ABDUL HAFEEZ MEMON, J.---These two petitions for leave to appeal are directed against the judgment, dated 7-11-1996, passed by the High Court of Sindh, at Karachi, whereby the learned.
Judges gave direction to the S.H.O., Clifton Police, Karachi, to register another F.I.R. Sought to be lodged by Mst. Ghanwa Bhutto and Mst. Badrunnisa in respect of the incident in which their husbands, namely, Mir Murtaza Bhutto and Ashiq Jatoi lost their lives.
2. The relevant facts are that an unfortunate incident took place on 20-9-1996, wherein Mir Murtaza Bhutto, Chairman of the Pakistan People's Party (S.B.) Group, and Ashiq Hussain Jatoi, President of the said party for the Sindh Province, received injuries and later died. The first F.I.R. In respect of the said incident was registered at the Clifton Police Station by S.H.O. Haq Nawaz Sial himself showing the injuries caused to the above deceased as a result of an alleged encounter between them and the police. Thereafter, on 24-9-1996 another F.I.R. Was registered by the police at the instance of one Asghar Ali, a private servant of deceased Mir Murtaza Bhutto, while he was in custody of the police, indicating that the deceased had been murdered by the police in cold blood.
3. As however, widows of the deceased were not satisfied and felt that the two previously registered F.I.Rs did not reflect the true facts, they filed Constitutional Petition in the High Court of Sindh, seeking direction to the Clifton Police Station for record another F.I.R. Disclosing the true facts of the incident. During the hearing of the Constitutional Petition, the petitioners wanted to be impleaded as respondents to the petition, but the High Court declined such request. The Constitutional Petition was resisted on behalf of the State on The grounds that the two earlier F.I.Rs, in respect of the same incident having been already registered at the same police station, the lodging of third F.I.R. By the widows of the deceased was not warranted in law and that if the petitioners were not satisfied, they had an alternate remedy of filing a direct complaint in the Court.
4. The learned High Court after considering several cases on the subject by the superior Courts, cited in the judgment, held as under:-- ' "Reference to the case-law, therefore, indicates that there is no hard and fast rule that a second F.I.R. Cannot be registered in respect of a different version given by an aggrieved party of the same occurrence. If information is subsequently given to a police officer, which discloses a different offence also cognizable by the police, then unless it is a mere amplification of the first version, it must be recorded by the police. Therefore, direction to the police to record a second F.I.R. Would depend upon the circumstances of each case. If true facts in respect of an occurrence are not reflected by the first F.I.R. Then refusal to record a genuine version of the same occurrence would not be justified. The question has therefore, to be examined in the light of the circumstances of a particular case."
' The learned High Court while dealing with the question, whether alternate remedy was available to the aggrieved party to file direct complaint in the Court if they were not satisfied with the police report, held as under:-- ' "A question therefore arises, when can discretion be exercised by the High Court in favour of an aggrieved party. It may not be out of place to mention here that, according to the principle 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 to an aggrieved party under the law, by way of 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 a F.I.R. In an appropriate case."
' Having thus considered the case-law in respect of the lodging of third F.I.R. Regarding the incident in question the learned High Court held as follows:-- "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 as 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 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, 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 Courts 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 the Court, reference to which is made in this judgment."
In the result, the learned High Court allowed the Constitutional Petition and gave direction to the Clifton Police Station to register a third F.I.R. At the behest of the widows of the deceased. Hence, these petitions.
5. Mr. K.M.A. Samdani, learned counsel for the petitioners in C.P. No, 638 of 1996 and Mr. Sharful Islam, learned counsel, who adopted the arguments of Mr. Samdani, assailed the judgment of the learned High Court and contended that two F.I.Rs, having been already filed, the registration of the third F.I.R. At the instance of the widows was not warranted in law. Learned counsel next submitted that the petitioners ought to have been impleaded as respondents and allowed to defend the Constitutional Petition, as both were named as accused persons and were thus placed in highly disadvantageous position to defend themselves at the trial and were further likely to be seriously prejudiced at the trial of the case. Learned counsel next contended that the finding of the learned High Court was against the view expressed by this Court in the case reported in Kaura v. The State and others 1983 SCM R 436, which though noticed was not followed by the learned High Court.
6. We see no force in the contentions raised by the learned counsel. Perusal of the impugned judgment passed by the learned High Court would show that the first contention of the learned counsel was precisely raised before the learned High Court, who dealt with it elaborately and repelled it for the reasons shown in the judgment, to which no exception can be legitimately taken and the learned High Court in the circumstances of the case, was within its jurisdiction in giving the direction to the police for registering another F.I.R. At the instance of the aggrieved widows of the deceased. Moreover, admittedly, since lodging of the third F.I.R., regular challan has been submitted in the Court in which the petitioners have been named as accused persons, and the trial is yet to take place. The only question before the learned High Court, therefore, being whether on the facts and circumstances of the case direction be given for lodging their F.I.R. At the instance of aggrieved parties. The learned High Court was justified in not impleading the petitioners in the petition for the reason of avoiding causing prejudice to the case of either party on merits. Indeed, F.I.R. Merely sets in motion the criminal law and it cannot be used as a substantive piece of evidence against any accused person and even observations made in respect of the F.I.R.
Pertaining to the merits of the case which is yet to be tried, cannot be used against any accused persons at the trial.
' As to the contention of the learned counsel that the petitioners having been named as accused in the third F.I.R. They were placed in disadvantageous position carrying the attending liability as accused persons, since the case has now been challenged in the Court of law, they will have full opportunity to defend themselves at the trial and the prosecution will have to ensure that they are not handicapped in their defence. Similarly, the contention that the learned High Court has not followed the view expressed by this Court in 1983 SCM R 436 is misconceived, as perusal of the impugned judgment would also show that in the circumstances pointed out in the judgment the learned High Court had correctly appreciated the views expressed in several cases by the superior Courts including the case referred to by the counsel in giving the direction for registering another F.I.R.
7. The upshot is that both these petitions fail and are hereby dismissed.