1. ' HABIB-UR-REHMAN SHAIKH, J.-- Applicant Mst. Imam Khatoon Sial has filed this application after dismissal of her Application under section 22-A&B, Cr.P.C. By the learned Justice of Peace/Ist Additional Sessions Judge, Sukkur vide Order dated- 12-7-2012 in which it is observed as under:-- "Admittedly the sons of applicant A.S.-I. Mehkumuddin and Sadam both sons of Nadir Ali Siyal have been involved and confined in jail in this murder case of deceased Sardar Khatoon and this applicant in order to save her sons appearing filed this application to put the burden on husband of deceased and save her sons from the clutches of law".
2. ' The applicant has moved the application, in which it is stated as under:- "That on 23-5-2012 the daughter of the applicant contacted with her on Mobile phone and asked her to come on 24;5-2012 at the honourable High Court of Sindh, Bench at Sukkur and to meet with her for settlement. That on 24-5-2012 the applicant could not reach during Court hours, with the result, the applicant enquired from her daughter and she asked her to come near Ayoub Gate, Gate-Way hotel.. However, the applicant along with P.Ws Altaf Ahmed and Saindad Siyal reached there.. Both P.Ws remained outside the hotel while applicant went inside the hotel and took meal with her daughter. The applicant asked her daughter to meet her first husband Altaf Ahmed who also came and if she will say few words that she will not reside with her, they will go back and matter will be solved and dispute if any will be ended here. That after hearing these words the proposed accused No,1 who was accompanied with the remaining accused persons who also came with him for their protection with weapons, the proposed accused No,1 lost his temper and said that as to why the applicant had brought first husband of Mst.Sardar Khatoon and after marriage with him she is only his wedded wife. Mst.Sardar Khatoon said to him that there is no harm if she will meet with her first husband and will say that now she has no concern with him, upon which the proposed accused No, I. Said that you (Mst.Sardar Khatoon) is now declared Kari.
3. That as soon as they came out from the hotel, it was about 6-30 p.m. The proposed accused No,5 who was empty handed instigated the remaining accused not to spare Mst.Sardar Khatoon as she is Kari with the result, the proposed accused Attaullah and Ubedullah armed with pistols made straight fires upon Mst.Sardar Khatoon which hit her and she fell down on the ground but upon her cries her first husband P.W. Altaf Ahmed and Saindad accompanied with him gave challenge to them not to kill her; upon which the remaining accused Rafique and Nasarullah who were standing outside the hotel as their guards of them also opened fires which hit to Attaullah who also sustained fire arm injuries. Thereafter all the proposed accused ran away from the spot in two white colour Cars. That the applicant raised hue and cries upon which several persons gathered at the spot so also police came and removed the dead body of Mst.Sardar Khatoon so also injured Attaullah for medical examination, treatment, certificate and post mortem report. That the applicant went to police station along with said P. Ws Altaf Ahmed and Saindad for registration of F.I.R. So also delivery of dead body of Mst.Sardar Khatoon but due to arrival of police employees-- relatives of accused --- B-Section police put the applicant on false hopes. Ultimately the police illegally lodged F.I.R. Of Ubedullah proposed accused No,2 as complainant with fabricated version so also handed over the dead body of Mst.Sardar Khatoon to them".
4. ' Heard the learned counsel for the applicant as well as learned APG appearing for the State.
5. ' The learned counsel for the applicant contended that the Ex-Officio Justice of Peace has allowed second F.I.R. In like nature Criminal Miscellaneous Application vide order dated 3-3-2012 titled Yar Muhammad v. State in which the learned counsel appearing on behalf of the proposed accused argued that there is no embargo in the second F.I.R. But in the case in hand the same Court declined to allow the prayer of the applicant and there seems to be discrimination of the learned Justice of Peace/Ist Additional Sessions Judge, Sukkur. In support above contention, he relied upon Mrs.Ghanwa Bhutto and another v Government of Sindh and another (PLD 1997 Karachi 119), Wajid Ali Khan Durani and others v. Government of Sindh and others (2001 SCM R 1556) and Muhammad Asif v. Umar Farooq Khan Inspector Police and 5 others (2010 M LD 128).
6. ' On the other hand learned A.P.G. Argued that the actual facts are already mentioned in the. F.I.R.
7. No,82 of 2012 which was lodged by the brother of injured Attaullah, who is husband of the deceased and after the lodgement of the F.I.R. The applicant remained silent for about a month and never disclosed the real facts to the police. He further argued that now the applicant has appeared by way of filing application with mala fide intention only in order to save the life of her sons and when the mala fides appearing from the contents of an application, then the superior courts are not allowing the registration of second F.I.R. In support of such contention, he relied upon Imdad Hussain v. P.O Sindh and others (1996 PCr.LJ 296), Dr.Hamid Khan and 14 others v. S.H.O. Police Station, Pashtoonabad, Quetta and 2 others (2001 PCr.LJ 472) and Ghulam Siddique v. Station House Officer , Saddar, Dera Ghazi Khan and 8 others (PLD 1979 Lahore 253).
8. ' In the case of Imdad Hussain (supra) it has been held as under:- "Once a case had been registered, in respect of an offence, then ordinarily registration of a second F.I.R. Notwithstanding divergent version contained therein was not called for, inasmuch as the ball had already been set rolling and police was under a statutory duty to trace out the real culprits after proper investigation in accordance with law".
9. ' In the case of Dr.Hamid Khan (supra) it has been held as under:- ."No hard and fast rule exists that a second F.I.R. Must be recorded. Recording of second F.1.R.
10. Depends' upon the circumstances of each case. Matter has to be seen in the context of the totality of the circumstances and the allegations".
11. ' In the case of Ghulam Siddique (supra) it has been held as under:-- "First information Report. Primary purpose of F.I.R. To inform about commission of cognizable offence which Police Officer empowered to investigate. Information with regard to occurrence coming out later in point of time. To be taken down as statements of persons before Police under S. 161 and not as second F.I.R. Under S.154.
12. ' In the above referred authorities recording of second F.I.R. Depends upon the circumstances of the each case and the registration of second F.I.R. Notwithstanding divergent version contained therein, is not called for inasmuch as the ball has already been set rolling and police is under a statutory duty to trace the real culprits after proper investigation in accordance with the law and that the statement of a person before he police under section 161, Cr.P.C. And not a second F.I.R.
13. Under section 154, Cr. P.C.
14. ' On the contrary in the case of Muhammad Asif referred to above by the learned counsel for the applicant, in which it has been held as under:-- "Registration of independent F.I.R. Case prima facie had two versions. Petitioner claimed that his brother had been killed in an illusory police encounter, while police claimed that he had died in a genuine police encounter. Petitioner had sought registration of an independent F.I.R. On the basis of the facts entirely different from the facts narrated in the F.I.R. Lodged by the Police Inspector.
15. Regarding the place of occurrence parties were at variance. Grievance of petitioner was that his brother was picked up from his house by the police in presence of witnesses and kept in captivity in Police Station, whereafter a demand of Rs,2,00,000 was made by the police officials for his release.
16. Habeas Corpus petition filed by the petitioner thereafter had apparently supported his plea that his brother had been murdered in a fake police encounter. Registration of the case having been sought by the petitioner on the basis of entitely different facts, S.H.O. Was under a statutory duty to register the case on his complaint, and in refusing to do so S.H.O. Had committed an illegality.
17. Registration of second F. I R. Regarding the same occurrence was not barred under the law, if a distinct and separate cognizable offence was disclosed and it was not a mere amplification of the first version. Station House Officer was accordingly directed to register a case on the written application of the petitioner".
18. ' In the case of Wajid Ali Khan (supra) it has been held as under:- "Widows of the deceased were not satisfied with two previously registered F.LRs,, as they had felt that said F.I.Rs, did not reflect the true facts. First F.I.R. Was registered at the instance of a police officer who was suspected by the widows of being accused himself in the case. Second F.I.R. Was registered at the instance of a private servant of one of the widows who was still in police custody.
19. Contention of widows that two F.I.Rs, registered by the police did not transpire true facts, was not unreasonable. Widows of the deceased filed Constitutional petition before High Court seeking direction to the police concerned to record. Another F.I.R. Disclosing the true facts of the incident.
20. High Court accepted petition and directed the police to record third F.I.R. As prayed for by the widows holding that no hard and fast rule was that another F.I.R. Could not be registered in respect of different version given by the aggrieved party of the same occurrence.
21. ' Validity. If information subsequently given to a police officer which disclosed a different offence, was also cognizable by the police, then unless it was mere amplification of the first version, it must be recorded by the Police. If true facts in respect of an occurrence were not reflected by the two earlier F.I.Rs,, the refusal to record a genuine version of the same occurrence would not be justified.
22. Alternate remedy though was provided to an aggrieved party under the law by way of lodging complaint, but mere fact that an alternate remedy had been provided for, could not debar the Court from giving direction to the police to record another F.I.R. In an appropriate case. High Court, in circumstances, had rightly directed to the police concerned to register a third F.I.R. At the behest of the widows of the deceased. Petitions for leave to appeal against judgment of High Court were dismissed".
23. ' In the case of Mrs.Ghanwa Bhutto (supra), it has been held as under:-- "No hard and fast rule exists that a second F.I.R. Cannot be registered in respect of a different version given by an aggrieved party of the same occurrence. If information is subsequently given to a police officer which discloses a different offence also cognizable by the police, then unless it is a mere amplification of the first version, it must be recorded by the police.
24. ' Constitutional petition. Registration of F.I.R. When discretion may be exercised in favour of an aggrieved party. Discretionary power must be exercised by Court in good faith having regard to all relevant considerations justly, fairly and reasonably. Although an alternate remedy is provided for to an aggrieved party under the law by way of a complaint, yet the mere fact of availability of such remedy may not deter the Court from giving directions to the police to record an F.I.R. In an appropriate case".
25. After going through the contentions raised by the learned counsel for the parties and the case-law referred to above I am of the view that once the F.I.R. Is already registered by one party and the divergent version contained therein was not called for inasmuch as the ball had already been set rolling and the aggrieved person not appeared before the Police Station and given his statement in the shape of 161, Cr.P.C. In the same F.I.R., which is already existing then it is the statutory duty A of the police officer to come and to trace' out truth and real culprits. When an aggrieved person appear before the Court for the registration of his version and then it is the duty of the Court as laid down in the PLD 1997 Karachi 119 in which an order was passed for the registration of a second F.I.R.
26. Against the proposed accused as against them a prima facie case was made out.
27. ' Consequently I allow this application, set aside the order dated 12-7-2012 and direct the respondent No,1 S.H.O. Police Station, B Section, Sukkur to perform his legal duty, record the statement of the applicant and register the F.I.R. Against the proposed accused as in the case in hand there is a murder of the daughter of the applicant and her two sons are also behind the bars and if the statement is found wrong and false, then the S.H.O. Will act according to law.
28. ' Application stands disposed of.