LAL JAN KHATTAK, J.---This writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is directed against the order dated 22.9.2015 of the learned Justice of Peace, Mardan whereby the petitioner's application under section 22-A, Cr.P.C. for registration of a criminal case against the respondent No,5 has been dismissed.
2. Brief facts of the case are that on 04.09.2015 petitioner filed an application under section 22-A, Cr.P.C. before the learned Justice of Peace, Mardan alleging therein that on 25.08.2015 her husband, namely, Miraj had left for Mardan with respondent No,5 Bahadar Sher and that on the following day she came to know about his admission in Mardan Medical Complex for his having been injured with firearm, who then was referred to Peshawar for further medical treatment as his condition was critical where he succumbed to his injury. It is further the petitioner's case that in fact her husband has been murdered by respondent No,5 Bahadar Sher but the local police of Police Station City Mardan with mala fide intention and in league with the respondent No,5 has given a wrong colour to the incident in a concocted case vide FIR No,755 dated 26.8.2015 under section 398, P.P.C. terming him as a dacoit and firing at him by the respondent while exercising his right of self defence. It is the petitioner's stance that in fact no dacoity had taken place in the house of respondent No,5 rather her husband has been murdered by the said respondent for which he has to be booked in accordance with law.
3. The learned Justice of Peace vide order dated 22.9.2015 dismissed the petitioner's plea for registration of FIR against the respondent No,5, however, he observed in his order that the petitioner would be at liberty to join investigation in case FIR No,755 and record statement of her choice. Not satisfied with the aforesaid order, petitioner has impugned the same through the instant writ petition.
4. Learned counsel for the petitioner argued that a cognizable offence has been committed by the respondent No,5 as he has committed qatl-i-amd of the petitioner's husband and as such the local police is duty bound to register a criminal case against him. Further argued that under the law second FIR is not barred and in appropriate cases true version of an incident can be incorporated in second and even in 3rd FIR.
5. As against the above, learned counsel for respondent No,5 opposed the petition by contending that the deceased had entered into the respondent's house for commission of an offence where he was fired at by him while exercising his right of self-defence and as such issuance of the desired writ oe declined.
6. The learned AAG appearing for the official respondents argued that as alternate remedy is available to the petitioner for the redressal of her grievance, therefore, the instant petition is not maintainable before this court.
7. We have heard learned counsel for the parties and gone through the record.
8. Perusal of the case record would indicate that admittedly the deceased was fired at by the respondent No,5 in his house, who then lodged a report about the incident under section 398, P.P.C. and section 15 of the Khyber Pakhtunkhwa Arms Act, 2013 alleging therein that he was present in his house at 01.35 hrs when two unknown persons duly armed emerged there and asked him not to move. In the meanwhile, his wife and mother awoke, who raised hue and cry on which the intruders started running towards the gate and while fleeing, one of them slipped and fell on the ground as floor of the house was slippery. According to the contents of FIR, when slipped, the loaded pistol was dropped from the intruder, which was picked up by the respondent No,5 and while exercising his right of defence, he fired at the intruder with which he was hit, whereafter, the intruders decamped from the house.
9. A bare perusal of FIR No,755 would reveal that same was lodged within a short span of 30 minutes, wherein, particulars as to name, parentage and residence of the deceased, namely, Miraj have been given. On the one hand, respondent No,5 alleges in his FIR that two unknown persons had entered into his house but in the same breath he identifies the deceased by giving his accurate name, parentage and place of residence. This imbroglio is not understandable, at least at the moment. Furthermore, it is in the FIR that- the respondent No,5 had fired at the deceased while exercising his right of self-defence. Question arises that when at the relevant time the deceased was fleeing from the respondent's house with empty hands as the pistol he was holding had been dropped from him due to his falling on the ground, then whether in above given circumstances, the respondent No,5 was justified and had the right to fire at the intruder in the exercise of his right of self-defence and if yes, then to what degree and extent? Answer to the above query can only be given, when law is put into motion in this respect against the respondent No,5, so that truth could surface.
10. According to section 154 of Cr.P.C., a Police Officer or Incharge of a Police Station is under legal obligation to reduce into writing any information given to him in respect of a cognizable offence.
Ibid section of law equally enjoins a Police Officer to register a second FIR, if during the investigation in a case a version counter or different than the one already given to him, is received or conveyed to him. Likewise, if initially untrue or distorted facts are given in some FIR, which do not reflect true picture or version of a case, then, on discovery of actual facts of the incident, there is no bar on registration of second FIR because it is the prime duty of a Police Officer to strive for unearthing the actual facts of a crime. When the subsequent information is not a mere amplification of the first version and totally runs contrary to the earlier one, then it must be recorded by the Police Officer in a second FIR. Wisdom to the above effect is derived from a judgment reported in 2001 SCM R 1556.
11. In a case reported in PLD 2016 SC 484; the Hon'ble Supreme Court has held as under:- "As could be seen from the plain reading of above reproduced provision of law, the requirement of section 154, Cr.P.C. is to enter every information of commission of a cognizable offence, whether given orally or in writing to the officer-in-charge of the police station, which shall then be reduced into writing and signed by the person giving it and the substance thereof shall be entered in a book to be kept by such officer in the form prescribed by the Provincial Government in his behalf.
Meaning thereby, that it is not a legal requirement for provider of such information to canvass the whole scene of occurrence of a cognizable offence giving description and details of accused, details of weapons used by them, their specific role, motive behind the occurrence, and the names of eye-witnesses etc. But it is a matter of common experience that usually the entries made in section 154, Cr.P.C. book, as per practice, contain invariably all such details so much so that in the ordinary parlance/sense it is considered as the gist of the prosecution case against the accused. In such state of affairs, if a collusive, mala fide or concocted FIR, registered at the instance of some individual with some ulterior motive, is taken as sacrosanct, it is likely to divert the whole course of investigation in a wrong direction and spoil the entire prosecution case on that premise. The Court while considering the crucial point of registration of another FIR cannot remain oblivious of these ground realities so as to non-suit the aggrieved party from agitating his grievance in an honest manner, or ensure regulating proper investigation of a crime in the right direction, or apprehend the real culprits and brought them before the Court of law for justice".
12. By taking into consideration facts of the instant case and the case law referred to above, we are of the considered view that the version given by the petitioner qua the murder of her husband allegedly by the respondent No,5 needs registration of second FIR, so that true facts that how the deceased lost his life be brought to surface, therefore, we accept this writ petition, set aside the impugned order of learned Justice of Peace, Mardan and direct the official respondents to register second FIR of the occurrence against the respondent No,5 as per version of the petitioner. It is further directed that after registration of the FIR, investigation in the case be entrusted to a Police Officer other than the one, who has carried out investigation in the case FIR No,755 dated 26.08.2015.