SUPREME COURT OF AZAD JAMMU AND KASHMIR [Appellate Jurisdiction]
PRESENT: Mohammad Azam Khan, C.J. Ch. Muhammad Ibrahim Zia, J.
Civil Appeal No.136 of 2014 (PLA filed on 06.05.2014)
1. Kh. Muhammad Naheem, Deputy Commissioner, Bhimber, presently Director Mineral AKMIDC, Muzaffarabad. 2. Jameel Ahmed Jameel, Superintendent of Police, Bhimber, Presently Superintendent of Police, Palandri/Sudhnoti. 3. Mirza Shoukat Hayat, Deputy Superintendent of Police, Bhimber, Presently Deputy Superintendent of Police, Kotli. 4. Muhammad Naseer, Inspector Police, presently District Traffic Inspector, Mirpur. 5. Waheed Arif, Police Constable, Police Station Chowki, Samahni. ……APPELLANTS
VERSUS
1. Justice of Peace/Sessions Judge, Bhimber. 2. Sabir Hussain s/o Bagh Ali r/o Village Sokasan, Tehsil and District Bhimber.
….RESPONDENTS 2
3. Inspector General of Police, Azad Jammu & Kashmir, Civil Secretariat, Muzaffarabad. 4. Deputy Inspector General Police, Mirpur region, Mirpur. 5. Superintendent of Police, Bhimber. 6. S.H.O. Police Station, Bhimber.
..….PROFORMA-RESPONDENTS
[On appeal from the judgment of the High Court dated 29.04.2014 in Writ Petitions No.1915 & 2251 of 2012]
FOR THE APPELLANTS: Mr. Abdul Rasheed Abbasi, Advocate.
FOR RESPONDENT No.2: Mr. Sadaqat Hussain Raja, Advocate.
Date of hearing: 14.05.2014.
JUDGMENT:
Mohammad Azam Khan, C.J.– The Azad
Jammu & Kashmir High Court through the impugned judgment dated 29th April, 2014, accepted writ petition No.1915 of 2012 with a direction to the Station House Officer (S.H.O.),
Bhimber to lodge FIR on the basis of the facts enlisted in the application and investigate the case 3
in accordance with law, while dismissed writ petition No.2251 of 2012 titled Jameel Ahmed
Jameel and another vs. Justice of Peace and another.
2. The background of filing of the writ petitions is that on a report made by Muzammal
Hussain, Extra Assistant Commissioner (AEC),
Bhimber/ Duty Magistrate, a case under sections
302, 324, 147, 148, 149, 427, 186, 353, 188 and
440, APC, was registered at Police Station, Bhimber at 12:30 p.m. It was alleged that Ch. Tariq Farooq,
Member, Azad Jammu & Kashmir Legislative
Assembly, had announced to besiege the District
Administration Offices and make the District
Administration as hostage. The District Magistrate had imposed ban under section 144, Cr.P.C. in the
District Courts‟ premises and the Duty Magistrates were also appointed. At 11:30 a.m. a large number of people in the form of an unlawful assembly, lead by Ch. Tariq Farooq and 60 others nominated persons along with 500 to 600 unknown persons armed with fire-arms and lathies attacked the 4
entry-gate of the District Courts. The Police on duty tried to stop them. The participants of the procession after breaking the gate attacked the office of the Deputy Commissioner and started pelting stones. It has been further stated in the application by the Duty Magistrate that he ordered the police for tear gas shelling and also ordered for
Lathi-charge to disperse the unlawful assembly. The participants gathered in front of the Electricity
Office and started firing towards the office of the
Deputy Commissioner, whereupon he ordered the police on duty for aerial firing for dispersing the assembly. From the firing of participants of the unlawful assembly, Muhammad Akram r/o
Pathorani and Abdul Hameed s/o Noor Hussain r/o
Sokasan were injured. Later on, Abdul Hameed succumbed to the injuries. The whole occurrence has been witnessed by the Police Officers and the other civil servants. On this report a case was registered under the above-referred sections of the
Azad Penal Code. 5
3. On the same day, the respondent, Sabir
Hussain addressed an application to the Sessions
Judge, Bhimber vested with the powers of Justice of Peace under section 22-A, Cr.P.C., alleging therein, that he is resident of Sokasan. Today, on
18th September, 2012, his nephew, Abdul Hameed has been murdered by the Police with firing. He has filed a report of the same at Police Station,
Bhimber, but the Police has not registered the case and wants to conduct the post-mortem of the dead body on the basis of false and fabricated report. He requested for proper orders. The learned Sessions
Judge/Justice of Peace issued the order on the said application that the application has been presented at his residence at 8:00 p.m., it shall be placed before him on 19th September, 2012. On 19th
September, 2012, the learned Sessions Judge while exercising powers under section 22-A Cr.P.C, directed the Deputy Inspector General of Police,
Range Mirpur that he shall proceed on the spot and after thoroughly examining the facts, register the case against the responsible. It was further ordered 6
that if the application is found incorrect, he shall dismiss the case and proceed against the complainant. Non-registration of the case is violation of law. The Deputy Inspector General of
Police instead of complying with the order of the
Sessions Judge/Justice of Peace, conducted an inquiry in the light of Government notification issued on 19th September, 2012 and presented the report to the Government while making certain recommendations along with the recommendation that a judicial Inquiry be conducted in the matter.
Sabir Hussain, respondent herein, filed a writ petition and prayed that a direction be issued to respondents No.1 to 4, therein, to register F.I.R. against respondents No.5 to 9, therein and also requested for a direction that order of the learned
Sessions Judge/Justice of Peace, Bhimber dated
19th September, 2012 may be implemented while,
Jameel Ahmed Jameel, Superintendent of Police along with S.H.O. Bhimber, City, filed writ petition and prayed that the order passed by the Sessions
Judge, Bhimber/Justice of Peace may kindly be set 7
aside. Both the writ petitions were disposed of in the terms indicated above.
4. Mr. Abdul Rashid Abbasi, Advocate, the learned counsel for the appellants, submitted that the judgment of the High Court is against law, the record and not maintainable. He submitted that all the appellants are public servants. They are the functionaries of the State and all the acts alleged to have been committed by them have been done in official capacity. A large procession consisting of
500 to 600 persons armed with sticks and fire- arms attacked the District Courts and started pelting stones and reckless firing. The Police while acting under the provisions of Chapter IX, Cr.P.C. took necessary measurers as required for protection in the light of provisions of sections 127 and 128, Cr.P.C. He submitted that when a public servant acts in the light of provisions of Chapter IX,
Cr.P.C. i.e. sections 127 and 128, Cr.P.C., he has got a protection under section 132, Cr.P.C, against prosecution for the acts done by him. No illegal act was done by the Police. The appellants have also 8
got protection under section 79 of the Azad Penal
Code and any act done in official capacity in good faith is not an offence. The act performed by the appellants falls in general exceptions. The learned counsel argued that two persons were injured by the firing of the mob and not by the police. The learned counsel forcefully argued that it is admitted by the respondent in the application filed at Police
Station that there was an unlawful assembly and when an unlawful assembly refuses to disperse on the order of the Magistrate under section 128,
Cr.P.C, the Magistrate has power to take appropriate measurers for dispersing the assembly and for the safety of public property may take any measure which is required to be done for maintaining law and order. The learned counsel argued that the provisions of Chapter IX of Cr.P.C. have been introduced to maintain public peace. The provisions of sections 127, 128 and 132, Cr.P.C. have to be read together. The appellants were duty bound to protect the State property, the officials and the public at large. The learned counsel relied 9
upon the case titled M. N. Schamnad and another vs. M.N. Rama Rao [AIR 1933 Madras 268].
5. While controverting the arguments Mr. Sadaqat
Hussain Raja, Advocate, the learned counsel for respondent No.2, argued that the judgment of the High
Court is perfectly legal. The provisions of Chapter IX,
Cr.P.C. are not attracted in the case. The police resorted to reckless firing without any justification. The learned counsel submitted that if a ban under section 144, Cr.P.C. was imposed in the District Courts’ premises then on violation of the same a complaint under section 188,
Cr.P.C. may be lodged but the Police Authorities registered the criminal case against 500 to 600 persons only to protect their act of reckless firing as a shield against the murder of
Abdul Hameed. The learned counsel referred to the report of Deputy Inspector General of Police, Range, Mirpur, wherein it was concluded “that no ban was imposed under section 144, Cr.P.C. in the Court’s premises. The police had sources to stop the procession out of the Courts’ premises. The entry of the procession in the Courts’ premises is a fault of the Magistrate, Police officers and he 10
recommended for a judicial inquiry.” The learned counsel referred to a portion of judicial inquiry and argued that Mr.
Justice Abdul Rasheed Sulehria has concluded in the judicial inquiry that the police is duty bound to register second F.I.R. The learned counsel submitted that commission of inquiry has concluded that one person died due to the firing of the police but despite that the Deputy
Inspector General has not ordered to register the case against the responsible persons on the report of the respondent. The learned counsel referred to the copies of orders made for firing; one by the District Magistrate and the other by the Extra Assistant Commissioner. He argued that both the orders are written by the same person because they are of one hand-writing. The learned counsel also argued that in the statement recorded before the
Commission of inquiry, the Extra Assistant Commissioner stated that he has not ordered for firing. The order was written at 4:00 p.m. Similarly, Jameel Ahmed Jameel,
Superintendent of Police, Bhimber has also stated in his statement that he does not know who ordered for firing.
The learned counsel forcefully argued that the police 11
registered a false and fabricated case against Ch. Tariq
Farooq and others and true facts have not been brought on the record. One person was deliberately murdered by the police. It was enjoined upon the police to register F.I.R. on the application of real uncle of the deceased, Abdul
Hameed. The learned counsel referred to and relied upon the cases reported as Wajid Ali Khan Durani and others vs. Government of Sindh and others [2001 SCMR
1556], Mrs. Ghanwa Bhutto and another vs.
Government of Sindh and another [PLD 1997 Karachi
119], Mst. Anwar Begum vs. Station House Officer,
Police Station Kalri West, Karachi and 12 others
[PLD 2005 SC 297], Muhammad Uris vs. Station
House Officer Police Station Dokri and 2 others
[2004 MLD 1156] and Jamshed Khan and another vs. Government of Sindh through Secretary Home
Department, Karachi and 2 others [1999 P.Cr.L.J. 512].
The learned counsel also referred to Rule 56 of Chapter
XIV of Police Rules, 1934 dealing with the use of Police force against the crowd. 12
6. We have heard the learned counsel for the parties and perused the record with utmost care.
7. The fact is admitted by both the parties that Ch. Tariq Farooq, Member, Azad Jammu &
Kashmir Legislative Assembly had announced to take out a procession on 18th September, 2010 and in the result of firing two persons were injured, one of them, Abdul Hameed succumbed to the injuries.
There are two versions regarding the death of Abdul
Hameed. One version put-forth by Muzammal
Hussain, Extra Assistant Commissioner, who filed a report against Ch. Tariq Farooq and 60 other nominated persons along with 500 to 600 unknown persons is, that the death of the deceased has been occurred due to the firing of the participants of the procession and he got registered a case against them under sections 302, 324, 147, 148, 149, 427,
353, 186 and 440, APC. The other version is that of
Sabir Hussain, respondent, uncle of the deceased,
Abdul Hameed, who filed a report to S.H.O. Police
Station, Bhimber on the same day, who claimed in 13
the F.I.R. that a procession was taken out which was lead by Ch. Tariq Farooq, Member, Azad
Jammu & Kashmir Legislative Assembly and a large number of people participated in the procession. He nominated the appellant, Kh.
Naheem Ahmed, Deputy Commissioner, Bhimber
Jameel Ahmed Jameel, Superintendent of Police,
Bhimber, Naseer Ahmed, Inspector Police City,
Bhimber and unknown constables/gunmen, including Waheed Arif, gunman and 8 to 10 others and alleged that they have resorted to tear gas shelling and firing. Naseer Ahmed, S.H.O., fired with a rifle directly on his nephew, Abdul Hameed, who died on the spot. Mirza Shoukat Hayat, Deputy
Superintendent of Police fired at Muhammad
Akram, who was injured by the firing. Waheed Arif, gunman also fired at Muhammad Rafique s/o Shah
Hussain, which hit his left hand.
8. Two questions have been raised by the counsel for the parties; (a) whether the appellants being public servants were acting under the provisions of Chapter IX of Cr.P.C., i.e. sections 14
127, 128, Cr.P.C. and whether the acts done under sections 127 and 128, Cr.P.C are protected under section 132, Cr.P.C and section 79 of the Azad
Penal Code, therefore, F.I.R. cannot be registered against the public servants and; (b) when an F.I.R. has already been registered in respect of one incident, second F.I.R. in respect of the same occurrence can be registered or not.
9. Firstly, we will deal with the question of protection. Chapter IX, Cr.P.C deals with the unlawful assembly and maintenance of public peace and security. For proper appreciation it is deemed expedient to reproduce sections 127, 128 and 132 of Cr.P.C. which are as under:-
“Chapter IX
UNLAWFUL ASSEMBLIES AND MAINTENANCE OF PUBLIC PEACE AND SECURITY 127. Assembly to disperse on command of Magistrate or Police-Officer.-(1) Any officer-in-charge of a police station may command any unlawful assembly, or any assembly of five or more persons likely to cause a disturbance of the public peace, to disperse; and it shall thereupon be the duty of the members of such assembly to disperse accordingly. 15
128. Use of civil force to disperse.- If, upon being so commanded, any such assembly does not disperse, or if without being so commanded, it conducts itself in such a manner as to show. A determination not to disperse, any officer- in-charge of a police-station, may proceed to disperse such assembly by force, and may require the assistance of airman in the armed forces of Pakistan and acting as such, for the purpose of dispersing such assembly, and, if necessary, arresting and confining the persons who forms part of it, in order to disperse such assembly or that they may be punished according to law;
Provided that for dispersing any assembly, firing shall not be resorted to except under the specific directions of an officer of the police not below the rank of an Assistant Superintendent or Deputy Superintendent of Police. 132. Protection against prosecution for acts done under this Chapter.- No prosecution against any person for any act purporting to be done under this Chapter shall be instituted in any Criminal Court, except with the sanction of the Provincial Government; and- (a) no police officer acting under this Chapter in good faith,
(b) no officer acting under section 131 in good faith,
(c) no person doing any act in good faith, in compliance with a requisition under section 128 or section 130 or section 131-A, and
(d) no inferior officer, or soldier, sailor or airman in the armed forces doing any act in obedience to any order which he was bound to obey, 16
Shall be deemed to have thereby committed an offence;
Provided that no such prosecution shall be instituted in any Criminal Court against any officer or soldier, sailor or airman in the armed force except with the sanction of the Federal Government.”
A plain reading of the provisions contained in
Chapter IX, Cr.P.C. reveals that section 127 empowers a Magistrate or officer-in-charge of a police station to command any unlawful assembly or any assembly of 5 or more persons which is likely to disturb the public peace, to disperse and if the participants of the assembly refuse to obey the command then under section128, Cr.P.C, he may order to disperse such unlawful assembly by using civil force. If in the opinion of the Magistrate the conduct of such assembly is of such a nature which shows that it is determined not to disperse then such officer or Magistrate may use the civil force and seek help of the airman of armed forces for dispersing the assembly. If an officer-in-charge of a police station or the Magistrate acts under the provisions of sections 127 and 128, Cr.P.C, he has 17
been provided legal immunity and protection under section 132, Cr.P.C. against prosecution for the act purporting to be done under the above referred sections without Government sanction. A perusal of section 132, Cr.P.C. makes it abundantly clear that the persons acting under sections 127 and 128,
Cr.P.C. or succeeding sections cannot be prosecuted without sanction of the Provincial
Government or the Federal Government as the case may be. The protection provided in these sections against prosecution is subject to sanction of the
Government. The word prosecution is defined in different dictionaries as under:-
In Mitra‟s Legal and Commercial Dictionary by
A. N. SHAH, the word “prosecution” is defined as under:-
“A prosecution exists where a criminal charge is made before a judicial officer or tribunal, and any person who makes or is actively instrumental in the making or prosecuting of such a charge is deemed to prosecute it, and is called the prosecutor.” 18
In Black‟s Law Dictionary with pronunciation
(sixth Edition), the word „prosecution” is defined as under:-
„A criminal action; a proceeding instituted and carried on by due course of law, before a competent tribunal, for the purpose of determining the guilt or innocence of a person charged with crime.‟
By an extension of its meaning, “prosecution” is also used to designate the government (state or federal) as the party proceeding in a criminal action, or the prosecutor, or counsel; as when we speak of „the evidence adduced by the prosecution.‟ The term is also used respecting civil litigation, and includes every step in action, from its commencement to its final determination.”
In Law Terms and Phrases, by Sardar
Muhammad Iqbal Khan Mokal, (Edition 1978), the word “prosecution” means a proceeding in criminal
Courts.
The ordinary dictionary meanings of the word
“prosecution” are initiation and institution of criminal proceedings by or before the competent tribunal for adjudication. Any proceeding before taking of cognizance by the Court or tribunal of 19
competent jurisdiction like; registration of case and investigation are not included in the prosecution.
The prosecution starts from the stage when in any criminal matter the report is filed by the police or a complaint is directly filed in the Court for cognizance then it can be termed that prosecution has started.
In a case titled General Officer Commanding vs.
CBI and others [2012] 5 S.C.R. 599, in Occupied
Kashmir civilians were killed by the Indian Army
Officers. The CBI was asked to conduct the investigation. After conducting the investigation the
CBI filed charge-sheet against the Army Officers before the Magistrate. The Magistrate granted an opportunity to the Army to exercise the option as to whether the competent authority would prefer to try the case by way of Court martial by taking over the case under the provisions of section 125 of the
Army Act, 1950. The Army officers filed an application before the Magistrate that no prosecution could be instituted except with the previous sanction of the central Government in 20
view of the provisions of section 7 of the Armed
Forces J & K (Special Powers) Act, 1990, therefore, the proceedings be closed by returning the charge- sheet to the CBI. The Magistrate dismissed the application while holding that it was for the trial
Court to find out whether the action complained of falls within the ambit of the discharge of official duty or not. A revision petition brought before the
Sessions Court was dismissed. The High Court affirmed the decision of the lower Courts and held that the very objective of sanction is to enable the
Army officers to perform their duties fearlessly by protecting them from vexatious, mala-fide and false prosecution for the act done in performance of their duties. The Supreme Court of India dismissed the appeal. It was observed in paras 12, 22 and 23 of the judgment as under:-
“12. The „prosecution‟ means a criminal action before the court of law for the purpose of determining „guilt‟ or „innocence‟ of a person charged with a crime…..‟
22. The protection given under Section 197, Cr.P.C is to protect responsible public servants against the institution of possibly vexatious criminal proceedings 21
for offences alleged to have been committed by them while they are acting or purporting to act as public servants. The policy of the legislature is to afford adequate protection to public servants to ensure that they are not prosecuted for anything done by them in the discharge of their official duties without reasonable cause, and if sanction is granted, to confer on the Government, if they choose to exercise it, complete control of the prosecution. This protection has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. Use of the expression “official duty” implies that the act or omission must have been done by the public servant in the course of his service and that it should have been done in discharge of his duty. The section does not extend its protective cover to every act or omission done by a public servant in service but restricts its scope of operation to only those acts or omissions which are done by a public servant in discharge of official duty. If on facts, therefore, it is prima facie found that the act or omission for which the accused was charged had reasonable connection with discharge of his duty, then it must be held to be official to which applicability of Section 197, Cr.P.C cannot be disputed.
23. The question to examine as to whether the sanction is required or not under a statute has to be considered at the time of taking cognizance of the offence and not during enquiry or investigation. There is a marked distinction in the stage of investigation and prosecution. The prosecution starts 22
when the cognizance of offence is taken. It is also to be kept in mind that the cognizance is taken of the offence and not of the offender. The sanction of the appropriate authority is necessary to protect a public servant from unnecessary harassment or prosecution. Such a protection is necessary as an assurance to an honest and sincere officer to perform his public duty honestly and to the best of his ability. The threat of prosecution demoralizes the honest officer. However, performance of public duty under colour of duty cannot be camouflaged to commit a crime. The public duty may provide such a public servant an opportunity to commit crime and such issue is required to be examined by the sanctioning authority or by the court. It is quite possible that the official capacity may enable the public servant to fabricate the record or miss- appropriate public funds etc. Such activities definitely cannot be integrally connected or inseparably inter-linked with the crime committed in the course of the same transaction. Thus, all acts done by a public servant in the purported discharge of his official deities cannot as a matter of course be brought under the protective umbrella of requirement of sanction.” 10. Section 132, Cr.P.C do not provide protection against the registration of case and inquiry. The object of providing protection against prosecution in section 132, Cr.P.C. is to protect the responsible public servants against the possible frivolous and vexatious institution of criminal 23
proceedings while they act or purporting to act as a public servant under Chapter IX, Cr.P.C. At one side, this protection is only against the prosecution and not against the registration of F.I.R., whereas on the other side, it may be observed that the legislature while providing protection under section
132, Cr.P.C has not issued a license to the
Magistrate or officer-in-charge of a police station to act in an illegal manner and use sections 127 to
132, Cr.P.C., as a shield against such illegal acts that they were acting under the provisions of
Chapter IX, Cr.P.C. and they are immune from prosecution without Government sanction. The provisions of section 132, Cr.P.C are analogous to the provisions of section 197, Cr.P.C., which provide protection to the Judges and public servants that they shall not be prosecuted without the previous sanction of the relevant authority.
Section 197, Cr.P.C. reveals that no Court shall take cognizance of such offence which is done by a
Judge or public servant while acting in official capacity. The Constitution guarantees the 24
fundamental rights to the citizens. A State Subject may avail two types of remedies for institution of criminal proceedings; one by filing an F.I.R. and the other by filing a direct complaint before the Court of competent jurisdiction. The protection provided to the Magistrate, Judge or public servant under section 197, Cr.P.C is wider one and it provides protection against prosecution without the previous sanction of the relevant authority. From the language, implied in sections 132 and 197, Cr.P.C., it appears that the concerned Magistrate, or officer- in-charge of a police station, can be prosecuted with the previous sanction of the Government, if they being public servant act under the provisions referred to above. In section 132, Cr.P.C. there is concept of prosecution without registration of F.I.R. and investigation. Now the question arises that how a public servant and Magistrate can be prosecuted.
While dealing with the scope of prosecution sanction in section 197, Cr.P.C., it was observed in the case titled Gangaraju vs. Venki [AIR 1929
Madras 659] as under :- 25
“It is framed in very wide terms. It requires that Judges, Magistrates and certain public servants shall not be prosecuted without the sanction of the competent authority for any offences alleged to have been committed by them while acting or purporting to act in the discharge of their official duties. The object obviously is to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they were acting or purporting to act as public servants. The policy of the legislature is, we conceive, to afford adequate protection to public servants, to ensure that they are not prosecuted for anything done by them in the discharge of their official duties without reasonable cause and, if sanction is granted, to confer on the Local Government, if they choose to exercise it, complete control of the prosecution. We can see nothing in these precautions to which the public at large can legitimately take exception and consider that the subsection should be construed as widely as it has been framed….”
In the case titled Nagraj vs. State of Mysore
[AIR 1964 SC 269], while dealing with Chapter IX,
Cr.P.C. it was observed as under:-
“It follows, therefore, that the contention that a police officer cannot be prosecuted without the sanction from the State Government for an offence which he alleges to have taken place during the course of his 26
performing the duties under Chap. IX of the Code cannot be accepted. His mere allegation will not suffice for the purpose and will not force the Court to throw away the complaint of which it had properly taken cognizance on the basis of the allegations in the complaint.”
It was further observed in the referred case at page 274 as under:-
“… It is contended by the counsel for the appellant that the mere fact that some of the persons alleged to have formed part of the unlawful assembly were prosecuted by the State and have also been committed by the Magistrate to the Sessions Court for trial establishes prima facie that the accused‟s contention about the necessity for sanction under S.132 of the Code is correct. The commitment of the other accused is on the basis of evidence in that case and cannot be legally taken into consideration to decide the question raised in this case. The question is to be decided on the evidence in this case and not on the basis of evidence and inferences drawn in the other case. The third contention, therefore, has no force.”
11. There is yet another aspect of the case that the provisions of section 197, Cr.P.C, which provide protection to the Judges and public servants against prosecution have been declared against the injunctions of Islam by the Federal 27
Shariat Court in the case titled Zafar Awan vs.
Islamic Republic of Pakistan [PLD 1989 Federal
Shariat Court 84]. It was observed in para 13 of the judgment as under:-
“13. The provision of the sanction of the President, the Governor of a province or any other executive authority is, therefore, repugnant to Qur‟an and Sunnah of the Holy Prophet and it is, therefore, desired that the President shall take steps so that the above laws are suitably amended before the 1st of January, 1990 failing which the provision requiring the previous sanction of the President or a Governor of a Province or any executive authority shall cease to have effect.” The judgment was affirmed by the Shariat
Appellate Bench of the Supreme Court of Pakistan in the case titled Federation of Pakistan through
Secretary, Ministry of Law, Justice and
Parliamentary Affairs, Islamabad vs. Zafar Awan,
Advocate, High Court [PLD 1992 SC 72], wherein it was observed in para 6 of the judgment as under:-
“6. It is conceded that the provisions which are under examination act as a clog or impediment of an aggrieved party against a State functionary to seek redress in a Court of law. In the matter of granting the permission or not granting 28
it, the law provides no guidance nor is the aggrieved party even to be informed of the grant or refusal of such a sanction. As the provision stands, it on the one hand, amounts to stifling the prosecution of a genuine grievance and on the other hand protects absolutely the functionary who commits the wrong or affords the grievance. It is conceded that the remedy cannot be denied to one having a legal right nor can the examination of the grievance be shut out at the absolute discretion of the competent authority. Hence, these provisions, as they stands, are clearly violative of the Injunctions of Islam which make all public power a trust and hence all persons exercising it accountable to the persons suffering at its hands and this process of accountability can take place only in forums and avenues which are independent and regulated by properly set out guidelines for the prosecution and adjudication of causes.”
The provisions of section 132, Cr.P.C., wherein the protection has been provided to the Magistrate or officer-in-charge of the Police Station against prosecution are analogous to the provisions of section 197, Cr.P.C. which provide protection against prosecution without prior sanction of the
Government. We fully endorse the view formed by the Federal Shariat Court in the case titled Zafar
Awan vs. Islamic Republic of Pakistan [PLD 1989 29
Federal Shariat Court 84] and Shariat Court
Appellate Bench of Supreme Court of Pakistan in the case titled Federation of Pakistan through
Secretary, Ministry of Law, Justice and
Parliamentary Affairs, Islamabad vs. Zafar Awan,
Advocate, High Court [PLD 1992 SC 72] and advise the Government to bring suitable amendment in sections 132 and 197, Cr.P.C.
12. In our view the protection provided to the
Magistrate and officer-in-charge of the Police
Station under section 132, Cr.P.C is only against prosecution subject to the Government sanction, there is no bar in registration of the case against the officials mentioned in Chapter IX, Cr.P.C., nor any protection is provided against registration of
F.I.R.
13. We have also carefully considered the argument of the counsel for the appellants that anything done in discharge of official duties, is not an offence under section 79 of Azad Penal Code. We agree with the argument that section 79 falls in 30
general exceptions and anything done in official capacity is not an offence but the effect of section
79 is to be considered at the time of final adjudication. It is not relevant at the time of registration of a case or during prosecution. We are fortified in our view from the case titled M. N.
Schamnad and another vs. M.N. Rama Rao [AIR
1933 Madras 268], wherein it was observed as under:-
“…. Section 79 can only be applied when all the facts are known, i.e, when the trial is over; S. 132, Criminal P.C., can only operate before the trial begins. Protection given by S.79 is a protection against conviction, while the protection given by S.132, Criminal P.C., is a protection against trial. It is impossible to hold that these provisions are identical…..”
14. Section 154, Cr.P.C. provides that every information relating to the commission of a cognizable offence when brought to the officer-in- charge of a police station, shall be reduced in writing whether it is oral or written and S.H.O. after entering the same in the relevant register and read over the same to the complainant. The provisions of section 154, Cr.P.C. are mandatory. The S.H.O. has 31
no option except to register the said information and if any cognizable offence is made out from the contents of the application, he shall start the investigation in the matter. In the present case one person died due to the firing and the other is stated to be injured. One F.I.R. was lodged by the Duty
Magistrate/Extra Assistant Commissioner,
Bhimber against the participants of the unlawful assembly consisting of more than 500 to 600 persons. Later on, Sabir Hussain, respondent No.2, presented a written application to the S.H.O. for registration of a case against the persons nominated in the application. The S.H.O. refused to register the case, whereupon he filed an application before the Sessions Judge, Bhimber in the capacity of Justice of Peace under section 22-A Cr.P.C. and
Justice of Peace on 19th September, 2012 drew the conclusion that from the contents of the application it appears that a cognizable offence has been committed and directed the Deputy Inspector
General of Police for registration of the case. When one F.I.R. has been registered in respect of the 32
occurrence, whether it is necessary for the S.H.O. to register second F.I.R. in respect of the same occurrence. Normally, when an F.I.R. is registered in respect of cognizable offence and if the other party brings second version in respect of the same occurrence it is the duty of the police to investigate the counter version put-forth by the other party regarding the same occurrence but no hard and fast rule can be laid down that the second F.I.R. cannot be registered in respect of different version given by the other party. In a case where aggrieved party brings the version that true facts have been suppressed and occurrence did not take place in the manner, as alleged in the previously lodged
F.I.R, then it is the duty of the S.H.O. to register second F.I.R.
In the case titled Mrs. Ghanwa Bhutto and another vs. Government of Sindh and another [PLD
1997 Karachi 119], two F.I.Rs. were registered by the Police in murder case of Mir Murtaza Bhutto.
The High Court accepted the writ petition filed for registration of third F.I.R. on the ground that the 33
F.I.R. has been registered by the police officer who himself is suspected of being an accused. It was observed in para 14 of the judgment as under:-
“14. Turning now, to the facts of the present case, there is no controversy in respect of the fact that two reports in respect of the said occurrence have already been registered by the police and in the second report registered at the instance of Asghar Ali, the servant of the first petitioner, police officers have been charged with murder of Mir Murtaza Bhutto. No doubt, as has been pointed out by the learned counsel for the respondents, section 154 of the Criminal Procedure Code postulates registration of only one F.I.R. in respect of an offence and in any case an F.I.R. indicating commission of Qatl-e-Amd has already been registered at the instance of the said servant of the first petitioner. Even the first F.I.R. registered at the instance of Station House Officer, Haq Nawaz Sial, according to the respondents‟ counsel, was sufficient to set the criminal law into motion. Therefore, is registration of a third F.I.R. warranted under the law? 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 was 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 34
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, a prima facie case appears to have been made out against the said persons for the purpose of recording an F.I.R.”
In the case titled Wajid Ali Khan Durani and others vs. Government of Sindh and others [2001
SCMR 1556], two F.I.Rs. were registered in respect of a cognizable offence. The widows of the deceased were not satisfied and felt that two previously registered F.I.Rs. did not reflect the true facts, therefore, they filed constitutional petition in the
High Court for registration of third F.I.R. The High
Court directed the S.H.O. to register third F.I.R.
The respondent Wajid Ali Khan Durani challenged the said judgment of the High Court through petition for leave to appeal. The Supreme Court 35
refused to grant the leave. It was observed in para 6 of the judgment as under:-
“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 person, 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 36
tried, cannot be used against any accused persons at the trial.”
In the case titled Mst. Anwar Begum vs. Station
House Officer, Police Station Kalri West, Karachi and
12 others [PLD 2005 SC 297], the facts were that one Abdul Razzaq, husband of Noor Begum was murdered while sitting in his office. The Manager of the office, Muhammad Yousaf filed a report to the police. The widow of the deceased filed a writ petition in the High Court for registration of F.I.R., alleging therein that true facts have not been brought on record. The High Court directed the
S.H.O. to investigate the version put-forth by the widow. Dissatisfied, she filed an appeal in the
Supreme Court. The Supreme Court accepted the appeal and issued direction for registration of second F.I.R. It was observed in para 10 of the judgment as under:-
“10. For the foregoing reasons, we are of the considered opinion that in the instant case petitioner has been able to make out a case for registration of second F.I.R. Accordingly, the petition was converted into appeal and was allowed vide short order dated 29- 37
1.2014, which is reproduced as under:-
„For the reasons to be recorded later on, the petition is converted into appeal and the same is allowed. S.H.O., P.S. Liari Town, Karachi South is directed to register fresh F.I.R. on the basis of statement of Mst. Anwar Begum, the format of which is at pate 8 of part II of this petition within a week and report compliance to Officer-In-charge of this Court at Karachi Branch Registry.” The cases reported as Jamshed Khan and another vs. Government of Sindh through Secretary
Home Department, Karachi and 2 others [1999
P.Cr.L.J. 512] and Muhammad Uris vs. Station
House Officer Police Station Dokri and 2 others
[2004 MLD 1156] referred to by the counsel for the respondent are both from High Court of Karachi jurisdiction. While relying upon Mrs. Ghanwa
Bhutto’s case [PLD 1997 Karachi 119], the High
Court of Sindh accepted the writ petitions and issued direction for registration of second F.I.R.
15. In the case in hand, it is admitted that a procession lead by Ch. Tariq Farooq, Member, Azad 38
Jammu & Kashmir legislative Assembly entered in the premises of the District Courts, Bhimber. Due to the firing one person died and the other is shown to be injured. The District Administration, Bhimber lodged F.I.R. against the participants of the procession that one person died and other injured by the firing of participants of procession. Apart from 500 to 600 unknown persons and Ch. Tariq
Farooq, Member, Azad Jammu & Kashmir
Legislative Assembly, 60 other persons were nominated in the offences. Sabir Hussain, real uncle of the deceased, Abdul Hameed in the application has nominated member of the police force, District Administration and specifically alleged firing by them at the deceased and the injured. The learned Sessions Judge/Justice of
Peace, while exercising powers under section 22-A,
Cr.P.C. observed that from the contents of application cognizable offence appears to have been committed and it was enjoined upon the S.H.O. to register the case. The direction issued by the
Sessions Judge, Bhimber/Justice of Peace has not 39
been complied with. The judgment of the High
Court is based on cogent and sagacious reasons, therefore, it requires no interference.
16. The result of the above discussion is that the appeal has no merit, it is hereby dismissed with no order as to costs.
Before parting we may observe that counsel for respondent No.2, heavily relied upon the repots of Deputy Inspector General of Police and Judicial Commission but we refrain from commenting upon the said reports for the reasons that it may affect the case of either party. A copy of the judgment shall be sent to the Chief Secretary,
Azad Jammu & Kashmir for compliance of para 11 of the judgment.
CHIEF JUSTICE JUDGE Muzaffarabad. 06.06.2014. 40