ISLAMABAD: The Supreme Court on Wednesday ordered police not to arrest straightaway a person only because of the reason that he had been nominated as an accused in an FIR (First Information Report) or in any other version of the incident.

“But the police can take into custody the suspect if the investigating officer feels satisfied that sufficient justification exists for his arrest and for such justification he has to be guided by the relevant provisions of the Code of Criminal Procedure (CrPC) 1898 and the Police Rules 1934,” held a 46-page judgement authored and announced by Justice Asif Saeed Khosa in an open court.

Justice Khosa was heading a five-judge SC bench that had taken up a human rights case filed by Sughran Bibi regarding registration of a second FIR in respect of a police encounter. The issue concerns registration of a separate FIR for every new version of the same incident when commission of the relevant cognisable offence already stands reported to police and an FIR stands registered.

The matter relates to an incident occurred on March 21, 2008, when one Mohsin Ali was killed and an FIR was lodged by SI Zulfiqar the same day at the Shahdara Town police station in Lahore alleging that Mohsin and others had launched a murderous assault on a police party and in exercise of their right of defence the police fired back, resulting in the death of Mohsin.

SC issues 46-page verdict in 2008 police encounter case

After completion of the investigation a challan was filed in the court of sessions judge, Lahore, for trial of the accused. But on Jan 12, 2010, Sughran Bibi, mother of Mohsin, instituted a private complaint alleging that Mohsin had been killed by police in a fake encounter.

On May 19, 2010, an additional sessions judge, Lahore, took up the complaint and summoned 16 accused to face trial in connection with the murder.

“As per legal norms, the private complaint filed by the petitioner was taken up first for trial and on June 18, 2015, a charge was framed against the accused persons and, we have been informed, no progress has so far been made in that trial of the complaint case,” the judgement said.

Justice Khosa observed that the first information to the police reporting commission of a cognisable offence under Section 154 of CrPC 1898 was called an FIR, then through the same logic the second information to the police in respect of commission of the same offence ought to be called an SIR and the third information be called a TIR. But there was no provision in CrPC for an SIR or a TIR, he added.

According to legal guidelines developed by the Supreme Court, the arrest of a suspect can be deferred till sufficient material or evidence becomes available on the record of the investigation prima facie satisfying the investigating officer regarding correctness of the allegations.

FIR, the guidelines say, is only the first information to the police about commission of the offence. If the information received by the police about the 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.

According to the guidelines, on the 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 a final decision on 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. But no separate FIR is to be recorded for any new version of the same incident.

Similarly, the guidelines said, the investigating officer was 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 and the objective should be to discover the actual facts and to arrest the real offender or offenders. Therefore, he would not commit himself prematurely to any view of the facts for or against any person, the guidelines said.

On the conclusion of the investigation, the report submitted under Section 173 of the CrPC should be based on 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.

The judgement regretted that the occurrence in the present case had taken place more than a decade ago and the trial court had been seized with case for the last many years, but unfortunately no significant progress had been made.

“The delay caused and the apathy displayed in the matter have been found by us to be shocking, to say the least,” Justice Khosa observed, adding that the trial court was, therefore, directed to conclude the trial of this case within the next four months without fail and then to submit a report in this regard to the Supreme Court registrar.

The apex court asked its registrar to sent copies of the judgement to the inspectors general of police of the four provinces and the Islamabad Capital Territory. They have been directed to apprise all station house officers across the country of the law declared by the court through the judgement and to make sure that the law so declared is followed in letter and spirit.

Published in Dawn, May 24th, 2018