' MUHAMMAD ROSHAN ESSANI, J.---Through this petition the petitioners Jamshed Khan and Mst.
Naseem Begum have sought the following reliefs:--- "The petitioners, therefore, pray that the respondents be directed to register the F.1.R., annexed with the petition as Annexure 'A' and hold investigation of the case in accordance with the law.
(b) That any other relief deemed fit and necessary in the circumstances of the case may also be granted."
' The petitioners have sought the above reliefs on the basis of the following facts stated in the memo. Of petition:--
1. They have averred that the petitioner No,1 is brother of deceased Noor Rasheed Khan alias Pota Khan and the petitioner No,2 is the mother of deceased Muhammad Asif. Both the deceased were said to be murdered by police in a fake encounter on 1-5-1998 vide F.I.R. No,110 of 1998, under sections 324 and 353, P.P.C. Of Police Station Mithadar, Karachi (South). According to petitioners one A.S.-I. Nasrullah Khan, H.C. Muhammad Afzal and P.C. Muhammad Nawaz used to press the deceased Noor Rasheed Khan alias Pota Khan to run a narcotic and gambling denn and to pay them "bhatta" (illegal gratification), which the deceased declined. On 1-5-1998 at about 9:30 p.m.
While the deceased was sitting at "Cafe Zaman" for taking tea the aforementioned police personnel of Mithadar Police Station arrived in a police mobile. They were armed with SMG Rifles.
The Police men enquired from Noor Rasheed Khan alias Pota Khan that as to why he was not complying with their directions to open den of narcotics and pay them "bhatta" (illegal gratification) whereupon he replied that he has given-up this business once for all and he would not again indulge 1/- it. On the receipt of this reply the police men snatched Rs,25,000 from him which were lying in his pocket. Due to this, there was a scuffle between Noor Rasheed Khan alias Pota Khan and police personnel. During the said scuffle a boy named Muhammad Asif, a newspaper - hawker and son of petitioner No,2, who had also come at cafe to take tea, intervened and asked the police men not to compel the said Noor Rasheed Khan alias Pota Khan for the illegal act. On hearing this police men got annoyed and A.S.-I. Nasrullah Khan ordered his subordinates H.C. Muhammad Afzal and P.C. Muhammad Nawaz to duck them down. On this, they opened fire at them with the result that Noor Rasheed Khan alias Pota Khan died on the spot whereas Muhammad Asif received injuries. He was referred to hospital where he succumbed due to injuries.
2. It is further averred that on the next day both the petitioners approached respondent No,2 for lodging the F.I.R., but he refused to register it on the pretext that judicial inquiry was ordered by the high officials, therefore, petitioners should wait for the result. They visited respondent No,2 many a time in this context but he always declined to register F.I.R., with aforesaid reply. After about a month petitioners reproached the respondent No,2 with a draft of F.I.R., proposed to be filed by them. He received copy of it from the petitioner No,1 but adopted the dilatory tactics and did not register the F.I.R., The copies of proposed F.I.R., were also sent by the petitioner to high officials of Police but no fruitful result came out.
3. It is also averred that in order to forestall a false defiance, two F.I.Rs, bearing Nos.92 and 110 both of 1998 under sections 324 and 353, P.P.C., were registered at Police Station Mithadar, Karachi, wherein a fake encounter was shown.
4. The respondent No,2 has filed comments along with some documents wherein he has denied the allegations made by petitioners and he was averred that on 1-5-1998 the Police party of Police Station Mithadar went to Railway Colony near Chousia Mosque where accused Noor Sher (mentioned as Noor Rasheed in the petition) alias Pota was present along with his friend. The accused Was absconder in a criminal case arising out of F.I.R. No,92 of 1998, under sections 324 and 353, P.P.C., of Police Station Mithadar. The accused Noorshed alias Pota on seeing the police party started firing upon them. The police party also fired in their defiance with the result an encounter took place, in which two persons on the side of petitioners were injured and subsequently they succumbed due to injuries.
5. It is further averred that in the said encounter H.C. Afzal and P.C. Nawaz, who were the members of police party also received bullet injuries at the hands of accused party. In support, medical certificates issued by Medico-legal Officer, Civil Hospital, Karachi, were filed.
6. The judicial inquiry was ordered 4y the District Magistrate, Karachi, (South) exercising powers under section 192(2), Cr.P.C. And Assistant Commissioner/S.D.M. Aram Bagh was appointed as inquiry officer. The - following were the terms of reference:--- "(a) To ascertain the circumstances of the Police firing;
(b) Fix responsibility, if any, on the part of Mithadar Police Station, Karachi."
7. During the course of judicial inquiry, 16 persons from public and five from Police were examined.
The Inquiry Officer gave his report. The report is reproduced hereinbelow in extenso:--- "Ascertain the circumstances of Police firing.--- Coincidentally a large number of private witnesses and witnesses of Police appeared before the Court to ascertain the truthfulness of the events that occurred on the day of incident. In term of time the story started from Police side whose statement is in perfect corroboration to establish the fact that on 1-5-1998 the Police party went Railway City Colony on a spy information that the accused Noor Sher alias Potta who is absconder in a case under section 324 Qisas and Diyat Ordinance and 353, P.P.C. Vide F.I.R. No,92 of 1998 is present in area. The Investigating Officer, A.S.-I., Nasrullah arranged Police force to arrest the accused persons and when reached at near Ghausia Mosque where the accused persons present, called them to hands-up and throw their weapons down but the accused started firing on Police party result of which the Police persons namely H.C. Muhammad Afzal and P.C. Muhammad Nawaz were injured and thereafter, the Police party started firing upon the accused persons for the purpose to arrest them result of which the both persons were injured. The reputation of deceased Noor Sher alias Potta has been established to be a nefarious character and involved in criminal cases.
' Although the most of the witnesses have not deposed to see Noor Sher alias Potta and Asif firing on Police party probably many of the private witnesses do not know him but most of witnesses have stated that the accused person were firing upon the police party. That the deceased Noor Sher alias Potta was criminal records holder and seller of charas and other toxicants as the private witnesses have deposed who are local resident of the area have stated in their version about his character and other activities. The accused Noor Sher alias Potta was main character of the incident of encounter of firing with Police in which an other person namely Asif was died as he was sitting with the hand cart of Farooque as stated on witness who was near place of incident.
Moreover, no criminal case statement recorded by the Court.
Fix Responsibility if any on the part of police officials of Police Station Mithadar.
'The role of Police and responsibilities of Police is quite evident from whatever has been discussed before. However, to sum-up following points have been ascertained.
' That on 1-5-1998, the Police party of Police Station Mithadar went at Railway Colony near Ghousia Masjid where accused Noor Sher alias Potta was present along with his -friend. The accused Noor Sher alias Potta was absconder in a criminal case vide F.I.R., No,92 of 1998 under section 324/353, P.P.C., of Police Station Matador. When the Police party reached there, the accused started firing on Police party. The Police also fired in their safety so encounter took place and the accused were injured and then succumbed to their injuries later on."
8. A list of twenty (20) cases, ranging from the years 1989-1993, instituted against the deceased Noorsher Khan alias Noor Rasheed Khan alias Pota Khan, is also appended with the report.
9. We have heard the learned counsel for the parties and perused the material placed on record.
10. That Part V, Chapter XIV of the Code of Criminal Procedure, 1898 relates to information to the Police and their powers to investigate.
11. Section 154, Cr.P.C. Lays down that when information with regard to a cognizable offence is laid before the Incharge of a Police Station he has to incorporate the same in a book prescribed by the Provincial Government. It will be pertinent to reproduce herein below section 151 of Cr.P.C. Of the sake of convenience:-- "154. Information in cognizable cases.-- Every information relating to the commission of a cognizable offence if given orally to an officer-incharge of a Police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the Provincial Government may prescribe in this behalf."
12. The plain reading of above provision clearly shows that in charge of a Police station is duty bound and it is his statutory obligation that on receipt .Of information whether orally or in writing he has to record the same in the book prescribed for that purpose and no option or discretion is left with him in this regard.
13. Section 156(1), Cr.P.C. Empowers the In charge of a Police station to investigate cognizable cases whereas section 157, Cr.P.C. Lays down that on receiving information with regard to commission of a cognizable offence, which a Police Officer is competent to investigate, report is to be sent immediately to Magistrate, empowered in that behalf, and to take necessary steps for the discovery and arrest of the offender.
14. The purpose of this provision is only investigation and collection of the evidence by the Investigating Officer and he cannot travel beyond that.
15. However, under proviso (b) to section 157(1), Cr.P.C. And under subsection (2) to section 157, Cr.P C., if the Officer-in-charge of a Police Station is of the view that there is no sufficient ground to conduct the investigation, he after recording reasons to that effect in the report, can decline to investigate but it mandatory for him to notify the informant about the fact that he would not investigate the case or that the same will not be investigated. Thus, it is crystal clear that section 157, Cr.P.C. Is not intended or introduced with an object to empower the In charge of a Police Station to postpone the registration of F.I.R., on the pretext that when credible information will be received or report of any inquiry or tribunal is received only then F.I.R., can be recorded or registered and not otherwise.
16. Section 159, Cr.P.C. Lays down that on receipt of such report by Magistrate under section 157, Cr.P.C., he may determine, either not to proceed further or he may take cognizance of the offence as provided under section 190(1)(b), Cr.P.C., or under section 203, Cr.P.C.
17. In case of the investigation conducted by the police, it is incumbent upon the Police officer, in case of arrested person, if investigation is not completed within 24 hours as contemplated under section 61, Cr.P.C., to submit copies of the case diaries and produce arrested person before the Magistrate and if custody beyond 24 hours is required by the Investigating Officer for cogent reasons in connection with investigation of such case, he has to obtain remand from the Magistrate, but the maximum period prescribed for authorizing a Police officer under this provision of law is 15 days and beyond that period no remand could be granted. Section 169, Cr.P.C.
Empowers the Incharge of a Police Station to release the accused in case of deficient evidence on his own bond or with or without sureties for his appearance whenever he is required. It is envisaged under section 170(1), Cr.P.C., that upon investigation if there is sufficient evidence the in charge of a Police station would forward the accused to Magistrate.
18. Section 173, Cr.P.C., postulates that In charge of Police Station is required to submit a final report after the completion of investigation containing the complete result of the investigation conducted in the case and action taken in respect of informant before the Magistrate, competent to take the cognizance in the case. Magistrate may direct for further investigation or discharge of accused_ of such bond and copy of the report be furnished to the accused before the commencement of inquiry or trial on the payment of cost or free of cost.
19. It is thus, crystal clear from the relevant provisions of Part V, Chapter XIV of the Code of Criminal Procedure, 1898, that section 154, Cr.P.C., is intended to bring machinery of law in motion and it is nowhere provided that a Police Officer In charge of a Police Station on receipt of information with regard to commission of a cognizable offence could refuse to register the report. However, there are divergent views with regard to registration of second F.I.R.
20. In the case of Mrs. Ghanwa Bhutto and another v. Government of Sindh and another PLD 1997 Kar. 119, a Division Bench of this Court, after considering and discussing at length the reported and unreported decisions of this Court as well as of other High Courts and Humble Supreme Court laid down the following dicta at pages Nos.127 and 128:--- '.... It would thus, appear from the said provisions of the Code of Criminal Procedure that different modes have been provided for to set the criminal law into motion. The two remedies, one by way of lodging of a report with the Police in respect of commission of a cognizable offence and the other, by filing of a complaint before a Magistrate, are parallel remedies which appear to be equally efficacious and practical remedies. In case of a private complaint, the Magistrate to whom a complaint is made is empowered either to enquire into the case himself or direct an enquiry or investigation by a Police Officer or any other person referred to in section 202 of the Code of Criminal Procedure, depending upon the circumstances of each case. Therefore, remedy by way of a private complaint is equally an effective and a practical remedy and, thus, an adequate remedy.
13. A question therefore, arises, when can discretion be exercised by the High Court in favor of an aggrieved party. It may not be out of place to mention that, according to the principles laid down by the superior Courts, discretionary power must be exercised in good faith having regard to all relevant considerations and it should be exercised justly, fairly and reasonably. Therefore, although an alternate remedy is provided for to an aggrieved party under the law, by way of a complaint, yet, the mere fact that an alternate remedy has been provided for, may not deter the Court from giving directions to the Police to record an F.I.R., in an appropriate case When a person is attributed a definite role by the complainant in the commission of a crime to indicate his participation therein. a prima facie case for registration of an F.I.R., may be made out, but when the accused named by the petitioner in the F.I.R., has neither been seen by any one while committing the alleged crime, nor any particular role has been attributed to him, yet the petitioner believes that he was involved in the commission of the alleged crime, then unless such belief is a reasonable belief, directions sought by the petitioner for registration of an F.I.R., may not be issued and he may be left to have resort to such alternate remedy, if so desired by him. A person can even be named as a suspect by the complainant but although, there is no bar in respect of including his name in the F.I.R., registered by the police, but a prima facie case may be established against him only after investigation is conducted by the police. Therefore, discretion may not be exercised by the Court in favor of the petitioner in every case where an F.I.R., has not been registered by the police."
' It was further observed by the said Division Bench at pages Nos.128 to 129 as follows:-- "14. Turning now, to the facts of the present case, there is no controversy in respect of the fact that two reports in respect of the said occurrence 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 Mir 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 Station House Officer, Haq Nawaz Sial, according to the respondents' 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 the police. Therefore, the contention of the petitioners that the two F.I.Rs, Registered by the Police do not reflect the true fact 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 the 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 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."
' It was lastly held by the said Division Bench as under:- "16. In the result, subject to the observations made by us in this petition, this petition is allowed and the respondent No,2 is directed to perform his legal obligation and register the F.I.R., which may be lodged on behalf of the petitioners in this case "
21. Thus, it is obvious that looking towards the facts and circumstances of a particular case not only second but even third F.I.R., could be registered.
22. The word "offence" used in section 154, Cr.P.C., is not synonymous with the word "occurrence" or "incident", hence if a counter version containing different facts with regard to commission of cognizable offence is brought to the notice of the in charge of a Police station he is duty bound and obliged in law to record the same and he can in no way refuse to do so. It is generally seen that in the report in which Police personnel are figuring as accused, those reports are not even entertained and if those are entertained, such reports are always registered very reluctantly.
23. The upshot of the above discussion is that F.I.R., proposed to be filed by petitioners, prima facie, reveals commission of a cognizable offence and respondent No,2 is accordingly directed to register it and conduct investigation in accordance with law. The petition stands allowed with no order as to costs.