' On 26-4-2000 at about 2-30 a.m. One Muhammad Aslam Qureshi (informant) lodged an F.I.R. In Police Station Kalakot, District Karachi South the relevant part whereof may be reproduced as under:-- "On 24-4-2000, the Station House Officer, Police Station, Kalakot, Karachi, Sir, it is respectfully submitted that 1, Aslam Qureshi son of Adam Qureshi, resident of Gali No,3. New Kumharawara Roomi Lane, Lyari, Karachi. On 26-4-2000, i.e,, Wednesday in the night at about 01-00 a.m. My younger brother Muhammad Saleem Qureshi son of Adam Qureshi was busy in chit-chat alongwith his relatives on the roof of under-construction house. The house of my relatives namely Minir son of Abdullah and Muhammad Hussain son of Muhammad Ismail is situated in our Gali No,3, New Kumharwara. I heard commotion. I was sleeping in a room situated in the ground floor of the house. Yaqoob Ghandhi was also sleeping beside me. On hearing commotion we both went to the roof of the house and saw that some persons in plain clothes having weapon in their hands were present there. They were about 8 to 10 persons in numbers. I, my brother and other relations knew them to be police officials. The main responsible persons of the incident are Sub-Inspector Tasawwar Hussain and Abdul Qudus alias Koko and Gul Anwar etc. While we were seeing them, the persons who were in plain clothes introducing themselves as police officials, they after caught hold of my brother tried to throw him from the roof. My brother was tried to get himself free from them.
When we tried to save our brother, these police officials on gun point did not allow us to go near them. They did not listen us and they threw my brother Saleem Qureshi on the ground. Thereupon, the head of my brother Saleem Qureshi banged on the ground and in the result of that he received grievous injuries on his head. As soon as we came down, where we found four police persons present there. Meanwhile two persons namely Munir son of Abdullah and Muhammad Hussain son of Muhammad Ismail were also thrown by these persons. On hearing hue and cry of injured persons, all the Mohallah people gathered there. Police officials who were on the roof also came down on hearing hue and cry of these three injured. Mohallah people came out of their houses, and some Mohallah people also witnessed of throwing these injured from the roof by the police persons. Area people tried to help the injured but these police officials did not allow them to do so on gun point. All the three injured were shivering with pain. These police officials threw them in police station where they kept them for half an hour without any medical treatment. My brother Saleem Qureshi died due to excess bleeding from his injuries. If my brother was given medical treatment in time his life might be saved. My brother Saleem Qureshi son of Adam Qureshi was murdered and my relations were injured by the Police officials after making preplan."
2. Surprisingly however, despite such clear allegations the Police Officer recording the F.I.R. Only mentioned commission of an offence under section 319, P.P.C. (Qatl-eKhata). An interim challan was presented on 3-7-2000 and the substance of the allegations in the F.I.R. Was stated. However, on 4-8-2000 a final challan was presented wherein it was stated that different statements under section 161, Cr.P.C. Were recorded and a conclusion was drawn to the effect that no evidence was available to show that death was caused deliberately.
3. After the submission of the charge-sheet the applicant submitted an application, dated 18-8- 2000 praying that a charge under section 302, P.P.C. (Qatl-e-Amd) be framed but this application came to be dismissed vide a separate order, dated 18-11-2000. On the same day the learned Additional Sessions Judge framed a charge to the following effect:--- "(I) Muhammad Aslam Shaikh, 1st Addl. Sessions Judge, Karachi (South) do hereby frame charge against you:
(1) Tasawar Ameer son of Muhammad Ameer.
(2) Gul Anwar son of Ali Anwer.
(3) Muhammad Khalik son of Ghulam Muhammad Khan.
(4) Noor Khan son of Sultan Sikandar.
(5) Abdul Qudus son of Haji Muhammad Younus.
(6) Jawaid son of Jalal Deen.
(7) Inayat son of Abdul Ghafoor.
(8) Khan Bahadur son of Muhammad I uqman as follows: ' That on or about 26-4-2000 at about 1-00 p.m. At Roofi Lane near Peer Mahajir Shah Mazar, Gali New Kumbarwara. Lyari, Karachi over the roof of under-construction house you all accused raided that house in order to apprehend the culprits who were reported to be running gambling den and during raid one Muhammad Saleem Qureshi while escaping away from the Vardat disbalanced and fell down on the ground and subsequently succumbed to injuries while two others namely Muneer son of Ghulam Ullah and Muhammad Hussain son of Muhammad Ismail sustained injuries and thereby you all accused committed offence punishable under section 319, P.P.C. Within the cognizance of this Court.
And as such I hereby direct you to be tried by this Court on the abovesaid charge."
4. Aggrieved by the aforesaid, the informant/applicant has moved this revision application. Mr. Mehmood Qureshi learned counsel for the applicant argued that while precise and clear allegation of Qatl-e-Amd had been levelled against the accused in the F.I.R. The case was given a deliberate twist at the level of investigation and a charge-sheet alleging Qatl-e-Khata only was filed so as to shield some police personnel by their own colleague responsible for investigating the case.
Learned counsel further urged that the trial will proceed on the basis of the charge framed and the applicant may be unable to obtain proper redress even if there is evidence to show that the allegations made by him were true.
5. On the other hand, Mr. Jawed Akhtar learned counsel for the State argued that section 227, Cr.P.C. Conferred adequate power upon the trial Court to amend the charge in case it was considered necessary on the basis of evidence and in the interest of justice. Mr. Muhammad Saleh Panhwar learned counsel for the accused contended that though the allegation of Qatl-e-Amd appear to exist in the F.I.R. The same were retracted by the applicant himself in another statement made under section 161, Cr.P.C. He further argued that a charge-sheet under section 319, P.P.C. Was presented by the police after thorough investigation and there was no illegality in the impugned order.
6. Mr. Jawed Akhtar appears to be correct in stating that a charge can always be amended by the trial Court. Nevertheless Mr. Mehmood Qureshi has pointed out that in case the trial Court does consider that the charge ought to be amended and order passed would entail a de novo trial which might prejudice both parties. Moreover the learned trial Court appears to have completely overlooked the fact that an offence under section 319 is only punishable with Diyyat and the moment the accused persons agreed to pay the same the applicant would have no opportunity to prove the commission of a wilful murder specifically alleged by him. In any event I a n of the considered opinion that when the learned trial Court has completely over-looker' the substances of clear allegation contained in the F.I.R. And reiterated in the interim charge-sheet, and has proceeded to follow the ipsi dixit of police officials shielding their colleagues, not much can be expected by way of granting effective redress.
7. With respect to Mr. Panhwar's contention one may observe that under the Criminal Procedure Code unsigned statement recorded under section 161, Cr.P.C. Only have a limited worth and cannot be treated as evidence. In any event, the police officials are required to place before the Court all evidence that they have collected in respect of commission of penal offence and cannot assume the function of a trial Court by sifting evidence and that too to the extent of rejecting specific allegation in the F.I.R. On account of certain statements recorded under section 161, Cr.P.C. Indeed, the respondents are entitled to use such statements at the trial for the purpose of confronting and contradicting the applicant but it is quite clear that in the instant case using such statement as the basis of a charge is nothing but a mala fide effort on the part of the investigating officer in going out of his way to protect their colleagues. I am at the same time constrained to express disappointment in the manner in which the matter was treated by the learned trial Court. For the foregoing reasons, this revision application is allowed.
' In view of the order passed in Criminal Transfer Application No,45/2000 the case is remanded to the learned Sessions Judge, Karachi South who will either try the case himself or assign it to any other Additional Sessions Judge. The trial Court will frame the charge afresh and thereafter proceed with the trial.
Revision petition