' On 29-4-1997 at 1-50 p.m. Mukhtar Ahmad son of Haji Rasool Bakhsh got recorded F.I.R. No,74 at Police Station Zahirpir, District Rahimyar Khan under section 452/324/148/149, P.P.C. It is contained in the F.I.R. That two days earlier he (complainant) along with Abdul Hameed was sitting on Adda Missonabad near Railway Station Zahirpir. Noor Ahmad alias Bhoori (who admittedly lost his life during the occurrence) and Fida Hussain arrived there and asked that as to why they (complainant party) had arrived at the Adda. Both the parties grappled. The passengers present at the Adda intervened. The respective parties left. On 28-4-1997 at about 12-00 at noon he (Mukhtar)
(complainant) and Abdul Hameed were present at Adda Gul Basti Duhrani Dakhali, Mauza Hasilpur where Noor Ahmad alias Bhoori and Fida Hussain arrived and asked as to why the complainant party arrived at Adda. There was a quarrel wherein the parties abused each other as well as slapped and gave fist blows. Noor Ahmad alias Bhoori is said to have given the threats that he would take the revenge. On the previous night (i,e, on the night falling between 28/29-4-1997) he (Mukhtar Ahmad - complainant) along with Rasool Bakhsh, his mother Mst. Amna and his sister Mst. Azra Bibi wife of Khalil Ahmad were sleeping within the bounded courtyard of the house. At about 2-00 a.m. They woke on the barking of the dogs. They saw in the light of the lamp that Noor Ahmad alias Bhoori armed with .12 bore pistol, Majju armed with hatchet, Fida Hussain armed with .12 bore pistol, Rab Nawaz and two others unknown persons each armed with Soti were present in the courtyard. Noor Ahmad issued threat and fired which hit the leg of Mst. Azra Bibi. The father and mother of the complainant woke up. Saeed Ahmad and Muhammad Bakhsh were attracted at the spot. Majju, Rab Nawaz and two unknown persons gave blows on his person as well as on the persons of Mst. Amna and Mst. Azra with hatchets and Sotis. Noor Ahmad was also injured who fell there and then alongwith his pistol. Except Noor Ahmad all the accused made good their escape.
They were taking the injured persons namely Mst. Amna, Mst. Azra, Noor Ahmad alias Bhoori on a wagon to Civil Hospital, Zahirpir. Noor Ahmad alias Bhoori died near the hospital. He prayed for legal action in the matter.
2. However, the version of the aforesaid accused party through Haji Ahmad petitioner of this Writ Petition No,2879 of 1997 for the registration of a criminal case with respect to the same occurrence is as under:-- "Manzoor Ahmad, brother-in-law of Haji Ahmad writ-petitioner, got on lease a garden in village Hasilpur wherein Noor Ahmad deceased, Shabbir Ahmad and Gul Muhammad were his internal partners. Three months before the occurrence Yaqoob Billa had altercation with Noor Ahmad deceased in connection with votes when Yaqoob is said to have threatened the latter with dire consequences. Mukhtar Ahmad, Abdul Hameed, Mukhtar Ahmad son of Abdul Razzak, Saeed Ahmad son of Qadir Bakhsh, Saeed Ahmad son of Jan Muhammad and Shair Muhammad belong to the party of Yaqoob. On 28-4-1997 Mukhtar Ahmad and Abdul Hameed quarrelled with Noor Ahmad deceased when Mukhtar is said to have threatened him. On 28-4-1997 Noor Ahmad deceased was present in the aforesaid garden along with Shabbir Ahmad and Gul Muhammad P.Ws. When at about Maghrabwela Mukhtar Ahmad, Mukhtar Ahmad son of Abdul Razzak, Abdul Hameed, Saeed Ahmad son of Oadir Bakhsh, Saeed Ahmed son of Jan Muhammad and Shair Muhammad each armed with stick came into the aforesaid garden who forcibly took Noor Ahmad to the Dera of Yaqoob after having tied him. Shabbir Ahmad and Gul Muhammad P.Ws. Followed them and made the requests to release Noor Ahmad. At the Dera of Yaqoob instigation was effected by Yaqoob to kill Noor Ahmad when Yaqoob and other aforesaid persons armed with sticks inflicted injuries on the person of Noor Ahmad hitting his face and legs who became unconscious. Afterwards the information was imparted by Gul Muhammad about the occurrence.
The petitioner and Abdul Ghani went to the spot. Shabbir Ahmad told the petitioner that Noor Ahmad had been taken by the accused in unconscious condition. He went to Zahirpir where the dead body of Noor Ahmad was lying. He requested the S.H.O., Police Station Zahirpir, District Rahimyar Khan (respondent No,3) for the registration of the case who did not accede to his request."
3. Thereafter Writ Petition No,2350 of 1997 was filed wherein the S.H.O. Was directed to proceed in accordance with law. However, the F.I.R. Was not registered.
4. Through the filing of this writ petition Haji Ahmad petitioner is desirous for the registration of the second F.I.R. According to his version. The comments have been submitted by Deputy Superintendent of Police, Khanpur Circle as well as the S.H.O., Police Station Zahirpir who 'reiterated the facts of the already registered F.I.R., according to which Noor Ahmad alias Bhoori is said to have been killed in exercise of right of self-defense. It was mentioned that Noor Ahmad deceased was involved in 43 cases and that Mr. Saleem Akhtar previous D.S.P./S.D.P.O. Held an inquiry wherein the occurrence was found to have taken place as mentioned in the already registered F.I.R.
5. I have heard the learned counsel for the parties as well as the learned Assistant Advocate- General and gone through the file of the already registered F.I.R. Brought by the S.H.O. The contention of the learned counsel for the petitioner is that the registration of the second F.I.R. Is that of utmost legal necessity as the occurrence did not take place in the manner agitated by the complainant of the already registered F.I.R. Which was simply concocted. He added that the occurrence had taken place in a different manner as mentioned in the writ petition under disposal.
On the contrary learned counsel for the adverse party as well as the learned Assistant Advocate- General laid the emphasis that about one occurrence only one F.I.R. Can be registered and the version of the petitioner can be looked into and analysed while investigating the case. According to them due to the registration of the aforesaid F.I.R. The writ petitioner can get recorded his version during the investigation. It shall not be out of place to express that different rulings of the superior Courts were referred to by the learned counsel for the petitioner to make out that if there was any legal justification, the second F.I.R. Can be registered.
6. In my view this is the stage to refer to the following rulings relevant on the subject:-
(i) It has been held in Akram Ali v. Station House Officer, Police Station Kotwali, Kasur and 2 others PLD 1979 Lah. 320 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 counter-F.I.R. Would be equitable.
(ii) According to Abdul Ghani v. S.H.O., Police Station Saddar, Sheikhupura and others 1983 PCr.LJ 2172 (Lahore) where there are two cross-versions of occurrence which has already been reported to the police, the registration of the second F.I.R. Totally on different premises about the manner of occurrence cannot be refused by the Station House Officer who has to investigate the matter thereafter.
(iii) In Halim Sarwar v. S.H.O., Police Station Marala and 2 others 1984 PCr.LJ 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 Officer in the proper performance of his legal duty under section 154, Cr.P.C. It has further been held that if the second F.I.R. Is found as false or incorrect in the investigation the S.H.O. Can proceed in accordance with law for cancellation of the same.
(iv) It is ruled in Muhammad Siddique v. S.H.O., Police Station, Muzaffarabad 1995 PCr.LJ 1477 (Shariat Court Azad J&K) that the police was not debarred to register the case on counter-version if the same disclosed the commission of the cognizable offence and that rather in such circumstances police had no option but to register the case as laid down by section 154, Cr.P.C.
(v) Muhammad Ilyas v. S.H.O. And 3 others 1997 M LD 1527 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. My confirmed view is that the aforesaid rulings are attracted to the facts Of the present writ petition. There is dispute about the time of occurrence, place of occurrence and the manner of occurrence. The alleged motive is also different. 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. Without prejudice I am tempted to express that if there is allegation of murder of a person, his nears and dears and relatives as well as eye-witnesses have the right that their version about the murder of deceased may be recorded and the defence by the person(s) who admit to have killed that person can be considered as the defence version and has to be established during the investigation as well as during the trial. If no defence is made during the investigation, said type of indolence/lethargy may be to the detriment to a killer of the deceased during the trial being afterthought. Due to the death of Noor Ahmad whose post-mortem was admittedly got conducted, it is the appropriate case wherein the second F.I.R. Should be registered.
8. It is the proper stage to express that Mst. Azra was having wound of entry as well as wound of exit. It is pertinent to mention that no blood-stained earth which fell from the leg of Mst. Azra injured was taken into possession from the courtyard. It is contained in the spot inspection note that there was heavy rain and the blood was washed away. However, this fact is not mentioned in the rough site plan prepared by the Investigating Officer. EVen otherwise it is nowhere narrated that the articles lying in the courtyard were mud-stained.
9. I would be glossing over an important aspect of the matter by referring to the situation that on the basis of registered F.I.R. No,74 of 1997 at Police Station Zahir Pir, in case after submission of challan indictment the trial is held by the Court of competent jurisdiction (which in the instant case would be the Area Magistrate) and the accused raise the defence of murder of the deceased of the case can that be analysed and accepted by the area Magistrate? The answer would be in negative. Further if the prosecution case is not proved/established then what legal course can be adopted by the said trial Court? Whole of the Criminal Procedural and Substantive law is silent in this regard. This anamoly would certainly prompt judicial anarchy leading towards administrative chaos. The law and order situation is already worsening and the Investigating Officer cannot be allowed to assume the role of a Judicial Officer and that also at the initial time of registration of aforesaid F.I.R. As such the registration of the second F.I.R. As required and desired by the writ petitioner, due to the aforesaid aspects, is also necessary and justified.
10. In the circumstances of the matter in hand, I hold that it is a fit case wherein an order should be passed for the registration of F.I.R. At the instance of Haji Ahmad petitioner according to his version.
I, therefore, accept this writ petition and direct the S.H.O., Police Station Zahirpir, District Rahimyar Khan to register the case on the written complaint of Haji Ahmad petitioner. At this stage I feel it necessary to direct the S.H.O. To complete the investigation of both the versions in an equitable manner keeping in view the proviso to subsection (1) of section 173, Cr.P.C. According to which the challan has to be submitted within a period of 14 days and in case the investigation is not completed within the next 3 days the incomplete challan has to be submitted. It is expressed that the aforesaid provision of procedural law brought through amendment is a sort of censorship/restraint upon the police working to avoid the protracted investigation which has become an order of the day and is a source of inconvenience not only to the affected party, but to the citizens also as the law and order situation is worsening with the passage of time.
11. Haji Ahmad petitioner is directed to appear before the S.H.O., Police Station Zahirpir, District Rahimyar Khan on 17-7-1997 at 10-00 a.m. Alongwith the written complaint and a certified copy of this order who shall register the F.I.R. And shall proceed further in accordance with law as expressed above. He shall hand over a copy of the F.I.R. To the petitioner. Obviously after the registration of the F.I.R. The S.H.O. Shall immediately record the statements of the P.Ws. And thereafter, proceed in accordance with law.