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

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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

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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

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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

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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

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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

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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

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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

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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.

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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

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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

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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.

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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,

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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.”

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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

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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

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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

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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

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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

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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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