NISAR HUSSAIN KHAN, J.---By way of Writ Petition No,28-B and Writ Petition No,29-B of 2012, petitioners Rehman Gul and Asal Jan Khan, seek issuance of a writ to District Police Officer, Bannu and SHO Police Station Bakka Khel District, Bannu, directing them to register a case against respondents Nos.4 to 8, for committing the qatl-e-amd of Zar Wali Jan and effectively firing at petitioners Asal Jan Khan and A Rehman Gul as well as Mir Mehmood and Mumtali, and in pursuance thereof, they be dealt with in accordance with law. While in Writ Petition No,169-B of 2012, filed by petitioners Azmat Ali DSP, Bannu etc, they seek setting aside of the order of learned Judicial Magistrate Bannu, dated 3-3-2012, by declaring the same as illegal and without jurisdiction.
2. All the three petitions, emanate from the same incident and common question of law and fact is involved, therefore, are going to be decided through this common judgment.
3. The succinct facts leading to filing of these petitions are that, on the basis of murasila of Muhammad Rukhsar Khan SHO, F.I.R. No,78 was registered, at Police Station Bakka Khel, on 3-12-2011.
As per contents of F.I.R. Muhammad Rukhsar Khan SHO, on receipt of information about the presence of Proclaimed Offenders Noor Sala Jan, Rashid Khan, Pir Dad sons of Boghar, Mir Khawas, Shah Baraz sons of Mashal Khan, all residents of Bakka Khel, wanted in F.I.R No,117 of 2009, registered under sections 302/324/435/34, P.P.C., at Police Station Bakka Khel, in their houses, rushed to raid their sanctuary, in company of Muhammad Saleem S.I., Israr Khan DFC and other police contingent.
When they reached near their houses, all the Proclaimed Offenders came out and tried to flee away, who were followed, but they entered in the house of one Zar . Jan son of Mir Ali Jan alias Miral. On reaching of the police pawalirty near the said house, all the P.Os, along with so many other persons, came out from the house and started firing at the police party: Similarly, people from the other houses also came out and joined hands with the P.Os, in firing. The police party, in retaliation, made firing in their self-defence for arrest of the accused. The cross-firing continued for some time and in the meanwhile more police contingent in aid, reached the spot. Accused Rehman Gul and Waheed sons of P.O. Noor Sala Jan, were arrested at the spot. From possession of accused Waheedullah, a Kalashnikov No,310816 along with bandolier, having two chargers, containing 15 live rounds and from possession of accused Rehman Gul, a Kalashnikov bearing No,220614 with fitted magazine, containing 3 live rounds, were recovered. Both the Kalashnikovs were giving smell of fresh discharge. Similarly, a Kalashnikov No,182622, giving smell of fresh discharge, along with bandolier, having two magazines, containing 22 live rounds, was taken into possession from nearby the dead body of Zar Wali Jan. A live hand-grenade, was also recovered from the same area. It was informed that Asal Jan son of Mir Alam Jan and Mir Mehmood son of Serak who decamped from the spot, were also injured. It is alleged in the F.I.R. That circumstances suggest that Zar Wali Jan deceased and injured accused, sustained injures with the firing of their companions. The firing of accused also caused damage to police mobile vehicle and official Kalashnikov.
4. Asal Jan and Rehman Gul, being charged in the above-mentioned F.I.R., were arrested, and on the same date, their reports were also recorded in the same Police Station in same Daily diary. Asal Jan, in company of dead body of his deceased brother Zar Wali Jan, reported in civil hospital that on the day of,occurrence, he along with his brother Zar Wali Jan, Mir Mehmood Khan and Mamtali Jan, were proceeding towards Bannu Bazaar from their village. When they reached their fields, situated in Takhti Khel Bakka Khel, near their village, at 8-00 a.m., they were confronted with Azmat Ali Khan DSP, Rukhsar Khan SHO Police Station Bakka Khel, and Israr DFC, who started firing at them, wtth intention to commit their murders, as a result of which, his brother Zar Wali Jan, was hit and died at the spot, while he and Mir Mehmood sustained injuries, whereas, Mamtali Khan luckily escaped. That all this happened, on the direction of S.P. Bannu.
5. In the same daily diary, report of Rehman Gul son of Noor Sala Jan, aged about 13/14 years, was recorded with the allegations that he is a student of 6th class, in Oxford Public School Bakka Khel.
On the day of occurrence, when he left his house for school, at 8.30 a.m., Rukhsar Khan SHO Police Station Bakka Khel, made firing with his Kalashnikov at him, as a result of which, he sustained injuries on his foot and thighs and he fell on the ground, whereas, his brother Gul Faraz, luckily escaped. Injury sheet and inquest report of the deceased were prepared and sent to hospital for autopsy, under the escort of Races Khan Constable. The injured were also shifted to hospital and examined by the doctor.
6. It appears that on the reports of petitioners Asal Jan and. Rehman Gul, local police started investigation under section 156(3), Cr.P.C. Due to inaction of the local police on their reports, petitioner Asal Jan filed an application before the learned Justice of Peace for issuance of direction to the SHO concerned, for registration of F.I.R., which was dismissed on 4-1-2012, on the ground that learned Judicial Magistrate has already initiated an inquiry, in the matter. Whereas, the learned Judicial Magistrate, vide his order dated 3-3-2012, directed the SHO concerned Police Station to register the case as per contents of report in D.D. No,8 of 3-12-2011 of Police Station Bakka Khel.
However, petitioners Asal Jan and Rehman Gul had already filed Writ Petition 28-B of 2012 and 29-B of 2012, on 26-1-2012, after dismissal of their petition by the learned Justice of Peace.. Whereas, Azmat Ali Khan DSP Bannu and three others, have challenged the order of learned Judicial Magistrate dated 3-3-2012, in Writ Petition No,169-B of 2012. In this common backdrop of the facts of all the three petitions, these are going to be decided vide this common judgment, as mentioned above.
7. Learned counsel for the official respondents in Writ Petition No,28-B and Writ. Petition No,29-B of 2012, who are petitioners in Writ Petition No,169-B, raised preliminary objection on maintainability of both the writ petitions on the ground that these are not maintainable as alternate remedy of complaint by virtue of Chapter-XVI of the Cr.P.C., C is available to the petitioners, which is not only adequate, but efficacious, as well. By arguing the case on merits, learned counsel contended that petitioners are trying to counterblast the well-founded F.I.R No,78, registered against them. He maintained that mala fide of the petitioners, is deducible from the fact that they have approached the learned Judicial Magistrate for registration of F.I.R, but that fact has been concealed in their writ petitions from this Court. He maintained that there is no complaint available on the record to indicate that it was filed before the SHO, who did not entertain it due to which petitioners filed petition before the learned Justice of Peace and then writ petitions before this Court. Hence, he prayed for dismissal of both the petitions
8. Conversely, learned counsel for petitioners Asal Jan and Rehman Gul contended that petitioners have not filed any application before the learned Judicial Magistrate, rather it was an inquiry under section 156(3), Cr.P.C., tnitiated by the police at their own, on the basis of which, learned Judicial Magistrate, passed an order for registration of the F.I.R. He maintained that both the petitioners have lodged two reports, which were recorded in the same D.D. Wherein, the time of occurrence in both, is different. He maintained that medical reports of Rehman Gul, Asal Jan and Mir Mehmood and post-mortem report of Zar Wali Jan, are reflective of the fact that how the respondents have dealt ' with the petitioners and their family. Learned counsel maintained that it was incumbent upon the SHO Police Station to register F.I.R, in compliance with the command of section 154 Cr.P.C., when a cognizable offence was reported to him; that his inaction in this regard is violative of the statutory provision. The SHO has failed to discharge his legal obligation and has defied the law.
Thus, he be directed to register the case against the respondents.
9. Learned counsel for the respondents while responding to the arguments of the learned counsel for the petitioners argued that respondents have performed their official duties, so their acts are protected under sections 76 and 80, P.P.C.
10. We have heard the extensive arguments of the learned counsel for the parties and have gone through the record with their valuable assistance.
11. Admittedly, the respondents raided the houses of petitioners, on 3-12-2011, as they have not disputed the same. The other admitted fact is that, Zar Wali Jan lost his life and petitioners Asal Jan and Zar Gul, sustained injuries along with one Mir Mehmood, during the same incident. The stance of the respondents is that they raided the houses of petitioner for arrest of the Proclaimed Offenders, wanted in some criminal cases and during the raid, petitioners along with Proclaimed Offenders, made firing at them, in retaliation to which, the police party also made firing in their self- defence. But it is strange that not a single scratch was caused to any member of the raiding party by the alleged firing of the petitioners or any of the alleged Proclaimed Offenders. On the other hand, one Zar Wali Jan was killed and three persons sustained fire-arms injuries from the petitioner's side. Post-mortem report of Zar Wali Jan deceased is available on the record, according to which, there was one fire-arm entry wound below his right scapula on the back and one fire-arm entry wound on his left arm. Injury No,1 caused amage to both lungs, spinal cord and major blood vessels, which resulted into excessive bleeding and caused the death of the deceased. Petitioner Asal Jan, sustained one fire-arm entry wound on his chest, one inch above the left clavicle, which caused exit on his left shoulder. The seat of injury of Asal Jan, is such that, had there been a slight shift in the seat of injury, it would have proved fatal. According to Medico-Legal Report of petitioner Rehman Gul, he has one fire-arm entry wound on left thigh, causing exit on the same medially, whereas, one firearm lacerated wound on his right thigh posterior. Similarly Mir Mehmood has one fire-arm entry wound on posterior laterally, causing its exit. Post-mortem report of deceased and Medico-Legal Reports of the injured, indicate that how the police party has raided the houses of the petitioners.
12. Learned counsel for the respondents has sought protection of sections 76 and 80, P.P.C., which are reproduced for convenience hereinbelow:-- S. 76 Act done by a person bound, or by mistake of fact believing himself bound, by law:---Nothing is an offence which is done by a person who is, or who by reason of mistake of fact and not by reason of a mistake of law in good faith believes himself to be, bound by law to do it. S.80 accident in doing a lawful act:---Nothing is an offence which is done by accident or misfortune, and without any criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution.
' The plain reading of section 76, P.P.C., indicates that an act of a person will not be an offence which is done by mistake of fact and not by reason of mistake of law in good faith for which he believes to be bound by law to do it. The theme of the ibid section has been elaborated through illustration. The respondents have not taken any such plea that they have acted under the command of law by the order of their superior. Besides that it is a mixed question of law and fact, which may be raised during investigation and proved at the trial and cannot be decided summarily, in writ jurisdiction. Likewise. Section 80, P.P.C. Enunciates immunity from an offence which is done by accident or misfortune, in doing of a lawful act, in a lawful manner, by proper means and proper care and caution. The exception provided under this section is also a mixed question of law and fact, which can only be resolved by the trial Court, after recording evidence. As, both these sections provide protection in particular circumstances and those facts and circumstances, are yet to be established by the respondents. Hence, this objection of the learned counsel for the respondents is not tenable.
13. So far as the preliminary objection the learned counsel qua the maintainability of the writ petition on the ground of availability of alternate remedy is concerned, it is not sustainable in view of peculiar circumstances of the case. The narration of facts discussed above, vividly suggest that although, the allegation has been made by the SHO against the petitioners and deceased that they have made firing on the police party, but none from the raiding party has sustained a single injury. While all the injuries are on the, persons of the petitioners and his brother and one Zar Wali Jan has lost his life in the same incident. F.I.R. No,78,, has also been registered against the petitioners and they are lodged in Jail for murder of their own brother, in the said F.I.R., on the report of SHO. While, reports of Asal Jan and Rehman Gui, have not been considered.
14. Section 154, Cr.P.C., casts a statutory obligation on the SHO concerned Police Station to register the case in a cognizable offence, when reported to him. He has no discretion to refuse registration of case on such report or keep it pending for an indefinite period. Whereas, in the instant case, Asal Jan reported the matter about the murder of his brother Zar Wali Jan and injuries caused to him and Mir Mehmood Khan. Similarly, Rehman Gul also lodged report about injuries caused to him by the firing of the respondents. Although, F.I.R. No,78 was registered with regard to the same occurrence, but that was the version of the police suitable to them. No F.I.R. Has been registered on the report of the aggrieved party. There is no bar on registration of second F.I.R., in respect of different version, given by the aggrieved party about the same occurrence. There are cases in which second F.I.Rs, have been registered on the report of the same party, but with some different versions. Whereas, in the instant case F.I.R was registered on the report of the SHO Police Station Bakka Khel wherein, the petitioners have been charged as accused, but on their reports, no action has been part of the police The SHO was bound to register the F.I.R. On the taken by the police, which is clear defiance of command of law, on the reports of petitioners, but he has failed to discharge his legal obligation. It is the fundamental right of every citizen to have a protection of law and to be treated in accordance with law. Although, petitioners have got the remedy of filing a private complaint, but they have equally got the right for redressal of their grievance by State sponsored investigation and prosecution of the case. There is no justifiable reason for which the petitioners be pushed to file complaint, instead of seeking aid of State Institutions for prosecution of their case.
15. Petitioners Asal Jan and Rehman Gul are seeking registration of two F.I.Rs,, by filing two separate writ petitions, on the basis of their reports. But circumstances suggest that all the injured and deceased sustained injuries during- the same episode of raid and consequential firing. Although, report of Rehman Gul, depicts the time of occurrence 30 minutes later than that of Asal Jan, but facts of the case transpire that the whole process of occurrence might have consumed this much time. His grievance may be redressed in the same by recording his statement as P. W. When three offences of the same kind, within one order, may be charged and tried at one trial against the same accused by virtue of sections 234 and 239, Cr.P.C., then registration of one F.I.R., can serve the purpose with regard to an offence committed by the same accused, during the same episode, within a span of 30 minutes, at the same place of occurrence. Thus, there is no need for registration of separate F.I.R. For the report of Rehman Gul. The accused can be, charged for the injuries caused to Rehman Gul in the same F.I.R.
16. The petitioners have filed these petitions against the order of learned Justice of Peace, whereby, their applications for registration of case were turned down on the ground that inquiry before the learned Judicial Magistrate is under way, so after any adverse order passed by the learned Judicial Magistrate, they may approach the learned Justice of Peace, afresh. There is no statutory provision which may empower the Judicial Magistrate for issuance of the direction to the. SHO for registration of case. But as against that, the Justice of Peace has been vested with the jurisdiction by virtue of section 22-A(6)(b), Cr.P,C. For' issuance of such direction. In view of the statutory command, the Justice of Peace was on higher padestal than that of the Judicial Magistrate, being armed with statutory powers. It was her legal obligation to issue a direction for registration of the case, without waiting for the order of Judicial Magistrate, who had no such statutory powers to direct the SHO for registration of the case. There is some case law on the point that the Magistrate can direct the SHO for registration of F.I.R., but in the instant case, the order of Justice of Peace, is under challenge in both these writ petitions and we, have found it to be unwarranted and unlawful and by declaring as such we are going to direct the SHO for registration of the case. So, in the circumstances, the impugned order of Judicial Magistrate dated 3-3-2012, is set aside.
17. For the reason discussed above, we direct respondent No,3 SHO Police Station Bakka Khel to register the case against respondents as per report of Asal Jan recorded on 3-12-2011, for murder of Zar Wali Jan and injuries caused to the P.Ws., including petitioner Rehman Gul, who would be cited as witness in the F.I.R. We would further direct to send the case for investigation to the Crime Branch, after its registration which should investigate the case fairly and justly without any fear or favour so that the aggrieved party may not feel incensed.
17. With these observations, W.P. No,28-B and W.P. No,169-B of 2012, are accepted, whereas, W.P.
No,29-B, is disposed of.