MUMTAZ ALI MIRZA, J.- The grievance of the petitioner as made in the instant Constitutional petition is that notwithstanding the commission of a cognizable offence by respondents Nos. 1 to 6 against the petitioner and a report thereabout in writing to respondent No. 8 SHO P.S. Civil Lines, Jhelum, the said respondent refused to discharge the statutory duty cast on him under Section 154 Cr.P.C.
2. Raja Abdul Aziz Bhatti, Advocate, appearing on behalf of the said respondents Nos. 1 to 6 contended that the story as set up by the petitioner in the instant Constitutional petition was wholly unfounded and false and that no cognizable offence was disclosed to have been committed therein which called for the registration of a case. In any event Raja Abdul Aziz Bhatti, Advocate, submitted that FIR No. 70 dated 23.5.1997 has already been registered in respect of the said occurrence and that in the presence of the same second F.I.R, could not be registered.
3. The question arising for determination in the circumstances as to whether second F.I.R, could or could not be registered requires consideration. Admit. Notice.
4. Raja Abdul Aziz Bhatti, Advocate, leamed counsel for respondents No. 1 to 6 accepts notice on their behalf.
5. Leamed counsel for the parties are prepared to argue the main case today. They are accordingly called upon to address arguments in support of their respective version of the case.
MUMTAZ ALI MIRZA, J.- The facts as disclosed in the instant Constitutional petition are that the petitioner, Raja Gulzar Ahmad, remained in United Kingdom from the year 1962 till the year 1996 and at present is residing in Nai Abadi, Mohallah New Shomali Street No. 5, Jhelum City. He has alleged in the instant Constitutional petition that during the night between 22/23.5.1997 at about 1.00 a.m.
Respondents No. 1 to 6 in the instant petition broke open the main door of the residence of the petitioner and in furtherance of their common intention they caused as many, as six injuries on his person out of which two injuries sustained by him were declared as grievous in nature by the doctor. Respondents No. 1 to 6 also took away from the residence of the petitioner a T.V. Set, Refrigerator, Deep Freezer, V.C.R., Micro Wave Ovan and Techno Cooking Range in a Tractor Trolly which they had parked outside-the petitioner's house at the time of occurrence. It it further alleged that the said respondents also took away a black coloured Brief Case belonging to the petitioner in which gold ornaments weighing I0O Tolas and Saving Certificates worth Rs. I6 lacs were lying. The occurrence alleged by the petitioner was witnessed by M/s. Jehanzeb. Asif Pervez and Nadir Khan PWs. Who happened to be staying in the petitioner's house that night. The petitioner was medically examined by the officials of Police Station Civil Lines, Jhelum and the copy of the medico legal report recorded is appended to the petition by way of Annex: 'A'.
2. The motive behind the occurrence as disclosed in the petition by the petitioner is that respondent No. 1, Mushtaq Ahmad who is brother-in-law of the petitioner wants to usurp the property of the petitioner because he is issueless hav ing no children from his marriage with the said respondent's sister Mst. Khadija Begum. It has been further alleged in the petition that in order to got away with the said occurrence respondents No 1 to 6 connived and conspired with respondent No. 8/SHO P.S. Civil Lines, Jhelum, and got a false case registered against the petitioner and M/s. Jehanzeb, Asif Pervez and Nadir Khan, the aforesaid witnesses of the occurrence as per the averments in the-petition ride FIR NO. 70 dated 23.5.1997 under Sections 458/324/34 PPC at Police Station Civil Lines Jhelum.
3. The grievance of the petitioner is that after his release front jail in the said criminal case registered against him at the instance of respondents No. 1 to 6, he approached respondent No. 8 SHO P.S. Civil Lines Jhelum, time and again to register an F.I.R, of the occurrence as alleged by him in the instant petition but the said respondent who is in league with respondent No. 1 to 6 refused to do so whereupon he was constrained to approach this Court in its Constitutional jurisdiction to have a case registered against respondents .No. 1 to 6 in respect of the occurrence as alleged in the petition and briefly alluded to here-in-above.
4. To consider the contentions here-in-above raised by Malik Muhammad Nawaz Khan, Advocate, learned counsel for the petitioner and to examine the propriety of registration or otherwise of an F.I.R, in terms of the allegations made by the petitioner in his Constitutional petition, I had sent for Mr. Altaf Elahi Sheikh, learned Addl: Advocate-General Punjab to appear and assist the Court on the questions thus raised by the learned counsel for the petitioner. Accordingly Mr. Altaf Elahi Sheikh, leamed Addl: Advocate-General appeared on Courts call along with Ghulam Ahmad, Sub- Inspector from Police Station Civil Lines, Jhelum whereas the complainant was represented before the Court by Raja Abdul Aziz Bhatti, Advocate. As the questions raised by the learned counsel for the parties prima facie required consideration and deeper examination, the writ, petition was admitted to regular hearing vide this Court's order dated 26.8.1997 and the-parties' leamed counsel called upon to address detailed arguments in support of their respective versions of the case.
5. Malik Muhammad Nawaz Khan, Advocate, learned counsel for the petitioner contended that the F.I.R, alleged to have been registered in respect of the said occurrence was wholly false, one sided and based on a concocted story at the behest of respondents No. 1 to 6 wh were in league with respondent No. 8/SHO P.S. Civil Lines, Jhelum. His main submission was that he has given a definite account of the occurrence in his petition and that the F.I.R, alleged to have been registered in respect of the said occurrence by Police Station Civil Lines, Jhelum is absolutely silent as to the allegations made by the petitioner. Rather the occurrence as alleged by the petitioner, finds no mention whatever in the said F.I.R, and that as many as six injuries were caused to the petitioner by respondents No 1 to 6 out of which two had been declared grievous by the doctor. The medico legal report as to the said injuries was got recorded by none-else but the officials of the said Police Station themselves. He maintained that he approached with a written complaint the SHO of Police Station Civil Lines, Jhelum to register a case in respect of-the occurrence as alleged by the petitioner in the instant Constitutional petition but the said SHO in league as he is with respondents No. 1 to 6 has rel used to do so. In the circumstances there was no alternative left with the petitioner but to approach this. Court in its Constitutional jurisdiction to demand of the said SHO to discharge the obligations caste on him by the provisions of Section 154 Cr.P.C, and to register the case against respondents No. 1 to 6. The submission of the learned counsel':for the petitioner was that an information as to the commission of a cognizable offence on being brought to the notice of a Police Officer Incharge of the Police Station whether orally or in writing obliges the said polite officer to record an FIR under section 154 Cr.P.C. The submission of the learned counsel for the petitioner was that in the case in hand on the basis of the allegations as made in the instant Constitutional petition, there could be no two opinions that respondents No. 1 to 6 had committed cognizable offences, thereby casting a duty on respondent No, 8 to register a first information report with regard thereto. There was no discretion vesting in him to refuse to do so in the circumstances of this case.
6. Malik Muhammad Nawaz, Advocate, leamed counsel for the petitioner maintained that notwithstanding the registration of the -FIR as alleged by respondents, the second FIR in the peculiar circumstances of this case was neither barred nor could be refused to be registered.
7. Raja Abdul Aziz Bhatti, Advocate, appearing for the complainant contended that as FIR No. 70 dated 23.5.1997 had already been registered by the Police Station Civil Lines, Jhelum, in respect of this very occurrence, second FIR was not called for. In support of his contention, he placed reliance on the following judgments which are qualified by the facts therein stated:-
(i) Kaura v. The Slate and others (1983 SCMR 436)
(ii) Sajjad Ahmad v. SHO P.S. Punjab and another (PLD 1993 Lahore 18)
(iii) Malik Anjum Farook Paracha and 7 others v. Manzoor-ul-Haq Chohan and 4 others (1993 P.Cr.L.J. 1056)
(iv) Riaz Ahmad v. The Inspector of Police/Station House Officer, P.S. Baseerpur etc. (1991 P.Cr.L.J. 6)
8. It would thus, appear that the precise question which needs determination by this Court is as to whether in the presence of the FIR registered and referred to here-in-above, the second FIR can or cannot be registered.
9. I have surveyed the case law for and against the proposition and on the basis thereof, I am of the considered opinion that in the circumstances of this case second FIR could not be refused to be registered. In Halim Sarwar v. SHO P.S. Head Marala and 2 others (1984 P.Cr.L.J. 2993), after reviewing a number of judgments cited before his Lordship Mr. Justice Gul Zarin Kiani, as he then was, held that:-" if the commission of a cognizable offence was brought to the notice of. The SHO, then he could not refuse to register a formal FIR. For, it was his duty to record the information and to proceed and investigate the matter as provided in section 154 Cr.P.C. His Lordship further held that "even if an FIR has been registered on the basis of one sided version, registration of a second FIR 'showing a different grievance could not be refused by the police in proper performance of its duty under section 154 Cr.P.C."
In Ch. Ataullah v. Ch. Mumtaz Ahmad Kahloon and 3 others, (1993 P.Cr.L.J. 69), Sardar Muhammad Iqbal, J. Held as follows:- "It is one thing to say that some case is registered with reference to a particular incident and quite another that a case is registered with reference to the. Particular allegations. It is admitted by the leamed counsel that no case was-registered in respect of the allegations made in this case. If sorite other case was registered in respect of the incident which happened' on that day that would not be a bar for the registration of another case on different allegations though arising out of the same incident".
The contention raised against the registration of the second FIR was then repelled by his Lordship Sardar Muhammad Iqbal, J. By holding that "the contention of the learned counsel is untenable,, if accepted, it will mean that there can be no cross cases registered at the instance of the contending parties opposing each other".
In Sawant v. SHO Kasur etc (PLJ 1975 Crl. Cases Lahore 368). His Lordship Mr Justice Atta Ullah Sajjad, J. As he-then was, held as follows:- "The provisions of section 154 Cr.P.C, are imperative in nature. The .Information relating to the commission of a cognizable offence has to be reduced by the SHO into writing and investigation has to be conducted therein. The version given by the complainant party only describes their side of the case as to how the offence was committed. The petitioner now insists, this version is not correct and that his side of the case should be investigated according to law. Of course, it is open to him to file a complaint but the learned counsel for the petitioner insists that it is his right of demand that the police should do their duty and investigate his side of the case".
It was further held by his Lordship in the-same judgment that "in my view, the correct legal procedure for the police should have been to record the FIR containing the counter version and to have investigated it. If they found that the evidence adduced by the petitioner did not sustain the charge they could have submitted a report to the Magistrate for cancellation of the case. It was held by the learned Chief Justice in Ch. Ataullah v. Ch. Mumtaz Ahmad Kahtoon and 3 others (1973 P.Cr.L.J. 69) that even if the police has made investigation in a case with reference to the particular evidence produced by one party, another report with reference to the same incident is not barred. 1 respectfully follow this dictum. I also say with great respect that the language of section 154 Cr.P.C is imperative and the police officer cannot dub the counter version as false without first investigating the matter. His duty is to make investigation".
Again in Syed Saeed Muhammad Shah and another v. The State (1993 SCMR 550), His Lordship Syed Sajjad Ali Shah, Chief Justice of Pakistan with reference to the provisions of section 154 Cr.P.C, held that "under section 154 Cr.P.C, it is mandatorily bounden duty , of the police officers to register FIR of cognizable offence".
In Muhammad Afzal v. Muhammad Ashraf and 15 others (1996 P.Cr.L.J. 489), the learned Single Judge of AJ&K High Court after surveying almost the entire case law on the point held: "a critical survey of the statutory law laid down in section 154 Cr.P.C, analysis of the authorities referred to above and the consensus of the authorities reveals that the second FIR is not barred in appropriate cases disclosing cognizable offence, particularly the cases of counter version. The argument that they shall be no end of registration of FIRs in one occurrence can be successfully met by a guarantee provided in Section 182 Cr.P.C ensuring the correctness conducted by a police officer under section 157 Cr.P.C. If any person gives the first information report/statement to a police officer turning to be false, the informant can be liable to punishment under the above section, but in case of refusal, there can be greater hardship for the informant against whom a case has been registered against the facts. Therefore, in my view the correct legal procedure for the police is to record the FIR containing the information with regard to the counter version and to investigate it. If they find that the evidence adduced by the informant did not sustain the-Charge they can submit the report to the Magistrate for cancellation of the case."
10. A bare perusal of the extracts from the various judgments referred to and reproduced here-in- above, would show that the registration of a second FIR embodying the counter version of a case is neither legally barred nor can such an FIR be refused to be registered. Reverting to the facts of the instant case as already pointed out the FIR already registered in this case is conspicuous by the absence of any mention whatever of the facts as alleged by the petitioner. Raja Gulzar Ahmad. In the absence of the registration of an FIR embodying the allegations of the petitioner, there is no question of the investigation of the same. The information as to the commission of the cognizable offence having been brought to the notice of the SHO by the petitioner Raja Gulzar Ahmad, he just could not refuse to register the FIR containing his version of the case. In the light of what has been discussed here-in-above, the instant petition is therefore, accepted. The petitioner Raja Gulzar Ahmad, shall approach the SHO. P.S. Civil Lines Jhelum with a written application containing his version of the case and the said SHO shall register an FIR pursuant thereto.
11. In order to do complete justice to the parties and keeping in view the demands of fairness and fair play, it is further directed that the FIR having been registered by the SHO, P.S. Civil Lines, Jhelum pursuant to the orders hereby made,, the same shall be investigated by S.P. Crimes Branch,, Rawalpindi. Why is it necessary that the investigation of this case be entrusted to the S.P. Crime Branch, Rawalpindi is because of the facts forming the background of this case. Respondent No. 1 in the instant writ petition, Raja Mushtaq Ahmad,, is a practicing Advocate at the District Courts, Jhelum. It was argued before this Court that the FIR already registered in this case was registered at the asking of the entire District Bar Jhelum who went up to the SSP, Jhelum to have the same recorded and it is also a matter of record that the earlier FIR was registered under the orders ot the S.P. Jhelum. The entire Bar being thus, allegedly so much involved in the affair and the SHO, P.S. Civil Lines, Jhelum being directly subordinate to S P. Jhelum at whose instance and under whose orders the first FIR has been registered, if the matter is left to be investigated by the same SHO justice shall not be done to the case and the petitioner shall remain as aggrieved as he is now.
The instant writ petition is accordingly accepted with these observations and in the above terms.