The Sindh High Court on Thursday declared that the Federal Investigation Agency (FIA) was not a police station under the Torture and Custodial Death (Prevention and Punishment) Act, 2022, therefore it could not register an FIR of the custodial death.
Allowing a petition of a police official who was booked among other police personnel in the custodial death of under-trial prisoner Mohammad Irfan against the registration of the case by the FIA, the high court ordered that the FIR of the incident shall be recorded at a local police station.
The petitioner, Abid Shah, had challenged the registration of the second FIR by the FIA in the custodial death case. The petitioner’s counsel, Aamir Mansoob Qureshi, submitted that police had registered the case under the section 319/34 of the Pakistan Penal Code (PPC) against the petitioner and a judicial magistrate had ordered the transfer of the case to the FIA as the matter fell within the purview of the Torture and Custodial Death (Prevention and Punishment) Act, 2022.
He informed the SHC that the FIA registered another FIR, which was not tenable under the law, as the agency was entrusted with the responsibility to investigate the cases of torture and custodial death and, as such, was not competent to register a fresh FIR.
He requested the SHC to cancel the second FIR registered by the FIA. Counsel for the respondent Mohammad Jibran Nasir submitted that although the FIR of the incident was recorded by Inspector Mumtaz Ahmed, however the correct and complete details of incident were not incorporated therein. He contended that the 2022 Act was a special law; therefore, the FIA was competent to register the FIR.
A deputy attorney general and additional advocate general said the FIA correctly assumed jurisdiction and registered the FIR. They referred to the FIA Schedule under the Act of 1974 and submitted that upon transfer of the FIR from one police station to another, the offence registered at the original police station shall be deemed to have been cancelled as envisaged under the Rule 25.7 of the Police Rules 1934; thus, the first FIR stood cancelled by operation of law/rules and FIR lodged by the FIA held the field.
A division bench of the SHC comprising Justice Mohammad Saleem Jessar and Justice Nisar Ahmed Bhanbhro after hearing the arguments observed that it transpired from record that upon transfer of the investigation, an FIR under the sections 8 and 9 of the Act was registered separately at the FIA police station, Karachi, on November 1, 2025 in respect of the same incident.
The SHC observed that the record did not evidence that any direction was issued by the judicial magistrate for the registration of another FIR for the same incident. The high court observed that the Section 6 of the Act provided that offences under the said Act were exclusively triable by the sessions courts.
The bench observed that the Act did not articulate that the FIA shall be deemed to be a police station for the purposes of registration of an FIR in the cases of custodial torture and death and the law conferred exclusive jurisdiction upon the FIA to investigate the offences.
The SHC observed that the federal and provincial law officers’ contention that the FIR recorded at the local police station in the instant case ought to have been transferred and cancelled under the Police Rules 1934 was not correct.
The high court observed that the FIR had already been registered with the local police, therefore, the registration of a second FIR at the FIA police station was not tenable under the law. The bench observed that if during the investigation, it surfaced that proper section carrying the punishment of offence was not applied to the FIR, it was a prerogative of the investigation officer to insert the relevant penal provision of the PPC in the charge sheet as the very purpose of an investigation of a criminal case was to sift the grain from chaff.
The SHC observed that if the investigation officer found that the complainant or witnesses mentioned in the FIR were also involved in the commission of the offence, they may be arrayed as accused and referred for trial before the relevant court through a report under the Section 173 of the Code of Criminal Procedure.
The high court observed that the grievances, if any, of the legal heirs of the deceased man regarding an incorrect FIR shall be redressed during the course of the investigation, wherein they shall be afforded an opportunity to produce such evidence as they may desire, and the IO shall be under an obligation to record such evidence and form it the part of the prosecution case.
The court quashed the FIA’s FIR registered in the custodial death case and ordered that the FIA shall investigate the first FIR lodged at the Saddar police station strictly in accordance with the law and submit its report before the trial court within the stipulated time. It is pertinent to mention that Irfan, who came from Bahawalpur, died during the custody of the Special Investigation Unit of the police which sparked widespread public outrage.
