'AHMED KHAN LASHARI, J----- This Constitutional petition has been filed under Article 199 of the Constitution of Islamic Republic of Pakistan, (hereinafter referred to as the Constitution) wherein following relief was sought:-- ' "It is, therefore, most humbly and respectfully prayed that the respondents may kindly be directed to perform their duty by registering a case on the report already lodged by the petitioners and thereafter to investigate the case in accordance with law and justice to bring the culprits to the books. Any other relief deemed fit and proper in the circumstances of the case, may also be granted with costs."
2. Briefly stated facts of the case are that on 27-4-2000 two proclaimed offenders namely Muhammad Yousaf alias Garan and Khudai Dad alongwith his accomplices were found living in their houses at Pashtoonabad, an information was also received that the proclaimed offenders alongwith their companions are duly armed with deadly automatic weapons. On this information S.H.O. Concerned of the area Noor Ahmed, Incharge of Police Station Pashtoonabad contacted the Senior Superintendent of Police and under his supervision raid party consisting of Assistant Commissioner/ S.D.M., Quetta, D.S.P./S.D.P.O. Cantt., D.S.P./S.D.P.O. Satellite Town alongwith Levies personnel of Police Station Pashtoonabad, Anti-Terrorist Force, Personnel of Militia and B.R.P. Was formed. At about 5-30 p.m. The houses of Muhammad Yousaf alias Garan and Khudai Dad were surrounded, on seeing the Law Enforcing Agencies Muhammad Yousaf alias Garan, Khudai Dad, Wazir, Saqi alias Sago, Muhammad Ramzan, Musa, Wali, Zamray, Toor, Rozey Din, Abdul Qayyum, Khan Muhammad, Nida Muhammad, Banat Muhammad and Khudai Mir started indiscriminate firing. The Law Enforcing Agency in their defence also made firing on exchange of firing, Juma Khan died whereas Constable Sadruddin, Constable Maqsood Ahmed, H.C. Tahir Mehmood of Militia Force, Shafi-uz-Zaman, Constable, Qadir Kakhsh, A.S.-I. Of B.R.P., Constable Mehbood Hussain, Zulfiqar Ali Durrani, A.C./S.D.M. City Quetta, Nek Muhammad, Abdul Rehman, Muhammad Naeem alias Gul, and Azizullah were seriously injured and Saqi alias Sago, Muhammad Ramzan, and one Wazir were died. Abdul Ahad, Muhammad Naseem, Muhammad Wali, Qadir, Ahmed, and Pirwa alias Rawa were also injured. The proclaimed offenders due to firing caused panic in the area and succeeded to escape, however, accused Musa, Wali Muhammad, Zamray, Bakhat Muhammad, Jan Muhammad and Abdul Muhammad were arrested and accordingly F.I.R. Bearing No,27 of 2000 with Police Station Pashtoonabad, Quetta was lodged by the said S.H.O. Under sections 302/324/149/145/147, P.P.C. The petitioners on 6-5-2000 submitted an application to S.H.O. Police Station Pashtoonabad for registration of case, stating therein that the Law Enforcing Agencies without any prior information to the inhabitants of the area have conducted the raid and without legal authority searched their houses and they have been deprived of their valuable articles.
Certain other allegations were also levelled in the said application. The Deputy Superintendent of Police, Quetta, after going through the application on 15-5-2000 gave his report stating therein that since the Law Enforcing Agencies acted in accordance with law so no criminal offence is made out against Civil Administration as well as Law Enforcing Agencies, however, the grievances raised in the application for registration of case also be looked into during investigation of the F.I.R. Already been registered. Being dissatisfied and aggrieved of non-registration of the F.I.R. This petition was filed before this Court with the prayer clause as mentioned hereinabove.
3. Mr. Ehsan-ul-Haque, Advocate, learned counsel appeared on behalf of petitioners argued that the first F.I.R. Was registered on behalf of S.H.O. Police Station Pashtoonabad, bearing No,27 of 2000, is not based on actual fact, and almost a counter-version was given by the S.H.O., the petitioners case was quite different from one reported by S.H.O. Pashtoonabad in F.I.R. No,27 of 2000, hence in the circumstances recording of second F.I.R. In respect of the same incident was of no illegality, if it is registered against the unknown persons. There is no bar that an aggrieved person or party who has lost a life or lives has no right to lodge a report; giving information of commission of a cognizable case. When such an information is given to the Officer Incharge of a police station he is required under section 154 of the Cr.P.C., to reduce it into writing and then to proceed in accordance with law. Information can be laid one after the other, to be recorded as F.I.Rs, if these disclose separate cognizable offence, the second or later not being the mere amplification of the first but the disclosure of other criminal activities. It is further argued that discretionary powers under Article 199 of the Constitution must be exercised by Court having regard to all relevant considerations justly, fairly and reasonably. The remedy available to an aggrieved person under the law by way of complaint may not deter the Court from giving directions to police for registration of F.I.R. In appropriate case. The petitioners prima facie have made out a case for registration of F.I.R. Information can be laid down one after the other to be recorded as F.I.Rs, if disclose some cognizance offences. In instant case certain persons have been killed and most of them injured, therefore, it is appropriate F.I.R. Must be registered on behalf of petitioners whereas the earlier F.I.R. Lodged by S.H.O. Pashtoonabad Police Station, contains almost a different version to that of petitioners. In support of his arguments he relied on the following case-laws:--
(1) PLD 1987 Lah. 300, (2) 1989 PCr.LJ 2199, (3) 1993 PCr.LJ 1992 and (4) 2000 YLR 1607.
4. Mr. Muhammad Ashraf Khan Tanoli, learned Advocate-General while appearing on behalf of State vehemently opposed the petition by arguing that F.I.R. Has already been registered against the culprits by Law Enforcing Agencies, investigation in the case has been completed and after submission of challan as well as five witnesses' have been examined by the trial Court. Even otherwise if the petitioners associate and cooperate with the Investigating Officer, the prosecution is ready to further investigate the matters in order to bring the real culprits to their task. He further argued that F.I.R. Is to be recorded on the basis of such information which is plausible and probable here entire facts are based on surmises and conjectures and petitioner wants to register F.I.R.
Against unknown persons. During course of investigation of F.I.R. No,27 of 2000 no one on behalf of petitioners associated to get recorded his statement as provided under section 161, Cr.P.C., before the Investigating Officer to implicate the persons who allegedly committed the offence. The police officials have no enmity with the law abiding citizens of the area and the matter has been investigated impartially. In the circumstances where no eye-witnesses are available to the petitioners, how an F.I.R. Could be registered against unknown persons where matter is already sub judice before the competent Court of law. He also challenged the maintainability of the petition as the petitioners are not aggrieved party. No relationship has been given in the petition to show that they have any relationship with the deceased party. It is specifically argued that it is a politically motivated petition for getting undue advantage in order to frustrate the case of prosecution pending trial. It is further argued that petitioners have made a vague and ambiguous prayer in the petition, they intend to include large number of Agencies in order to save the accused persons arrested in F.I.R. No,27 of 2000. At this stage re-investigation of the case is against the norms of justice, however, further investigation could be made with the association and cooperation of petitioners for the benefit and interest of the justice, the equitable relief with vague prayer clause for registration of second F.I.R. Is with mala fide, intention of the petitioners in this way wants to save the neck of culprits nominated and arrested. The learned Advocate-General relied on following case-laws in support of his arguments:--
(1) PLD 1965 (W.P.) 734, (2) 1999 PCr.LJ 1357, (3) 2000 SCMR 453, (4) PLD 1994 SC 281, (5) PLD 1997 Kar.
600, (6) PLD 1978 Lah. 1323 and (7) 2000 PCr.LJ 67.
5. We have heard the learned counsel for the parties admittedly the petitioner prayed for registration of case against unknown persons, as they failed to associate and cooperate with the Investigating Officer for investigation of the case in order to bring the real culprits on record. The raid was conducted by the Law Enforcing Agencies to arrest the proclaimed offenders and their accomplices who were residing in thickly populated area and were equipped with dangerous weapons, on seeing the Law Enforcing Agencies they abruptly started firing, in their defence the Law Enforcing Agencies also made firing in response. However, after exchange of firing the proclaimed offenders succeeded to flee away from the spot causing harassment in the area by way of indiscriminate firing for hours and hours, after registration of F.I.R., investigation was soon commenced involving a large number of accused persons by the Law Enforcing Agencies. There is no hard and fast rule that a second F.I.R., must be recorded. The recording of second F.I.R. Or directions depend upon the circumstances of each case. A The matter has to be seen in the context of the totality of the circumstances and the allegations, here through this petition a prayer was made for registration of F.I.R. Against unknown persons involving the entire Administration i.e, S.S.P., Quetta, A.S./S.D.M., Quetta, D.S.P., S.D.P.O. Cantt., D.S.P./S.D.P.O. Satellite Town, I.P./S.H.O.
Alongwith the Police Station Staff, A.T.F., Militia and other personnel of B.R.P. And that of Military.
There is no eye-witness available with the petitioners to implicate certain accused persons with specific role attributed to each of them, how an F.I.R. Could be registered without any evidence or incriminating material. F.I.R., is a mere information of an incident which authorized the Officer Incharge to investigate the matter in accordance with law. The S.H.O. Pashtoonabad after receiving a detailed information got recorded the F.I.R. Well in time with the concerned police station nominating as many as 6 accused persons, while on the other hand the present petitioners were praying for registration of second F.I.R. Of the same incident against unknown accused persons unless it is specifically urged and shown any ill will (sic). Earlier F.I.R. Which was registered as per information could not be said registered with mala fides. The petitioners are under legal obligation to bring on record the actual facts which have been concealed for registration of second F.I.R. The petitioners have not narrated the true facts of the case enabling us to pass an order for registration of second F.I.R. Specially after completion of investigation and submission of challan, the trial has been commenced. Though there is no bar for re-investigation and further investigation of a case but there must be some solid ground and reasons for interference, F.I.R.
Could not be lodged on presumptions and assumptions. If my material was brought by petitioners the prosecution is duty bound to reinvestigate the matter in order to take the real culprits to their end. All the evidence and facts have been taken into account by the Law Enforcing Agencies and the petitioners have not made out any cognizable case against Law Enforcing Agencies. The allegations should be levelled with sense of understanding responsibility, fairness and principle of justice. It reveals from record that petition has been supported by an affidavit only by a one person i.e, petitioner No,1, but no affidavits of other petitioners are available on record, which may prove the contents of the petition as true and no material has been concealed therefrom, we are, of the view, that the petition is incompetently being filed and certain petitioners have been impleaded in the present petition, where their parentage has not been mentioned and remained unknown till final arguments of the petition. The petitioners did not make efforts even to mention the parentage of their co-petitioners apart from their affidavits.
6. In the light of what has been discussed above, we are, not inclined, to admit this petition and the same is accordingly dismissed in limine. However, the aggrieved party is at liberty, to file a private complaint before the concerned authorities , having jurisdiction if so desired in the circumstances of the case.
' Order accordingly.