The facts giving rise the filing of this petition were/are that Muhammad Asif, the petitioner, filed a Crl. Misc. No. 1272-H/2008, alleging therein that on 26.10.2008, at about 8:00 p.m., two police officials alongwith seven others in civvies barged into the house of the petitioner and nabbed petitioner's brother namely Rashid Mehmood after abusing and threatening the inmates of the house, including the womenfolk, and took the said Rashid Mehmood along with them, whereafter, according to the petitioner, he (Rashid) was detained in P.S. Kotwali, Lahore. In the said petition the petitioner further claimed that his brother had been seen in the premises of the said Police Station by Muhammad Ashraf, son of Muhammad Shafi, and Muhammad Sarwar, son of Muhammad Siddique. The petitioner further lamented that on the asking of Mehmood Riaz, Inspector (Respondent No. 1 therein), the petitioner and his father had met said Mehmood Riaz Inspector, and Maqsood alias Bawa, S.I. (Respondent No. 2 herein). According to averments made in the said petition, both the said police officials demanded an amount of Rs.2,00,000/- for the release of the said detenu, otherwise, according to them, he was going to be involved in criminal cases falsely.
2. The said petition was entertained by this Court vide order dated 07.11.2008, whereby Respondents No. 1 and 2 were directed to appear in person before this Court along with the said detainee on 13.11.2008. However, Respondents No. 1 and 2 failed to appear before this Court on the said date, consequently, the learned Deputy Prosecutor General, who had appeared before this Court on the said date, was directed to ensure the attendance of the said respondents before this Court on 14.11.2008, on which date it was reported that the detainee, for whose recovery the said petition was filed, had already been killed by Respondent No. 2 (therein) along with other police official% in a fake police encounter. After imparting the said information the petitioner sought an adjournment for filing a constitutional petition to seek registration of a criminal case against the murderers of his brother. , Resultantly, the petitioner filed the instant writ petition before this Court seeking a direction for the registration of a case against Respondents No. 1 to 3 (herein). Before filing of this petition the petitioner filed an application before the learned Ex-Officio Justice of Peace, Lahore with a prayer for the registration of case against Respondents No. 1 to 3. However, the said application was withdrawn by the petitioner with a view to agitate the matter before this Court.
After seeking the permission from this Court, the petitioner filed an amended petition on 12 12.2008.
After hearing the learned counsel for the petitioner the writ petition was admitted to regular hearing vide order dated 22.12.2008.
3. In support of this petition learned counsel for the petitioner contends that, admittedly, the petitioner's brother was killed by. Respondents No. 1 to 3 in a fake police encounter during the pendency of Cr1. M:sc. No. 1272-H/2008, which was moved for the recovery of Rashid Mehmood (slain); that after the issuance of notice in the said petition the police officials staged a fake police encounter and eliminated the petitioner's brother within the jurisdiction of P.S. Shandra Town, Lahore; that in order to brush the real facts under the carpet, a false case was registered at the said Police Station vide F.I.R. No. 1071/2008, under 'Sections 324/353/186, P.P.C., read with Section 7, A.T.A. 1997; that it is classic example of custodian killing at the hands of the police; that the application (Annex-A) was submitted by the petitioner before Respondent No. 5 for the registration of case against Respondents No. 1 to 3, but he failed to perform his statutory duty.
4. Conversely, Rana M. Shams Iqbal, Advocate, has opposed this petition vehemently by submitting that petitioner's brother namely Rashid Mehmood, who was a desperate and hardened criminal, having a long list of criminal cases against his name, died in a genuine police encounter, which took place on 11.11.2008, at 9:15 a.m., when the police party headed by Muhammad Umar Farooq Khan, Inspector Police, had tried to stop two motorcyclists suspecting them to be proclaimed offenders, but they opened fire on the police party, which was returned by the police in exercise of their right of self-defence, consequently, both the motorcyclists bled to death at the spot; that consequently F.I.R. No. 1017/2008 was duly registered at P.S. Shandra Town, Lahore; that Rashid Mehmood (deceased), who was involved in 19 criminal cases, had been declared a proclaimed offender; that a judicial inquiry is already pending before a learned Civil Judge, Lahore.
5. The learned counsel for respondent, on Court's query, concedes that. the pendency of the said inquiry cannot be an impediment to the acceptance of this writ petition.
6. Learned A.A.G. has adopted the arguments put forth by the learned counsel for the contesting respondents.
7. Heard. Record perused.
8. The facts of the case, as narrated above, clearly reveals that before the occurrence wherein, according to the petitioner, his brother was gunned down in a fake and mock police encounter, the petitioner had already moved a habeas corpus petition alleging therein that Rashid Mehmood, after having been picked up from his house on 26.10.2008, was in the captivity of the police. On the said habeas corpus petitions, as observed above, a notice was issued for 13.11.2008, but no one appeared on behalf of the respondents on the said date, but before the said date of hearing the petitioner's brother was killed in an alleged police encounter. Learned counsel for the respondent has opposed this petition on the ground that the petitioner after filing an application under Section 22-A, Cr.P.C, before the learned Ex-Officio Justice of Peace, had withdrawn the same without assigning any reason, but the said contention isr totally against the record, inasmuch as the order of withdrawal of the said petition clearly reveals that the said petition was withdrawn with a view to move an appropriate petition for registration of case before this Court. Considering the fact that, according to the petitioner, his brother was done to death in a phony police encounter, this writ petition was directly entertained by this Court. The Constitution of Pakistan guarantees the fundamental rights of every citizen and this Court being guardian of the fundamental rights of the citizens can entertain such like petitions directly, especially when there is an allegation of sheer high handedness of the police. The police officials are supposed rather duty bound, to protect the life and property of the citizens but when instead of doing that they decide to kill the citizens in the name of police encounters, this Court must bend an ear to the aggrieved person, rather it should take the remedial measures to see that justice is provided to the aggrieved. The Police Department is supposed to nab the criminals and to collect evidence against them so that the Court concerned can decide the question of guilt or innocence of the accused produced and brought before it. Police in no case and in no civilized society can take upon themselves the role of complainant investigator, judge and the executor of the sentence pronounced by themselves.
9. Another ground for entertaining this petition, directly was that Rashid Mehmood was done to death during the pendency of habeas corpus petition before this Court. On the said application a notices had already been issued to the respondents to produce the said Rashid Mehmood but instead of producing him before this Court the police officials, according to the petitioner, eliminated his brother, showing their high handedness. This is a very sorry state of affairs that the respondents did not pay any heed to the orders passed by this Court, rather, in a contemptuous manner, they eliminated Rashid in a colourable exercise of their unfettered powers. This is nothing but a mockery of law and the Courts.
10.Insofar as the registration of earlier F.I.R. at the instance of the Umer Farooq Khan, Respondent No. 1, is concerned, the same has been registered by the police by giving their own version, but the contents of the application moved by the petitioner before Respondent No. 5, who refused to entertain the same, does disclose commission of a distinct offence, therefore, he was bound to register a counter case, but he failed to perform his manadatory duty. Prima facie, it appears that it is a case of two versions. On the one hand the petitioner claims that his brother was killed in an illusory police encounter, while on the other the police claim that the petitioner's brother died in a genuine police encounter. The petitioner has sought registration of an independent F.I.R. on the basis of the facts which are entirely different from the facts narrated in the F.I.R. lodged by Umer Farooq Khan, Respondent No. 1. Regarding the place of occurrence the parties are at variance. The grievance of the petitioner is that his brother was picked up from his house by the police in presence of the witnesses on 26.10.2008 and was kept in the captivity of P.S. Kotwali, Lahore, whereafter a demand of Rs.2,00,000/- was made by the police officials for the release of the said detenu. Thereafter the petitioner field a habeas corpus petition. The said fact, tentatively speaking, supports the plea of the petitioner that his brother was murdered in fake police encounter, As the petitioner seeks registration of the case on the basis of entirely different facts, therefore, Respondent No. 5 was under a statutory duty to register the case on the complaint of the petitioner. While 'refusing to register an independent F.I.R. the said police officer committed an illegality.
11.Insofar as the question of registration of the second F.I.R. is concerned, by now it has been settled that there is no bar against the registration of second F.I.R. regarding the same occurrence, rather in the case of Mrs. Ghanwa Bhutto and another v. Government of Sindh and another (PLD 1997 Karachi 119), the order of registration of third F.I.R. was passed by the Sindh High Court which was maintained by the Hon'ble Supreme Court in the case of Wajid Ali Durani and another v.
Government of Sindh and others (2001 SCM R 1556). In a latest judgment reported as Muhammad Bashir v. Station House Officer Okara Cantt. and others (PLD 2007 SC 539), it has been categorically held that if the application of the aggrieved person discloses commission of a cognizable offence, then there is no option for the Court but to pass a direction for the registration of the case. In another case reported as Allah Ditta and 3 others v. The S.H.O., P.S. Basirpur, District Okrana and .3 others (PLD 1983 Lahore 300) the parameters/guidelines for registration of second F.I.R. were laid down by holding as under: 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, 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 allegation of a cognizable case are levelled showing a genuine grievance, then the aggrieved party is entitled to have a case registered and investigation made. These observations are just guidelines."
12.A perusal of the case-law available on the subject would reveal that if a distinct and separate cognizable offence is disclosed, and no factual inquiry is or trial can be held without properly appreciating and considering the two versions, then another F.I.R., has to be registered. The only impediment to the said recourse is that the second F.I.R. should hot be a mere amplification of the first version.
13. Consequently, the petition in hand is accepted and Respondent No. 5, who is present in person before this Court, is directed to register a case on the written application of the petitioner within two days.