SAEED-UR-REHMAN FARRUKH, J. - I have heard the learned counsel for the parties at great length.
2. In an unfortunate incident, two persons Akram and Aslam, both brothers of the petitioner, lost their lives, allegedly, on the night between 11th and 12th January, 1997, which is described by the petitioner as a case of cold blooded murders at the hands of police personnel and treated as a police encounter by the police.
According to the petitioner, certain polie personnel, named in para 1 of the writ petition trespassed into the house of the petitioner at the dead of night and the petitioner two deceased were blind folded and taken away to the dera of one Yaqoob where the deceased were done to death brutally. It is submitted that Muhammad Aslam deceased was involved in meny criminal cases.
A judicial enquiry was ordered to be conducted into the incident Under the orders of District Magistrate which endorsed/upheld the stance of the police that it was in fact a police encounter during the course whereof both Akram and Aslam who were outlaws were killed. The District Magistrate concurred with the report of inquiry officer, vide letter dated 18.2.97, addressed to Home Secretary, Government of Punjab.
3. It is contended by the learned counsel for the petitioner that with a view to cover up their high- handedness the police got a fake case registered vide F.I.R. No. 22 on 12.1.1997 Under sections 324/353/148/149 PPC to bolstar the plea of police encounter. Having failed to get a criminal case registered at his instance the petitioner has filed the present writ petition seeking a direction for registration of a case.
4. It is vehemently argued by Mr. Ghaus Muhammad Advocate, learned counsel for respondent No. 6 that in the presence of a criminal case already registered with regard to the occurrence (F.I.R. 22 referred to above) and in the face of findings of the judicial enquiry this court is rendered bereft of powers under Article 199 of the Constitution to issue a direction in the nature of mandamus for registration of another case pertaining to the same incident. He has placed strong reliance on Muhammad Anwar's case (1973 Cr.L.J. 882) and Khuda Bux's case (PLD 1957 Lah. 662).
On the other hand, Sardar Latif Khan Khosa, Advocate, learned counsel for the petitioner, has argued that there is no bar in the matter of registration of another criminal case in the presence of the earlier F.I.R, which, according to him, was based on concocted facts, solely with .a view to give protection to the police officers/officials who have perpetrated this serious crime. He has relied upon Ghinwa Bhutto's case (PLD 1997 Kar. 119) wherein third F.I.R, was ordered to be registered.
5. It may be observed that the factum of constitution of high powered commission headed by an Hon'ble Judge of Supreme Court, by the Federal Government, to enquire into matter of death of Mir Murtaza Bhutto, was not noticed in Ghinwa Bhutto's case.
6. It is not obligatory for the High Court to order registration of second F.I.R, pertaining to the same incident, in each and every case. It is in fact in the discretion of the court and the exercise of the discretion would depend on the facts of each case. In an appropriate case the prayer for registration of a case can be refused and it can be observed that the aggrieved party may, instead, file a complaint. It is not disputed that filing of a complaint is an adequate, alternate remedy. See Ghinwa Bhutto's case (PLD 1997 Karachi at 127).
7, Keeping in view the facts and circumstances of the case, inclusive of holding of judicial enquiry, and also the fad that the writ petition was filed as late as on 17.2.97, pertaining to the incident dated 11.1.97 by which date judicial enquiry had been completed/1 do not deem it proper to order the registration of another F.I.R, at the behest of the petitioner. He may, if so advised, file a private complaint.