Mst. Sattan daughter of Thiraj, resident of Chak No. 63/R. B. District Faisalabad, had filed this petition under Article 9 of the Provisional Constitution Order, 1981, against Malik Ghulam Muhammad, S. H. O., Police Station Khurarianwala and S. S. P., Faisalabad. She is the real sister. Of Abdul Sattar alias Sattar who, according to her, was murdered on the night between 10/11th April, 1981, in his residential Haveli. She blamed respondent No. 1 and others for the murder.
2. The detailed circumstances under which her brother was done to death are given in Annexure
(A) and need not be repeated here.
It is alleged that in order to create defence and to conceal the commission of murder, respondent No. 1 lodged an F. I. R. On 11-4-1981 at his Police Station. A copy of the F. I. R. Is added as annexure (B) to this petition.
It is further alleged that respondent No. 1 in order to create terror, involved the petitioner, her sister Mst. Bakhi, Mst. Zohra-minor daughter of Sattar deceased and her other family members.
According to the petitioner, the F. I. R. At the instance of respondent No. 1 is false. She is sure that the persons named in the said F. I. R. Were never declared as proclaimed offenders, hence there was no occasion to arrest them.
3. With regard to the other allegations, the petitioner asserts that those are false and frivolous. The petitioner further submitted that she went to lodge F. I. R. About the murder of her brother, as is evident from annex--ure (A), but nobody listened her. Even, the higher Police Officers did not pay much attention to her grievance. In these circumstances she had no option but to come to this Court by means of this petition.
Accordingly, Mst. Sattan bas prayed that respondent No. 2 be ordered to register a case against respondent No. 1 and others, the investigation be entrusted to an officer higher than the rank of S. H.
O. And that respon--dent No. 1, in the meanwhile, be also transferred from the said police station so that he may not influence the investigation.
4. Before notice was issued, Additional Advocate-General appeared and submitted that an enquiry had been ordered into the incident by the District Magistrate.
On 6-7-1981, Additional Advocate-General was directed to place a copy of the report on conclusion of the enquiry.
5. I have heard learned counsel for the petitioner as well as for the respondents. Nobody appeared on behalf of the State.
Learned counsel for the petitioner submitted that a cognizable offence has been made out against respondent No. 1 and others. He submitted that there is sufficient reliable evidence to substantiate the allegation of murder of Sattar, brother of the petitioner for which respondent No. 1 and others whose names have been given in annexure (A), were responsible. Learned counsel submitted that as Police officials were involved that is why no attention was paid to the grievance of the petitioner.
With regard to the F.1. R. Lodged by respondent No. 1, it was submitted that that was a counter--- blast to the case of the petitioner.
The enquiry ordered by the District Magistrate has been concluded. Its report has been placed on the record. Learned counsel for the petitioner laid great stress on the enquiry report according to which the Police was responsible for the murder of Sattar.
6. Learned counsel for the respondents raised a few preliminary objec--tions. The first objection was regarding the maintainability of the petition. It was contended that after the conclusion of the enquiry, the necessary order was to be passed by the District Magistrate and if the petitioner was aggrieved of that order, then he had a remedy by way of revision before the Sessions Judge. In support of this he relied upon Khuda Bakhsh v. Province of West Pakistan and another (1).
Learned counsel further submitted that the District Magistrate has not passed any order because the matter is sub-judice before this Court.
It was further submitted that no second F. I. R. Is competent, under the law, as is evident from section 154 of the Criminal Procedure Code, hence respondent No. 1 could not be blamed for not taking necessary action on the complaint of the petitioner. Reliance was placed on Malik Muhammad Aslam v. S. H. O. Police Station Saddar etc. (2).
Learned counsel then submitted that in annexure (A). a number of persons have been named whereas in the petition only Ghulam Muhammad out of them has been cited as respondent No. 1.
Learned counsel argued that those persons who have not been impleaded as respondents in this petition, cannot be proceeded against because any action against 'them, without giving them an opportunity of hearing, would amount to condemning them unheard.
7. I have considered the submissions made by the learned counsel for the parties. Learned counsel for the respondent gave a long list of books. Out of those I have mentioned only which appear to be relevant. After going through the case law, I am of the view that the dictum in these two cases is not helpful to the respondent, keeping in view the peculiar circum--stances which led to the filing of this petition.
Murder is a capital offence. It is cognizable as well. Normally, person would not dare to falsely accuse another for such x heinous crime. Petitioner has been crying hoarse about the murder of her brother. This'4 could not be without any legitimate cause. The Police was under a legal obligation to listen to her and even to find out how much truth was in her allegations but they had no right to turn a deaf ear to her.
(1) PLD 1957 Lab. 662(2) NLR 1981 Cr. 181 Both the parties have levelled allegations and counter-allegations against each other. At this stage, I have to be very careful in making any observa--tion lest that may prejudice the case of either side. Nevertheless, I am constrained to observe two things. First, that a girl named Zohra, hardly about 9 years of age, daughter of the deceased appeared before me in the Court and when I asked the respondent-Ghulam Muhammad S. I., as to what was her fault; why was she challaned along with others, he had the cheek to submit that she was involved in `Police Muqabila'. The respondent further submitted that she was armed with a Danda with which she attacked the police party. This is ridiculous and shows the high-handiness on the part of the Police. It is such a police encounter which shakes the confidence of the public and eventually whenever and wherever the Police have no legal explanation to offer about a particular incident, it becomes a police encounter.
The second- important thing is the report by the Enquiry Officer. Without commenting upon it, I would only quote the following from the report:- After considering the pros and cons of the case, I am clear in my mind that Mst. Sattan was entitled to the registration of a case for the murder of her brother. Respondent No. 2 is, therefore, ordered that a case .Shall be registered against respondent No. 1.
Certain other persons have been named in Annexure (A) as culprits. They have not been cited as respondents in this petition. Respondent No. 2 shall summon those persons; grant them an opportunity of hearing and if he is of the opinion that there are substantial allegations against them, they shall also be challaned along with respondent No. 1. .
Before concluding, I would like to observe that respondent No. 2 shall entrust the investigation of this case to an Officer not below the rank of Deputy Superintendent of Police.