' MUHAMMAD KAMRAN KHAN MULAKHAIL, J.---Through this Criminal Quashment Petition the following prayer has been sought:- "It is therefore, respectfully accordingly prayed that impugned order dated 13-11-2013 passed by Additional Session Judge-V1 respondent No,2 may kindly set aside and respondent No,1 be directed to register the R.I.R. Of the petitioner as per his version against the proposed accused persons strictly in accordance with law."
2. Briefly, facts leading to the filing of the instant petition are that the petitioner submitted a written report before the SHO/respondent No,1, and on his refusal, he moved an application to the Sessions Judge, Quetta/an Ex-Officio Justice of the Peace under section 22-A(6) of the Criminal Procedure Code (Cr.F.C.), which was transmitted to the file of learned Additional Sessions, Judge-VI, Quetta, who vide order dated 13-11-2013 dismissed the same. The contention of the petitioner as narrated in his application appended with memo of the petition is that he along with his cousin Muhammad Murad son of Abdul Rahim, after visiting their relative Ghulam Nabi were proceeding to their house, when the accused persons launched a murderous assault upon them by means of daggers and sticks (Danda) and both of them were severely trounced. Resultantly he was severely injured and Muhammad Murad after having been injured became unconscious. The occurrence was reported to the concerned police but the respondent No,.1/SHO refused to lodge an F.I.R. On the strength that an F.I.R. No,170 -of 2013 had already been lodged in respect of same occurrence, therefore, second F.I.R. On similar facts cannot be entered. The contents of already registered F.I.R. Are reproduced herein below:-- {{URDU TEXT }}
3. The perusal of referred to F.I.R. Reveals that respondent No,1/SHO on his own became a complainant and lodged the F.I.R. Against the petitioner and the accused along with absconding accused persons, who were alleged to have launched an attack. After preliminary hearing of this petition, notice was issued to the respondents, in response whereof, Muhammad Waris, the Investigation Officer appeared and submitted his report stating therein that F.I.R. Has already been lodged and the challan in this behalf has also been submitted before the trial Court. It was further averred that the accused persons from other side were not arrested. Perusal of report further reflects that the injured Muhammad Murad succumbed to his injuries in Civil Hospital, therefore, inquest report as envisaged under section 174 of the Cr.P.C. Was also compiled in the hospital, in consequence thereof, section 302 of the Pakistan Penal Code ("P.P.C.") was inserted in the F.I.R.
Supra.
"Since the complainant has nominated both the parties in F.I.R.,
4. The learned Additional Sessions Judge-VI, Quetta vide order dated 13-11-2013 has dismissed the application with following observations:-- 5. however the applicant' has filed the instant application has mentioned the names of above mentioned persons, but the counsel for applicant during the course of arguments contended the
[sic] the above mentioned persons were unknown and the applicant came to know their names; even the applicants has not mentioned the descriptions,- image of the unknown persons; even he has not mentioned the source of his information regarding the nomination of the above mentioned persons. The record clearly shows the incident took place on 20th October, 2013 while he filed the instant application on 29th October, 2013 after delay of nine days and after though [sic], thereafter mentioned the names of above mentioned remaining persons of his opponents in the instant application which shows the mala fide on the part of applicant. Therefore, in view of the discussion and circumstances of the case the application in hand is dismissed. The application after completion be consigned to record".
5. Mr. Masoom Khan Kakar, Advocate, learned counsel for the petitioner submitted that the petitioner who was severely injured due to murderous assault, was arrested from the hospital and shifted to the jail ward of the Sandeman Provincial Hospital, Quetta and presently, is confined in District Jail, Quetta. Whereas his injured companion Muhammad. Murad succumbed to his injuries.
The learned counsel contended that the SHO/respondent No,1 was under obligation to record the version of the. Petitioner as according to the facts and circumstances of the case, the petitioner and his deceased cousin were thrashed by means of sharp weapons. He alleged that the SHO concerned is in league with the assailants, therefore, he nominated the injured complainant and the deceased towards the commission of the offence and they have been arrayed as accused with .The assailants. He further contended that it is evident from perusal of F.I.R. That the petitioner and his deceased cousin Muhammad Murad were taken to the hospital by the SHO when both of them were found unconscious at the place of occurrence. But the SHO instead of recording the version of the petitioner has lodged the F.I.R. In haphazard manner. He alleged that the SHO acted with malice and mala fide; therefore, instead of arresting the perpetrators of crime, he was playing the role of the accomplice of the perpetrators. He finally urged that the directions may be issued to the SHO/respondent No,1 for registration of F.I.R. He relied upon an unreported judgment of this Court passed in Criminal Quashment Petition No,274 of 2013 and Mrs. Ghanwa Bhutto's Case reported in PLD 1997 Karachi page 119.
6. Mr. Abdul Karim Malghani, Advocate representing the State strongly opposed the petition and supported the impugned order dated 13-11-2013 passed by the learned Additional Sessions Judge- IV/Ex-Officio Justice of the Peace. He contended that since the F.I.R. In respect of alleged occurrence had already been registered, therefore, registration of second F.I.R. Will amount to recording of defence version of the petitioner, which course is not permissible under the law and two F.I.Rs, in respect of one occurrence cannot be registered. In addition, he referred to a letter dated 14-6-2012 issued by the SP Crimes on behalf of the Capital City Police Officer, Quetta ("CCPO") and stated that through the said letter all the SHOs had been strictly directed to refrain from lodging two separate F.I.Rs, in case of scuffle between two rival groups, therefore, the SHO had acted as according to directions contained -therein, while the learned lower court has passed a well-speaking order, which does not require any interference by this Court. He urged for dismissal of the petition.
7. I have heard the learned counsel and have gone through the record of the case with their valuable assistance. Before dilating upon the ' legitimacy of the letter issued by the CCPO, Quetta and merits of the case, it would be helpful to reproduce after referred letter which speaks as under:-- {{URDU TEXT}}
8. It is a unique case of its kind, where the police, after the receipt of written statement from the petitioner/complainant, instead of registering a separate and independent F.I.R. On the basis of written report submitted by the petitioner, made it a part of a case registered vide F.I.R. No,170 of 2013 under section 337, A.D.F. Read with sections 147, 148 and 149, P.P.C., claiming casualty by the rival party at the hands of the petitioner's party, may be, considering both the counter-versions to be result of one occurrence and thus, entered its contents in the diaries of afore referred case. Such a practice is unprecedented had never experienced earlier and still to come across as general principle is that, whenever counter-versions are received by the police, separate F.I.Rs, are chalked out. 'The police, while treating the written report as part of the earlier registered case by the SHO himself and not registering an independent case, seems to be oblivion of the fact that the statement it so taken in the case after registration of case would be under section 161, Cr.P.C. And which, not to speak of written report. A proper course is to register a separate case on the basis of such a written report containing all the necessary ingredients of F.I.R. i,e, the time of report, the time of occurrence, distance from the police station, and being read over to the maker and getting his thumb-impression or signature in token of its correctness and at the end the proceeding carried out by the police with regard to the necessary steps taken by them immediately after registration of the case and then signature of the scribe. In the present case the written report which was made well in time, was not in line as narrated by the SHO in F.I.R. Registered earlier, therefore, was not considered as worthy of credence. The SHO instead of conducting an independent investigation, has simply relied upon the information gathered by him on the spot, and then investigation was entrusted to another officer viz, Muhammad Waris. The manner and procedure adopted by the SHO is bereft of all the aforesaid statics and even the SHO to whom such a written report has been submitted did not bother to endorse it, even with the timing of its receipt and not signed by him and not made further inquiries, which are bounden duties of the SHO being an addressee and recipient of the First Information Report (F.I.R.).
9. Before considering the legality and the necessity of registration of second F.I.R. On written report of the petitioner, it is observed with grave concerns that the referred to letter issued by the CCPO Quetta is, also a unique of its kind which has demolished the edifice of administration of criminal justice for the simple reason that neither the Criminal Procedure Code nor the Police Rules 1934, nor the dictums laid down by the Hon' ble Apex Court provides any support to the letter issued by the CCPO Quetta. For example, if a person who receives a minor injury gets an F.I.R. Recorded, then the opposite party whose man has been murdered, has been stopped from getting a case registered and investigated upon merely because an F.I.R. Has already been registered.
' The proposition, which revolves around the controversy, remained under consideration before the Hon'ble Supreme Court time and again and it is held that the occurrence may be same but where there are two cross versions of the occurrence. The SHO is under statutory duty to reduce into writing the information given to him by the informant about commission of cognizable offence and investigate the matter. An authoritative verdict, on registration of an F.I.R. Is rendered by the Hon'ble Supreme Court in Muhammad Bashir's case reported in PLD 2007 SC 539 and it is instructive to reproduce the relevant passages from said judgment:-- "(14) The wisdom was not far to find. If the S.H.O. Was given the authority to determine the truthfulness or the falsehood of the allegations levelled against someone and thereafter to decide to record or not to record such allegations as F.I.R., then such a police officer would have got blessed with the power to decide about the guilt or innocence of an accused person. This was, however, far from the envisaged by the law-makers regarding the identification and the consequent acquittal or conviction of accused persons as the said task stood assigned only to the courts of law and had never been conceded to police officers.
(17) In the matter of ascertainment of the guilt or innocence of the persons accused of the commission of offences or in the matter of determination of the truth or otherwise of the allegations made in the said connection, the only power may the obligation cast on the police officers is to carry out the investigation of cases, on their own if the offence be cognizable (sections 156, 157 and 174, Cr. P. C.) and with the permission of a Magistrate if the same be non-cognizable (section 155(2), Cr.P.C). And 'investigation' as defined by section 4(1)(I) of the said Code, means only, the collection of evidence and no more. The impression that an Investigating Officer had any power or was even allowed to pronounce upon the guilt or innocence of an accused person was a grave misconception. In fact such an opinion expressed by an Investigating Officer was not even admissible in evidence at the trial being the opinion of a person who had never been held by the Courts of law to be an expert. Therefore, in any criminal proceedings, the job of a police officer only is to collect evidence and to place the same along with other information, before the competent Magistrate in the form of a report in terms of section 173, Cr. P. C. It would be evident from the provisions of section 63, Cr. P. C. That the fate of a person, though arrested by the police, was no longer in their hands but was at the mercy of a Magistrate and likewise the fate of an F.I.R. Though recorded by a police officer but once recorded, went beyond his control and it was then only a Magistrate who could cancel it (Rule 24.7 of the Police Rules of 1934). The most which is permissible for an Investigating Officer, vis-a-vis an accused person whose case was under investigation, was to release him, on his bond, if according to the Investigating Officer there was not enough evidence available against him or no reasonable ground of suspicion existed which could justify his being forwarded to a Magistrate (section 169, Cr.P.C.). But then it will be noticed that such a step by an Investigating Officer was not final as such an accused person had to execute a bond before being so released, committing himself to appear before the competent Magistrate if and when required by such a Magistrate to face the trial. The provisions of section 173, Cr.P.C. Further support this view as the S.H.O., while reporting the result of his investigation under the said section i,e, the challan, had to give the details of any accused person released under section 169, Cr.P.C.- and the final fate of such a person was thereafter, again in the hands of the competent agistrate/Court.
(18) What, therefore, transpires from the above noticed scheme, the spirit, the intention and even the letter of the relevant law was that there was no room for any inquiry into .The veracity of the information received by an officer incharge of a Police Station with respect to the commission of an offence and he was consequently clothed with no authority to refuse to record an F.I.R. Only because, in his opinion, the information conveyed to him, lacked credibility". (underlining is provided for emphasis)
10. Thus, in view of judgment supra and discussion made herein above, it is held that the SHO is nobody in order to determine the guilt or innocence of the accused persons, however, he is bestowed with the duty just to differentiate the nature of offence reported to him as for same purpose including recording of F.I.R., thus, whenever the SHO receives a report the only power conferred to shim under the Code, 1898 is to decide that the information received, comes within the ambit of which category of offences, whether cognizable or non-cognizable. The criminal offences have been categorized by the Criminal Procedure Code in two clauses i,e, 'cognizable and non- cognizable' offences. Whereas sections 154 and 155(1) of the said Code provides the procedure envisaged viz a viz, the information relating to both categories of offences, these provisions read as under:--
154. Information in cognizable cases, Every information relating to the commission of a cognizable offence if given orally to an officer incharge of a police-station, shall be reduced to writing by him or under his direction, and be read over to the informant, and every such information, whether given in writing or reduced to writing as aforesaid shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the Provincial. Government may prescribe in this behalf."
155. Information in non-cognizable cases. (1) When information is given to an officer incharge of a police station of the commission within the limits of such station of a non-cognizable offence, he shall enter in a book to be kept as aforesaid .The substance of such information and refer the informant to the [Magistrate].
Thus, an immense obligation of the SHO/Investigating Officer is not to satisfy the parties to the case or to render any opinion about guilt or innocence of an accused persons but his duty is only to collect all the relevant evidence. In the reports to be submitted, by the police, in connection with investigation of a criminal case it can comment about sufficiency or otherwise of the evidence available against an accused person but it cannot comment upon credence or otherwise of evidence becoming available on the record. The question of worthiness of credence or otherwise of such evidence is to be attended to by the Magistrate empowered under section 190, Cr.P.C. Or by the trial Court, thus the law casts an obligation upon the SHO/Investigation Officer is collecting the evidence and the evidence alone. This practice in legal terminology is known as an 'investigation', whereas the word investigation has been defined in section 4(1)(J) of the Criminal Procedure Code and has been interpreted in Khizar Hayat's case reported in PLD 2005 Lahore 470 and it would be advantageous to reproduce a passage from para 23 at page No,544 of the said judgment, which reads as follows:-- "The term 'investigation has been defined by section 4(1)(1) of the Code. "---all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorized by a Magistrate in this behalf". The job of an Investigation Officer is, only to collect all the relevant evidence pertaining to the allegation levelled regarding the crime in issue, so as to dig out the truth enabling and facilitating the relevant court to administer justice between the parties. His job is not to satisfy the parties to the case or to arrogate to himself the role of an adjudicator, rendering an opinion regarding guilt or innocence of any person. In the reports to be submitted by the police in connection with investigation of a criminal case it can comment about sufficiency or otherwise of the evidence available against an accused person but it cannot comment upon believability or otherwise of the evidence becoming available on the record against such accused person. The question of believability or otherwise of such evidence is to be attended to by the relevant Magistrate or the trial Court".
11. Now adverting to the question of registration of second F.I.R., plethora of judgments have been rendered on the subject and one of these is the case of Mrs. Ghanwa Bhutto reported in PLD 1997 Karachi 119, wherein it is held that "9. Reference to the case-law. Therefore, indicates that there is no hard and fast rule 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 subsequently given to a police officer, which discloses a different offence, also cognizable by the police, then unless it is a mere implication of the first version, it must be recorded by the police; therefore direction to the police to record a second F.I.R. Would depend upon the circumstances of each case. If true facts in respect of an occurrence are not reflected by the first F.I.R., then refusal to record a genuine version of the same occurrence would not be justified. The question has, therefore, to be examined in the light of the circumstances of a particular case."
' The view rendered by the Hon'ble Sindh High Court was further confirmed by the Hon'ble Supreme Court of Pakistan, when the nominated accused in Ghanwa Bhutto's case, who were police officers viz Wajid Ali Khan Durrani, Shahid Hayat Khan and Rai Muhammad Tahir, wanted to be formally impleaded as respondents in the constitutional petition, although their request was declined but their counsel was permitted to address the court on various, issues involved in that case. The aforesaid, police officers being aggrieved had assailed the judgment supra before the Hon'ble Supreme Court of Pakistan but leave was refused and a view rendered by the Hon'ble Sindh High Court was upheld, which is captioned as "Wajid Ali Khan Durrani v. Government of Sindh" in 2001 SCMR 1556.
This view is rendered with consistency not only by the Hon'ble Apex Court but by all the. High Courts of the country that when two distinct and opposite versions have come on record, wherein the manner of commission of the crime is not only different from each other but on certain points all diametrically oppose each other. The interest of justice as well as fair investigation, therefore, demands that a separate F.I.R. On the basis of application of informant should be recorded and investigated upon so that both the versions may be placed before the court who will then be in a position to determine and adjudicate upon as to which of the version is wholly or partly correct.
' In case of cross-versions, only the promptly lodged and both versions with all minute details, enable the trial Court to put both the versions in juxtaposition, and after evaluating the credence and assessing the worthiness of evidence, the court can determine the, question of .Aggression, and thereafter, the guilt or innocence of the accused. It would be virtually impossible in case of one F.I.R. In respect of two divergent versions because the task of paramount importance, such as the appreciation of evidence cannot be done with care and caution like 'sifting the grains from chaff'.
The conclusion is irresistible that the sifting of information conveyed by informant to an Officer In charge of Police Station and picking out what was correct and discarding which was false was not a task assigned to SHO.
12. The crux of the matter, which boils down after going through all relevant law and the law of registration of F.I.R. As laid down by the Hon'ble Apex Court is that if counter-version is merely restricted to a defence version, the second. F.I.R. Cannot be recorded but if a distinct and separate cognizable offence is disclosed and no effective inquiry or the trial can be held without properly appreciating and considering the two versions, then another F.I.R. Is to be recorded. I am, therefore, of the view that the respondent/SHO has illegally refused to register the case and thus grave miscarriage of justice is being committed because of instructions rendered by the top slot in hierarchy of law-enforcing agency, meaning thereby, that an Investigation Officer of the police department, will sit over the domain of the courts of law. By no stretch of imagination, these instructions can be maintained. Thus, the referred to letter No,34145-75 dated 14th June, 2012 issued by the CCPO, Quetta is hereby turned down followed by setting aside the impugned order dated 13th November, 2013 passed by the learned Justice of Peace/Additional Sessions Judge-VI, Quetta.
Resultantly, the application filed by the petitioner is deemed to be pending and the respondent No, 1/SHO. Police Station New Sariab Quetta is directed to dispose of the same in accordance with law