Form No.

HCJD/C-121
ORDER SHEET
IN THE LAHORE HIGH COURT, BAHAWALPUR BENCH,
BAHAWALPUR
JUDICIAL DEPARTMENT
WP.No.4719 of 2013.

Mst. Haseena Bibi. Vs. Justice of Peace etc.

S.No.of order/ Date of order/ Order with signature of judge, and that
Proceedings. Proceedings of parties or counsel, where necessary.

05.9.2013. Syed Zeeshan Haider, Advocate for the petitioner.

Sardar Muhammad Shahzad Khan Dhukkar, AAG
with Muhammad Yaqoob, SI, Rab Nawaz, SI and
Rasheed Ahmed, ASI.
Mr. Umair Mohsin, Advocate for respondents No.3 to
7.

Through this constitutional petition, the petitioner has called

into question the order dated 05.7.2013 passed by the learned Ex-
Officio Justice of Peace at Liaqatpur, District Rahimyar Khan
whereby he declined to make an order so as to register a criminal case
on the application of the petitioner.
2. Brief facts which gave birth to the institution of this petition
are to the effect that the petitioner filed an application on 18.6.2013
before the learned Addl. Sessions Judge/Justice of Peace at Liaqatpur,
District Rahimyar Khan stating therein that on 08.5.2013 the son of
the petitioner namely Muhammad Tariq aged 25-years was present in
his house wherein one Hameed son of Mustafa and one Arabi son of
Nazir Ahmad who were known to the son of the petitioner came and
asked Muhammad Tariq to join them as they had been invited to
some function. The behaviour of the said two was mysterious which
led the petitioner to advise her son not to join them but the son went
alongwith the said two. After reasonable time when the son of the
petitioner did not return, the petitioner went to the house of one of the
said two acquaintances and before reaching the said house the
petitioner saw some police officials the names of which have been
mentioned in the application forcibly taking the petitioner’s son
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Mst. Haseena Bibi vs. Justice of peace etc

alongwith them in a while Suzuki car. The said act was witnessed by
30/40 persons living in the vicinity and certain names of witnesses
were also mentioned in this regard. The petitioner alongwith her
witnesses went to one Mian Manzoor Ahmed who is an influential
person of the area and narrated the whole story who contacted the
SHO of police station Sehja, the said SHO confessed having taken the
petitioner’s son. The petitioner met her son on 09.5.2013 at the police
station where her son was confined in the lockup. She was informed
that police officials were physically torturing her son and are keeping
him at private places and there were threats of dire consequences by
the said SHO to the effect that the son of the petitioner will be
murdered in a police encounter and if she intends to save his life she
should pay an amount of Rs.5,00,000/-. Since the petitioner is a poor
lady she could not arrange the said amount. On 13.5.2013 at about
10.00 AM in the morning the petitioner was informed that her son
had been murdered in a so-called police encounter. The petitioner
there and then alongwith witnesses again approached Mian Manzoor
Ahmed who contacted the SHO concerned who stated that since the
desired amount had not been given, therefore, the petitioner’s son
namely Muhammad Tariq had been murdered in a police encounter.
The petitioner also approached the SHO concerned, who in presence
of witnesses admitted that he murdered her son in a fake police
encounter in the command of senior police officers. It has also been
alleged that Hameed and Arabi who took the petitioner’s son
admitted that they were given illegal gratification so as to hand over
the petitioner’s son to the SHO for the purposes of fake police
encounter. Now there are threats by the SHO concerned that in case
the petitioner initiates any criminal proceedings against him, the other
son of the petitioner was also murdered. On these grounds, the
petitioner approached the learned Ex-Officio Justice of Peace who
called for report and parawise comments from the SHO concerned
wherein it came to light that the son of the petitioner was murdered
and case FIR No.108/2013 dated 13.5.2013 under Sections 324, 353,
148 read with Section 149 of PPC at police station Sehja was
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Mst. Haseena Bibi vs. Justice of peace etc

registered. On receiving comments from the police, the learned Ex-

Officio Justice of Peace declined the petitioner’s application being
not maintainable as statedly judicial inquiry was in progress. Being
left with no other option the petitioner has filed this writ petition
seeking declaration so as to initiate criminal proceedings against
respondents No.2 to 7.
3. The learned counsel for the petitioner has contended that
there is sufficient incriminating material available with the petitioner
to connect the respondents with the commission of crime; that only
criteria which is fixed for registration of FIR is providing the
information of commission of any cognizable offence and no
authority is competent to refuse registration of FIR; that the stance
taken by the petitioner and her witnesses in this petition is completely
in line with their statements made during the course of judicial
inquiry and their deposition made before judicial Magistrate has
illegally been ignored by learned judicial Magistrate; that the
evidence led by the petitioner is sufficient to prove a charge of 302 of
PPC; that it is the right of every citizen of Pakistan to get his case
investigated from the investigating agency of the country and also to
get his case prosecuted through prosecution of the country then why
the petitioner should be deprived from this right; that there is no
malaifde with the petitioner in filing of the petition as real son who
allegedly was involved in criminal activities has been murdered and
all the cases pending against him (if any) have reached to an end with
his murder; that the officials who are allegedly participants of so-
called police encounter are neither involved in the murder of
petitioner’s son nor they have been arrayed as accused into this
petition, because they neither made any encounter nor they
committed the murder of petitioner’s son; that the piece of evidence
are required to be not only thoroughly investigated but also required
expert’s evidences including Call Data Records as cell numbers used
into this occurrence are mentioned in this petition and which could
only be collected through investigation process and petitioner being a
woman of advanced age is not in the position to collect and produce
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Mst. Haseena Bibi vs. Justice of peace etc

the same before court; that the contention raised by the learned
counsel that issuance of direction for registration of criminal case will
be a futile exercise as after registration of case the case would be
cancelled is nothing more than as open threat and an expression of
boundless powers shown by police authorities and keeping in view
this attitude of police authorities the august Supreme Court of
Pakistan held in 2012 SCMR 428 that cases of police encounter
should be investigated by any independent agency so that impartial
investigation can be made possible; that the parents of deceased
Muhammad Nadir never made any statement in favour of police
officials during the judicial inquiry rather they only showed their
reluctance to make any statement; that neither any police official
received any scratch nor any vehicle of police was hit by any built
nor it was only the accused who received firearm injuries this shows
the fakeness of police encounter; that the verdict given in judicial
inquiry is not strong enough to straight away reject the evidence
which is likely to be produced before the court as proposed in this
petition and that it was strongly argued by the learned counsel for the
respondents that as the judicial inquiry was conducted by a judicial
Magistrate and after recording material evidence, the learned judicial
Magistrate has exonerated the police officials from any criminal
activity and declared the police encounter as genuine one but it is a
settled principle of law that judicial inquiry is not a device which
could exonerate or incriminate any person of the charge. In support of
his contentions, the learned counsel for the petitioner has relied on
“MUMTAZ HUSSAIN v. DEPUTY INSPECTOR-GENERAL,
FAISALABAD and 7 others” (PLD 2002 Lahore 78).
4. On the contrary, the learned AAG assisted by the learned
counsel for the respondents No.2 to 7 have vehemently opposed this
writ petition and have supported the impugned order while
maintaining that the same is strictly in accordance with law and
according to the facts of the petitioner’s case as it has been observed
by the learned Ex-Officio Justice of Peace in the order dated
05.7.2013 that the petitioner may file a private complaint and it was
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Mst. Haseena Bibi vs. Justice of peace etc

on the said stance that the learned Ex-Officio Justice of Peace

disposed of the application of the petitioner. Adds that since the
judicial inquiry has been finalized wherein all the police officials
have been exonerated, therefore, no fruitful purpose will be served so
as to initiate any criminal proceedings against respondents No.2 to 7
who are all police officials. There are 34-cases registered against
Muhammad Tariq. Relied on “MUHAMMAD MASOOD v. S.S.P.,
RAILWAYS, RAWALPINDI and others” (2000 P.Cr.LJ 67),
“KHIZER HAYAT and others v. INSPECTOR GENERAL OF
POLICE (PUNJAB), LAHORE and others” (PLD 2005 Lahore 470)
“MUHAMMAD RAMZAN v. ADDITIONAL SESSIONS
JUDGE/JUSTICE OF PEACE, KABIRWALA, DISTRICT
KHANEWAL and 6 others” (2005 P.Cr.LJ 1579), “ASMA
JAHANGIR, CHAIRPERSON HUMAN RIGHTS COMMISSION OF
PAKISTAN v. SENIOR SUPERINTENDENT OF POLICE
(OPERATIONS), LAHORE and 3 others” (2005 P.Cr.LJ 1517) and
“RIAZ AHMED v. THE STATE” (2012 YLR 1260).
5. Heard the learned counsel for the parties and perused the
record.
6. It is an admitted fact that the son of the petitioner died in a
police encounter after which case FIR No.108/2013 dated 13.5.2013
was lodged and resultantly on the order of the learned Sessions Judge
concerned, judicial inquiry was ordered to be conducted which was
done by the learned Magistrate/Inquiry Officer at Khanpur who
exonerated all the police officials by holding that both the deceased in
the police encounter namely Muhammad Nadir and Muhammad
Tariq alongwith three others committed dacoity at the night of
12.5.2013 and looted gold ornaments, cash, motorbike and fled away.
The police party on information chased them and when they reached
near the said accused they (accused) started firing at the police party.
In this scenario the police was left with no other option except to act
in accordance with law which needful was done and resultantly both
Muhammad Nadir and Muhammad Tariq died in the police encounter
which was altogether lawful. It is the case of the petitioner that her
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Mst. Haseena Bibi vs. Justice of peace etc

stance was not considered by the learned Magistrate who sided with
the police party and resultantly exonerated them.
7. In the impugned order, the learned Ex-Officio Justice of
Peace has observed as under:-
“2. Report of SHO received, which disclosed that her son has been
murdered in case FIR No.108/2013 under section 324/353/148/149 PPC
at police Station Sehja. In this regard judicial inquiry is in progress.
Therefore, the petition in hand is not maintainable. However, the
petitioner may file a private complaint, if so advised. With this
observation, the petition stands disposed of. File be consigned after its
completion.”
In the case of “Noor Ahmad v. D.I.G., Police, D.G. Khan Division
and 7 others” (2005 YLR 1545) wherein it has been held by this
Court that “purpose of judicial inquiry was to find out facts and mere
pendency of the same was no bar to register a criminal case.” In another
case reported as “MUHAMMAD SAEED (RANA SAEED AHMED) v.
HOME SECRETARY, PROVINCE OF PUNJAB and 7 others” (2000
YLR 1607), wherein it has been held that holding of judicial inquiry
under S.176, Cr.P.C. was no bar for registration of second F.I.R., under S.
154, Cr.P.C.
8. In light of the above said judgments of this Court, the
impugned order cannot hold field as mere pendency of judicial
inquiry was no bar to the registration of a criminal case if otherwise a
cognizable offence is made out from the information passed on to the
SHO, therefore, the learned Ex-Officio Justice of Peace did not pass a
just order in accordance with law as there was no bar to register a
criminal case against the concerned even if judicial inquiry was
pending while following the above two precedents of this court.
9. It is an admitted position that judicial inquiry conducted by
the Magistrate/Inquiry Officer is a quasi-judicial proceedings and any
aggrieved person can get his or her grievance redressed against police
officials, if dissatisfied with the said proceeding in accordance with
law. The report in this regard is not binding on the aggrieved person,
it is rather an independent right available to every citizen of Pakistan
to knock the door of law i.e. by approaching the police official
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Mst. Haseena Bibi vs. Justice of peace etc

concerned who on receiving information is bound to proceed under

Section 154 Cr.P.C., only if a cognizable offence is made out and
investigate the matter independently and strictly in accordance with
law. The right to get an FIR lodged in such a situation is an
independent right available to every citizen who is aggrieved in such
a situation. In the case in hand, the report of the judicial inquiry has
even otherwise not considered the stance of the petitioner as required
but the right of the petitioner cannot be laid to rest at this stage as her
son has been done to death by the police in an unlawful manner
according to her stance raised in her application. On this point this
Court is guided by the case of “RAHAT NASEEM MALIK v.
PRESIDENT OF PAKISTAN and others” (2003 PLC (CS) 759), in
which it has been held that Inquiry officer performs, quasi judicial
functions and is not supposed to pronounce a judicial verdict, as Judge of
a Court of law is required to do so under recognized procedure laid down
for conducting, legal proceedings. In another important case reported
as “SAKHI MUHAMMAD v THE STATE” (2004 MLD 1609) in
which it has been held that respondents alleged that in judicial inquiry it
was found that incident was a genuine police encounter and deceased were
rightly killed by police---one of deceased persons was not involved in any
case in whole of his life whereas other one was a proclaimed offender---
F.I.R. and police Karwai had not mentioned that a pistol was also
recovered from dead body of deceased was not involved in any case---
F.I.R. further mentioned that rifle was lying besides the dead body of other
person who was proclaimed offender---Both deceased were gun-downed
from a distance of 1-1/2 miles away---Was neither argued nor brought on
record that occurrence had taken place in the shop and the shots fired by
the police also hit on the wall or shutter of said shop---Not a single scratch
was found on any of police officials who were 17 in number---Crime
empties taken from the spot were not sent to fire-arm expert alongwith rifle
and pistol of both deceased to ascertain whether they made a fire or not---
Prima facie a case was made out against respondents and they would be
given sufficient opportunity to produce their evidence before the Trial
court----Order passed by Sessions Judge was set aside, in circumstances.
In another similar case reported as “ASLAM JAN KHAN v. THE
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STATE through Additional Advocate-General, Bannu and 8 others”

(2012 P.Cr.LJ 1797), wherein it has been held that registration of
criminal case against the police---petitioners had sought issuance of a writ
to District Police Officer and S.H.O. Police Station concerned, directing
them to register a case against the Police/Raiding party----Counsel for the
police raised preliminary objection on the maintainability of the
constitutional petition on the ground that petitions were not maintainable
as alternate remedy of complaint by virtue of Chapter XVI of the Cr.P.C.,
was available to the petitioners, which was not only adequate, but
efficacious, as well----Validity---Said preliminary objection, qua the
maintainability of the constitutional petition, was not sustainable in view of
peculiar circumstances of the case---Allegation had been made by S.H.O.
against the petitioners and the deceased that they had made firing on the
Police party, but none from the raiding party had sustained a single injury,
while all the injuries were on the persons of the petitioners and his brother
and one person had lost his life in the same incident---Constitutional
petition was allowed.” The same view has been taken in case reported
as “MUMTAZ HUSSAIN v. DEPUTY INSPECTOR-GENERAL,
FAISALABAD and 7 others” (PLD 2002 Lahore 78), in which it has
been held that mere fact that inquiry was conducted by a judicial
Magistrate regarding cause of death would not bar registration of criminal
case u/s 154 Cr.P.C.—Registration of criminal case is independent right of
aggrieved person---Such person can report the matter to incharge of
concerned police station, who is bound under S. 154 Cr.P.C. to record the
report and conduct investigation in accordance with law---Opinion qua the
cause of death is not binding on police officer holding investigation under
Chap. XIV, Cr.P.C. or Court of law holding trial of accused person---
Inquiry report may be relied upon by prosecution or defence and may be
given due weight if the conclusion arrived at by the Magistrate are
consistent with the evidence brought on record---During investigation or
trial, police officer or Court of law, as the case may be, can legitimately
arrive at a contrary finding in the light of evidence brought on record.---
Police torture---Death in police custody----Judicial inquiry exonerating
accused person from charge of murder of the person who died in police
custody---Complainant and eye-witnesses had seen police giving Chhitter
blows on buttocks of the deceased---Effect---Cause of death was relevant
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qua the offence under S.302, P.P.C. but it had no bearing qua other
offences of illegal arrest and confinement of deceased and injuries caused
to him during police custody---criminal case, in the present case ought to
have been registered by police under the relevant provisions of Penal
Code, 1860, including Ss.302 & 342. P.P.C.---High Court directed Senior
Superintendent of Police to register criminal case against accused police
officials---Constitutional petition was allowed in circumstances.
10. The application of the petitioner was carefully examined, a
perusal of which shows that a cognizable offence is made out against
the concerned. Now, the question which comes to light is what ought
to be done on the application of the petitioner. In another landmark
judgment of the Hon’ble Supreme Court of Pakistan reported as
“MUHAMMAD BASHIR v. STATION HOUSE OFFICER, OKARA
CANTT., and others” (PLD 2007 Supreme Court 539) in which it has
been held by the Hon’ble Supreme Court of Pakistan that no authority
vested with an officer In-charge of the police station or with anyone
else to hold an inquiry into the correctness or otherwise of the
information which was conveyed to the SHO for the purpose of
recording of an FIR. Further the Hon’ble Supreme Court has
observed “any FIR registered after such exercise i.e. determination of
the truth or falsity of the information conveyed to the SHO would get
hit by the provisions of section 162 Cr.P.C. Existence of an F.I.R.
was no condition precedent for holding an investigation nor was the
same a prerequisite for the arrest of a persons concerned with the
commission of cognizable offence; nor does recording of an F.I.R.
mean that the S.H.O. or a police office deputed by him was obliged to
investigate the case or to go through the whole length of investigation
of the case mentioned therein or that any accused persons nominated
therein must be arrested---Check against lodging of false F.I.Rs. was
not refusal to record such F.I.Rs, but punishment of such informants
under S.182, P.P.C. etc. which should if enforced, a fairly deterrent
against misuse of the provisions of S.154, Cr.P.C.” Further the
Hon’ble Supreme Court in the said judgment in Para No.27 observed
and held as under:-
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Mst. Haseena Bibi vs. Justice of peace etc

“The conclusions that we draw from the above, rather length

discussion, on the subject of F.I.R., are as under:-
(a) no authority vested with an Officer Incharge of a Police
Station or with anyone else to refuse to record an F.I.R.
where the information conveyed, disclosed the
commission of a cognizable offence;
(b) no authority vested with an Officer Incharge of Police
Station or with any one else to hold any inquiry into the
correctness or otherwise of the information which is
conveyed to the S.H.O. for the purposes of recording of
an F.I.R.
(c) any F.I.R. registered after such an exercise i.e.
determination of the truth or falsity of the information
conveyed to the S.H.O., would get hit by the provisions of
section 162, Cr.P.C.
(d) existence of an F.I.R. is no condition precedent for
holding of an investigation nor is the same a prerequisite
for the arrest of a person concerned with the commission
of a cognizable offence;
(e) nor does the recording of an F.I.R. mean that the S.H.O.
or a police officer deputed by him was obliged to
investigate the case or to go through the whole length of
investigation of the case mentioned therein or that any
accused nominated therein must be arrested; and finally
that,
(f) the check against lodging of false F.I.Rs. was not refusal
to record such F.I.Rs. but punishment of such informants
under S.182, P.P.C. etc. which should be, in enforced, a
fairly deterrent against misuse of the provisions of S.154,
Cr.P.C.”
In the light of above discussion, the Incharge Police Officer
of a police station is duty bound to register a criminal case against the
person complained under Section 154 Cr.P.C. as report of judicial
inquiry is no bar in the way for lodging of an FIR and after
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registration of case, conduct fair investigation independently in

accordance with law. With utmost respect the judgments referred to
by the learned counsel for respondents No.2 to 7 do not attract to the
facts of the petitioner’s case as the said precedents have no nexus
with the lodging of FIR in presence of judicial inquiry against the
police officials on behalf of a person who is dissatisfied with the
same.
11. Pursuant to above discussion and while relying on a
judgment of the apex Court “MUHAMMAD BASHIR (supra)”, this
writ petition is allowed and the District Police Officer, concerned is
directed to register a criminal case against respondents No.3 to 7,
immediately under intimation to the Deputy Registrar (Judicial) of
this Bench within a week positively.

(Shahid Bilal Hassan)

Judge
Asif

Announced in open court on 09.10.2013.

.