslam alias Pola, Fazal Ahmad and two unknown accused persons, all armed with rifles aiming at his brother; on the Lalkara of Fazal Ahmad and Khalid Javed, the accused Rahet Javed fired straight with his rifle which, landed on the back of the head of Muhammad Javed, the brother of respondent No,6. In the meanwhile, the other police officials lead by DSP Aashaq Marth opened indiscriminate firing upon fallen Muhammad Javed and murdered him at the spot; the accused persons also decided to kill Muhammad Idrees, respondent No,6 but due to arrival of other police vehicles they could not do so but Aashiq Marth, DSP threatened respondent No,6 if he told the matter to anyone he too would be killed in a fake encounter; that accused Rahet Javed (petitioner) and others openly claimed that they had paid Rs,11,00,000 (eleven lacs ) to police to kill Muhammad Javed in a fake encounter to avenge the murder of their brother.
4. Muhammad Idrees, respondent No,6, moved an application to respondents Nos.1 and 3 for registration of a criminal case but they did not take any action. So he filed a petition under sections 22-A/22-B, Cr.P.C. Before the learned Additional Sessions Judge, Nankana Sahib for seeking the same relief. In the meanwhile, DPO, Nankana Sahib had moved an application before Sessions Judge, Nankana Sahib, respondent No,7 for holding a judicial inquiry into the killing of the brother of respondent No,6, whereupon, learned District and Sessions Judge, got conducted a judicial inquiry which was concluded on 20-7-2009 by learned Magistrate Section-30, Nankana Sahib, wherein the learned Judicial Officer opined that the claim of the police that the deceased had died in a police encounter, was false and fake and that the death of Muhammad Javed, the brother of respondent No,6 was an extra judicial killing.
5. The police, immediately after the occurrence, had registered a criminal case F.I.R. No, 64 of 2008 dated 27-2-2008 under sections 324, 353, 186, P.P.C. Read with section 13 of Arms Ordinance No,XX, 1965 on the complaint of Liaqat Ali SI against Muhammad Javed deceased and an unknown accused person with the version that the occurrence of death/murder of Javed deceased was a result of a police encounter. Thereafter, the DPO, Nankana Sahib, respondent No,1, requested through a written application, the learned Sessions Judge, Nankana Sahib to hold an inquest/inquiry under section 174, Cr.P.C, whereupon the learned Magistrate, under the orders of learned Sessions Judge, held an inquiry and recorded the aforementioned conclusion regarding the occurrence contained in F.I.R. No,64 of 2008 supra, being a fake police encounter, as stated above.
6. On one hand, the DPO, Nankana Sahib and respondents Nos.2 and 3 did not lodge any criminal case on the application of Muhammad Idrees, respondent No,6 and on the other hand, without any reasonable cause, hurriedly rushed into registration of a criminal case F.I.R..No,75 of 2009 dated 24- 2-2009 under sections 302, 148, 149, P.P.C. Read with sections 155, 156 Police Order, 2002, on the basis of the judicial inquiry conducted by learned Magistrate Section-30, Nankana Sahib. Though, the learned Magistrate or the petitioner had never desired that the text of judicial inquiry be used for registration of any F.I.R. The efforts of the petitioner in the meanwhile, continued for registration of a criminal case but, the respondents Nos.1 to 4 joined hands to make sure that the efforts of respondent No,6 could not bear fruit.
7. Muhammad Idrees, respondent No,6 at last, filed an application under sections 22-A/22-B Cr.P.C.
Before learned Sessions Judge, Nankana Sahib/Ex-Officio Justice of Peace, which, was allowed on 15-9-2009 with the direction to the SHO, Police Station, Nankana Sahib, respondent No,3 to record the statement of the complainant/ respondents No,6 and if his version disclosed commission of any cognizable offence then he should proceed in accordance with law. Hence, the instant petition.
8. The learned counsel for the petitioner contends that two F.I.Rs, about the same murder had already been recorded so there was no justification for, respondent No,7 to pass the impugned order for registration of an other criminal case qua the same occurrence; the impugned order has been passed in sheer violation to the settled principles of dispensation of criminal justice as the matter had already been dealt with twice by way of case F.I.R. Nos.64 of 2008 and 75 of 2009 supra; that Muhammad Javed deceased was a notorious gangster who had been involved in a number of criminal cases and on the fateful day, he had attacked the police party by opening indiscriminate firing, which was retaliated by the police which resulted in the death of Muhammad Javed deceased while his unknown co-accused fled away leaving behind a sizeable quantity of weapons and ammunition; that SHO, Police Station, Shah Kot, respondent No,3 had been wrongly directed by respondent No,7 as the occurrence had taken place within the territorial jurisdiction of Police Station, Bara Garh, District Nankana Sahib; that the impugned order suffers from misreading and non-reading of the record and it has been passed in an arbitrary and capricious manner without caring for the record of this case.
9. On the other hand, respondent No,6 has strongly opposed the contention of the learned counsel for the petitioner on the point that a judicial officer, learned Magistrate Section 30 Nankana Sahib after detailed judicial inquiry had found the version of the police as contained in case F.I.R. No,64 of 2008, absolutely false and he had observed that Muhammad Javed deceased had been murdered by the police in a fake encounter and that it was a case of extra judicial killing; the police did receive the application of respondent No,6 for registration of a criminal case against Rahet Javed and others including the police officials, but it was not attended to by any of the respondents Nos.1 to 4; the respondent No,1 with a view to pack-up the matter hurriedly made various moves but each of his move ended in smoke specially due to the result of judicial inquiry; the act of the respondents Nos.1 to 4 to lodge F.I.R. No,75 of 2009 supra on the subject of judicial inquiry smacks dishonesty as it was so done to avoid the registration of a criminal case on the application of Muhammad Idrees, respondent No,6; the conduct of respondents Nos.1 to 4 is highly condemnable as they wasted no time at all to record the opinion qua the innocence of the persons mentioned in the F.I.R. No,75 of 2009 and thereby, exonerated all those mentioned in the said F.I.R., an opinion, recorded by the judicial officer in a judicial inquiry has been overlooked by the dishonest police officers including respondent Nos.1 to 4; the impugned order has been passed strictly in accordance with law and no legal deficiency could be pointed out in it hence, it was a sustainable order; contends that an independent F.I.R. Is the order of the day as per contention of respondent No,6, so, the instant petition may be dismissed in the interest of justice. To fortify his contentions learned counsel for respondent No,6 has placed reliance on Wajid Ali Durrani and others v.
Government of Sindh and others (2001 SCM R, 1556), Muhammad Basheer v. The SHO Okara Cantt and others, (PLD 2007 SC 539), Mst. Allah Rakhi v. DPO, Gujranwala and 5 others (2009 M LD Lahore 99), Mrs. Ghanwa Bhutto and another v. Govt. Of Sindh and another (PLD 1997 Karachi 119) and Basheer Ahmad v. Station House Officer and 5 others 2008 M LD Lahore 9) and unreported order dated 11-9-2007 passed by this court in W.P.No,8560 of 2007.
10. The learned Assistant Advocate-General has not opted to oppose both the sides but adds that Muhammad Idrees, respondent No,6 was an aggrieved person being the real brother of the deceased so his grievance may be attended to and redressed.
11. I have heard the arguments advanced by both the sides and gone through the impugned order and other relevant documents attached with this writ petition.
12. Muhammad Javed deceased, was the real brother of Muhammad Idrees, respondent No,6, who had been killed on 27-2-2008. Ch. Liaqat Ali SI got lodged a criminal case F.I.R. No,64 of 2008 supra wherein he alleged that three accused aboard a car bearing no number plate was chased by the police party, two of whom lastly, abandoned their car and hid themselves in a sugarcane field whereas, their third companion drove away speedily. Liaqat Ali SI further alleged that the two accused ambushed the police party, opened firing upon them and the police party also returned the fires which continued for about an hour till the firing stopped from the accused side, who were hidden in a sugarcane crop, whereupon, the police party entered the field and found Muhammad Javed alias Jaida lying dead with weaponry/ammunition scattered around him. The story contained in this F.I.R. Was a subject of judicial inquiry conducted by the learned Magistrate Section- 30, Nankana Sahib who on conclusion of his inquiry, opined that it was a fake encounter staged by the police and the death of Muhammad Javed deceased was an extra judicial killing.
The police did not care for the outcome of the judicial inquiry and reduced its validity to ZERO within no time, when they rushed into registration of a criminal case No,75 of 2009 on 24-9-2009 using the text of the judicial inquiry, as the subject of the F.I.R. And wasted no time in recording the opinion of innocence without associating any aggrieved persons with the investigation and declared all the police officials as innocent. Muhammad Idrees, respondent No,6, the brother of the deceased was arrogantly and contemptuously kept at an arms length by the police and they never attended to his grievance. Finally, he got the impugned order from the learned Sessions Judge, Nankana Sahib, respondent No,7 on his application under sections 22-A/22-B, Cr.P.C, whereupon a direction was given to the SHO, P.S Nankana Sahib, respondent No,3 for registration of a criminal case against those mentioned in his application. The contention of the learned counsel for the petitioner that another F.I.R. On the. Version of respondent No,6 could not be recorded is not based on any legal arguments. The version of the applicant/respondent No,6 has not been taken care of by the police so far, and his efforts to get a criminal case lodged, have been obstructed by the respondents Nos.1 to 4 as according to them, the registration of another F.I.R. Will complicate the matter which is not a proper approach, keeping in view the peculiar facts and circumstances of the case. I seek guidance by pinning upon the luminous above referred to judgments, I hold that the F.I.R. Sought to be registered cannot be stopped as prima facie cognizable offence is made out from the perusal of the contents of the application and an other F.I.R. Can be registered as held in Muhammad Anwar's, case (PLD 1999 Lahore 50) and Ghanwa Bhatto's case (PLD 1997 Karachi 119).
As per law laid down by the Hon'ble Supreme Court of Pakistan in the case Muhammad Basheer v.
The Station House Officer Okara Cantt. And others PLD 2007 SC 539, the Station House Officer is bound to register the F.I.R., in a case of cognizable offence, thus respondent No,3 is directed to record the statement of the respondent No,6 under section 154, Cr.P.C. And proceed further in accordance with law. However, the investigation of the said case shall be conducted by some Senior Police Officer other than the respondents Nos.1 to 4 who shall try his best to bring on record the true picture of the occurrence and ensure no injustice is done to any of the parties. With this direction the Writ Petition is disposed of accordingly.
' The restraining order passed by this court on 18-9-2009 stands recalled.