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Criminal Miscellaneous No. 134/Q of 1984 decided on 19th February, 1985.

‑‑‑Ss. 154 t 561‑A‑‑Penal Code (XLV of 1860), S. 307/326/324/148/149‑ Firat information report‑‑Recording of second time‑‑Only one F.I.R. to be recorded in respect of one and same occurrence‑‑Where accused persons set up a counter version same to be investigated by police on case file of same F.I.R. and not by recording any subsequent F.I.R.‑ Police in counter version by accused should find out truth and submit challan only in respect of version found true by them and not submit both versions to Court for trial‑ ‑Non‑adherance of such principle by police, held, was uncharitable and a disservice to public whose interest it is duty ‑bound to guard.

Ghulam Siddique v. Station House Officer, Saddar, Dera Ghazi Khan and others P L D 1979 Lah. 263; Kaura v. The State and others 1983 S C M R 436; Mushtaq Ahmad v. The S.H.O. Police Station, Munawan 1984 P Cr. L J 1454; Sanobar Talkies v. Government of Punjab 1972 S C M R 337 and Muhammad Ayub v. The State and another 1983 P Cr. L J 1137 ref.

Abdul Rashid v. The State 1980 P Cr. L J 1119 rel.

‑‑‑Ss. 154, 190 (1)(b), (c) & 561‑A‑‑Penal Code (XLV of 1860), S. 307/326/324/148/149‑‑First information report‑‑Recording of a second time‑‑Quashing of case‑‑Second F.I.R. about same occurrence relating to counter version of accused, recorded by police when challan in case arising out of first F.I.R. had already been sent to Magistrate and there was a direction from Martial Law Authorities to register a case‑‑No efforts made by accused to have second F.I.R. and its investigation quashed‑‑Police finding a prima facie case in second version and submitted a chal1an and both cases being tried by Additional Sessions Judge‑‑Mere fact that second F. I. R. could not legally be recorded or that investigation conducted by Police therein illegal or that challan filed by police on basis of such investigation itself illegal, held, did not prevent Court from taking cognizance of matter under S. 1.90 (1)(b) & (c), Criminal Procedure Code, or render trial illegal if otherwise Court found that a prima facie case was made out on basis of police report or upon information received or upon his own knowledge or suspicion.

The Crown v. Mehar Ali P L D 1956 F C 106; Mst. Sadan v. The State P L D 1965 B J 12 ; Wall tar v. The State P L D 1960 Kar. 204 ; Muhammad Rashid v. The State P L D 1964 Kar. 381 and Umer Din v. The Superintendent of Police, Hyderabad P L D 1980 Kar. 418 rel.

‑‑‑Ss. 154, 265‑K & 561‑A‑‑Penal Code (XLV of 1860), S. 307/326/324/ 148/149‑‑Quashing of proceeding‑‑Trial of case challaned on basis of first information report recorded a second time‑‑Magistrate considering that a prima facie case was made out against accused, deciding to proceed with case‑‑Rejection of application of accused for quashing of case by Additional Sessions Judge, to whom case was transferred, held, unexceptionable in circumstances.

Abdul Basit for Petitioners.

Aftab Farrukh for Respondent No. 2.

Nemo for the State.

This is a petition under section 561‑A, Cr.P.C. filed by Wali Muhammad and four others, petitioners Nos. 1 to 5, for the quashment of a case pending against them under section 307/326/324/148/149, P.P.C. before Mr. S.M. Elahi, Additional Sessions Judge, Gujranwala.

2. The brief facts of the case are that on 12‑10‑1982 at 7‑00 a.m. an occurrence took place at the dera of Wali Muhammad, present petitioner No.1, in which Ghulam Mustafa, present respondent No.2 and six others are alleged to have killed one Muhammad Akram, a nephew of Abdul Sattar, present petitioner No.5, and injured five other persons. The same day at 7.10 a.m. F.I.R. No.267 was lodged under section 302/307/ 148/149, P.P.C. at Police Station Qillah Didar Singh at the instance of Abdul Sattar, present petitioner No.5, against Ghulam Mustafa, respondent No.2, and six others. While the above case was being investigated, it is alleged by the learned counsel for the petitioners that at the direction of the Martial Law Authorities, F.I.R. No. 38 was recorded at Police Station' Qillah Didar Singh on 23‑2‑1983 at the instance of Ghulam Mustafa, respondent No. 2, relating to the same incident of 12‑10‑1982. In this report lodged under section 307/326/324/148/149, P.P.C. Wali Muhammad and others, present petitioners Nos. 1 to 5, are arrayed as accused. It is submitted that in January, 1983, a challan arising out of F.I.R. No. 267 was filed before the Magistrate, which ultimately was transferred to the Sessions Judge, for trial. It is also submitted that in January, 1984, challan arising out of F.I.R. No. 38 was filed before the Judicial Magistrate at Gujranwala, which, on the request of the complainant party, was transferred to the Court of Mr. S.M. Elahi, Additional Sessions Judge, on the basis of a direction given by him to the Magistrate to forward the said case through proper challan to him, so that both could be decided together. It is also alleged that both the cases are being tried side by side. On 13‑3‑1984, Wall Muhammad and others, petitioners, filed an application under section 265‑K, Cr.P.C. before the trial Judge for the quashment of the case arising out of F.I.R. No. 38 of 1983 pending against them. The learned trial Judge, however, by his order dated 23‑4‑1984, rejected the said application. Being aggrieved by the said order, the petitioners have moved the present quashment petition in this Court, which is now before me for disposal.

3. On behalf of the petitioners it is submitted that in respect of any matter relating to the occurrence that took place on 12‑10‑1982, only one F.I.R. could have been recorded and since the first F.I.R. (No‑ 267 of 1982) was recorded at the instance of Abdul Sattar, petitioner No. 5, on 12‑10‑1982, the second F.I.R. (No.38 of 1983) could not have been recorded at the instance of Ghulam Mustafa, respondent No.2, on 23‑2‑1983, as was so recorded. It is submitted that any subsequent information about the case of the accused in relation to his version, could only have been investigated by the police on the file of the first F.I.R. (No. 267 of 1982), but not as a separate case on the basis of a separate F.I.R. recorded in the matter. In this connection, the learned counsel has cited Ghulam Siddique v. Station House Officer, Saddar, Dera Ghazi Khan and others P L D 1979 Lah. 263, Kaura v. The State and others 1983 S C M R 436 and Mushtaq Ahmad v. The S.H.O. Police Station, Munawan 1984 P Cr. L J 1454. In the light of this position, it is further submitted that the second challan filed by the police against the petitioners was illegal, as it arose from the second F.I.R. (No. 38 of 1983), which was illegally recorded. In this respect it is submitted that a challan is nothing more than the final report of the inferences drawn by the police in respect of their total investigation of the case, not only with regard to the version of the complainant but also with regard to that of the accused and that it was not proper on the part of the police to submit two challan in a case out of two separate F.I.Rs recorded, where the disputant parties admit the occurrence but have furnished different versions in respect thereof. The attitude of the police in submitting two contradictory challans, alleging in one that the case of the complainant is true and, in the other, that the case of the accused is true, is not only an immoral act, but basically illegal.

4. On behalf of the respondents it is submitted that the petitioners did not object to the filing of the second F.I.R. (No. 38 of 1983) by Ghulam Mustafa, respondent No. 2, at the appropriate time, in which case the police could have taken over the investigation of the counter version in the first F.I.R. (No. 267 of 1982). However, now that the second challan has been filed, the more fact that the investigation conducted in respect thereof was illegal, did not compel the Magistrate to quash or dismiss the same, if he himself considered that a prima facie case had been made out against the accused named in the challan. In this respect, the learned counsel has cited Umar Din v. Superintendent of Police, Hyderabad and others P L D 1980 Kar. 418. It is further submitted that, irrespective of the opinion of a police officer, a Magistrate always has a right of summoning an accused person in respect of a case investigated by the police, even where the police finds that no case is made out. In this respect, Sanobar Talkies v. Government of Punjab 1972 S C M R 337 and Muhammad Ayub v. The State and another 1983 P Cr. L J 1137 have been referred.

5. I have given my anxious consideration to this case. It is true that in respect of one and the same occurrence, only one F.I.R. should be recorded and that where the accused persons set up a counter version, the same should be investigated by the police on the case file of the same F.I.R. and not by recording any subsequent F.I.R. It is also true that where a counter version is set up by the accused, the police should find out the truth and submit the challan only in respect of the version found true by them and not submit both the versions to the Court for trial. In this connection, the observations of this Court in Abdul Rashid v. The State 1980 P Cr. L J 1119 may be quoted with advantage:

"The prosecution branch should be clear and decisive in their line of action. If the investigating agency has found a case, as submitted by the informant, as true, the prosecution branch should recommend it and the challan should clearly support the said case. If it has found otherwise, the prosecution branch should not commend the informant's case for the consideration of the Court. And if the investigating agency has found a totally different version than that submitted by the informant and a totally different set of persons as the real culprits or some of them as named by the informant and some who are not, the prosecution branch should only commend the true case as found by the investigating agency before the Court and unequivocally support it with the proper evidence in its possession. It should not run with the hound and hunt with the hare by placing the case of those persons whom the investigating agency has found innocent, at the mercy of the Court, for, if anything, that is the most unmerciful act it could perform. The practice of the prosecution agency in dealing with cases where the first informant's case, during investigation, has been found to be basically or materially false, has neither been uniform nor clear."

Unfortunately, this principle is not being adhered to by the police.) which is rather uncharishable and a disservice to the public, whose interest it is duly bound to guard. In the instant case, unfortunately a second F.I.R. (No. 38 of 1983) was recorded by the police, but this is because of the act that the challan in the case arising out of the first F.I.R. (No. 267 of 1983) had already been sent to the Magistrate on 12‑1‑1983 and there was a direction from the Martial Law Authorities to register a case. This also accounts for the fact why no effort was made by the present petitioners to have the second F.I.R. (No. 38 of 1983) and its investigation quashed. Further, the police having registered a second F.I.R. relating to the counter version of the accused, also found a prima facie case made out against Wali Muhammad and others, the present petitioners, and a challan was accordingly filed against them on 11‑1‑1984 before the Judicial Magistrate, Gujranwala. Both the cases are now being tried side by side by Mr. S.M. Elahi, Additional Sessions Judge, Gujranwala. The mere fact that the second F.I.R. cannot be legally recorded, or that the investigation conducted in this case by the police is illegal, or that the challan filed by the police on the basis of such an investigation is itself illegal, does not prevent the Court from taking cognizance of the matter under section 190 (1)(b) and (c), Cr.P.C. or render the trial of such persons illegal, if otherwise the Court finds that a prima facie case stands made out on the basis of the police report or upon information received or upon his own knowledge or suspicion. If any authority is required for this view, The Crown v. Mehar Ali P L D 1956 F C 106, Mst. Sadan v. The State P L D 1965 B J 12, Wali Zar v. The State P L. D 1960 Kar. 204, Muhammad Rashid v. The State P L D 1964 Kar. 381 and Umer Din v. The Superintendent of Police Hyderabad P L D 1980 Kar. 418 may be referred. In the instant case, the Judicial Magistrate, Gujranwala, did consider that a prima facie case was made out against the petitioners, and, therefore, decided to proceed with the case. In these circumstances, the Additional Sessions Judge, before whom the case was transferred, was correct in rejecting the application of the petitioners under section 265‑K, Cr. P. C.

5. Other matters raised in the petition were not argued, but given up.

6. For the forgoing reasons, there being no merit in this petition, the same is dismissed.

M. Y. H. Petition dismissed.

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