KARACHI: The Sindh High Court (SHC) has dismissed a petition seeking quashment of a case registered by the Federal Investigation Agency (FIA) against several police officers about the custodial death of Dr Shahnawaz Kunbhar, who was arrested in a blasphemy case and killed in a staged encounter in Mirpurkhas in September 2024.
Police officers Inayat Ali and Danish Ahmed, who were among nominated accused persons, through their counsel petitioned the SHC last year and sought quashment of the FIR (No.21/2024) lodged by the FIA for being violative of the Supreme Court’s landmark judgement in the case of Sughran Bibi versus the State.
Their counsel submitted that before registration of the case in question, three cases had already been lodged at the Sindhri police station regarding a police encounter in which Dr Kunbhar was killed.
However, a deputy attorney general (DAG), assisted by the counsel for the complainant, argued that the FIR in question was registered lawfully and the investigation was conducted strictly in compliance with the order passed by the SHC in October 2024 as the petitioners have misconstrued proceedings and raised only technical objections.
The DAG also submitted that the petition was misconceived and has been filed solely to impede anddelay the ongoing trial without pointing out any legal defect in the registration of the FIR or investigative process.
A two-judge constitutional bench, headed by Justice Mohammad Saleem Jessar, in its order noted that a preliminary inquiry had proved the encounter fake and, therefore, the FIR (No 47/2024) was recorded by the complainant Ibrahim Kunbhar against police officers and thereafter, the SHC circuit court Mirpurkhas had had ordered transfer of the investigation to the FIA since the matter fell exclusively within the domain of the FIA in respect of investigation.
Italsonotedthatupontransferof the investigation, FIA Mirpurkhas had registered a separate FIR on the complaint of the same person and in the opening paragraph of the FIR, it said that the case was lodged on directions of SHC, but the record did not support such stance as the SHC had only issued a directive for the transfer of investigation to the FIA.
However, it further stated that the Torture and Custodial Death (prevention and Punishment) Act, 2022 did not provide for registration of an FIR with an FIA police station while the special legislation granted exclusive jurisdiction and powers of the investigation of offences relating to torture, inhuman, cruel and degrading treatment to the FIA.
From perusal of relevant provisions of law, the bench said it was clear that the sessions court had jurisdiction to try the offences under the law which requiredspeedy investigation and trial in such cases with the investigation to be completed within 30 days and trial must be concluded in three weeks from the date of submission of charge sheet.
It also noted that as per the DAG, the FIR recorded at the local police station in the instant case has been cancelled and there remained no other FIR for prosecution of the accused persons involved in the custodial death.
The bench further observed that recording of a second FIR at the FIA police station was not tenable under the law, but it was a matter of fact that the case registered with local police stood cancelled and report under section 173 of the criminal procedure code has been submitted before the court concerned.
It said, ‘FIR No 47/2024 registered at local police and FIR No 21/2024 registered at FIA police station contained the same set of allegations and are recorded by one and same person, therefore no serious prejudice would be caused to the accused and this being an error by FIA police in understanding the law can be cured by invoking the provisions of section 537 CrPC. This mistake on the part of investigation agency will not affect the fate of trial,’ it added.
‘Petitioners have failed to demonstrate that their fundamental rights as to fair trial were infringed in any manner. The Petitioners were facing accusation of a heinous crime of custodial killing, they cannot be benefited for trivial nature mistake of law by investigating agency,’ it concluded.