1. IJAZ AHMAD, J.---This judgment will decide Writ Petitions Nos.2199, 2712 of 2009 and 5279 of 2010.
2. The comments sought from the respondents have already been received. The parties are ready to advance the arguments. These cases will be treated as Pacca cases.
2. Before adjudicating upon the Writ Petition No.2199 of 2009, we would like to deal with the miscellaneous applications.
3. C.M. No.1044 of 2010 seeking permission to place on record certain documents and C.M. No.1045 of 2010 seeking exemption from production of certified copies are allowed subject to all just and legal exceptions. The C.Ms. Stand disposed of.
4. C.M. No.1504 of 2011 seeking permission to place on record certain documents and C.M. No.1505 of 2011 seeking exemption from production of certified copies are allowed subject to all just and legal exceptions. The C.Ms. Stand disposed of.
5. C.M. No. 2267 of 2010 C.M. No. 2719 of 2010. Praying for putting the respondents on Exit Control List are dismissed.
6. C.M. No. 2720 of 2010 Seeking exemption from production of certified copies is allowed subject to all just and legal exceptions. The C.M. Is disposed of.
7. C.M. No. 1304 of 2009 C.M. No.1391 of 2009 No order need be passed on these C.Ms. The same are dismissed.
8. C.M. No.118 of 2010 C.M. No.120 of 2010 C.M. No.126 of 2010 These applications are for setting aside the ex parte proceedings. The said respondents have joined the proceedings from the stage when they were ordered to be proceeded ex parte. The petitions have become infructuous. No order need be passed. Dismissed.
9. C.M. No. 138 of 2010 is being dealt with through Cr. Org. No.151-W-10. No separate order need be passed on it. The DPO shall ensure the safety of the petitioner and his learned counsel as long it is required.
10. C.M. No. 139 of 2010 seeking exemption from production of certified copies is allowed subject to all just and legal exceptions. C.M. Stands disposed of.
11. C.M. No. 3126 of 2010 C.M. No. 3127 of 2010 No adjudication is required on these applications for the reasons recorded in the main petitioner.
3. Mohtarma Benazir Bhutto Shaheed reached Pakistan amids the tribulation and violent conditions when General (Retd.) Pervez Musharraf, the then President of Pakistan was flickering his last. During an election rally, she was assassinated on 27-12-2007, at Liaqat Bagh, Rawalpindi. F.I.R. No.471, dated 27-12-2007, under sections 302/324/ 335/336/120-B, P.P.C. And sections 4/5 of Explosive Substances Act, 1908 was registered at Police Station City, Rawalpindi at the instance of Kashif Riaz, Inspector/SHO, Police Station, City, Rawalpindi. Section 7, ATA 1997, was added later on.
4. Learned counsel for the petitioner contends that the petitioner was the Protocol Officer of Mohtarma Benazir Bhutto Shaheed; that the sad episode was the result of a conspiracy hatched inside and outside Pakistan. He alleges that respondents Nos.3 to 5 are the direct and principal beneficiaries of the death of Mohtarma Benazir Bhutto. She had in an e-mail dated 26-10-2007 declared General (Retd.) Pervez Musharraf-respondent No.3, her prospective assassin. According to the petitioner respondents Nos.3 to 8 hatched the conspiracy and respondent Nos.9 to 12 executed it. He made an application to the District Police Officer, Rawalpindi-respondent No.2 on 10-7-2009. It was presented to CPO, Rawalpindi-respondent No.1, same day. The application carried the reasons for delay in making the application. The case could not be registered. The petitioner's application kinder section 22-A, Cr.P.C. For registration of 2nd F.I.R., according to his version was dismissed vide the impugned order dated 22-8-2009.
5. Learned counsel for the petitioner further contends that State of. Islamic Republic of Pakistan is undergoing unprecedented tribulation. It is being targeted by its adversaries who want it to disintegrate; that the assassination of Mohtarma Benazir Bhutto Shaheed is another case of obliteration of the leader of a nation that occasions in cold-blood under the command of the super powers. He argues that if the criminal case according to his version is not registered, the real culprits would escape and would not be brought to justice; that on receipt of an application the police is bound to register a criminal case and the Justice of Peace is equipped with unfettered powers to order registration of a criminal case which in the instant case he has illegally declined to exercise. He places reliance on Dr. Inayatullah Khilji and 9 others v. Ist Additional District and Sessions Judge, (East) at Karachi and 2 others (2007 PCr.LJ 909) and Rafaqat Hussain Shah v. A.S.P.
12. Rawalpindi and 5 others (2004 PCr.LJ 1864).
13. He further contends that the registration of the 2nd F.I.R. is not barred under law and it will neither damage the prosecution case nor will hamper the trial and would rather help in the advancement of justice and would also support the case of prosecution. He further argues that where high tech weapons would have been used and intricately woven a net would have been employed, a private complaint would not be efficacious and alternative remedy available to the petitioner. He further argues that the availability of an alternate remedy does not constitute an absolute bar to invocation of writ jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan 1973. He places reliance on Muhammad Afzal v. Muhammad Ashraf and 15 others (1996 PCr.LJ 489), Mst. Allah Rakhi v. District Police Officer, Gujranwala and others (2009 PCr.LJ 569), Mst. Anwar Begum v. Station House Officer, Police Station Kalri West Karachi, and 12 others (PLD 2005 SC 297) and where, a new or a different version is put forth,. The 2nd F.I.R. Shall be ordered to be registered.
14. Relies on Muhammad Azam v. Inspector-General of Police, Islamabad and 2 others (PLD 2008 Lahore 103), Muhammad Asif v. Umar Farooq Khan, Inspector Police and 5 others (2010 MLD 128), Muhammad Azam v. Inspector-General of Police and 2 others (2008 PCr.LJ 428), Rana Ghulam Mustafa v. S.H.O. Police Station, Civil Lines, Lahore and 2 others (PLD 2008 Lah. 10), Muhammad Ilyas v. S.H.O. P.S. Baddomalhi District Narowal and 3 others (1997 MLD 1527), Imtiaz Ali v. District Police Officer and 10 others (2005 YLR 702), Turabul Hassan v. District Officer Revenue, Toba Tek Singh and 7 others (2006 YLR 61) and Mst. Malka Jan v. Inspector-General of Police, Peshawar and 2 others (2000 PCr.LJ 320).
6. On the other hand, it is contended by the learned Additional Advocate-General and the learned counsel appearing on behalf of respondents Nos.3 to 14 that the occurrence took place on 27-12- 2007 followed by a promptly lodged F.I.R. No. 471, on the same day. The petitioner made the application before the District Police Officer on 10-7-2009 i.e. After the elapse of almost one year and 7 months. The delay caused in taking the initiative mars the veracity of the petitioner's version; that a 2nd F.I.R. Even if permissible, can only be lodged where an altogether a new version is put up or in case of a cross version; that the petitioner .Is neither a legal-heir nor an attorney or a person acting as a State functionary, therefore, he is not an aggrieved person and the F.I.R. Cannot be registered at his instance; that the instant application is motivated by extraneous consideration; that the deceased is survived by a well placed sister, the husband who is the President of the Federation of Pakistan, a son who is the Chairman of the party and two daughters. In the presence of the above-said legal-heirs, who are satisfied with the version of the complainant recorded in the first F.I.R., with the investigation conducted and with the trial of the case, the present petitioner is not entitled to have the 2nd F.I.R. Lodged. The present petitioner has no nexus with the case and is not competent to prefer the instant Constitutional petition. Further argues that after the commencement of the trial, there is no justification for recording the 2nd F.I.R. And that High Court is under no obligation to order registration of 2nd F.I.R.. Reliance is placed on Jamshed Ahmad v.
15. Muhammad Akram Khan and another (1975 SCMR 149), Allah Ditta and 3 others v. The SHO, Police Station Basirpur, District Okara and 3 others (PLD 1987 Lahore 300), Malik Muhammad Aslam v.
16. Station House Officer, Police Station, Saddar, Sargodha and 2 others (PLD 1981 Lahore 138), Wali Muhammad and 4 others v. The State and another (1985 PCr.LJ 1342) and Kaura v. The State and others (1983 SCMR 436).
7. We have heard the learned counsel for the parties and have also gone through the record.
8. Regarding the information about the commission of a cognizable offence there are two corresponding provision of law criminal procedures codes section 44, Cr.P.C. Postulates that every person aware of commission of any offence punishable under the Sections mentioned therein shall forthwith give information to the police officer of the commission of the offence. This is the duty of every person, which the petitioner has assumed to himself. Section 154, Cr.P.C. Provided that every information given orally or in writing relating to the commission of a cognizable offence shall be entered in the book to be kept by such an officer. These corresponding duties need not be debated.
17. The petitioner has done his duty and the police officer on the other end has registered a criminal case on the same day at the behest of Kashif Riaz, Inspector of Police Station City, Rawalpindi. Both these sections are purported for setting the criminal law into motion and to furnish the legal basis for conducting the investigation in case of commission of a cognizable offence. It furnishes a clue to the possible truth. The F.I.R. Recorded in consequence of receipt of information has an evediantry valueit may be used for the purpose of contradiction under Article 140 and for the purpose of corroboration under Article 153 of the (ianun-e-Shahadat Order, 1984.
9. The questions that need be resolved are; whether in the circumstances the 2nd F.I.R. Should be ordered to be registered by this Court or not; whether the fi mg o a pnvate comp amt wan d be efficacious and alternate remedy and would, thus, bar the invocation of constitutional jurisdiction of this-Court; whether the petitioner is anaggrieved person and competent to pray for issuance of the writ and whether atter the commencement of the trial the registration of 2nd F.I.R. Could be ordered or not?
10. Earlier there was a view that a 2nd F.I.R. Regarding the same incident could not be registered and High Court in exercise of its Constitutional jurisdiction should not pass such an order. Their lordships in Privy Council in Emperor v. Kh. Nazir Ahmad (AIR 1945 PC 18) were of the view that the polite if on account of any knowledge or information believed that a cognizable offence had been committed, could of their own motion undertake investigation into the case. Setting the criminal law into motion did not need the recording of an F.I.R. Thus, in the instant case the recording of the 2nd F.I.R. Becomes unnecessary to reach the possible truth which, the petitioner has in his armpits.
18. In Sadiq Masih's case (1994 PCr.LJ 295), this Court declined to issue directions for registration of 2nd F.I.R., even based on cross-version and it was held that even both the parties could be challaned without registration of the 2nd F.I.R.. This stringent view was departed in circumstance where a new case was made out showing a genuine grievance. The registration of 2nd case was ordered in Muhammad Latif v. SHO (1993 PCr.LJ 1992). Recording of cross-version was ordered in Abdul Ghani v. SHO Police Station Saddar, Sheikhupura and others (1983 PCr.LJ 2172). Same view was adopted in Shahid Hussain v. S.P. (1986 MLD 1155), Ghulam Hussain v. Sirajul Haq (1987 PCr.LJ 1214) and Muhammad Ilyas v. SSP (1989 PCr.LJ 1129. A very important case where a 2nd F.I.R. Was ordered to be registered is reported as Mrs. Ghanwa Bhutto and another v. Government of Sindh and another (PLD. 1997 Karachi 119) on account of assassination of Mir Murtaza Bhutto and Ashiq Hussain Jatoi.
19. Two F.I.Rs. Were registered; one at the instance of police officer, whom the petitioner's widows suspected of being an accused and the other at the instance of the private servant of the deceased. The 3rd F.I.R. Was ordered to be registered at the instance of both the widows. This judgment passed by the learned Sindh High Court was challenged before the august Supreme Court of Pakistan. In judgment reported as Ward All Khan Durani v. Govt. Of Sindh and others (2001 SCMR 1556) their lordships were pleased to dismiss the petition and uphold the judgment passed by the Hon'ble Sindh High Court. Similar was the view taken by the lordships in Mst. Anwar Begum v.
20. Station House Officer, -Police Station Kalri West, Karachi and 12 others (PLD 2005 SC 297). In cases Abdul Ghani, (supra), Muhammad Anwar Sub-Inspector Railway Police Lahore v. SHO Railway Police Kasur and 2 others (PLD 1999 Lah. 50) and Mst. Allah Rakhi v. DPO, Gujranwala 5 others (2009 MILD 99), registration of case was ordered in the circumstances that made out distinct or separate offences. The ratio of all these judgments is that the 2nd F.I.R. Carrying a distinct version and not the amplification of earlier one may be ordered to be, registered. Reliance may be placed on Muhammad Azam v. Inspector-General of Police, Islamabad and 2 others (PLD 2008 Lahore 103) and Rana Ghulam Mustafa v. Station House Officer, Police Station Civil Lines, Lahore and 2 others (PLD 2008 Lahore 110) and Ahmad Yar v. SHO Shah Kot and 8 others (2007 PCr.LJ 1352).
11. Coming to the instant case we are of the view that the petitioner has been unable to make out a distinct and separate version. He does not dispute the place of occurrence or the occurrence itself.
21. He wants to set forth a version regarding the manner in which the incident took place. It is in fact the supplementation and amplification of the version recorded earlier.
12. The courts have always been insisting and emphasizing on recording of prompt F.I.R. The promptness in furnishing the information, when memory is fresh envisages and carries the presumption of truth. The delay caused in it hints at premeditation, consultation and combination.
22. The petitioner claims that he was the security officer of Mohtarma Benazir Bhutto that the respondent unequivocally deny. He claims to be present at the time of occurrence that took place on 27-12-2007 but he made the application before the respondent DPO on 10-7-2009. The reason for delay that he mentioned in the last page of his application before the District Police Officer is that he was watching the stand of the Federal Government and waiting for the opportune moment, when to jump in. The perusal of written reply submitted by the CPO, Rawalpindi in application under section 22-A, Cr.P.C. Before the learned Justice of Peace transpires that the petitioner had never associated himself with the investigation of the case, although a special investigation team headed by Additional Inspector-General, Punjab, investigated the case for several days.
13. The petitioner, if so advised may file a private complaint under section 200, Cr.P.C. Which is one of the modes of taking cognizance of an offence by the Magistrate. A private complainant is an alternative and efficacious remedy and the Magistrate seized of the complaint may inquire the matter himself or may direct an inquiry to be conducted by the Justice of Peace or by a police officer. Reliance is placed on Ahmad All v. The State (2007 PCr.L. 372), Malik Muhammad Aslam v.
23. SHO, Police Station Saddar, Sargodha and 2 others (PLD 1981 Lahore 138) and Sadiq Masih v. SHO and others (1994 PCr.LJ 295).
14. Thus, we are of the opinion that the application under section 22-A, Cr.P.C. Made by the petitioner has rightly been dismissed by the learned Justice of Peace through the impugned order, which suffers from no illegality. The instant petition stands dismissed.
15. W.P. No.2712 of 2009:---The petitioner has sought that the investigation of the criminal case F.I.R.
24. No.471, dated 27-12-2007, Police Station City, Rawalpindi, entrusted to FIA vide order dated 6-8- 2009 passed by the Deputy Secretary, (FIA) Government of Pakistan, Ministry of Interior, be re- entrusted to the Punjab Police. As the petitioner has in W.P. No.2199 of 2009 been held not to be an aggrieved person wherein he has been refused the relief of lodging of an F.I.R. According to his version, this petition also merits to be dismissed. He has no concern whether the investigation of the case is conducted by the FIA or the Punjab Police. Moreover, the challan has been submitted and the trial has commenced. This petition has become infructuous and is hereby dismissed.
16. W.P. No.5279 of 2010: Since the main petition has been decided, this petition seeking an order directing respondents Nos.1 and 2 to prohibit the respondents Nos.3 to 14 from proceeding out of Pakistan to any destination also stands dismissed as the petitioner is not an aggrieved person and, is held not competent to file the petition.
25. (Sd)/- (Sd)/- (Sagheer Ahmad Qadri) (Ijaz Ahmad)
26. (Sd)/- (Ch. Muhammad Tariq)
27. SAGHEER AHMAD QADRI, J.---I have the honour to avail an, opportunity to go through the judgment recorded by my learned brother (Ijaz Ahmed, J.). I agree with the conclusion drawn whereby Writ Petition No. 2199 of 2009 is dismissed as not maintainable as petitioner Ch. Muhammad Aslam was found not an aggrieved person hence his application under sections 22-A, 22-B, Cr.P.C. Moved before the learned Justice of Peace was rightly found not maintainable thus this writ petition was dismissed. I, however, with utmost respect would like to disagree with paragraph 13 of the judgment recorded by my learned brother whereby it was left open for petitioner Ch. Muhammad Aslam that if so advised, he may file a private complaint under section 200, Cr.P.C. Which according to my learned brother is one of the modes of taking cognizance of an offence by a Magistrate as effective and efficacious remedy. No doubt under section 154 of Criminal Procedure Code in case of a cognizable offence it is obligatory on the Station House Officer of a police station in case any such information is parted to him to reduce the same into writing while .Recording the statement of the informant and then proceed further in the investigation in accordance with law. The complainant/aggrieved person or any person can lodge any such report with the S.H.O. Concerned and in case no such action is initiated under section 200, Cr.P.C. Such information could be brought into notice of Area Magistrate with a view to initiate action against the person involved in commission of any such offence.
28. Learned counsel for the petitioner while arguing the writ petition before this Court referred section 44, Cr.P.C. As right from the beginning objection was raised from the opposite side that petitioner Ch. Muhammad Aslam being not an aggrieved person his application under sections 22-A, 22-B, Cr.P.C. As well as the writ petition in hand on that score was not maintainable. Learned counsel for the petitioner with reference to section 44, Cr.P.C. Argued that it was obligatory on a person/citizen if aware of the commission of the offences list of which is provided under section 44(1), Cr.P.C. To inform the Magistrate, Justice of Peace or Policy Officer of commission of the offence or intention of a person who is about to commit any such offence. No doubt it is obligatory and in case of failure burden of proof lies on the person so aware about the commission of such offence or intention of any person to commit any offence. The person failing to do so, i.e. Not informing the Magistrate, Justice of Peace or Police Officer shall be liable to punish under offence as provided under section 176, P.P.C. But it does not mean that every person having such information about the commission of the offences mentioned in section 44(1), Cr.P.C. Automatically becomes the complainant or an aggrieved person.
29. Section 44, Cr.P.C. Falls under Chapter-IV, Part III of Criminal Procedure Code with the heading:-- "OF AID AND INFORMATION TO THE MAGISTRATES, THE POLICE AND PERSONS MAKING ARRESTS".
30. For that purpose reference can be seen in a judgment passed by the learned Division Bench of this Court cited as Lt. Dhara Singh and others v. Emperior (AIR 1933 Lahore 515) whereby it was observed:-- "It is well-established principle that S.176 is intended to apply to parties who commit an intentional breach of obligation to report and not where the public servant has already obtained the information from other sources. I may refer in this connection to Emperior v. Sashi Bhusan Chukrabutty (1) in which it was held that this section should not be put into force against one who has omitted to give information to the police of an offence having been committed in cases where the police have actually obtained such information from other sources as they undoubtedly did in the present case. It is remarked in that ruling that when once the information has reached the authorities concerned. It is not reasonable that every other person who may possibly be bound to give information should be prosecuted for not having done so. A police officer is no better off when he has half a dozen copies of the same report than when he has the first."
31. Thus inference can safely be drawn that in case if any such information is already present with the police or concerned authorities then it is not obligatory for a person in knowledge of any such information provided to such authorities and in case no such information is provided no action can be initiated under the penal provision. Thus inference can easily be drawn that a person who is in knowledge of any such information is obliged under section 44, Cr.P.C. To part with the information to the concerned authorities/public functionaries and then it is for them to further proceed in accordance with law for initiation of any action against the accused/person responsible for the commission of the offence.
32. No doubt ordinarily filing of private complaint in case if concerned police does not initiate action as required under section 154, Cr.P.C. In case of cognizable offence under section 200, Cr.P.C. Is taken as equally effective, efficacious remedy but while developing the argument on the basis of above mentioned elaboration the impact of section 44, Cr.P.C. Whereby it is only obligatory on a person having in his knowledge the commission of any offence to inform the concerned authorities for initiation of the action but is already mentioned mere having any such information a person cannot become a complainant/ aggrieved person. Thus in the peculiar facts and circumstances of the present case if petitioner Ch. Muhammad Aslam is allowed to file a private complaint under section 200, Cr.P.C. Then it will actually tantamount to open another door whereby the trial which has already been commenced on the basis of successive reports under section 173, Cr.P.C.
33. Submitted in case F.I.R. No.471 dated 27-12-2007 registered at Police Station City Rawalpindi under sections 302/324/435/436/120-B, P.P.C. Read with sections 4 and 5, ESA and section 7 of the Anti- Terrorism Act, 1997 shall automatically be hindered. Even otherwise if the petitioner who has already been declared not an aggrieved person is allowed to file the private complaint then, he has to prove his assertions/allegations through certain pieces of evidence which according to the records so far annexed with this petition arc not available with him. In a private complaint a Court/Magistrate is only obliged to get conduct an inquiry under section 202 by a police officer or any concerned person which exercise has already been done while conducting the investigation in the above mentioned criminal case on the basis of which successive reports under section 173, Cr.P.C. Have already been submitted in the trial Court. Therefore, I conclude that the writ petitioner Ch. Muhammad Aslam, Advocate being not an aggrieved person keeping in view the peculiar facts and circumstances of the case under reference is also not entitled to file any private complaint.
34. (Sd)/- (Sagheer Ahmad Qadri)
35. CH. MUHAMMAD TARIQ, J.---Learned counsel for the petitioner argued the case at a considerable length. The entire emphasis of learned counsel for the petitioner was the registration of second F.I.R.
36. Against the respondents. At this stage, this Court raised two legal objections about the locus standi of petitioner (i) as to how the petitioner is an aggrieved person as per provisions of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, (ii) that a prompt F.I.R. In respect of same occurrence was registered vide No.471 dated 27-12-2007 under sections 302, 324, 435, 436, 120-B, P.P.C. Read with sections 4/5 of The Explosive Substances Act and 7-ATA with Police Station City, Rawalpindi, in which not only the charge has been framed but also the statements of some of the prosecution witnesses have already been recorded and except few all the respondents are cited as accused, therefore, in the prevailing situation, how it could be ordered to register a second F.I.R.
37. In response to the queries of this Court mentioned hereinabove, learned counsel for the petitioner advanced his submissions at a considerable length and contended that where fundamental rights are infringed, existence of alternate remedy is not a bar to the maintainability of a writ petition AIR 1970 SC 870.
38. Jurisdiction of High Court to entertain writ petition in spite of alternate remedy is not affected where the authority has no jurisdiction or purports to usurp jurisdiction without any legal foundation AIR 1999 SC 22. Further contended that it is a fallacy to regard fundamental rights as a gift from the state to its citizens. Individuals possess basic human rights independent of any constitution by virtue of the basic fact that the are members of the human race. These fundamental rights are important as they possess intrinsic value. The constitution thus does not confer fundamental rights. It confirms their existence and gives them protection. One of the purposes of the constitution is to withdraw certain subjects from the area of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. Every right has a context. Every foundational value is put in the constitution as a fundamental right because it has foundational value. Apart from the principles, one has also to see the structure of the article in which the fundamental values are incorporated.
39. Fundamental rights are limitation on the power of the State. A constitution and in particular those parts of it which protect and which entrench fundamental rights and freedoms to which all persons in the State are to be entitled is to be given a generous and purposive construction and interpretation.
40. While considering the nature and context of fundamental rights, the court must not be too astute to interpret the language in a literal sense so as to whittle them down. The Court must interpret the constitution in a manner which would enable the citizens to enjoy the rights, guaranteed by it in the fullest measure AIR 1962 SC 305.
41. One question which haunts the minds of every Pakistani since 21-12-2007 is that who killed Mohtarma Benazir Bhutto?
42. We have approached this Hon'ble Court with this writ petition with the belief that by ordering for the registration of second F.I.R. Of the said occurrence as per the version of the petitioner, this Hon'ble Court would set the law in motion in the right direction, which would in the final analysis bring several of Pakistan's leading figures who have cause to benefit from her removal and have yet not even been questioned about the assassination, before the Courts to face trial.
43. The key person who stood to gain from Bhutto's death was respondent No.3 i.e. Pervez Musharraf.
44. With Bhutto's death a key election rival was conveniently out of the way. General Musharraf's colleagues were responsible for the killing of two democratic, secular and Anti-Taliban leaders from the Pakistani Province of Balochistan. The Former Governor and Chief Minister, Nawab Akbar Khan Bugti was assassinated in 2006 and Mir Balaa'ch Marri was removed in November, 2007.
45. These murders are evidence of the fact that Musharraf and his political and other colleagues are capable of the assassination of political opponents. The Hon'ble Chief Justice of the High Court of Balochistan has ordered the registration of an FIR of the murder of Nawab Akbar Khan Bugti against General Musharraf and others.
46. Of course Musharraf (respondent No.3) was not the only person to gain from the assassination, the other two main beneficiaries were respondent No. 4, i.e. Brigadier Ejaz Shah and respondent No.5 i.e. Ch. Pervez Elahi, besides others.
47. In this respect learned counsel for the petitioner referred the case law in support of his contentions and prayed that as per prayer, a Second F.I.R. Be ordered to be registered against the respondents, delay in filing of writ petition be condoned in the peculiar circumstances of the case and petitioner be also provided adequate security.
48. Conversely learned Senior Counsel Dr. Khalid Ranjha commenced his arguments on behalf of respondents who not only controverted the arguments of learned counsel for the petitioner to the extent of registration of second F.I.R. But also supported the objections raised by this Court about the maintainability of writ petition and formulated his arguments as under:--
(i) That the petitioner has filed the instant writ petition after a delay of one year, six months and twelve days of occurrence while the other F.I.R. No.471 of 2007 was promptly lodged. The matter was investigated by the local police, a number of Joint Investigation Teams including a Team from United Nations. Thereafter the charge was framed and trial is in progress. Further contended that most of the respondents of instant writ petition are already facing trial, therefore, at this stage, registration of second F.I.R. Is not warranted under the law.
(ii) While arguing on the question of locus standi, learned Senior Counsel vehemently argued that the petitioner though is a stanch supporter of Pakistan People Party who also claims that he remained as Protocol Officer of Mohtarama Benazir Bhutto but still he could not be termed as an aggrieved person, particularly when the husband of Mohtarama Benazir Bhutto is sitting President of Pakistan and her son is sitting Chairman of Pakistan People Party.
49. Learned Senior Counsel in support his arguments relied on the law referred as and prayed that writ petition be dismissed.
50. The other learned counsel for the respondents have adopted the arguments advanced by the Senior Advocate Dr. Khalid Ranjha and have fully supported the queries raised by this Court.
51. We have heard the arguments of learned counsel for the parties and perused the record.
52. Registration of second F .I.R. Regarding the same occurrence is not barred under the law if a distinct and separate cognizable offence is disclosed, or if the complainant or an aggrieved person differs from the contents of F.I.R. On the ground that police did not record the story narrated by him.
53. In appropriate cases, disclosing a cognizable offence, a second F.I.R. Is not barred particularly in cases of counter versions.
54. In the present case, a prompt F.I.R. Was lodged under the relevant sections with Police Station City, Rawalpindi. The matter was investigated by the local police, a number of Joint Investigation Teams including an Investigating Team from the United Nations. The husband of Mohtarama Benazir Bhutto is sitting President of Pakistan and real son is Chairman of Pakistan People Party who is not only highly educated but foreign qualified. None of them neither objected the contents of F.I.R. Of they questioned the result of investigation. Similarly, other family members of Mohtarama Benazir Bhutto also by their conduct showed satisfaction on the result of investigation. At present , when the trial has commenced, charge has been framed and statements of some of the prosecution witnesses have already been recorded, order for registration of second F.I.R. Is not warranted under the law particularly in the scenario that the petitioner filed the instant writ petition with a delay of one year, six months and twelve days. It is worthwhile to mention here that except few, most of the respondents of writ petition are already facing trial. The proper course for the petitioner is to associate himself with the proceedings already pending before the learned trial Court.
55. Further ipse dixit of police is not binding on the Court. The investigating agency has the only duty to collect the evidence and place before the Court. Investigating agencies have no authority whatsoever to give finding regarding guilt or innocence of an accused person under the provisions of Criminal Procedure Code or Police Order, 2002. It is the only prerogative of Court to give finding after recording of evidence and statement of an accused regarding guilt or innocence of accused person. Deciding a case on the finding of investigating agencies tantamount to delegate powers of Court to investigating agencies. The matter in hand due its peculiar circumstances was already investigated and re-investigated by so many Investigating Teams when the law does not recognize successive investigations and expressed its disapproval of this system altogether.
56. The occurrence had taken place on 27-12-2009 and a sufficient period had already lapsed. The petitioner could had initiated criminal proceedings by lodging a private complaint, which could provide an equal efficacious relief but the petitioner has not adopted that course too, so, in the circumstances, registration of second F.I.R. Could not be ordered.
57. Before parting with this judgment the provisions of Article 199(1)(a) are important to be interpreted which provide that "on the application of any aggrieved party, a High Court may, if it is satisfied that no other adequate remedy provided by law, make an order.
58. Aggrieved party has been defined in "Black's Law Dictionary" Fifth Edition as under:-- "Aggrieved party means one whose legal right is invaded by an act complained of or whose pecuniary interest is directly affected by a decree or judgment. One whose right of property may be established or divested. The word "aggrieved" refers to a substantial grievance, a denial of some personal or property right, or the imposition upon a party of a burden or obligation".
59. The perusal of above definition highlights that the petitioner does not fall within the definition of aggrieved party.
60. There is no cavil, that not only the members of Pakistan People Party but all the citizens of Pakistan irrespective of their affiliation with Political Parties was badly hurt from the assassination of Mohtarma Benazir Bhutto. This Court highly respect the emotions of petitioner and all those citizens of Pakistan whose feelings and sentiments were badly injured from this incident but still the petitioner cannot claim himself as an aggrieved party, therefore, this writ petition is not