CRIMINAL PROCEDURE CODE II

FINAL ASSIGNMENT
LLB 8
GROUP MEMBERS:

1. ZUMER AYAZ (051)

2. PIRZADI HANNANA NAZ (047)
3. M. USMAN HAIDER (036)
4. ABDUL HALEEM KHAN(052)

1
 Introduction
First Information Report (FIR) is a written document prepared by the police on receiving
information about the commission of a cognizable offence, offences for which the police may
arrest a person without warrant. It sets the criminal justice in motion, based on which
investigation is carried on.
Sameness principle
The concept of sameness is to be construed in a restricted manner. As per Surender
Kaushik and Others v State of Uttar Pradesh and others, it does not allow registration of
complaint that would amount to improvement of facts in the FIR that is filed at the first instance.
It further prohibits complaint against the same accused. The subject matter of complaints is
tested through de facto assessment of ‘test of sameness’. If the complaints are related to same
incident in same occurrence or is part of the same transaction, the subject matter of both the
complaints are same. Events are part of the same transaction if they are related to same incident
at the given place in close proximity of time. In cases where allegations in the FIR are different
and separate having different spectrum then it will be regarded as counter-complaint and not as
efforts to improve allegations made in the first instance.

Maintainability of Second FIR for Same Offence

Second FIR is permissible in the discovery of new facts. When the investigating officer finds
larger conspiracy which was not surfaced during the investigation of first FIR then he can
proceed to lodge second FIR. Discovery of new facts should form the factual foundation of the
second FIR. If investigating officer did irregularity in the previous investigation and left out vital
evidence then he cannot lodge second FIR merely on discovery of new facts.
In Nirmal Singh Kahlon vs. State of Punjab (2009) 1 SCC 441, the supreme court has held
that “the second FIR, in our opinion, would be maintainable not only because there were
different versions but when a new discovery is made on factual foundations.”
In T. T.Antony v. State of Kerala 2001 SCC; the Supreme Court held that second FIR in
respect of same offence is not permissible. The second FIR is permissible when the offence does
not fall within the ambit of the first FIR.
The sameness of offence is a mixed question of law and fact. The court should examine the
sameness of the merits of each case. When the court finds that the scope of the investigation is
entirely different from the first FIR then it can allow to investigate on the basis of the second
FIR.
Prevention against double jeopardy section 403 CRPC Article 13a of Constitution
Double jeopardy is made out when the same evidence suffices to prove the allegations. Section
300 explicitly prohibits trial for the same offence on the same facts or transaction once the
person is acquitted or convicted for it. In the case of Prem Chand Singh v. State of Uttar
Pradesh, hence, it is held that if the substratum of FIRs is the same, then the mere addition of a

2
few provisions in subsequent FIR does not justify it as being a distinct incident. Article 13 of the
constitution of the country grants fundamental right to all citizens that prohibits double jeopardy
and clearly states no one shall be prosecuted or punished for the same offence again. A person
already prosecuted and acquitted by the court on the basis of first FIR, the registration of 2nd is
in clear contravention with the right.
Violation of section 403 of criminal procedure code (CRPC)
A person is acquitted by the honorable court of law but another FIR was files against her on the
basis of same offence resulting in double jeopardy. Section 403 of CRPC is based on an ancient
maxim nemo debts bis’ vexari which means a person cannot be tried for a second time for
which he was previously charged. Section 403 of CRPC clearly mentions that if a person had
been once tried by a court of competent jurisdiction and the person is acquitted by such court
cannot be tried gain for the same offence nor for any other offence based on similar facts. The
Hon'ble Supreme Court of Pakistan has interpreted this rule by observing in case Syed Alamdar
Hussain Shah v. Abdul Baseer Qureshi & two others. It was held that where the prosecution
finally concluded ended either in acquittal or conviction that a fresh prosecution for the same
would be barred.

CAN A HIGH COURT PASS ANY ORDER OR JUDGEMENTS ON SUCH

A FIR’S REGISTERED OUTSIDE ITS TERRITORIAL JURISDICTION?
GENERAL RULE:
The general rule
ACCORDING TO SECTION 177 OF CRPC:
Ordinary place of inquiry and trial: Every offense shall ordinarily be inquired into
And tried by a Court within the local limits of whose jurisdiction it was committed.
So according to the general rule, the case should be tried by the concerned court which is the one
in whose territorial jurisdiction, the incident took place. The place of inquiry or trial of an
offense is generally dependent as to where and how the offense was committed as gathered from
the contents of the complaint or the police report, i.e., the charge sheet. In absence of any
positive proof to the contrary, the Court will be presumed to have jurisdiction on the basis of
facts made out by averments.
Generally, a Magistrate within whose local jurisdiction the offense is committed is authorized to
take cognizance and try the case or commit it to the Court of Session. The subsequent transfer of
locality to another district does not oust the jurisdiction of the Magistrate.
Where the offense consists of different acts done in different places such as conspiracy, it may be
inquired into or tried by a Court having jurisdiction over any such place. When the question of
jurisdiction is raised, it must be decided first, before the trial of the case is commenced. Any

3
High Court, in the exercise of its power under Section 407 may order that any offense be
inquired into or tried by any Court not otherwise empowered under Sections 177 to 185.
EXCEPTION TO THE GENERAL RULE:
An exception is given in:
ACCORDING TO SECTION 561-A OF CRPC:
Saving of inherent power of High Court: Nothing in this Code shall be deemed to limit or affect
the inherent power of the High Court to make such orders as may be necessary to give effect to
"any order under this Code, or to prevent abuse of the process of any Court or otherwise to
secure the ends of justice.
Inherent powers of High Court are very wide and undefinable. High Court can make all such
orders which may do real and substantial justice. (SC) 1969 P.Cr.LJ Shahkot Bus Service.
ARTICLE 199 OF CONSTITUTION OF PAKISTAN: JURISDICTION OF HIGH
COURT:
(1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate
remedy is provided by law,-
(a) On the application of any aggrieved party, make an order-
(I) directing a person performing, within the territorial jurisdiction of the Court, functions in
connection with the affairs of the Federation, a Province or a local authority, to refrain from
doing anything he is not permitted by law to do, or to do anything he is required by law to do; or
(ii) declaring that any act done or proceeding taken within the territorial jurisdiction of the
Court by a person performing functions in connection with the affairs of the Federation, a
Province or a local authority has been done or taken without lawful authority and is of no legal
effect; or
(b) On the application of any person, make an order-
(I) directing that a person in custody within the territorial jurisdiction of the Court be
brought before it so that the Court may satisfy itself that he is not being held in custody without
lawful authority or in an unlawful manner; or
(ii) requiring a person within the territorial jurisdiction of the Court holding or purporting to
hold a public office to show under what authority of law he claims to hold that office; or
(c) on the application of any aggrieved person, make an order giving such directions to any
person or authority, including any Government exercising any power or performing any function
in, or in relation to, any territory within the jurisdiction of that Court as may be appropriate for
the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II.

Anticipatory / protective/ transitory bail

4
 CONCEPT OF BAIL
Black’s law dictionary:

Bail means to procure the release of a person from legal custody, by undertaking that he/she shall
appear at the time and place designated and submit him/herself the jurisdiction and judgment of
court.
The legal effect of bail is not to set a person at liberty but to release him from the custody and
entrust him to custody of surety. An order of bail typically restores the accused's freedom on the
condition that they will appear to stand trial, as opposed to an order of arrest, which immediately
affects their mobility and ability to move.

Anticipatory
Pre Arrest Bail (Grant of) Law and Procedure in Pakistan
Pre arrest Bail, more commonly known as anticipatory bail since it is a legal relief in anticipation
of a possible arrest. This Bail form is considered difficult as compared to Post arrest Bail since
this has to be obtained on maximum legal grounds as mere superficial facts are available and
cases are in their infancy stage.
Simply put If any person apprehends that there is a move to get him arrested on false or trump up
charges, or due to enmity with someone, or he fears that a false case is likely to be built up
against him, or becomes aware of such case being lodged against him/her, he/she has the right to
move the court of Sessions, the High Court or another court of competent jurisdiction under
Code of Criminal Procedure for grant of bail in the event of his arrest, and the court may, if it
thinks fit, direct that in the event of such arrest, he shall be released on bail.
General Rules for Pre-Arrest/Anticipatory Bail (Grant of) in Pakistan
The court will weigh in various aspects before granting the Bail to the accused in Pakistan which
include:
Mala fide, ulterior motives or false implication are essential for pre-arrest bail—Pre-arrest
bail can be granted where the arrest of accused is imminent with ulterior motive, mala fides or
due to his false implication apparent on the face of record. This normally happens when the
purpose of a case/possible case is to malign the accused.
The gravity/seriousness of the crime: As viewed in superior courts the fact that a case is
serious such as murder, rape etc. does not necessarily mean it is non-bailable. The gravity of
allegation should not stand in way of grant of pre arrest bail.
As stated above it is an extraordinary relief for the common man therefore the law for Grant of
pre-arrest bail in Pakistan helps protect innocent persons against victimization through abuse of
law for ulterior motives.

5
Individual is willing and in physical form surrendering towards the Law with
maximum cooperation. Courts may take lenient view if the accused is facing health problems
and prima facie the case has been lodged to malign the same.
Whether the accused was at the scene, where crime was conducted— Accused (petitioner)
was neither present at the time of occurrence nor any overt act was attributed to him then the
court granted bail in Achar Vs State 2011 YLR 1640 Sindh
Case is a civil dispute rather than criminal as claimed.
Jurisdiction of competent courts in Pakistan are very much outlined in law, therefore jurisdiction
will also play a part in grant of pre arrest bail in Pakistan.
Conditions of Pre-Arrest/Anticipatory Bail (Grant of) Law and Procedure in Pakistan
The Court of competent jurisdiction may include such conditions in the light of the facts of the
particular case, as it may think fit, including:
 A condition that the person shall make himself available for interrogation by the police
officer as and when required;
 A condition that the person shall not, directly or indirectly, make any inducement, threat
or promise to any person acquainted with the facts of the case so as to dissuade him from
disclosing such facts to the court or to any police officer;
 A condition that the person shall not leave the country without the previous permission of
the court.
 A condition that an X amount of money/monetary asset may be deposited with the court.
Pre-arrest bail, or anticipatory bail, is a remedy which has its roots in the law of equity and in a
way aims to ‘impede’ an ongoing or anticipatory process of criminal investigation. This
extraordinary judicial protection is extended solely to rescue an ‘innocent’ from the dread and
abuse of the legal process with a view to protecting that person’s dignity which is a fundamental
constitutional right of a person. Pakistan has maintained pre-arrest bail or anticipatory bail as a
purely equitable remedy and an extraordinary judicial intervention in the process of
investigation.
Hidayat Ullah Khan V the Crown
To provide judicial refuge to the innocent and the vulnerable from trumped up charges and
rigors of the legal process. The High Court declared that it had power under section 498 of the
Criminal Procedure Code to make an order to grant bail to a person who was suspected of an
offence for which he or she may be arrested by a police officer or the court. The High Court
exercised its jurisdiction to grant bail before arrest to a person residing within its territorial
jurisdiction. It was subsequently also extended to those whose warrants of arrest had been issued
by a court of a different province.

Transitory bail

6
This is explained in section 86 of Cr.PC. Transit means in journey and in the course of
transportation from one place to another. For example an offence is committed in Islamabad but
offender is arrested in Karachi, he can be shifted to Islamabad where case is pending against him
for more than 24 hours, he will be produced before the superintendent of police or magistrate of
the area where the arrest is made. This SP or magistrate can give transit remand. Transit remand
will enable the police to shift the person in custody from the place of arrest to the place where he
is to be investigated. Duration for transit remand can be for 1 to 7 days but not more than that.
The wording of this section is as follows:
Procedure by Magistrate before whom person arrested is brought.
Such Magistrate or District Superintendent shall, if the person arrested appears to be the person
intended by the Court which issued the warrant, direct his removal in custody to such Court:
Provided that, if the offence is bailable, and such person is ready and willing to give bail to the
satisfaction of such Magistrate, District Superintendent or a direction has been endorsed under
section 76 on the warrant and such person is ready and willing to give the security required by
such direction, the Magistrate, District Superintendent shall take such bail or security, as the case
may be, and forward the bond to the Court which issued the warrant:
[Provided further that, if the offence is not bailable or no direction has been endorsed under
section 76 on the warrant, the Sessions Judge of the Sessions division in which the person is
arrested may, subject to the provisions of section 497 and for sufficient reasons release the
person on an interim bail on such bond or security as the Sessions Judge thinks fit and direct the
person to appear by a specified date before the Court which issued the warrant and forward the
bond to that Court.]
Nothing in this section shall be deemed to prevent a police-officer from taking security under
section 76.
After reading the above section it can be said that if the offence is bailable and person sought to
be arrested is ready to give bail to the satisfaction of the magistrate or direction as to the
furnishing of security as per terms of section 76 is endorsed to the warrant the magistrate is
bound to take bail or security as the case may be.
But if the offence is not bailable under second proviso of this section an accused can be admitted
to interim pre arrest bail by the session judge of the session division in which accused is arrested
by making accused bound to appear before court in other district of same province.

Protective Bail:
While protective bail, as is evident from the name of it, provides protection to the accused from
the arrest and detention of police. -Feeling apprehension of immediate arrest at the hands of
Police. The protective bail is granted under section 498 of the Criminal Procedure Code, 1898 to
an accused to enable him to approach the concerned court of the other provinces for the purpose
of obtaining pre-arrest bail without touching its merits. Superior courts can entertain application
for protective bail and can grant relief to the accused in appropriate cases where the accused
could, inter alia, establish that he is prevented from approaching the concerned lower court. The
7
accused obtain the Protective Bail from High Court and present this Protective bail before
Session Court to get its Confirmation and attend the concerned court and face the trial.
Nawabzada Syed Shams Haider V state 2011 YLR 3279 Lah
Unable to approach Trial Court--- Unable to approach Trial Court for Bail as the same was
surrounded by the Police who was out to arrest him
Muhammad V State 1999 MLD 457 Sindh
Unable to approach Trial Court--- Accused wanted to appear before the Trial Court and
surrender themselves, but they could not do so as the police were following them for arrest

Can more than one FIRs be registered against the same offence in different
cities against the same person? Can they run simultaneously?
No, more than one FIRs cannot be registered at the different cities against the same offence and
they cannot be run simultaneously rather all other FIRs will be quashed and only one FIR will be
considered.

CASE LAW:
No multiple FIRs can be registered for the same crime, the Delhi High Court has reiterated
while quashing four but one first information report in a case of looting and setting on fire a
compound during the north-east Delhi riots in February last year.
“There can be no second FIR and no fresh investigation regarding the same cognizable
offence or same occurrence giving rise to one or more cognizable offences,” Justice
Subromonium Prasad remarked.
The High Court’s order came while hearing a petition filed by accused Atir, who was facing
prosecution in five FIRs lodged by Delhi Police.
FACTS:
 One of the complainants, had stated that a mob entered the compound of his house in
Maujpur area, ransacked it and set it ablaze. A fire tender was called to douse the blaze.
 The complainant states the articles in the house valued at ₹7- ₹10 lakh was charred in the
fire. The other complainants also made similar complaints.
 Atir’s counsel argued that all the five FIRs are in respect of one unit and filed by different
members of the same family.
The court noted, “All the above FIRs are identical in their content and more or less a facsimile of
one another and pertain to the same occurrence. They all pertain to one house where fire was
started mischievously and spread to immediate neighboring premises as well as floors of the
same house”.

8
“All the FIRs state that monetary loss was caused to each of the complainants residing in parts of
the buildings in the same compound and in the immediate neighborhood as their belongings and
other valuables had been burnt down.”
“There might be discrepancy regarding the width of the passage within the same compound or
the exact place where the fire was set, but both sides agree that it is within one compound,” the
court said.
No separate incidents:
It, therefore, cannot be said that there are five separate incidents and, therefore, five separate
FIRs cannot be registered for the very same incident as it is contrary to the laws laid down by the
Supreme Court, Justice Prasad remarked while quashing four FIRs in the case.

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Applicant: Ali Akbar Almani & others, through Mr. Manzoor
Hussain Halepoto, Advocate.
Respondent: Mr. Shoukat Ali Makwal, Advocate.

ORDER
Zulfiqar Ali Sangi, J: Through this Cr. Misc. Application, the Applicants have assailed the
order dated 26.05.2021, passed by learned Additional Sessions Judge-IV, Khairpur, in Cr. Misc.
Application No.1672/2021, whereby an application filed by Respondent No.4 for lodging of FIR
against the proposed accused/present applicants was allowed.
SUMMARY OF CASE:
Learned counsel for the applicants, at the very outset, submitted that an order dated 26.05.2021,
passed by learned 3rd Additional Sessions Judge/Ex-officio Justice of Peace, Mirpur Mathelo,
impugned herein, is illegal without applying his judicil mind as well did not consider the view
taken by Hon’ble Supreme Court of Pakistan in the case of Sughran Bibi; that earlier an FIR
No.45/2021, registered at P.S. Kumb, for an offence punishable under Section 341, 353, 147,
148, 149 PPC (lodged by State through ASI Muharram Ali Shar against the Respondent No.4
and others for blockage of road, scuffled with police party as well as causing injuries to each
other; however, Respondent No.4 wants to save skin of his own from the clutches of law,
succeeded to get impugned order from learned trial Court; that in view of observations made by
Hon’ble Supreme Court in the case of Sughran Bibi, mentioned supra, that the second FIR
cannot be registered if the applicant has another version regarding the same incident. In the last,
he prayed that instant application may be allowed and the impugned order passed by learned trial
court may be set-aside.

9
On the other hand, learned Counsel representing the Respondent No.4 submits that learned
Additional Sessions Judge-IV, Khairpur, has rightly passed the order dated 26.05.2021, which is
well-reasoned, does not suffer from any illegality or irregularity, hence liable to be maintained.
Learned DPG appearing for the State contends that earlier an FIR bearing Crime No.45 of 2021
was lodged by police against the Respondent No.4 & others for blockage of road over picking of
passengers created hindrance to other citizens/transports; besides scuffled with the police and
fought with each other and resultantly caused injuries, which is pending adjudication before the
concerned Court however, Respondent No.4, by filing Cr. Misc. Application No.1672/2021
before learned trial court, prayed for lodgment of FIR against the proposed accused/present
applicants as, according to him, he was maltreated by the Applicant No.1 with the help of
Respondents No.2 & 3. He further submitted that in view of recent judgment passed by Full
Bench of Hon’ble Supreme Court of Pakistan reported as PLD 2018 SC 545, whereby it has been
observed that the second FIR cannot be registered if the applicant has another version regarding
the same incident, he may approach the Investigating Officer of said FIR, who shall record his
statement and if found some material, file a report before the concerned court. In the last, he
submitted that the impugned order passed by learned trial Court is not sustainable and liable to
be set-aside.
Admittedly, an FIR bearing No.45 of 2021 was registered at P.S. Kumb, District Khairpur, on
23.03.2021 by State through ASI Muharram Ali Shar against the Respondent No.4 and others in
respect of quarrel between the transporters over picking the passengers, blocked the road,
scuffled with the police so also causing injuries to each other, which is pending adjudication
before the concerned trial Court; however learned Additional Sessions Judge-Iv, Khairpur has
ordered for registration of second FIR in respect of same incident by ignoring the Judgment of
Honourable Supreme Court of Pakistan in the case of Sughran Bibi supra.
The Respondent No.4 approached the justice of peace for registration of FIR with the version
that present applicants have taken him in the police station, robbed Rs.6200/- with mobile phone
and on resistance, proposed accused/present applicants, by breaking his arm, caused kicks and
fists blows, therefore, his statement may be recorded under Section 154 Cr.P.C. It is noted that
this version was available with the Respondent No.4 at the time when the investigation of FIR
45/2021 was in field; however, at that time he had not recorded his version before the
Investigation Officer and moved an application before Justice of Peace for registration of another
FIR regarding same incident, which was allowed by impugned order dated 26.05.2021. It is
further noted that in the averments of application under section 22-A and B Cr.P.C, the date of
incident, time of the incident and the place of incident is mentioned same as mentioned in the
FIR No. 45/2021. The Hon’ble Apex Court in the case of Sughran Bibi reported as PLD 2018
Supreme Court 595 has held in paragraph-27 as under:
As a result of the discussion made above we declare the legal position as follows:
According to section 154, Cr.P.C. an FIR is only the first information to the local police about
commission of a cognizable offence. For instance, an information received from any source that

10
a murder has been committed in such and such village is to be a valid and sufficient basis for
registration of an FIR in that regard.
If the information received by the local police about commission of a cognizable offence also
contains a version as to how the relevant offence was committed, by whom it was committed and
in which background it was committed then that version of the incident is only the version of the
informant and nothing more and such version is not to be unreservedly accepted by the
investigating officer as the truth or the whole truth.
Upon registration of an FIR a criminal "case" comes into existence and that case is to be assigned
a number and such case carries the same number till the final decision of the matter.
During the investigation conducted after registration of an FIR the investigating officer may
record any number of versions of the same incident brought to his notice by different persons
which versions are to be recorded by him under section 161, Cr.P.C. in the same case. No
separate FIR is to be recorded for any new version of the same incident brought to the notice of
the investigating officer during the investigation of the case.
During the investigation the investigating officer is obliged to investigate the matter from all
possible angles while keeping in view all the versions of the incident brought to his notice and,
as required by Rule 25.2(3) of the Police Rules, 1934, It is the duty of an investigating officer to
find out the truth of the matter under investigation. His object shall be to discover the actual facts
of the case and to arrest the real offender or offenders. He shall not commit himself prematurely
to any view of the facts for or against any person.
Ordinarily no person is to be arrested straightaway only because he has been nominated as an
accused person in an FIR or in any other version of the incident brought to the notice of the
investigating officer by any person until the investigating officer feels satisfied that sufficient
justification exists for his arrest and for such justification he is to be guided by the relevant
provisions of the Code of Criminal Procedure, 1898 and the Police Rules, 1934. According to
the relevant provisions of the said Code and the Rules a suspect is not to be arrested straightaway
or as a matter of course and, unless the situation on the ground so warrants, the arrest is to be
deferred till such time that sufficient material or evidence becomes available on the record of
investigation prima facie satisfying the investigating officer regarding correctness of the
allegations levelled against such suspect or regarding his involvement in the crime in issue.
Upon conclusion of the investigation the report to be submitted under section 173, CrPC is to be
based upon the actual facts discovered during the investigation irrespective of the version of the
incident advanced by the first informant or any other version brought to the notice of the
investigating officer by any other person.
In my humble view, the case of the present applicants falls within the parameters as settled by
Hon’ble Apex Court in the case of Sughran Bibi supra in paragraph-27 (IV) (V) and (VII) of
the said judgment. Resultantly, this application is hereby allowed. Consequently, the impugned
order dated 26.05.2021, passed by learned Additional Sessions Judge-IV, Khairpur, is set-aside;
however, the Respondent No.4 may approach the Investigation Officer who may record his

11
statement under Section 161 CrPC and proceed further in accordance with law. If the
investigation officer collected some evidence which constitute an offence he is at liberty to file
fresh report before the concerned Magistrate.

12