Murtaza Bhutto

To another question by the court, Mr Nadeem submitted that the latter part of
Article 199 of the Constitution which requires that the high court may issue
directions only in the absence of an adequate remedy doesn't bar the exercise
of jurisdiction. It only regulates the manner and the occasion for exercise of
such a jurisdiction and the relevant question for such an exercise has already
been taken in the case law of the superior courts cited by him. The court
pointed out that the other side maintains that the filing of a complaint is not
equally effective and adequate as a report under section 154 Cr.P.C.
Mr Nadeem submitted that this is a misconception inasmuch as a report
under section 154 is made to a police officer, whereas a complaint is made to a
court which is undoubtedly a superior forum with more powers than the
police have and even while entertaining a complaint the court can direct the
police to undertake investigations in terms of Section 156 (3) Cr.P.C. Lastly,
he referred to a judgement of the SC reported in PLD 1966, page 708, and
explained the case law by submitting that there was a conflict between a
police case and a complaint case, concerning the accused persons involved in
the case. In both cases the set of accused persons were different. The problem
came before the SC for determining the mode and manner of trial and the SC
has held hat the complaint case shall have primacy and prevalence upon the
police case. If, after the trial, the accused listed in the complaint case are
convicted, the police case would be quashed and in case the accused of a
complaint case are acquitted, the accused named in the police case will be
tried.
Farooq H. Naek, deputy attorney general, began his arguments and pointed
to a basic defect in the petition and said that no affidavits of the three persons
alleged to have gone to lodge a report at the Clifton police station have been
filed in support of the petition, whereas the petitioners themselves were
neither eyewitnesses of the incident nor did they go to lodge a report. He
further read out the contents of the FIR No. 399/86 lodged by Asghar Ali, an
injured eyewitness, now in detention, and submitted that this FIR is complete
inasmuch as there is a direct allegations against the police party to the effect
that the police exceeded their powers and murdered Mir Murtaza Bhutto and
his companions.
He also submitted that the names of the accused persons are not mentioned
specifically, but the same was not mentioned in the telegrams sent to the
Chief Justice of Pakistan. He submitted that the proposed FIR is the result of
technically trained mind wherein allegations are made after due deliberations
Murtaza Bhutto; Copyright © www.bhutto.org
142