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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.
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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
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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.
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