ORDER SHEET
IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR
Cr. Misc. Appln.
No.S- 122 of 2017
1.
For hearing of main case
2.
For hearing of MA No.871/2017
28.01.2019
Mr. Bakhshan Khan Mahar
Advocate for the Applicant
Mr. Shabbir Ali Bozdar
Advocate for private respondent
Syed Sardar Ali Shah Rizvi, DPG for
the State
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Irshad Ali Shah, J; The applicant by way of Crl. Misc. Application
under section 561-A Cr.PC, has impugned order dated 21.07.2017, passed by
learned Family/Civil Judge Judicial Magistrate, Sukkur, whereby he has declined
to make disposal of FIR Crime No.14/2016, under Sections 395, 342, 447, 506/2,
148, 149 PPC of P.S Qadirpur Sukkur, under “C” class.
2. The operative
part of the impugned order reads as under;
“The conduct of I.O to record the
statement of defence witnesses in favour of accused persons and considering
defence taken (by) the accused persons during the investigation is not
permissible under the law. Furthermore guide line may be sought from the
reported case law 2013 P. Cr. L J 727
(Sindh) Sikander Ali vs. SHO P.S B-Section Khairpur and 3 others. In view of
this background, it appears that sufficient material is available on record for
which trial need (to) be conducted because evidence has to be recorded to reach
a definite conclusion and, it is settled law that ipsi dixit of police does not
have binding effect, relied upon PLD 2011 SC 350 and PLD 2013 [Karachi] 423,
therefore, I take the cognizance of offence under section 190 Cr.P.C”.
3. The
facts in brief necessary for disposal of instant criminal miscellaneous
application are that the applicant with rest of the culprits allegedly by
committing trespass into the house of complainant Mst. Zahida, after keeping
her an d her witness under fear of death robber her of gold ornaments and
cattles for that she lodged FIR of the incident with police. On investigation,
police recommended the case to be disposed of under ‘C’ class by filing such
application which was declined by learned trial Magistrate, as stated above.
4. It is contended by learned counsel for the
applicant that the applicant there are two FIR for the single incident, the
parties are already disputed over landed property and on account of such
dispute the applicant is involved in this case falsely by the complainant party, the
police on the basis of honest investigation recommended the cancellation of FIR
of the incident under ‘C’ class, such recommendation was not accepted by
learned trial Magistrate, without lawful justification. By contending so, he sought for setting aside of the impugned
order.
5. Learned DPG for the State and learned counsel for
the complainant have sought for dismissal of the instant Crl. Misc. Application
by contending that the impugned order is well reasoned and applicant after
filing of the instant criminal miscellaneous application has abscond away in
very case before learned trial Court.
6. I have considered the above arguments and perused the record.
7. Before
touching the merits of the case, it is found quite appropriate first to discuss
the difference between role of investigating officer and that of learned “Magistrate” in relation to investigation and
outcome thereof. Every investigation is to be conducted with reference to Chapter-XIV
of the Criminal Procedure Code and the Police Rules. The vitality
of role of investigating officer cannot be denied because it is the very first
person, who per law, is authorized to dig out the truth which, too, without
any limitation including that of version of informant / complainant.
Without saying more in that respect, the authoritative view of Honourable Apex
Court is given in the case of Mst.
Sughran Bibi Vs. The State (PLD 2018 SC-595), whereby certain legal
position(s) are declared. Out of which, some being relevant, are reproduced
hereunder:-
(iv)
During the investigation conducted after the registration of an FIR the
investigating officer may record any number of versions of the same incident
brought to his notice by different persons which versions are to be recorded by
him under section 161 Cr.PC in the same case. No separate FIR is to be
recorded for any new version of the same incident brought to the notice of the
investigating officer during the investigation of the case;
(v)
During the investigation the investigating officer is 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. His object shall be to
discover the actual facts of the case and to arrest the real offender or
offenders. He shall not commit himself prematurely
to any view of the facts for or against
any person.”
(vi)
…….
(vii)
Upon conclusion of the investigation the report to be submitted under
section 173 Cr.PC is to be based upon 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.
8. From
above, it is quite clear that an investigating officer is not bound to base his
conclusion on version of informant or defence but on ‘actual facts, discovered during course of
investigation’. Such conclusion shall be submitted in shape of
prescribed form, as required by Section 173 of the Criminal Procedure Code. At
this juncture, it would be relevant to refer the provision of Section 173 of
the Criminal Procedure Code, which reads as under;
"173 (1) Report of Police Officer. Every investigation
under this Chapter shall be completed without unnecessary delay, and, as soon
as it is completed, the Officer Incharge of the police station shall through
the public prosecutor---.
(a) forward to a Magistrate
empowered to take cognizance of the offence on a police report,
in the form prescribed by the Provincial Government, setting forth the names of
the parties, the nature of the information and the names of the, persons who
appear to be acquainted with the circumstances of the case, and stating whether
the accused (if arrested) has been forwarded in custody or has been released on
his bond, and, if so, whether with or without sureties, and
(b) communicate, in such
manner as may be prescribed by the Provincial Government, the action taken by
him to the person, if any, by whom the information relating to the commission
of the offence was first given.
(2) Where a superior
officer of police has been appointed under section 158, the report shall, in
any cases in which the Provincial Government by general or special order so
directs, be submitted through that officer, and he may, pending the orders of
the Magistrate, direct the Officer Incharge of the police station to make
further investigation.
(3) Whenever it appears
from a report forwarded under this section that the accused has been released
on his bond, the Magistrate shall make such order for the discharge of
such bond or otherwise as he thinks fit.
9. The
bare perusal of the above section would show that it directs that on conclusion
of every investigation, a police report shall be forwarded to the
Magistrate having jurisdiction, so empowered to take cognizance thereon which
must include all details. It no-where describes as to how the Magistrate
shall deal with such report. It however empowers the Magistrate to agree or
disagree with the opinion/act of the Investigating Officer in releasing an
accused during investigation u/s 497 Cr.PC, which, too, to extent of discharge
of bonds. Since, this Chapter no-where provides duties / powers of the Magistrate
to deal with such forwarded report, therefore, we had to jump to next
Chapter of the Criminal Procedure Code.
Section 190 thereof, being relevant, is referred which reads as under;
“Section 190. Cognizance of offences by Magistrates.
All Magistrates of the first class, or any other Magistrate specially empowered
by the Provincial Government on the recommendation of the High Court may
take cognizance of any offence;
(a) upon receiving a complaint of facts which constitute such offence.
(b) upon a report in writing of such facts made by any Police officer,
(c) upon information received from any person other than a police officer,
or upon his own knowledge or suspicion”.
10.
In above section, the
word ‘may’ has been used which always vests competence to agree or
disagree with the police report
u/s 173 Cr.PC. This has been the reason for legally established
principle of Criminal Administration of Justice that an opinion of the
investigating officer is never binding upon the Magistrate dealing with
report, forwarded under section 173
of Criminal Procedure Code.
11. In
case of Muhammad Akbar v. State (1972 SCMR 335), it has been observed by
the Honourable Court that;
"Even on the
first report alleged to have been submitted under section 173, Cr.PC, the
Magistrate could, irrespective of the opinion of the Investigating Officer to
the contrary, take cognizance, if upon the materials before him he found that a
prima facie case was made out against the accused persons. After all the police
is not the final arbiter of a complaint lodged with it. It is the Court that finally
determine upon the police report whether it should take cognizance or not in
accordance with the provisions of section 190(i)(b) of the Code of Criminal
Procedure. This view finds support from a decision of this Court in the case of
Falak Sher v. State (PLD 1967 SC-425). "
12.
Even under the recently
substituted sub-section (3) of section 190 of Criminal Procedure Code,
Magistrate who takes cognizance of any offence under any of the clauses of sub-section
(1) of that section is required to apply his mind in order to ascertain as to
whether the case is one which he is required to 'send' for trial to the Court
of Session or whether it is one which he can proceed to try himself. It
must always be kept in view that an act of taking cognizance has nothing to do
with guilt or innocence of the accused but it only shows that Magistrate
concerned has found the case worth trying, therefore, the Magistrate
should never examine the matter in deep
but only to make prima facie assessment of the facts about the commission
of offence or otherwise. Once the Magistrate has taken cognizance of the
offence exclusively triable by the Court of Session, he has to send the case to
that Court.
13. It
would further be added here that taking cognizance shall not prejudice right of
accused but rests the burden upon the prosecution to prove its charge without
any harm to presumption of innocence of the accused involved in the offence.
Even otherwise, it is by now settled that cognizance is taken against offence
and not against the accused. Therefore, it can safely be concluded
that if tentative examination of available material shows prima facie commission
of a cognizable offence last justifies proceeding further with case then
a criminal case normally cannot be disposed of under ‘B’ or ‘C’
class on the basis of recommendation of the police.
14.
In the instant case, it
is alleged by the complainant that the applicant and others by committing
trespass into her house after keeping her and her witnesses under fear of death
robbed her of gold ornaments and cattles, such allegation the complainant was
able to prove by recording her statement and that of her witnesses those were
disbelieved by the investigation officer on the basis of defence version
without lawful justification. By doing so, the investigating officer assumed
the role of the Court which was not permissible. In that situation, the learned
trial Magistrate was justified to have taken cognizance of the offence, such
order of learned trial Magistrate could not be said to be illegal or perverse
to be interfered with by this Court in exercise of in its inherent
jurisdiction, most particularly when it is not challenged by any one excepting
the applicant. If the applicant is having a feeling that he has been involved
in two FIRs for single incident then he has right to prove such fact by joining
the trial by giving to an end to his absconsion; if so is advised to him.
15.
For what has been
discussed above, the instant Criminal Miscellaneous Application, is dismissed.
Judge
ARBROHI