Contends that the petitioner filed the petition under section 22-A & 22-B Cr.P.C. against respondents No.3 to 5 for registration of case before the learned Justice of Peace, Sahiwal, who vide order dated 24.06.2015 dismissed the same.
2. Brief facts of the petition are that on 13.05.2015 the petitioner alongwith his two daughters and three sons were sleeping in their courtyard. Electric bulb was on. At about 1:30 A.M. three unknown accused while armed with deadly weapons by scaling over the wall entered into the house of the petitioner, who upon the sound of paces woke up. On hue and cry of the petitioner, PWs attracted to the place of occurrence, in the meantime, accused Mehboob made a fire shot with his pistol which hit on right side of head of Muhammad Arshad deceased (son of the petitioner). Then the accused fled away, but malafidely, brother of the petitioner Allah Ditta, who is son-in-law of Zakir accused became complainant and got registered case F.I.R No.154/15 dated 13.05.2015 under section 302/34 PPC at Police Station Ghaziabad District Sahiwal. It is alleged that there is dispute between the petitioner and Allah Ditta complainant regarding the land of horse breeding scheme which is still pending. In the F.I.R, respondents/ Mehboob and Mushtaq has been shown as prosecution witnesses whereas Zafar Iqbal and two unknown persons as accused. Later on, Allah Ditta through supplementary statement recorded on 08.06.2015 implicated Muhammad Tufail, Mst.Sughran Bibi (sister-in-law of the petitioner) and Mst.Pathani Bibi/wife of the petitioner (mother of the deceased) as accused. It was further alleged that Allah Ditta complainant is son-in-law (Damad) of the accused Zakir and Allah Ditta just to save the skin of Zakir cunningly made himself the complainant of the F.I.R.
3. Learned counsel for the petitioner has argued that the petitioner on 23.05.2015 field petition before respondent No.1 for registration of case against respondents No.3 to 5. Further submits that Amina Bibi/respondent No.6 was the widow of Muhammad Arshad deceased who about one year ago herself left the house of her husband, being in league with Allah Ditta also field petition on 09.06.2015 for registration of case against the petitioner before learned Justice of Peace, who vide order dated 24.06.2015 dismissed both petitions. He further argued that petitioner is the father of the deceased Muhammad Arshad whereas respondent No.5 (Allah Ditta) is living in another house and there is land dispute between them. Respondent No.5 is son in law of accused Zakir. He next argued that Mst.Amina Bibi (wife of deceased) and respondent No.5 (Allah Ditta) were not present at the time and place of occurrence. Learned counsel has argued that it is well settled law that F.I.R could be registered in different version given by the aggrieved party of the same occurrence and petitioner being real father of the deceased is an aggrieved person whereas Allah Ditta/respondent No.5 is neither legal heir of the deceased nor an aggrieved person. In the end, learned counsel prayed for the acceptance of this petition and registration of case against respondents. Learned counsel relied upon case law reported as "Wajid Ali Khan Durani & others vs. Government of Sindh & others" (2001 SCM R 1556), wherein it has been held that 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. He further stated that in above said case three FIRs have been registered.
4. On the other hand, learned counsel for the respondents opposed this petition with vehemence on the ground that on 13.05.2015 at about 1:30 a.m. respondent No.5 heard voice of firing from the house of his brother, on which, he by scaling over the wall went there and saw his nephew Muhammad Arshad on a cot smeared with blood, in the meantime, PWs also came there and they with the help of electric bulb identified Zafar Iqbal accused by running away with three unknown accused from the place of occurrence and in the way to hospital, Muhammad Arshad succumbed to the injuries. Learned counsel further contended that accused Zafar Iqbal had illicit relations with Mst.Pathani Bibi (wife of the deceased) and Muhammad Arshad deceased used to forbid her and due to that reason, Zafar Iqbal murder Muhammad Arshad deceased. They next contended that Mst.Ameena Bibi (wife of the deceased) also filed petition to become the complainant of this case before learned Justice of Peace with same allegation which was dismissed vide order dated 24.06.2015 and lastly, he prayed for dismissal of this petition.
5. I have heard the arguments of learned counsel for the parties and perused the record carefully through the file of already registered F.I.R No.154/2015.
6. The contention of the learned counsel for the petitioner is that the registration of second F.I.R is necessary as the occurrence did not take place in the manner as described/concocted by respondent No.5/complainant of the F.I.R. It is further argued that the occurrence had taken place in a different manner as mentioned in the petition under section 22-A & 22-B Cr.P.C., which was dismissed by learned Justice of Peace vide order dated 24.06.2015. On the other hand, learned counsel for the respondents has contended that regarding one occurrence only one F.I.R can be registered and the version of the petitioner can be looked into while investigating the case. In this regard, learned counsel for the petitioner referred case laws to make out that if there was no legal hindrance, the second F.I.R can be registered. In case law titled "Akram Ali vs. SHO etc" (PLD 1979 Lahore 320), it has been held that if F.I.R pertaining to a particular occurrence has already been registered, another F.I.R containing counter-version of same occurrence can also be registered as the registration of the counterF.I.R would be equitable. In another case reported as "Abdul Ghani vs. SHO etc" (1983 P.Cr.L1 2172 Lahore), it has been observed that where there are two cross-versions of occurrence which has already about the manner of occurrence cannot be refused by the SHO who has to investigate the matter thereafter. Likewise in case law titled "Halim Sarwar vs. SHO etc"
(1984 P.Crl.L.J 2993) it has been held that F.I.R having been registered on the basis of one side version the registration of a second F.I.R showing a different grievance could not be refused by the police in proper performance of his legal duty under section 154 Cr.P.C. Similarly, In case titled "Muhammad Ilyas vs SHO etc" (1997 MLD 5127) wherein direction for the registration of the second F.I.R according to the version of the writ petitioner of that case was issued.
7. The confirmed view of this Court is that the aforesaid case laws are attracted to the facts of the present writ petitioner. The most important aspect of the matter is that the benefit of right of private defence has been agitated in the F.I.R and the same has been granted to the complainant of the already registered F.I.R by the police without taking into account the version of the adverse party. If there is allegation of murder of a person, his father, mother as well as eyewitnesses have the right that their version about the murder of deceased may be recorded and the person who admits to have killed that person can be considered as defence version and has to be established during the investigation as well as trial.
8. It has been observed by this Court that it is a case of two versions. First, son of the petitioner was murdered at petitioner's house in presence of his father, mother, sister and brother whereas Allah Ditta/respondent who got recorded the F.I.R by posing himself as complainant has strained relations with the petitioner. Therefore, petitioner moved an application before learned Ex-Officio Justice of Peace under section 22-A & 22-B Cr.P.C. for registration of case against the respondents with his own view and contention which was dismissed. Admittedly, where the occurrence took place, is the house of petitioner, but police recorded version of uncle of deceased except his father, mother or other inmates. It is the prime duty of SHO to join the person(s), who was natural witness of the occurrence, but he failed to do so. It does not appeal to a prudent mind that a real mother, with intimidation of her friend, can kill her son. In this regard, reliance can be placed on case law reported as "Mst.Anwar Begum vs. SHO etc" (PLD 2005 SC 297), wherein it has been held that discretionary powers under Article 199 of the Constitution of Pakistan must be exercised by the High Court in good faith, fairly, justly and reasonably having regard to all relevant circumstances in accordance with principles laid down by the Superior Courts. Disposal of Constitutional petition on technical grounds without adverting to grievance of the petitioner was not legal.
9. For what has been discussed above, the petitioner, being father of the deceased Muhammad Arshad, has made out a case for registration of second F.I.R. I, therefore, accept this writ petition and order dated 24.06.2015 passed by learned Ex-Officio Justice of Peace is set-aside. SHO concerned is directed to register the case on the written complaint of petitioner Sardool and shall proceed further with the matter fairly, justly, impartially and strictly in accordance with law.
10. That observations made herein shall not effect the proceedings of case F.I.R earlier recorded for the occurrence during trial. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.