NAEEM AKHTAR AFGHAN, J.---This judgment disposes of Criminal Miscellaneous Quashment Petition No,42 of 2010 filed by the petitioner (mother of deceased Muhammad Jan) against the order dated 15th July, 2010 (hereinafter the impugned order") passed by learned Justice of Peace/Sessions Judge, Pishin whereby application under section 22-A Cr.P.C. Filed by the. Petitioner has been rejected.
Facts of the case are that vide FIR No,17/2010 dated 9th June 2010 report was lodged at about 8:30 p.m. With Levies Thana Bostan by Ali Muhammad Defedar Levies (respondent No,2) against Abdul Wali. Mohammad Jan and unknown accused under section 186, 353, 324, P.P.C. With regard to the occurrence of 6-30 p.m. Stating therein that on 9th June, 2010 at about 6-30 p.m. He proceeded with levies staff in official pickup No,PN-6404 towards Kuchlak main road for routine patrolling that at the Bostan Cross, a motorcycle upon which three persons were sitting coming from the front was signaled to stop; that two persons took out pistols and started firing upon levies personnel; that he immediately informed Naib Risaldar Levies, namely Feroz Khan who reached on the spot within a while along with levies personnel; that the accused left their motorcycle, embattled and started firing; that Naib Risaldar Levies Feroz Khan received bullet injury and fell down; that in the meanwhile 300 inhabitants of the area also reached on the spot duly armed and started firing upon the accused due to which one accused, whose name was subsequently disclosed as Muhammad Jan got killed; that co-accused whose name was subsequently disclosed as Abdul Wali was arrested alive, whereas the third unknown co-accused succeeded in fleeing; that one IT pistol No,31047171 China made with 03 magazines and 6 cartridges was recovered from the accused Abdul Wali; that the accused were coming on the road for dacoity, but apprehending their arrest, they started firing.
3. In pursuance of above FIR. Investigation was conducted by Naib Tehsildar Bostan. During investigation the bloodstained clothes of the injured Naib Risaldar Levies Feroz Khan were taken into possession, statements of the witnesses were recorded. During investigation Naib Tehsildar Bostan issued Murasila dated 10th June, 2010 to Medical Officer, Civil Hospital. Quetta for conducting postmortem of Hafiz Muhammad Jan. In the said Murasila it has been written that Hafiz Muhammad Jan got killed during encounter with levies.
4. On the same date i,e, 10th June 2010, the petitioner (mother of the deceased) submitted an application to Naib Tehsildar, Bostan for handing over the dead body of deceased without postmortem. On the request of petitioner the dead body was handed over to her in Civil Hospital, Quetta without postmortem against receipt dated 10th June, 2010 before the witnesses Zafran son of Muhammad Hayat and Haji Mira Jan son of Bangal Khan. On submission of challan in FIR No,17/2010 trial of co-accused Abdul Wali commenced before learned Special Judge Anti- Terrorism Court-II, Quetta, where the prosecution has produced 08 witnesses and co-accused Abdul Wali has also been examined under section 342, Cr.P.C.
5. Before recording of evidence against co-accused Abdul Wali in FIR No,17/2010, the petitioner had submitted an application, dated 21st June, 2010 under section 22-A(6)(i), Cr.P.C. To learned. Justice of Peace/Sessions Judge, Pishin for issuing directions to respondent No,1 for lodging FIR against respondents Nos.2 to 9 for causing murder of her son Hafiz Muhammad Jan. The said application has been rejected by learned Justice of Peace/Sessions Judge, Pishin vide impugned order dated 15th July 2010.
Feeling aggrieved of the impugned order, the petitioner initially filed C.P. No,513/2010, which was converted to a Criminal Miscellaneous Application under section 561-A Cr.P.C. By this Court vide order dated 5th August 2010. In view of recent pronouncement of the Hon'ble Supreme Court. The Criminal Miscellaneous Application under section 561-A Cr.P.C. Is re-converted to constitutional petition under Article 199 of the Constitution.
Mr. Muhammad Aslam Chishti, Advocate was appointed as amicus to assist the Court.
6. Learned counsel for the petitioner stated that the facts and circumstances of the case warrant registration of second FIR with counter version of the occurrence as alleged by the petitioner; that soon-after the alleged occurrence of FIR No,17/2010, the son of the petitioner was taken to Levies Thana Bostan in the evening of 9th June 2010 and he died unnatural death in levies custody with multiple injuries; that he was brought to civil hospital Quetta in dead condition on the next day i,e, 10th June, 2010 at 11-45 a.m. And was examined by the Medico Legal Officer ("MLO") at 11-50 a.m.
Whereafter, medical certificate was issued on the basis of his external examination which reveals of blunt injuries, apart from the firearm injuries; that the learned Justice of Peace while rejecting the application of the petitioner under section 22-A Cr.P.C. Has failed to properly appreciate the facts and circumstances of the case and has failed to properly exercise the vested jurisdiction.
7. Learned counsel for the respondents while opposing the petition stated that the occurrence was of 9th June 2010, whereas, the application has been submitted under section 22-A, Cr.P.C. On 21st June, 2010 by the petitioner without mentioning therein the date of incident; that no postmortem of the deceased was conducted: that the petitioner herself received the dead body of the deceased on 10th June, 2010 without postmortem; that at the time of taking the custody of the dead body, no complaint or grievance was expressed by the petitioner; that version of the occurrence as alleged by the petitioner in her application under section 22-A Cr.P.C. Is an afterthought and the same is based on mala fide to harass the respondents for ulterior motives; that no offence has been committed by the respondents as alleged by the petitioner; that at the trial, against co-accused Abdul Wali, it has come on record that after firing by the deceased as well as co-accused upon the levies personnel, more than 300 inhabitants of the area gathered at the place of occurrence and they made firing upon the deceased as well as co-accused which resulted into unnatural death of the deceased; that in vengeance of the same, the petitioner has filed a baseless application under section 22-A Cr.P.C.; that the learned Justice of Peace after proper appreciation of the material available on record has rightly rejected the application through impugned order and has committed no illegality or irregularity warranting interference by this Court in its constitutional jurisdiction.
8. Learned Deputy Prosecutor General opposed the petition on the ground that while rejecting the application of the petitioner under section 22-A, Cr.P.C, learned Justice of Peace/Sessions Judge, Pishin has properly appreciated the facts and circumstances of the case and has not committed any illegality or irregularity.
9. Learned Amicus Curiae While referring section 154 Cr.P.C. Stated that there is no statutory bar to lodge second FIR; that the dispute with regard to time, place and manner of occurrence as well as the multiple injuries on the dead body of the deceased particularly lacerated wounds on skull and temporal region and bleeding from left ear and nostrils furnish legal justification to register second FIR with regard to counter version of the occurrence. Learned amicus curiae relied upon the cases of Muhammad Azam v. Inspector-General of Police, PLD 2008 Lahore 103; Hamayun Khan v.
Muhammad Avub Khan 1999 PCr.LJ 1706.
10. Heard the learned counsel and perused the available record. Perusal of record reveals that there are two versions of the occurrence i,e, one narrated by the in FIR No,17/2010 and other alleged by the petitioner for which there is no FIR or investigation. According to the prosecution version on 9th June, 2010 at about 6-30 p.m. The deceased along with arrested co-accused Abdul Wali and the third unknown co-accused made firing upon the levies party to avoid their arrest: that in the meanwhile, almost 300 inhabitants of the area also gathered and they along with levies party started firing upon the accused, due to which, the son of the petitioner namely Muhammad Jan received injuries and expired while co-accused Abdul Wali was arrested and the third co-accused succeeded in fleeing.
According to the Court statement of PW-1 Ali Muhammad Defedar Levies (complainant of FIR No,17/2010) the son of the petitioner received bullet injuries in his abdomen and foot and that from the place of occurrence the injured was brought to Thana where after he was sent to Civil Hospital Pishin in the same evening. But according to statement of PW-2 Haji Muhammad Amin Khasadar Levies, the son of the petitioner namely Muhammad Jan had died on the spot. During cross-examination PW-2 self-contradicted himself by stating that co-accused Abdul Wali was brought to Thana, whereas the other injured was taken to Pishin. According to statement of PW-3 Muhammad Anwar Hawaldar levies the son of the petitioner succumbed to the injuries on his way to the hospital. PW-3 further stated that Mohammad Jan died in the vehicle on the Katcha road of Bostan whereafter, Tehsildar took him to civil hospital Pishin.
11. The trial of co-accused Abdul Wali in FIR No,17/2010 has concluded as his 342, Cr.P.C. Statement has also been recorded. Throughout the trial of FIR No,17/2010, no treatment record/Medico Legal Certificate ("MLC") of Civil Hospital Pishin has been brought on record by the prosecution. The question arises that if the son of the petitioner had received bullet injuries at the place of occurrence then why he was taken to levies Thana Bostan instead of any hospital for treatment and if as per statement of the prosecution witnesses, he was taken to civil Hospital Pishin, then why no MLC/treatment record of civil Hospital Pishin has been made part of the record.
12. According to the prosecution version of FIR No,17/2010, the son of the petitioner had received bullet injuries, but the external examination of the deceased by the MLO of Sundeman Provincial Hospital Quetta reveals of multiple lacerated wounds on the skull and temporal/occipital region, right eyebrow as well bleeding from left ear and nostrils of the deceased. There is no explanation by the prosecution as to how the said multiple injuries were caused to the deceased particularly when he remained in levies custody throughout. The unexplained wounds on the skull and temporal/occipital region of the deceased caused by blunt means as certified by MLO issued on 19th, June 2010 by MLO of Sundeman Provincial Hospital Quetta necessitate registration of second FIR with version of the petitioner and its investigation. It is the case of the petitioner that her son expired due to torture by the levies personnel during his custody in levies Thana Bostan and on expiry his dead body was brought to Sundeman Provincial Hospital Quetta in the morning of 10th June 2010. In view of issuance of MLC on 19th June 2010, filing of application under section 22-A.
Cr.P.C. By the petitioner on 21st June, 2010 cannot be termed as an after thought.
13. According to the settled principles of law,, if in a case it is found that a counter version is given by a party which discloses a distinct and separate cognizable offence, another FIR will have to be registered and shall be investigated upon.
14. Considering the facts and the attending circumstances of the instant case, two distinct and opposite versions have come on record, wherein manner of the occurrence, place of occurrence and other details are not only different, but are also opposite to each other. Therefore, interest of justice as well as fair investigation demands that a separate FIR on the basis of application of the petitioner 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 and which of the accused persons are guilty and liable to conviction.
15. In the referred case of 'Muhammad Azam' it has been held that where a different, opposite or a cross version is put forth by the complainant which discloses commission of cognizable offence second FIR is not barred.
In the case of 'Humayun Khan' it has been held that recording of second FIR depends upon the facts of each case and the matter is to be seen in the context of totality of the circumstances and the allegations.
16. For the above reasons, the petition is accepted, the impugned order dated 15th July 2010 passed by the learned Justice of Peace/Sessions Judge, Pishin is set aside, the application filed by the petitioner under section 22-A, Cr.P.C. Is accepted and the respondent No,1 is directed to register FIR against the respondents Nos.2 to 9 for causing murder of deceased Hafiz Muhammad Jan (son of the petitioner) in levies custody. Since the respondent Nos.2 to 9 are levies personnel. Therefore, fairness and transparency, the investigation should be conducted by the Crimes Branch of Balochistan Police. The trial of the co-accused Abdul Wali in FIR No,17/2010 pending before ATC-II Quetta shall remain suspended till completion of the investigation against the respondents Nos.2 to 9. In case of submission of Challan against the respondents Nos.2 to 9. The trial of respondents Nos.2 to 9 shall be conducted along with the trial of co-accused Abdul Wali in FIR No,17/2010 and both the cases shall be decided simultaneously by the same Court on merits in accordance with law. Copy of this judgment be also sent to DIG Crimes. Branch Balochistan Quetta.