SHAHNAWAZ TARIQ, J.---Through the captioned criminal miscellaneous application, applicant Manzoor Ali has approached this Court by agitating impugned order dated 10-5-2014, passed by the learned Sessions Judge, South Karachi and Ex-Officio Justice of Peace, whereby his application under section 22-A, Cr.P.C. For lodgment of F.I.R. Was declined.
2. Precisely, the facts narrated in instant application are that applicant is working in Education Department and living with his uncle Ghulam Sarwar at Flat No,G-3, Beach Luxury Apartments, Block No.4, Clifton, Karachi. On 8-5-2014, the applicant was sleeping in his house and at 2-00 a.m.
He received phone calls from his uncle's guard P.C. Rashid Ali Gujjar, who narrated as follows:-- "He along with P. C. Zaheer Ahmed Rind, P. C. Yasin Jamali, P. C. Imran Ali, P. C. Maqool Jamali and Salman son of Ghulam Sarwar Abro went to meet his friend Suleman Lashari at his house. There took some quarrel with Suleman Lashari and Zeeshan Mustafa Lashari who were armed with deadly weapons along with their guard Ali Ghulam Bhugti directed us to stop our double cabin vigo then all of sudden Suleman Lashari and Zeeshan Mustafa made straight fires on our car and the above persons tried to return back the car when Suleman Lashari and Zeeshan Mustafa along with their accomplices again started firing on our car due to which guard Zaheer Ahmed Rind and Suleman Abro received bullet injuries. Guard Zaheer Ahmed Rind fell down from the car and Suleman Abro also received serious bullet injuries. P.C. Rashid Ali Gujjar informed the applicant that he had brought the injured persons at Ziauddin Hospital and told him to reach hospital immediately where guard P.C. Zaheer Rind expired and Suleman Abro is admitted in hospital for treatment. Therefore, I went to lodge the FIR but the respondents are not ready to register the same."
3. It is further averred that the applicant moved an application to the respondent No,1, SHO P.S. Darkhshan but he declined to register the F.I.R. Under influence of Zeeshan Lashari and others who were accused of the crime. On 9-5-2014, applicant filed a Criminal Miscellaneous Application No,739 of 2014, under section 22-A, Cr.P.C. Before the Court of learned Sessions Judge, Karachi South, for registration of FIR against Suleman Lashari, Zeeshan Mustafa Lashari and their companions, as the guard Zaheer Ahmed Rind was expired due to the fire arm injury caused by them. Learned Sessions Judge and Ex-Officio Justice of Peace dismissed the said miscellaneous application vide order dated 10-5-2014.
4. Mr. Farooq H. Naik, learned counsel for applicant has contended that impugned order passed by the learned Sessions Judge and Justice of Peace is based on surmises and conjectures and also contrary to the law and decisions of Superior Courts. The Ex-Officio Justice of Peace has no legal authority under section 22-A, Cr.P.C. To issue notice to the proposed accused for audience but on the contrary he has to issue straightaway directions to SHO concerned to lodge the FIR and police is bound to register the FIR irrespective of the factum that the report is true or false. He vehemently contended that even this Court cannot issue notice to the proposed accused and such an order issued by this Court may be recalled. He also submitted that Salman Abro and his guard P.C.
Zaheer Ahmed Rind received bullet injuries due to the firing of the deceased Suleman Lashari and Zeeshan Mustafa Lashari, and P.C. Zaheer Ahmed Rind expired at hospital while Salman Abro remained under treatment. The area Police is in league with the complainant and despite moving- application by the applicant to the concerned SHO for initiating legal action as envisaged under section 154, Cr.P.C, no FIR has been registered against the culprits who are responsible for committing the murder of P.C. Zaheer and causing bullet injuries to Salman Abro. He lastly urged that the impugned order may be set aside and the respondent No,1, SHO P.S. Darakhshan may be directed to lodge the FIR as per verbatim of the applicant.
5. To strengthen his argument, the learned counsel for the applicant relied upon the following case-law:--
(i) In case of Saifur Rehman v. Xth J.M Hyderabad and 3 others, 2011 PCr.LJ 1629, it was held that after registration' of the FIR, if in the investigation, it came on record that the deceased were killed by applicant in self-defence, still it was for the court to decide as to whether while exercising such right of self-defence, accused of the FIR had exceeded his authority. Such findings could, only be given when the trial Court proceeded with the case and there would be a case only when FIR was lodged.
(ii) In case of Wajid Ali Khan Durani and others v. Government of Sindh and others, 2001 SCMR 1556 the Hon'ble Supreme Court has held that High Court accepted petition and directed the police to record third FIR as prayed by the widows, holding that no hard and fast rule was that another FIR could not be registered in respect of different version given by the aggrieved party of the same occurrence. It is further observed that FIR merely set in motion the criminal law and it could not be used as a substantive piece of evidence against any accused and even observation made in respect of the FIR pertaining to the merits of the case which was yet to be tried, could not be used against the accused at the trial.
(iii) In case of Muhammad Anwar, Sub-Inspector Railway Police, Lahore v. SHO Railway Police Kasur and 2 others, PLD 1999 Lahore 50, it was held that first FIR did not, in any manner disclose or specify as to how a police officer was killed and a constable received bullet injury on his chest. Application moved by the petitioner before the SSP had clearly disclosed a distinct and separate offence which was the subject matter of the first FIR Two distinct and opposite versions had come on record where in the manner of commission of crime, place of occurrence and other details were not only different from each other, but on certain point were diametrically opposed to each other. In the interest of justice and for fair investigation, Police was directed to register the FIR.
(iv) In case of Muhammad Abdul Rauf Siddiqui v. SHO P.S. Gulberg and 2 others, 2013 PCr.LJ 70, it was held that under section 154, Cr.P.C. It was the sole duty and responsibility of the Station House Officer to record statement of complainant and register an FIR. Information supplied by complainant should be about the alleged commission of cognizable offence irrespective of the fact whether such information ultimately proved to be correct or not.
(v) In case of Mst. Bhaitan v. State and 3 others, PLD 2005 Karachi 621, it was held that SHO of police station is bound to register FIR under section 154, Cr.P.C. And he has no power to refuse to register the same if from the information a cognizable offence is made out. It is immaterial whether the information is false or correct but the condition precedent for recording the FIR in section 154, Cr.P.C. Book is that information must disclose an offence and that too a cognizable one. It is further held that Ex-Officio Justice of Peace was not required to issue notice to the accused before issuing the direction of the registration of the FIR as it was beyond his jurisdiction.
6. The above case law referred by the learned counsel for the applicant are pertaining to the lodgment of first FIR by the aggrieved party and not for the registration of second FIR as defence version by the accused pertaining to the occurrence of the same offence, hence, same are distinguishable and not applicable in the present case.
7. While controverting the contention raised by the learned counsel for the applicant, Mr. Faisal Siddiqui, learned counsel for the proposed accused, vehemently contended that the main proposed accused is complainant of FIR No,235 of 2014, under sections 302, 324, 427, 34, P.P.C. And section 7, Anti-Terrorism Act, 1997, lodged against the aggression of the culprits. The principal accused Salman Abro who is son of a Superintendent of Police, was arrested and investigations were conducted strictly in accordance with law, and challan has been submitted, but trial has not yet been commenced as accused has challenged the jurisdiction of the trial Anti-Terrorism Court.
He further submitted, with respect .To the issuance of notice to proposed accused, that the very objections raised by the applicant are against the norms of criminal justice, and even this Court is not exercising its jurisdiction as Justice of Peace while dealing with the criminal miscellaneous application under section 561-A, Cr.P.C. He further contended that the principal accused Salman Abro and others have filed criminal revision No,D-211 of 2014, before the learned Divisional Bench of this Court but the applicant has deliberately concealed the very fact from this Court, whereby they have prayed for the reinvestigation of main case which is sub-judice before the learned Judge of ATC, Karachi. He also submitted that since accused persons have not approached this Court for lodgment of second FIR, meaning thereby, they are only dissatisfied with the investigations conducted by the police but they have accepted the FIR, therefore, for the redressal of their grievances, accused were at liberty to avail the remedy in accordance with law.
8. Learned counsel for the proposed accused further contended that the principal accused himself, his father or legal heirs of the deceased Zaheer Ahmed Rind neither approached the learned Sessions Judge and Ex-Officio Justice of Peace nor this Court for the lodgment of second FIR The ulterior motive of the principal accused is apparent from the fact that they were able to approach this. Court, before another Bench, vide criminal revision No,D-211 of 2014, for re-investigation of the first FIR but not for the lodgment of second FIR The real intention behind such an action is to delay and defeat the trial. He further pointed out that during the course of his arguments, learned counsel for the applicant has filed copy of application dated 28-8-2014, for withdrawal of Criminal Revision No, D-211 of 2014, which was filed for re-investigation of FIR No,235 of 2014, lodged against accused persons, meaning thereby, they have accepted earlier FIR and its investigations, therefore, in present scenario, instant application, filed by the cousin of the main accused has no legal force, hence, liable to be dismissed.
9. At this stage it would be appropriate to discuss the case-law cited by the learned counsel for the proposed accused as under:- (i). In case of Jamshed Ahmed v. Muhammad Akram and another, 1975 SCMR 149, the Hon'ble Supreme Court has held that case already registered by police in which J shown as accused, J, filing petition under Cl. 22 praying for direction that his own FIR reflecting his own version in respect of same transaction be registered, held, High Court under no obligation to grant relief prayed for and discretion exercised by High Court in refusing relief being proper in circumstances of the case.
(ii) In case of Kaura v. State and others, 1983 SCMR 436, the first FIR was lodged by brother of the deceased implicating one Ghulam Muhammad as the sole assailant, and said Ghulam Muhammad was also murdered on same day. Ghulam Sadiq respondent No,2 who was son of deceased Haji Jeevan filed petition against the SHO and prayed that another FIR be registered. The case came up before a learned Single Judge of High Court and it was conceded on behalf of the State that FIR of Ghulam Sadiq shall also be registered. The Hon'ble Supreme Court set aside order passed by High Court and observed as follows:- "5. It appears to us that once the case was registered vide FIR 23 dated 7-2-1976 in respect of the murder of Haji Jewan the registration of a fresh report notwithstanding the divergent version contained therein was not called for inasmuch as the bail had already been set rolling and the Police was not only competent but also duty bound to unearth the true facts and trace the real culprits. The impugned order seems to be the result of some confusion or accidental slip. Indeed learned counsel pointed out that on the same day on similar facts that learned Chief Justice had declined to issue any direction to the Police for the registration of a fresh case .Regarding the same transaction though a counter-version was alleged in that case also. In these circumstances we consider the better course would be to approach the High Court for review of the order and there is no reason why the High Court should not rectify the situation."
(iii) In case of Mushtaq Ahmed v. SHO P.S Munawan, 1984 PCr.LJ 1454, the learned D.B has observed as under:-- "3. When a case has been registered in respect of an occurrence, no second case can be registered giving a counter-version thereof by the accused persons. If this were so in each criminal case, there will be one FIR lodged by the complainant party and another by the accused because it is not likely that any of the accused will not have a counter-version of the allegation made against him in the FIR that would mean that for each crime two FIRs should be registered.
This, of course, is not the law."
(iv) In case of Muhammad Azeem v. SHO P.S Abbas Naggar, 1988, PCr.LJ 41, it was observed that the petitioner and others have been challaned in the case registered by Muhammad Sadiq and prosecution evidence has been summoned. The counter version stated by Muhammad Azeem has already been investigated by the police and in the circumstances a second FIR shall not serve any useful purpose. The private complaint is efficacious remedy for the petitioner if he so likes.
(v) In case Riaz Ahmed v. SHO P.S Baseer Pur, ,1991 PCr.LJ 6, it was observed as under:-- "5. If the petitioner does not feel satisfied with the conclusion of the police reached during the investigation of the case reported by Khushi Muhammad, rejecting his petitioner's version of the occurrence, he may avail the alternate and rather more efficacious remedy of filing complaint in the competent Court, where evidence can be recorded and factual position appreciated. The police having already not found any substance in the version of the petitioner, the issuance of writ directing the registration of the case would in the end be of no help to the petitioner."
(vi) In case of Habibullah v. Political Assistant and others, 2005 SCMR 951, the Hon'ble Supreme Court has observed as follows:-- "that it is/was not obligatory for High Court to issue writ in each case irrespective of facts and circumstances, which could call for exercise of judicial restraint in turning down such request in view of the conduct of petitioner besides considering that adequate remedy in the form of private compliant was available to him."
(vii) In case of Abdul Latif v. Mst. Hakim Zadi and 2 others, 2013 PCr.LJ 813, it was held that non- disclosure, separation of the facts by the applicant, Ex-officio Justice of Peace not to allow application under section 22-A, Cr.P.C. In a mechanical manner and should apply his mind as to whether the applicant had approached the Court with clean hands or it was tainted with malice.
(viii) In case of Malik Anjum Farooq Paracha and 7 others v. Manzoor-ul-Haq Chohan, 2009 YLR 2057(sic.), it was held as under:-- "Where second FIR was based upon an independent incident and version other than the one which was the subject matter of the previously registered FIR, the second FIR could be registered, where, however, second FIR was counter blast and in fact a counter defence version of the accused person of the previously registered FIR, a second FIR could not be registered."
(ix) In case of lmtiaz Ahmed Cheema, SHO v. SHO Police station, Dharki and 2 others, 2010 YLR 189, it has been held as under:-- "The provisions of section 22-A, Cr.P.C. Have been misused in a number of cases. The wisdom of legislature was not that any person who in discharging of duties takes an action against the accused would be subjected to harassment by invoking provision of section 22-A, Cr.P.C. The Courts in mechanical manner should not allow application under section 22-A and B and should apply its mind as to whether the applicant has approached the Court with clean hands or it is tainted with malice. Unless such practice is discharged, it would have far reaching effect on the police officials who in discharge of duties take action against them. The law has to be interpreted in a manner that its protection extends to everyone. I am, therefore, of the opinion that order of the Sessions Judge was passed in mechanical manner and the applicant approaching the Sessions Judge. As per the record reflects that it was tainted with malice. This impugned order for the aforesaid reasons is set aside and Criminal Miscellaneous Application is allowed in the above terms."
10. Mr. Shahzado Saleem, learned A.P.G. Supported the impugned order and adopted the arguments advanced by Mr. Faisal Siddiqui, the learned counsel for the proposed accused.
11. Investigating Officer Inspector Muhammad Mubeen was also put on notice and with the permission of the Court, submitted that he has conducted investigation strictly in accordance with law and complied with all the requisite procedures. During the investigation, accused had never made any complaint regarding the impartiality which can be examined from the available record.
12. Perusal of the record and consideration of arguments supported with precedents reflect that applicant is claiming himself to be the cousin of the principal accused Salman Abro, and has come forward to lodge second FIR for the same incident for which the proposed accused has already lodged FIR and Challan has also been submitted. Perusal of the A counter version of the applicant as narrated in his application which was moved to the concerned SHO, reflects that applicant has repeated same facts and circumstances regarding the commission of the alleged offence which has already been registered in first FIR by the proposed accused. The applicant has failed to disclose new or different facts regarding commission of separate cognizable offence. Admittedly, all the three i,e, the principal accused Salman Abro himself, his father who is Superintendent of Police and well aware of the procedure of lodgment of FIR and investigation process, and legal heirs of deceased Nazeer Ahmed Rind did not come forward to lodge the second FIR While amazingly, accused Salman Abro and others had filed Criminal Revision No,D-211 of 2014; for re- investigation of first FIR No,235 of 2014, lodged by the proposed accused but they themselves being directly affected by the same, have not approached for lodgment of second FIR to the SHO concerned, Ex-Officio Justice of Peace and even this Court. However, above mentioned accused for the reasons best known to them, moved application for withdrawal of Criminal Revision No,D-211 of 2014, and the same was dismissed as with drawn.
13. After scanning the circumstances and claims of the parties in juxtaposition, I have come to the conclusion that the applicant has not approached this Court with clean hands, but with nefarious task, as the counter version of the applicant has already been investigated by the police by visiting the place of wardat which is situated inside the house of the proposed accused who is complainant of first FIR, where from empties were secured, statements of P.Ws. Were recorded and Investigating Officer had also examined accused persons including accused Salman Abro who was admitted in Ziauddin Hospital. Therefore, sole motive to lodge second FIR as counter version is to create a strong defence for the accused persons in order to save their skins from the consequences of their trial which they are facing before the learned trial Court. Moreover, at this stage, the lodgment of second FIR shall not serve any useful purpose but on the contrary it will be a deliberate divergence which would be fatal to meet the ends of justice. However, if accused are not satisfied with the conclusion of the investigation conducted by the police by rejecting their version of the occurrence, they may avail the alternate and efficacious remedy of filing direct complaint.
14. While considering the objections raised by the learned counsel for the applicant that neither the learned Ex-Officio Justice of Peace while dealing with petition under section 22A, Cr.P.C. Nor this Court while adjudicating criminal miscellaneous application under section 561-A, Cr.P.C. Can issue a notice to the proposed accused for appearance, and notice already issued by learned another Bench of this Court may be recalled. He also urged that the learned counsel for the proposed accused shall not be afforded right of audience.
15. In rebuttal, Mr. Faisal Siddiqui, advocate has contended that he filed his vakalatnama on behalf of the proposed accused on 2-6-2014, in compliance of order dated 19-5-2014, passed by this Court whereby notices have been issued to the proposed accused and learned P.G. Sindh. He vehemently emphasized that this Court has ample powers to issue notices to all the concerned parties while exercising authority under section 561-A, Cr.P.C. And not as Ex-Officio Justice of Peace under section 22-A, Cr.P.C., therefore, the law decided in PLD 2005 Karachi 621, has not imposed any bar upon the jurisdiction of this Court and under the delusion and misconception of the said case law, the proposed accused could not be deprived from the right of audience and which otherwise is violation of principles of natural justice.
16. Prior to the conclusion of the objections for issuance of notices, I would like to refer following case law:--
(i) In case of Chief Commissioner Karachi and another v. Mrs. Dina Sohrab Katrak, PLD 1959 SC 45, the Hon'ble Supreme Court has observed as follows:- "The rule of justice embodied in the maxim audi alteram partem: "No man shall be condemned unheard" is not confined to proceedings before Courts but extends to all proceedings, by whomsoever held, which may affect the person or property or other right of the parties concerned in the dispute. As a just decision in such controversies is possible only if the parties are given the opportunity of being heard, there can be as regards the right of hearing, no difference between proceedings which are strictly judicial and those which are in the nature of a judicial proceedings though administrative in form. The maxim of 'No man shall be condemned unheard' applies to judicial as well as administrative bodies, specially where the proceedings taken may affect the person or property or other rights of the parties concerned in the dispute. It is a principle of natural justice that no one should be dealt with to his material disadvantage or deprived of his liberty or property without having an opportunity of being heard making his defence.
(ii) In case of Kazi Bahauddin Ahmed v. Province of East Pakistan and another, PLD 1963 Dacca 1005, with reference to East Pakistan Hats or Bazars (Establishment and Acquisition) Ordinance, 1959, it was held that even if, the Ordinance does not provide for any opportunity to be given to the petitioner to make any representation, the maxim of audi alteram partem shall be applicable on the principles of natural justice.
(iii) In case of Noor Ahmed v. Province of East Pakistan and others, PLD 1964 Dacca 546 (DB), it was held that whenever a power is conferred upon a person or a body of persons to deprive a person of his rights and/or to impose a penalty upon him, implicit in the conferment of such power is the condition that it must be exercised fairly and in accordance with well-established principles of natural justice which require that the person so condemned must be given an intelligible and understandable notice of the charges and a reasonable opportunity to meet them.
17. While concluding the above discussion in purview of the above case law, I am of the considered view that under the maxim of audi alteram partem, no person should be condemned without being provided an opportunity to defend himself, which is based on the principle of natural justice.
Admittedly, the proceedings before the Ex-Officio Justice of Peace are administrative and ministerial in nature. However, in view of the discussion made supra, I am of the considered view that the jurisdiction enshrined to this Court while dealing with criminal cases under section 561-A, Cr.P.C., this Court saves and preserves the jurisdiction to make such orders as may be necessary to give effect to an order under the Criminal Procedure Code or to prevent the abuse of the process of any Court or otherwise to secure the ends of justice. Consequently, issuance of notice to the proposed accused and right of audience at the time of hearing of instant criminal miscellaneous application is just, proper and legal, as same can neither be recalled nor termed as illegal and gross violation of the relevant provisions of law. Resultantly, I am of the considered view that this Court under section 561-A, Cr.P.C. Is legally competent to issue notice to the proposed accused and afford right of audience.
18. As per the law decided in the above judgments, the established legal position emerged is that if the second FIR is based upon an independent incident and version other than one which is the subject matter of the previously registered FIR, it can be registered. However, a second FIR cannot be registered if it is a counter-blast and in fact a counter-defence of the previously registered FIR.
In present case, after submission of Challan, the trial is sub-judice before the trial Court. It is well settled law that FIR is the basic document to activate the police machinery to open an account of investigation to threshold the truth so the culprits be identified and taken to the task by the process of law.
19. For the forging reasons and case law cited supra, I am of the considered view that now law has been well established that no direction can be issued for the lodgment of second FIR when first FIR has G already been registered in respect of the incident for giving counter-version of the other side. Consequently, I am not convinced with the arguments advanced by the learned counsel for the applicant to register the second FIR regarding the same incident. Therefore, the impugned order passed by the learned Sessions Judge and Ex-Officio Justice of Peace is maintained and it does not call for any interference. Resultantly, instant criminal miscellaneous application stands dismissed. However, the accused persons are at liberty to avail an alternate remedy by way of filing a complaint, if so advised.