SHAHNAWAZ TARIQ, J.---Through captioned Constitution petition, petitioner Imtiaz Ali Thebo has invoked the Constitutional jurisdiction of this Court under Article 199 of Islamic Republic of Pakistan, 1973, and impugned order dated 16.10.2014, passed by the Court of IV- Judicial Magistrate, Khairpur, whereby summary report submitted by the Investigating Officer for disposal of the case was approved.
2. Necessary facts spelt out from instant petition are that on 16.04.2014, at 5:00 a.m., petitioner and other family members were present in their house, and in the meantime, two police mobiles arrived at their house and respondents 5 to 9 in police uniform and other unidentified culprits in plain clothes alighted from mobiles and they barged into their house and overpowered them on gun point. Respondents robbed valuable household articles, gold ornaments and cash from houses of petitioner and one Hussain Bux. Respondents forcibly put the petitioner, his father Mehar and his 3 brothers namely Ramzan, Dilshad and Irshad, in police mobile. Police also committed robbery from the houses of Bashir, Saleem and Nadeem and tied them with chain and also abused their women folk. Petitioner and his brothers were brought at highway near Rashidi Minor at about 6:00 a.m., where SIP Darya Khan got down petitioner's brother namely Ramzan and made direct fires of Kalashnikov, and his brother fell down on the ground and police shifted him by another police mobile. Petitioner and his brothers namely Irshad and Dilshad were brought at Police Station where they were tortured severely and were released at evening except Irshad who remained in illegal confinement and police asked them to arrange money. When petitioner and his father reached at their house, a police mobile threw the dead body of his brother Ramzan at their house. Petitioner approached respondents 5 to 9 and inquired about the illegal confinement of his brother Irshad and asked for registration of FIR for murder of his brother but SIP Darya Khan Jatoi refused to do so.
Petitioner filed criminal miscellaneous application No,D-359 of 2014, Re-Imtiaz All v. SSP Khairpur and others before High Court of Sindh Bench at Sukkur which was disposed of vide order dated 07.08.2014 and petitioner registered FIR No,138 of 2014, under sections 302, 395, 342, 364, 506/2, and 34, P.P.C. On 12.09.2014, against respondents. After investigation, Investigating Officer recommended disposal of the case under 'B'-Class before the Court of IV-Judicial Magistrate, Khairpur, which was approved vide impugned order. It is further averred that Investigating Officer had collected evidence regarding the death of deceased who was allegedly killed during encounter with police official and FIR No,50 of 2014, under sections 402, 399, 324, 353, P.P.C., 7-ATA, and 23(i)A, dated 16.04.2014, was lodged at Police Station, Tando Masti Khan by SIP Darya Khan Jatoi, and recovered pistol from possession of deceased for which another FIR was registered.
Police had lodged false FIR regarding police encounter, hence Investigating Officer may be directed to submit Challan against respondents.
3. Learned Counsel for petitioner contended that learned Magistrate has passed impugned order which is contrary to law and facts; that petitioner has lodged FIR against respondents for commission of the murder of his brother, and illegal confinement of his another brother; that Investigating Officer has fully supported the respondents because they are police officials and did not conduct investigation properly; that learned trial Court without calling the petitioner and hearing his counsel, had disposed of the case which is entirely unjustified; that learned Magistrate has disposed of the case on the basis of presumptions which is not warranted under the law.
Learned counsel for applicant relied on 2010 SCM R 660, 2010 SCM R 1791, 2014 PCr.LJ 1031, 2009 YLR 1614 and 2011 SCM R 1354.
4. While controverting the above submissions, learned AAG vehemently contended that deceased was notorious criminal involved in several criminal cases; that accused Ramzan sustained bullet injuries during encounter with police and expired in hospital during treatment; that police lodged FIR regarding said encounter for the against which; that petitioner had lodged FIR regarding death of his brother against police official with sole object to pressurize the police officials; that dead body of the deceased Ramzan was received by the father of the petitioner through a valid receipt; that allegations leveled by the petitioner are controverting to the medical record; that statements of witness Hussain Bux, Mehar, Nadeem and Mohammad Saleem were recorded under section 161, Cr.P.C. By the Investigating Officer which are controverting the contents of FIR; that the allegations of throwing of dead body at the house of the petitioner are false and fabricated. Learned AAG relied on 2014 PCr.LJ 1031.
5. Heard learned Counsel for the parties and scanned the material available on record. Perusal of material reflects that there are two conflicting versions in respect of alleged incident by narrating different stories. First FIR No,50 of 2014, under sections 402, 399, 324, 353, P.P.C., 7-ATA and 23(i)A of Sindh Arms Act, 2013; was lodged by SIP Darya Khan Jatoi regarding the alleged encounter held between the police party and deceased Ramzan and his companions, while second FIR No,138 of 2014, under sections 302, 395, 342, 364, 451, 506/2 and 34 P.P.C., was lodged by petitioner, alleging that police raided their house, committed robbery of certain articles, apprehended petitioner and his brothers and subsequently committed murder of his brother Ramzan and a police mobile thrown his dead body in front of their house. Conversely, perusal of the medical record emanates that said Ramzan was admitted in hospital in serious condition at 9:00 a.m. And during the treatment, he succumbed to his injuries. Post mortem of the deceased was conducted by Dr. Khub Chand at GMMC Hospital, Khairpur, and dead body was received by the father of deceased namely Mehar and his LTI was obtained upon the receipt of dead body.
7.(sic) The criminal history of the deceased Ramzan also reflects that he was involved in following 15 criminal cases:-- S.No.Crime No.Under Section Police Station Remarks 1 81/2014 302 P.P.C. Tando Masti KhanChallan 2 97/2003 13(d). A .0. Tando Masti KhanChallan 3 55/2009 324, 353 P.P.C. Tando Masti KhanAbsconder 4 161/2009 324, 353 P.P.C. Tando Masti KhanAbsconder 5 12/2010 17(i) E.H.Ord. Tando Masti KhanAbsconder 6 162/2009324, 353 P.P.C. Tando Masti KhanAbsconder 7 173/2011 324, 353 P.P.C. Tando Masti KhanAbsconder 8 126/2012 324, 353 P.P.C. Tando Masti KhanAbsconder 9 134/2012 324, 353 P.P.C. Tando Masti KhanAbsconder 10 109/2013 324, 353 P.P.C. Tando Masti KhanAbsconder 11 18/2014 324, 353 P.P.C. Tando Masti KhanAbsconder 12 26/2014 324, 353 P.P.C. Tando Masti KhanAbsconder 13 33/2014 324, 353 P.P.C. Tando Masti KhanAbsconder 14 50/2014 324, 353, P.P.C., 7- ATATando Masti KhanKilled during encounter 15 51/2014 23(i)A Tando Masti KhanRecovery of DBBL gun 16 69/2014 395,511,324,353 P.P.C.P.S Gambat - 7. In the case of Jamshed Ahmed v. Muhammad Akram Khan and others (1975 SCMR 149), the Honourable Supreme Court has observed that on the basis of same occurrence facts and allegations second FIR is not permissible specially when earlier FIR stood cancelled on the basis of police report under section 173, Cr.P.C. In the case of Syed Wahid Bux Shah alias Chacho Shah and another v. The State (2011 M LD 64), it was observed that second FIR in respect of same offence seem to be fabricated as reported by the Investigating Officer in the wake of submission of challan in respect of the first FIR. Magistrate passed impugned in haste after discussing evidence which was not permissible under Section 173, Cr. P. C. Second FIR after the first one could not be considered as true. Impugned order was set aside and proceedings qua second FIR were quashed. In the case of Muhammad Saleem Akhter v. Station House Officer Police Station Chotiana and 3 others (2005 PCr.LJ 1789), it was observed that registration of second FIR is not permissible on the basis of same occurrence, facts and allegations, specially when the earlier FIR stood cancelled on the police report under Section 173, Cr.P.C. If there had been malpractice by the police or anybody else in registration of first FIR, subsequent FIR could not be registered.
8. It is well settled that lodgment of second FIR against the same offence is neither prohibited nor restricted by the law, nevertheless the controverting set of allegations narrated in second FIR must emanate a quite separate and distinct offence, and same should be examined prudently in the purview of facts stated regarding the incident in earlier FIR as well as documentary evidence collected and statements of PWs recorded under section 161, Cr.P.C. By earlier Investigating Officer, to curb and defeat the fabrication of events with mala fide intention and false involvement of any innocent person.
9. In present petition, second FIR was lodged on 12.09.2014, by brother of deceased Ramzan alias Madho with delay of 5 months and even with delay of more than one month after passing order dated 07.08.2014, by the High Court of Sindh bench Sukkur, directing the concerned police for the lodgment of FIR but no plausible explanation was furnished on the account of delay by the petitioner Imtiaz Ali. Indeed, second FIR was lodged with counter version regarding the same incident by the accused party against the police personnel, which is controverted by the medical record and other documentary evidence already collected by the Investigating Officer. The averments of second FIR as narrated by petitioner that he along with his brother and father were taken away by the police from their house and near Rashidi Minor, his brother Ramzan was shot dead by complainant SIP Darya Khan and thrown dead body at their house, are self-contradictory and seemed to be fabricated as the Investigating Officer had investigated the incident properly and recorded statements of witnesses, collected medical treatment record, post-mortem report, criminal record of the deceased and other relevant material which was collected by the earlier Investigating Officer of first FIR Medical record emanates that said Ramzan was alive when he was admitted in Government Hospital on the day of incident at 9:00 a.m. And during his treatment, he expired at hospital. Mehar, father of the deceased Ramzan received dead body and affixed his LTI on receipt. Criminal record collected by the Investigating Officer, reproduced supra revealed that deceased was involved in 15 criminal cases including murder case. The incident narrated in first FIR is supported by the strong material evidence which was available on record to connect deceased accused with the commission of the alleged offence.
10. It is well settled that Magistrate while dealing with summery report submitted by the Investigating Officer is entirely competent under section 173, Cr.P.C. And Rule 24.7 of Police Rules, 1934, to accord or discord the summery report considering the facts and circumstances of the incident prudently to maintain the ends of justice and curb the abuse of process of the Court.
11. Bare perusal of the impugned order reflects that learned Magistrate has passed a just and proper order considering all aspects of the case and approved summary report submitted by the Investigating Officer and disposed of second FIR being false. Petitioner has failed to point any illegality and material infirmity in impugned order, thus it does not call for any interference and same stands maintained. However, the summery report is approved in "C"-Class instead of "B"- Class. Consequently, instant Constitution Petition stands dismissed being devoid of any legal substance.