' The petitioner seeks a direction for the registration of a criminal case and for its investigation by a team of superior police: officers.
2. The petitioner is wife of an Advocate of this Court whose son Tahir Nafees, an ex-Councillor of the Metropolitan Corporation, Lahore, was done to death in an alleged police encounter.
3. The learned counsel for the petitioner argued that on 22-2-1999, late Tahir Nafees, the son of the petitioner left the residence at about 7-00 p.m along with his acquaintances for Pearl Continental Hotel, The Mall, Lahore. At about 10-00 p.m., the acquaintances came back in a worried condition and told the petitioner that while they were coming out of the said hotel, Abrar Hussain Rizvi, S.H.O., Police Station Badami Bagh, Lahore, Abid Boxer, S.H.O., Police Station, Factory Area, Lahore, and six police officials caught hold of Tahir Nafees and bundled him into a police van in the presence of witnesses. The petitioner became panicky as Abid Boxer, S.H.O., was notorious for extra-judicial killings. The petitioner went to Police Station Badami Bagh where at about 11-00 p.m., a white colour car and police pick-up entered the Police Station. The petitioner identified the dead body of her son Tahir Nafees smeared with blood. The petitioner started crying and wailing. Abid Boxer S.H.O., came out of the car along with other police officials. He asked the petitioner and other companions to leave the Police Station otherwise they would also be done to death. It was further submitted that the news of the killing of the petitioner's son in a fake police encounter appeared almost in all the newspapers on the next day. A number of the representatives of the Press and the Bar also made inquiries and found out that the son of the petitioner had been murdered in a fake police encounter. It also came to light that a day earlier than the occurrence Abid Boxer, S.H.O. And late Tahir Nafees had exchanged hot' words in which the said S.H.O. Had threatened him to kill. It was argued that a resolution dated 2-3-1999 was also passed by the Lahore High Court Bar Association.
The post-mortem report of the deceased also showed that as a matter of fact, he had been killed in a brutal and cold-blood manner by the police. A false F.I.R No,42 of 1999 dated 23-2-1999 under section 324/353/186, P.P.C. Read with section 13-B of the Arms Ordinance, 1965, had been registered in regard to the occurrence at the instance of the accused Abrar Hussain Rizivi, S.I./S.H.O., at Police Station Badami Bagh, Lahore, as if the police had killed the deceased by way of self-defence in a police encounter. The learned counsel submitted that a criminal case was required to be registered against the police officers/officials responsible for the commission of the offence of kidnapping and murder of Tahir Nafees deceased son of the petitioner.
4. On the other hand, the learned Additional Advocate-General, Punjab, argued that the report and parawise comments to the writ petition had already been submitted by the Senior Superintendent of Police, Lahore. It was stated that the S.H.O., Police Station. Badami Bagh, Lahore, he received a secret information about a proclaimed offender, namely, Asghar Ali alias Kala Butt, a notorious criminal out-law, who was involved in a number of murder cases, in that, he was roaming about in a Toyota Corolla Car in the area of Karamnagar. The said S.H.O. Started a search for the said criminal out-law for his arrest which led to a police encounter resulting in the death of an unknown person who was later identified as Tahir Nafees alias. Prince Tahir accompanying the said proclaimed offender Asghar Ali alias Kala Butt. A case F.I.R. No,42 of 1999 had already been registered at Police Station, Badami Bagh, in regard to the occurrence at the instance of the S.H.O. It was argued that there was no provision in law to register a second F.I.R. Once a case had already been registered. The learned Lay/ Officer further argued that the District Magistrate, Lahore, by his order dated 25-2-1999 had already deputed the Illaqa Executive Magistrate to hold a judicial inquiry into the cause of death of the deceased Tahir Prince who died during police encounter on 22-2-1999 and that the inquiry was still pending. It was pointed out that a criminal complaint was also pending before the Court of Mr. Allah Balchsh Ranjha, learned Additional District and Sessions Judge, Lahore. A panel of police officers headed by a D.S.P. And two Inspectors of Range Crime was conducting the investigation of case F.I.R. No,42 of 1999 under the Supervision of the Superintendent of Police, Range Crime, Lahore. In the presence of the alternate remedies, a direction for registration of a Second F.I.R. Was not called for. Reliance was placed on the cases of Khalid Mehmood v. Senior Superintendent of Police, Gujrat and 6 others (1995 PCr.LJ 351) (Lahore) and Hyderabad Chamber of Commerce and Industry through President S.M. Ayoob Ali and 4 others v.
Director, Trade Organization and another (1998 SCM R 706).
5. I have heard the learned counsel for the parties at length. The petitioner has come forward with definite and serious allegations against the police officers/officials of kidnapping and custodial death/murder of deceased Tahir Nafees alias Prince Tahir in a fake police encounter. The said deceased was allegedly kidnapped while coming out of the Pearl Continental Hotel, The mall, Lahore, in the presence of the witnesses, by the police officers who bundled him into a police van and was later shown to have been killed in a police encounter. A number of Press clippings were appended with the petition to show that it was not a case of any genuine police encounter but that of a kidnapping and subsequent murder of the deceased. There is no rule of thing that a second F.I.R. Can never be record in any case even if the facts and circumstances may warrant the registration of an independent criminal case. In the present case, an altogether independent version of the occurrence has been given by the petitioner to which the other materials placed on record also lends some support. Ordinarily, once an F.I.R. Is recorded a subsequent information can be looked into without recording a second F.I.R. But in this case not only that a different version of the occurrence has been given but there is a direct allegation of kidnapping and murder by the police officers/officials.
6. The question as to the registration of a second F.I.R. Has been examined by the Superior Courts of the country in a number of cases. In the case of Allah Ditta and 3 others v. The S.H.O., P.S. Basirpur, District Okara and 3 others (PLD 1987 Lahore 300) (D.B.), it was observed that it all depended upon the circumstances of each case whether or not a second F.I.R. Should be registered. If the facts do not warrant the registration of a case, a direction can be declined by this Court in its discretion.
However, in the peculiar circumstances of a case, a direction for the registration of a second F.I.R.
Can be issued by this Court notwithstanding the registration of an earlier case. In the case of Muhammad Zafar Iqbal v. Manzoor Ahmad (1986 PCr.LJ 2658) (Lahore), the police had already registered a case of a police encounter under the colour of office. It was observed that the police could not refuse to enter another case disclosing the commission of a cognizable offence if circumstances so warranted. In Muhammad Latif v. S.H.O., Police Station Saddar, Dunyapur and 14 others (1993 PCr.LJ 1992) (Lahore), the learned Judge in Chamber took the view that there was no bar to the registration of an independent F.I.R. If it disclosed a separate cognizable offences and not mere amplification of the first information report. In Mst. Ghanwa Ghutto another v.
Government of Sindh and another (PLD 1997 Kar. 119), the police had already registered a criminal case in regard to the death of Mir Murtaza Bhutto and others by the law enforcing agencies. A learned Division Bench of the Sindh High Court observed that no hard and fast rule existed that a second F.I.R could not be registered in respect of a different version given by an aggrieved party of the same occurrence. If information subsequently given to a police officer disclosed a different offence cognizable by the police, then unless it was a mere amplification of the first version, a second F.I.R. Was to be recorded by the police. In the precedent case, a direction was issued for the registration of a 3rd F.I.R. At the instance of the writ petitioner. In Abdul Ghani v. S.H.O., P.S. Saddar, Sheikhupura and others (1983 PCr.LJ 2172) (Lahore), an F.I.R. Under section 154, Cr. P. C. Had already been registered for the alleged trespass by the deceased and his resultant death. But the version given by the writ petitioner was totally on different premises that his son had been murdered by four named persons. It was held that the S.H.O. Was under a statutory obligation to reduce such information into writing and to investigate the matter. In Muhammad Ishaq v. Superintendent of Police, Jafarabad and another (pa) 1998 Quetta 1), a Full Bench of the Balochistan High Court directed the registration of a second F.I.R. Where the allegations were that it was police party itself which resorted to firing thereby killing one person. It was further observed that if a new case was made out with the allegations showing a genuine grievance then the aggrieved party could ask for registration and investigation of a separate case. A similar view has been taken by a learned Single Bench of this Court in Raja Gulzar Ahmed v. Mushtaq Ahmed and 7 others (PLD 1998 Lah. 111) and by a Division Bench of the Peshawar High Court in Shafiur Rehman v. Jan Bahadur Khan, S.H.O., Zaida and 6 others (1998 M LD 1161).
7. In the present case, the nature of serious allegations against the police officers/officials is such that it would be just and proper if the same are investigated by the registration of a criminal case under section 154, Cr.P.C. At the instance of the petitioner and its investigation by some senior police officer. The case involves allegations of custodial death by the members of the police force who are required to protect the lives and liberties of the citizens. The life of a citizen is a right guaranteed by the Constitution of Islamic Republic of Pakistan. Article 4 of the Constitution specifically provides that no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law. Similarly, Article 9 of the Constitution provides that no person shall be deprived of life or liberty save in accordance with law. The right to life is a fundamental right which cannot be taken away even during the emergency otherwise there will be a lawless society if the citizens or other persons are deprived of their rights otherwise than by due process of law. From its very inception, the United Nations has been concerned with this fundamental principal of right to life of all human beings, a right which led the framers of the Charter of the United Nations to state in its preamble their determination " to save succeeding generations from the scourge of war". This was enshrined in the Universal Declaration of Human Rights with the principle that "everyone has the right to life, liberty and security of person." The custodial death by the State agencies is considered to be one of the worst crimes in a civilised society, which is governed by the rule of law. It is a naked violation of human dignity and degradation which destroys very fabric of the society. If the law enforcing agencies become the law breakers, such an atmosphere is bound to breed contempt for law and would an courage lawlessness and anarchism. We are to be governed by rule of law not of can. The axe must fall on wrong doers who were found to have got out of a tight set of clothes. Giving a long rope to the Police Officers to pick people and torture or kill them with impugnity would militate against the social justice as enshrined in the Objectives Resolution which by its Article 2-A has become a substantive part of the Constitution. The wilful murder of a Muslim without any justification is considered to be a murder of humanity under the Islamic Injunctions. The Police Officers who become law unto themselves and are guilty of serious crimes have to be brought to hook.
8. The learned counsel for the petitioner categorically stated that neither the petitioner nor any one else had filed any formal complaint before at)/ Court including the Court of learned Additional District and Sessions Judge, Lahore, Even the judicial inquiry by an Executive Magistrate and the police investigation seem to be lying in a cold storage. In Khalid Mehmood (supra), the Inspector- General of Police was directed to depute the D.I.-G. Of the Range Crime to probe the matter and to register a criminal case. In Hyderabad Chamber of Commerce and Industry through President S.M.
Ayoob Ali (supra), the statutory right of appeal being available under the provisions of the Trade Organization Ordinance, 1961, the exercise of writ jurisdiction was declined.
9. In this case, the wanted alleged proclaimed offender was not even touched or apprehended.
None of the police officers/ official received a scratch on his body during the occurrence. The earlier F.I.R. By the police is essentially in the nature of a defence plea which may be examined in juxta position with the case of the petitioner. In Syed Mushtaq Hussain Bokhari v. The State (PLD 1981 SC 573), it was contended that the police in discharge of their duties killing the deceased in a police encounter were protected and could not be prosecuted for murder without the prior sanction of the Government as required by section 197, Cr.P.C. It was held that the defence plea of the Police Officers could not be examined first by the Court.
10. In the facts and circumstances of the case as highlighted by the learned counsel, the registration 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 officers/ officials 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.
11. In this case the accusations have been levelled against the local police personnel. It would be just and proper to intrust the investigation to an independent and senior police officer/officers so that all concerned including the relatives of the deceased may feel assured that an independent agency is looking into the matter and that would lend the final outcome of the investigation credibility and inspiration of public confidence. However, faithfully the local police may carry out the investigation, the same will lack credibility since the allegations are against them. Fair and impartial investigation by some impartial and independent agency not involved in the controversy, is the demand of public interest. It is, therefore, directed, that immediately upon the registration of the criminal case at the instance of the petitioner, the Inspector-General of Police, Punjab, Lahore, shall entrust the investigation of the case to a police officer of the rank of Superintendent of Police or above with immaculate character and impeccable integrity or a panel headed by such, officer of an independent agency so as to finalise the investigation within a period of six weeks. In taking this view, I am guided by the observations made in the cases of Muhammad Latif, A.S.I. Police Station Sadar, Sheikhupura v. Sharifan Bibi and another (1998 SCM R 666), Muhammad Anwar v.
Muhammad Younas Butt, Inspector/S.H.O. Police Station Kunjah, Tehsil and District Gujrat and 11 others (PLD 1997 Lah. 15) and R.S. Sodhi, Advocate v. State of U.P. And others (1994) Supp. (1) SCC 143).
12. This writ petition is allowed in the above terms but with no order as to costs.