1. ' By this Constitutional petition the petitioner has sought following reliefs:--
(a) That this Honourable Court may be pleased to direct the respondent to register the F.I.R. Of the petitioner in 154, Cr.P.C. And to investigate the case of petitioner properly.
(b) Any other order this Honourable Court may deem fit and proper.
2. ' The brief facts of the case as disclosed in the petition are that the petitioner is resident of village Bahadur Khan Kaloi Taluka Shandadpur, District Sanghar. On 28-4-2001 after taking dinner the petitioner and his family members including deceased Rustam son of Mevo Kaloi went to asleep.
3. The petitioner and his deceased son Rustam Kaloi were living within the same enclosure. On 29-4- 2001 at about 21-00 a.m. In the night, the petitioner and his other family members i,e, deceased Rustam, Mir Muhammad son of Mevo Khan woke up on barking of dogs. They noticed that police personnel had encircled the house of the petitioner. Out of them, the petitioner identified (i) D.S.P.
4. Khalid Mustafa Korai (ii) S.I.P. Arif Bhatti, S.H.O. Shandadpur (iii) S.I.P. Ishtiaque Metlo of Police Station Shandadpur (iv) A.S.-I. Rahim Bux Channar of Police Station Shandadpur (v) Constable Shabir Chandio (vi) Constable Vikyo Gahoo of Police Station Shahadadpur (vii) Pir Bux Lakho gun man of D.S.P. (viii) Ubedullah Korai cousin of D.S.P. Khalid Mustafa Korai and many other police personnel standing duly armed with rifles and revolvers. D.S.P. Khalid Mustafa Korai, S.I.P. Arif Bhatti, A.S.-l.
5. Ishtiaque Metlo with A.S.-l. Rahim Bux Channar were armed with revolvers, while the remaining police men were armed with rifles. The D.S.P. Khalid Mustafa Koari was commanding other police men. He ordered his subordinates to enter into the house of the petitioner and his sons Rustam and Mir Muhammad and so also other villagers. The police men tress-passed into the house, made firing at the house of the villagers and took away the boxes from the house of petitioner and his sons Rustam and Mir Muhammad. They also maltreated the petitioner, his sons and women-folk mercilessly. The boxes contained the household articles, ornaments, cash and clothes of the members of the family. They arrested and took away the petitioner, deceased Rustam and his brother, Mir Muhammad Abdul Razzaque son of Allah Dino, Mooso son of Sher Muhammad and Hussain Bux son of Abdul Qadir in police mobile and detained them at Police Station Shandadpur.
6. After some time D.S.P. Khalid Mustafa Korai, S.I.P. Arif Bhatti, A.S.P. Ishtiaque, A.S.-I. Raheem Bux Channar, Constable Vikyo Gahoo called deceased Raheem, Hussain Bux son of Abdul Qadir. The abovesaid policemen caused Lathi, kicks and Suchputra blows to them. Khalid Mustafa Korai belaboured the deceased Rustam and Hussain Bux, with a result they received injuries. Arif Bhatti, Ishtiaque, Raheem Bux, Bashir Chandio, Vikyo Gahoo, Ubedullah, Pir Bux Lakho caused Lathi blows to deceased Rustam and injured Hussain Bux in presence of the petitioner and P.Ws. Mir Muhammad and Abdul Razzaque. Due to injuries Rustam and Hussain Bux became 'unconscious.
7. At about 11-00 p.m. Deceased Rustam expired due to injuries caused to him by the abovesaid accused persons. Hussain Bux remained unconscious. The accused took the dead body of Rustam and injured Hussain Bux to Taluka Hospital Shandadpur where post-mortem of deceased Rustam was conducted by Medical Officer, Taluka Hospital Shandadpur and treatment to injured Hussain Bux was provided. The petitioner approached the respondents Nos.2 to 3 for registration of F.I.R.
8. Against the accused for the commission of offence but they declined. The accused are highly influential persons and some of them are holding high position in the police hierarchy.
9. ' Pursuant to the notice learned A.A.-G. Filed statement of respondent No,2 wherein it is stated that he took over the charge as S.H.O. Police Station Shandadpur on 5-5-2001. According to the record of Police Station Shandadpur the case bearing Crime No,77 of 2001 under section 17(3) (Offences Against Property) Enforcement of Hudood Order, 1979 read with sections 324, 412, 34 and 506(ii), P.P.C. Was registered on 28-4-2001 on the complaint of one Niaz Hussain against Abdul Raheem alias Adloo Kaloi, Khalid Kaloi, Rustam Kaloi and Hussain Kaloi. They were nominated in the F.I.R. On 28-4-2001 the then S.H.O. Namely Muhammad Arif Bhatti received spy information that two persons snatched tractor of Niaz Hussain and went towards Metal Mori. The S.H.O. Muhammad Arif Bhatti immediately rushed towards Metal Mori which is situated within the jurisdiction of Police Station Shandadpur. Those persons on seeing the police party jumped from the tractor. He arrested both the persons on the spot. They disclosed their names as Rustam son of Mevo Kaloi and Hussain son of Abdul Qadir. Both were seriously injured due to jump on metalled road from the running tractor.
10. The then S.H.O. Searched body of both persons and recovered one T.T. Pistol from Rustam Kaloi alongwith six live bullets.
11. ' The S.H.O. Prepared Mashirnama of arrest and recovery at the spot and returned back to police station alongwith both the accused. He lodged the F.I.R. Bearing No,79 of 2001 under section 13-D, Arms Ordinance against Rustam Kaloi and prepared diary of case bearing Crime No,77 of 2001 in connection with recovery of the tractor. On the same day the then S.H.O. Sent a letter to Medical Officer, Taluka Hospital, Shandadpur for emergency check up of Rustam Kaloi who received injury due to jump from the tractor. The Medical Officer reached at police station for check up and advised that accused be shifted to Taluka Hospital for treatment. On the advise of Medical Officer, Shandadpur the injured accused was removed to hospital through A.S.-I. Shaukat Ali. When they reached at hospital, the Medical Officer after check up declared that the said accused expired due to injuries and A.S.-I. Immediately informed the S.H.O. Police Station Shandadpur on telephone about the expiry of Rustam Kaloi. The S.H.O. Immediately repaired to hospital for further action according to law. He conducted all the codal formalities. The Medical Officer conducted post- mortem of deceased Rustam Kaloi. On 29-4-2001 the then S.H.O./Investigating Officer recorded 161, Cr.P.C. Statements of Allah Jurio son of Lal Bux, Qabool son of Budho Khan and other witnesses. On 5-5-2001 the then S.H.O./Investigating Officer of the aforesaid case was transferred from Police Station Shandadpur to Police Line Sanghar and on the same day after taking charge as S.H.O.
12. Police Station, Shandadpur taken over the investigation of the aforesaid crime. On 8-5-2001 he alongwith two witnesses namely Qabool son of Budho and Surjio son of Hamatio went to the Court of Mukhtiarkar and F.C.M. Shandadpur for recording statements of both the witnesses under section 164, Cr.P.C. Which were recorded according to law. On 14-5-2001 he submitted interim charge-sheet before the Court of learned Civil Judge and F.C.M. Shandadpur.
13. ' It is further stated that the petitioner never went to police station for report against any person.
14. The nearest relative of the above-named petitioner are hardened criminals as many cases were registered against them at Police Station Shandadpur as well as at other police stations.
15. ' It is further averred that the Senior Superintendent of Police Sanghar already sent a letter to District Magistrate, Sanghar with a request for holding judicial inquiry into the matter. It is alleged that the accused of Crime No,77 of 2001 namely Khalid Kaloi and Abdul Raheem alias Adloo Kaloi are notorious dacoits of the locality and were challaned in so many cases of such nature, they and their relatives are still absconders.
16. ' It is prayed that present petition may be dismissed as proposed accused are innocent.
17. ' The petitioner filed affidavit-in-rejoinder/objections to the statement filed by the respondent No,2 wherein he has denied the contents of the statement and has also denied the allegations.
18. ' He has reiterated the contents of the petition and has further stated that the case mentioned in the statement of the respondent No,2 is false and fabricated one. He has specifically denied the allegations made therein.
19. ' I have heard Mr. Muhammad Ishaque Khoso learned counsel appearing on behalf of the petitioner. He has placed on record a decision of this Court in case of Maqsood Ahmed v. The State (C.P. No,S-92 of 2001).
20. ' I have also heard Mr. Abdul Sattar Kazi learned counsel appearing on behalf of the proposed accused Khalid Mostafa Korai ExD.S.P., Shandadpur as well as Mr. Masood Noorani, Additional Advocate-General, Sindh on behalf of 4he State. The former has relied upon the case of Anwar Shah v. Senior Superintendent of Police, Sheikhupura and 17 others 1999 PCr.LJ 1317, Bhoran Khatoon v. The State and 5 others 1999 PCr.LJ 1532 and Syed Asif Majeed and 5 others v. A.D.C.(C)/A.S.C.(L), Lahore and 15 others 2000 SCM R 998. The later adopted the arguments of Mr. Abdul Sattar Kazi learned counsel appearing on behalf of the proposed accused and has placed reliance upon the case of Altaf Hussain v. Government of Sindh and another PLD 1997 Kar.
600. I have perused the material placed on record.
21. The perusal of material placed on record shows that the factum of the death of the deceased Rustam and injuries on the person of injured Hussain have not been denied. The press clippings of various newspapers annexed with the petition shows that the incident was highly condemned and agitated by the general public of the area. The Letter bearing No,P.A./938-41/Sanghar, dated 14-5- 2001 filed by the respondents shows that the concerned Senior Superintendent of Police moved the B District Magistrate, Sanghar for holding judicial inquiry into the death of deceased Rustam son of the petitioner.
22. ' Apparently there are two versions of the incident. One version has been put forward by the petitioner and another by the respondents.
23. ' In the ease of Akram Ali v. S.H.O. Kot Wali Kasur and others reported in PLD 1979 Lah. 320, it has been held that if F.I.R. Pertaining to a particular occurrence has been registered, another F.I.R.
24. Containing counter-version of the same occurrence can also be registered as the registration of the counter-F.I.R. Would be equitable.
25. ' In the case of Haji Ahmed v. Senior Superintendent of Police, Rahimyar Khan and others reported in 1997 PCr.LJ 2069, it has been observed that the F.I.R. With regard to same occurrence would furnish legal justification for registration of second F.I.R. It will be pertinent to reproduce hereinbelow the relevant observations in the case of Haji Ahmed (ibid):-- "There is dispute about the time of occurrence, place of occurrence and the manner of occurrence.
26. The alleged motive is also different. The most important aspect of the matter is that the benefit of right of private defence has been agitated in the F.1.R. And the same has been granted to the complainant of the already registered F.I.R. By the police without taking into account the version of the adverse party. Without prejudice I am tempted to express that if there is allegation of murder of a person, his nears and dears and relatives as well as eyewitnesses have the right that their version about the murder of deceased may be recorded and the defence by the person(s) who admit to have killed that person can be considered as the defence version and has to be established during the investigation as well as during the trial. If no defence is .Made during the investigation said type of indolence/ lethargy may be to the detriment of a killer of the deceased during the trial being afterthought. Due to the death of Noor Ahmad whose post-mortem was admittedly got conducted, it is the appropriate case wherein the second F.I.R. Should be registered."
27. ' The contention of the learned counsel appearing on behalf of the respondents that the Constitutional jurisdiction is barred for the relief sought in the petition is misconceived. This Court is not devoid of jurisdiction to exercise the powers for the relief claimed by the petitioner under Constitutional jurisdiction.
28. ' In the case of Muhammad Afza v. Muhammad Ashraf and others reported in 1996 PCr.LJ 489 and in the case of Hamayoon Khan and another v. Muhammad Ayoob Khan and others reported in 1999 PCr.LJ 1706, it has been observed that the second F.I.R. In appropriate cases is not barred in Constitutional jurisdiction.
29. ' It is well-settled that no hard and fast rule exists regarding the registration of a second F.I.R. About the same occurrence thus, the second F.I.R. Could be registered.
30. ' In the case of Altaf Hussain v. S.H.O. And others reported in 1993 M LD 2059, it was observed that there is no hard and fast rule that no second F.I.R. Could be registered in respect of different versions of an incident taking place on the same date.
31. ' Yet in another case of Muhammad Latif v. S.H.O. Police Station Saddar Duniapur and others reported in 1993 PCr.LJ 1992, it was observed that when one person of the petitioner's side had also been done to death and some other person had received injuries then it was duty of the police to register the case of the petitioner in order to reach at correct conclusion.
32. ' In the case of Raja Gulzar Ahmed v. Mushtaq and others reported in PLD 1998 Lah. 111, it was observed that registration of second F.I.R. Embodying the counter-version of the case is neither legally barred nor can be refused to register.
33. ' In the case of Mst. Ghanwa Bhutto and another v. Government of Sindh and another reported in PLD 1997 Karachi 119 a D.B. Of this Court observed as under:-- "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."
34. ' Again in the same citation at page 127 it was observed as under:-- "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."
35. ' Further in the same citation at page 128 it was observed 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 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. In Altaf Hussain's case, allegations had been made that, the President and the Prime Minister of Pakistan, alongwith some other functionaries of the Government were guilty of causing death of the petitioner's brother.
36. Neither any material had been placed in support of the said contention to satisfy the conscience of the Court, nor any role had been attributed to the said persons named as accused, to establish a prima facie case against them, therefore, discretion was not exercised in the petitioner's favour.
37. 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 reason to such alternate remedy, if so desired by him. A person 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 favour of the petitioner in every case where an F.I.R. Has not been registered by the police."
38. The upshot of the above discussion is that if this Court in an appropriate case finds that the registration of second F.I.R. Is just, proper and equitable, the Court can order for registration of second F.I.R.
39. ' The authorities relied upon by the learned counsel appearing on behalf of the respondents are distinguishable from the facts and circumstances of the present case.
40. Looking towards the peculiar facts and circumstances of the case, I am of the considered view that registration of F.I.R. In the case IF in hand would be just, proper and equitable.
41. ' Consequently the prayer of the petitioner is allowed and concerned S.H.O. Is directed to register the F.I.R. Of the petitioner and G investigate the case in accordance with law. The petition stands disposed of.