MUZAFFARABAD: Endorsing the views of the Federal Shariat Court that provisions of the Criminal Procedure Code (CrPC) envisaging protection to the judges and public servants against prosecution are against the injunctions of Islam, the Supreme Court of Azad Jammu and Kashmir (AJK) on Friday advised the Azad Jammu and Kashmir (AJK) government to bring suitable amendments in the relevant sections of this law.

“In our view, protection provided to the magistrate and officer in charge of the police station, under section 132 of CrPC, is only against prosecution subject to the government sanction; there is no bar on registration of the case against the officials mentioned in chapter IX of CrPC, neither is any protection provided against the registration of first information report (FIR),” held the two-member bench, comprising Chief Justice Mohammad Azam Khan and Justice Mohammad Ibrahim Zia.

The ruling came after the apex court dismissed an appeal by five police and administration officials, against a High Court (HC) decision of April 29, whereby the station house officer (SHO) Bhimber was directed to lodge an FIR against them on the basis of an application by an aggrieved person, Sabir Hussain.

The court dismisses appeal by five officials against HC decision on registration of a second FIR

It may be recalled that on September 18, 2012, Pakistan Muslim League Nawaz (PML-N) activist Abdul Hameed was killed and at least two others were wounded in an alleged police firing at a party rally, led by Member of Legislative Assembly (MLA) Chaudhry Tariq Farooq.

Police had maintained that they resorted to firing and teargas shelling after the “armed mob continued staging an attack on their offices,” a charge that PML-N vehemently denies.

Bhimber police refused to register an FIR on the application of Mr Hussain, uncle of the deceased worker, and instead lodged a case against 60 nominated and over 500 unidentified PML-N workers, including MLA Farooq.

The apex court agreed with the arguments of the government officials that anything done in discharge of official duties was not an offence under section 79 of Azad Penal Code (APC), but added that the effect of that section had to be considered in final adjudication and was not relevant at the time of registration of FIR or during the prosecution.

The court pointed out that section 154 of CrPC provided that every information relating to the commission of a cognisable offence, when brought to the notice of the SHO, verbally or in writing, had to be entered in the relevant register and read to the complainant.

The SHO had no option but to register the information and if any cognisable offence was made, he should have started the investigations into the matter, the court declared.

In this case, the court recalled, one FIR was lodged by the duty magistrate, but a second FIR on the basis of application by Mr Hussain was refused, following which Mr Hussain filed an application before the session judge Bhimber, who concluded that a cognisable offence had been committed and directed the deputy inspector general of police to register the case.

“When one FIR has been registered in respect of the occurrence, it is the duty of the police to investigate the counter version, presented by the other party, regarding the same occurrence. No hard and fast rule can be laid down against the registration of a second FIR in respect of a different version given by the other party,” the court said.

“In a case where the aggrieved party brings a version claiming that true facts have been suppressed and the occurrence did not take place in the manner alleged in the initially lodged FIR, it’s the duty of the SHO to register a second FIR,” it added.

The HC judgement was based on cogent and sagacious reasons, and hence required no interference, the apex court held, and directed the chief secretary to comply with its observations regarding amendment in CrPC.

Published in Dawn, June 7th, 2014