' This Intra-Court Appeal, under section 3 of Law Reforms Ordinance, 1972 by Ibrar Hussain Rizvi/Sub-Inspector Police, is directed against order dated 26-5-1999 passed by learned Single Judge of this Court/directing concerned police officer to record the statement of complainant/Ghazala Aziz under section 154 of Cr.P.C. Register the case and thereafter proceed with the investigation of the case. In the abovesaid order, it was directed that the investigation shall be conducted by a senior police officer with known credentials.
2. Facts, according to this Intra-Court appeal, are: that on 22-2-1998 Tahir Nafees alias Prince had gone to Pearl Continental Hotel, the Mall Lahore alongwith his friends; that from there, Ibrar Hussain Rizvi/appellant, Abid Boxer/S.H.O. Police Station Factory Area, Lahore and six others police officials kidnapped Tahir Nafees, put him into the police van and killed him in the presence of witnesses; that Mst. Ghazala Aziz/respondent No.1, the mother of Tahir Nafees went to Police Station Badami Bagh, Lahore at 11-00 p.m. When a white car and a police pick-up reached the police station; that the dead body of her son Tahir Nafees was taken out from the said car and was shown to her for identification . On this sight, she cried that her son had been victim of custodial assassination by police. It may be noted here that F.I.R. No.42 of 1999 was registered at Police Station Badami Bagh, Lahore under section 324/354/186, P.P.C. With a version that Tahir Nafees had lost his life in a police encounter in which police party wanted to arrest a proclaimed offender Asghar alias Kala Butt; that the aforesaid offender and his associates opened fire on police party; that in self-defence police party also opened fire; that the deceased 1"st his life in the aforesaid episode.
3. Feeling dissatisfied, she filed Writ Petition No.6111 of 1999 against S.H.O. Police Station Race Course, Lahore and other officials/seeking directions for recording her statement under section 154 of Cr.P.C. And registration of case against delinquent police officials. This petition, after contest, was allowed by the learned Single Judge on 26-5-1999 in following terms:-- "In the facts and circumstances of the case as highlighted by the learned counsel, the registration of another criminal case under section 154, Cr.P.C. At the instance of the petitioner is considered necessary to secure the ends of justice. It is, therefore, directed that the respondent No.1 shall register a criminal case/F.I.R. Under section 154, Cr.P.C. On the written complaint of the petitioner against the police officials/officers for the alleged kidnapping and murder of deceased Tahir Nafees alias Prince Tahir without, any delay under intimation to the Deputy Registrar (Judicial) of this Court."
4. While assailing the impugned order, the learned counsel for the appellant urged as follows:-- Firstly; That Mst. Ghazala Aziz had filed a complaint before the Court of learned Additional Sessions Judge, Lahore; that the same was pending and on this ground alone she was precluded to file the petition for seeking direction for registration of case.
' Secondly: That the F.I.R. No.42 of 1999 had been registered and a panel of senior police officers was conducting investigation; that in the presence of First Information Report this Court had no power to order registration of a second First Information Report.
5. We have heard the learned counsel for appellant at a considerable length, perused the record and attended to his contentions very carefully. We are afraid we do not find any merit, whatsoever, in this Intra-Court appeal. A plain look at section 154 of Cr.P.C. Will show that this provision is mandatory in nature and S.H.O. Has no option but to record the statement of complainant in a relevant register and if his statement discloses commission of any cognizable offence, he is bound to proceed further and investigate the reported occurrence. Non-recording of First Information Report falls within the ambit of section 29 of Police Act and section 217 of Code of Criminal Procedure. No doubt, in number of cases this Court had declined to exercise its Constitutional jurisdiction and had not directed the police officer to register second First Information Report.
Reference be made to Atta Muhammad v. I.-G. Police, West Pakistan PLD 1965 Lah. 734; Kaura and others v. The State 1983 SCMR 436; Mushtaq Ahmad v. S.H.O., P.S. Munawan 1984 PCr.LJ 1454; Sadiq Masih v. Station House Officer 1994 PCr.LJ 295. However, in number of precedents, this Court has exercised jurisdiction and issued a writ of mandamus directing the concerned police officer to record the statement of complainant and register second F.I.R. Reference be made Allah Ditta v.
S.H.O. PLD 1987 Lah. 300, Mushtaq H. Bokhari v. State PLD 1981 SC 573; Muhammad Sachal v. The State 1984 PCr.LI 2172; Muhammad Zafar Iqbal v. Manzoor 1986 PCr.LJ 2658; Mrs. Ghanwa Bhutto v.
Government of Sindh PLD 1997 Kar. 119 and Shafiur Rehman v. Jan Bahadar Khan 1998 MLD 1161.
6. This question came up for consideration before a Division Bench of Karachi High Court in Mrs. Ghanwa Bhutto v. Government of Sindh PLD 1997 Kar.
119. In this case, Mr. Murtaza Bhutto and his associate Ashfaq Hussain Jatoiee, the Chairman and President of Sindh People's Party (S.B.) were seriously injured on 20th September, 1996 while they were on their way to home alongwith workers of the party after attending a public meeting in village Sarjani Town, Karachi. They subsequently died as a result of the injuries received by them.
First Information Report, with regard to the aforesaid incident, was registered by police at the instance of Haq Nawaz Sial, the then S.H.O., Police Station Clifton, Karachi. On 24-9-1996, however, another report was registered by the police at the instance of Asghar Ali, a private servant of Mir Murtaza Bhutto who was in the custody of police on the eve of occurrence; on 20-9-1996, Mrs. Ghanva Bhutto directed one Ahsan Bhatti to approach the police officer and lodge F.I.R. Against certain police officers named in the complaint but she was informed that police officer, at concerned police station, had declined to record the statement of so sent complainant. Feeling aggrieved, she invoked the Constitutional jurisdiction of this Court. The objection was raised on behalf of State that two F.I.Rs. Had already been recorded and so third could not be directed to be recorded. The Division Bench of Sindh High Court, after considering all the relevant laws, precedent and facts of case were pleased to allow the petition in following terms:- "Turning now, to the facts of the present case there is no controversy 4-1; respect of the fact that two reports in respect of the said occunrencci, have already been registered by the police and in the second report registered at the instance of Asghar Ali, the servant of the first petitioner, police officers have been charged with murder of Mr. Murtaza Bhutto. No doubt, as has been pointed out by the learned counsel for the respondents, section 154 of the Criminal Procedure Code postulates registration of only one F.I.R. In respect of an offence and in any case an F.I.R. Indicating commission of Qatl-e-Amd has already been registered at the instance of the said servant of the first petitioner---Even the first F.I.R. Registered at the instance of the Station House Officer, Hag Nawaz Sial, according to the respondent's counsel, was sufficient to set the criminal law into motion. Therefore, is registration of a third F.I.R. Warranted under the law? The circumstances of the present case, however, indicate that while the first F.I.R. Was registered at the instance of a police officer who was suspected of being an accused himself in the case by the petitioners, the second F.I.R. Was registered at the instance of Asghar Ali, the private servant of petitioner No.1 after four days of the occurrence when he was still in the custody of police. Therefore, the contention of the petitioners that the two F.I.Rs. Registered by the police do not reflect the true facts of the case, does not appear to be unreasonable. It is also pertinent to point out that the petitioners wanted to name certain police officers as some of the culprits, who, according to the petitioners, had participated in the said crime and a definite role has been attributed to them in the proposed F.I.R.' therefore, a prima facie case appears to have been made out against the said persons for ,he purpose of recording an F.I.R. However, some other police officers have been named as suspects but no definite role has been attributed to them by the petitioners. Therefore, the petitioners have failed to satisfy the conscience of the Court so far as the said police officers are concerned. We are, therefore, firmly of the view that the circumstances of the present case are distinguishable from those of the cases earlier decided by this Court, reference to which is made in this judgment."
' The learned Division Bench went on to say: "In result, subject to the observation made by us in the petition, this petition is allowed and respondent No.2 is directed to perform his legal obligation and register F.I.R. Which may be lodged on behalf of the petitioner in this case."
5. The ratio, deducible from the above discussion, is that once an F.I.R. Is recorded in the F.I.R.
Register, ordinarily this Court is reluctant to issue a writ of mandamus directing the police authority to register second F.I.R. This rule is, however, not a rule of thumb and can be forsaken in the context of special circumstances of the case. If the statement of the complainant shows that occurrence reported therein is totally different from one which is incorporated in previous FIR.; that it is not mere a defence or a counterblast and raises serious factual allegations which are radically different from the first F.I.R. Then this Court is well within its powers to order for registration of a second/third F.I.R. Applying these rules to the facts and circumstances of the case in hand, it is crystal clear that Tahir Nafees was assassinated on 22-2-1999; the case of police was that he had lost his life in police encounter when the associates of a proclaimed offender had opened fire on a police party which wanted to arrest him and that police had no option but in self-defence to fire on that party; that it was a case of pure self-defence. The version of the complainant Mst. Ghazala Aziz, real mother of deceased, was/is that Tahir Nafees had been kidnapped by a police party from Pearl Continental Hotel, Lahore; that he had been subjected to firing in a fake and arranged police encounter; that wilful and intentional murder of Tahir Nafees had been witnessed by the independent witnesses; that the police party which had killed Tahir Nafees was guilty of having committed the offences punishable under various provisions of Pakistan Penal Code; that she had not lodged any complaint at all. Clearly, her version was radically different from the version of police and raised allegations of felonious act on the part of police e officials. On this very material, the learned Single Judge was eminently correct and just in allowing the writ petition and ordering recording of second F.I.R.
6. It is hardly necessary to reiterate that our State is governed by a Constitutional dispensation embodied in the Constitution of 1973; that this Constitution guarantees the rule of law, defines and clearly enumerates the powers of various structural institutions of the State. It is also true that police is one of the most important law-enforcing agency of State. It wields the coercive power of this State. The fundamental function of it is to prevent and detect the cmes. This institution is disciplined under Punjab Police Act and is divisible into two senior and subordinate hierarchy. It ensures the security of its citizens to uphold the supremacy of law. Should this institution resort to custodial killing? We have no doubt to say that if the police agency is permitted to do so this will tantamount to flagrant deviance from its charter and duties. This agency cannot, in our view, resort to custodial/extra-judicial killing of accused on the name of saving the society from their clutches.
This will tantamount to destruction of objective for which this agency is created and will lead to a rule of Jamul instead of rule of law by various institutions of State. In the context whatever has been stated above we are inclined to hold that recording of statement of Ghazala Aziz and registration of case against delinquent officials is not only within the parameters of law rather it is consistent with the fundamental character of police as law enforcing agency. In this view of the matter and considered from every angle, we find that the decision of the learned Single Judge is eminently correct, just and does not suffer from any legal or jurisdictional defect calling for interference. For the aforesaid reasons, this Intra-Court appeal is found to be devoid of any merit and is accordingly dismissed in limine.