IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Criminal Misc. Application No.S-509 of 2020

Applicant: Abdullah s/o Ghulam Nabi, through Mr. Jamal Nasir Bullo, Advocate.

Respondents No.5 to 9: Mr. Niaz Muhammad Korai, Advocate.

State: Through Khalil Ahmed Maitlo, D.P.G.

Date of hearing: 30.08.2021

Date of decision: 11.10.2021

O R D E R

Zulfiqar Ali Sangi, J: Through this application, the applicant has assailed the order dated 31.08.2020, passed by learned Judicial Magistrate-I, Pano Aqil, whereby learned Magistrate accepted the report under Section 173 Cr.P.C, arising out of FIR No.49/2020, Police Station Pano Akil, offence under sections 452, 147, 148, 149, 506/2, 114, 427 and 447 PPC., submitted by police under cancelled “C” class.

2. Learned Counsel for the Applicant submits that the impugned order passed by learned Magistrate is contrary to both law and facts; that from the bare reading of FIR, a cognizable offence is made out; that firstly Investigating Officer conducted the investigation and submitted final report under Section 173 Cr.P.C; however, while disagreeing with his recommendation, learned Magistrate on his own accord without mentioning any cogent reason, forwarded the case to SSP, Sukkur for further investigation; that subsequently, 2^nd Investigating Officer without conducting fair investigation, submitted his final report for disposal of case under cancelled ‘C’ class, which was accepted by learned Magistrate through impugned order in hasty manner, hence this application.

3. Learned counsel representing the Respondents submits that learned Magistrate has rightly passed the impugned order 31.08.2020, which does not warrant any interference by this Court as it is prerogative of learned Magistrate either to agree or disagree with the police report or even remit the case for further investigation. Learned Counsel further submits that the case was investigated twicely; that earlier investigation report was disagreed; however second has been accepted and case was disposed of under cancelled “C” class, therefore, the argument advanced by learned Counsel for the Complainant with regard not to apply its judicious mind by learned Magistrate while passing the impugned order is unjustifiable as it is an admitted fact that civil litigations are pending between the parties; besides story narrated in the FIR appears to be false one.

4. Learned DPG appearing for the State submitted that learned Magistrate has rightly passed the impugned order as it is privilege of learned Magistrate either to agree or disagree with the final report submitted under Section 173 Cr.P.C or even remit the case for further investigation. Admittedly, civil dispute exists between the parties and there is no any illegality or infirmity is found in the impugned order, hence the same is liable to be maintained.

5. I have heard learned Counsel for the Applicant, Complainant and DPG as well, perused the record with their able assistance.

6. Record reflects that applicant/complainant has filed an application under Section 22-A Cr.P.C before Ex-Officio Justice of Peace wherein it is stated that the accused/Respondent dispossessed him from his house, which was allowed and an FIR bearing Crime No.49/2020, at P.S. Pano Aqil, was registered. Thereafter investigation was entrusted to ASI Riaz, who has submitted his final report under Section 173 Cr.P.C for taking cognizance; however learned Magistrate vide order dated 30.05.2020 did not agree with the opinion of Investigating Officer and recommended the matter for further investigation. Subsequently, in compliance of order dated 30.05.2020, SSP Sukkur entrusted further investigation to SHO PS Dadloi, who after completion of inquiry/investigation, submitted final report under Section 173 Cr.P.C under cancelled “C” class, which was accepted by learned Magistrate vide order dated 31.08.2020. I felt it necessary to re-produce the order dated: 30-05-2021 because it clears the entire position as to why learned Magistrate passes the same for further investigation which reads as under:-

“Heard and perused the material collected during the course of investigation shows that there are two investigation officer in this case first Investigation Police officer ASI Riaz, who recorded the statements of witnesses under section 161 Cr.P.C, visited the place of incident, and prepared the Summary report for approval under ‘C’ class duly forwarded by DDPP for State on 13.04.2020 and attested copy of Summary was submitted by the learned Advocate for accused is available on record, thereafter investigation was transferred to SIP Haq Nawaz Kalwar without any written order either but as per his argument that he received the investigation on the verbal order of SSP, Sukkur and he subsequently submitted the final report for taking cognizance but he did not made the part and parcel of earlier conclusion of first Investigating Officer in police paper which requires further probe. Apart from this learned advocate submitted the order of Additional Sessions Judge Pano Aqil and the memo of Cr. Misc. Application No.210/2020 by which he challenged the order of Additional Sessions Judge, Pano Aqil before Hon’ble High Court Sindh Bench at Sukkkur requested therein for the directions to be passed to investigating officer to submit the summary prepared by the first Investigating officer before the court having jurisdiction, which is fixed on 15.06.2020. All the above circumstance shows that investigation does not conduct properly needs further investigation as the learned DPP for State also vide his opinion recommended the matter for further investigation”.

7. The Magistrate can take cognizance of offence if report submitted by the investigating officer in negative that accusation is baseless and also no case is made out against the accused as has been held by Honourable Supreme Court in case of Safdar Ali v. Zafar Iqbal (2002 SCMR 63), and the ipse dixit (opinion of the I.O.) cannot be accepted to exonerate the accused from the commission of the alleged offence as has been held by the Supreme Court in case of Mst. Qudrat Bibi v. Muhammad Iqbal and another (2003 SCMR 68). However, in the present case the first investigating officer who recorded the statements under section 161 Cr.P.C and visited the place of vardat was of the opinion that the case is liable to be disposed of under “C” class and when such report was concurred by the DDPP then without assigning any reason, investigation was changed even no formal order/latter was issued for such change of investigation. Record reflects that the second investigating officer, who submitted report against the accused, admitted before the Magistrate that he received the investigation under oral orders of the SSP and he had also not made the conclusion of first investigation as a part of his investigation and then order for further investigation was passed by the learned Magistrate, which was not challenged by the parties and attained finality.

8. In case of Sughran Bibi reported as PLD 2018 Supreme Court 595, the Honourable Supreme Court has held that 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.” Ordinarily no person is to be arrested straightaway only because he has been nominated as an accused person in an FIR or in any other version of the incident brought to the notice of the investigating officer by any person until the investigating officer feels satisfied that sufficient justification exists for his arrest and for such justification he is to be guided by the relevant provisions of the Code of Criminal Procedure, 1898 and the Police Rules, 1934. According to the relevant provisions of the said Code and the Rules a suspect is not to be arrested straightaway or as a matter of course and, unless the situation on the ground so warrants, the arrest is to be deferred till such time that sufficient material or evidence becomes available on the record of investigation prima facie satisfying the investigating officer regarding correctness of the allegations levelled against such suspect or regarding his involvement in the crime in issue. It was further held in the judgment (supra) that upon conclusion of the investigation the report to be submitted under section 173, Cr.P.C 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. In the case in hand it was third investigation officer who conducted the investigation of the present case and after the investigation he too recommended the case to be disposed of under “C” class. Learned Magistrate after giving an opportunity of hearing to the parties passed the following detailed order:-

“Heard and perused the record, I am of the considered opinion that the FIR is lodged with delay of 20 days without any plausible explanation though the police Station is at the distance of two furlong from the place of incident. Admittedly civil dispute exists in between the parties on the said house in question and such civil litigation is pending before the lodgment of this FIR. Apart from this the main ingredients of Section 452 PPC are missing in this case. The complainant failed to produce the documents of property to show the ownership and his complete possession over the disputed property though it is matter of record Hon’ble Senior Civil Judge, Sukkur have passed the judgment and decree against the complainant in respect of said house and in compliance thereof report of bailiff dated 27.06.2020 shows that complainant has handed over the peaceful possession of disputed property. Apart from this civil litigation is/ are also pending between both the parties before different forums. The Hon’ble High Court of Sind in Case of Abdul Khalique and 03 others v. 4^th Civil Judge and Judicial Magistrate, Khairpur and 03 others (2012 P Cr. L J 1770) discussed in detail the main ingredients of “criminal trespass”. It has been held by the Hon’ble High Court that the ingredients of criminal trespass defined by Section 441 PPC were to commit trespass to intimidate, insult or annoy any person in possession of the property in dispute. Difference existed between civil trespass by way of taking possession of the property without consent of the person in possession and criminal trespass for which insult or annoyance to the person in possession of such property was a condition precedent. In the case of Syed Ali Kausar Zaidi vs. Muhammad Shafique and others (1990 SCMR 536), Hon’ble Supreme Court of Pakistan maintained the acquittal of the accused persons in a case registered under Sections 452/448/457/147/148 & 380 PPC wherein Civil Suit was pending between the parties.

So far as the ingredients of Section 506(ii) PPC are concerned, the complainant has not established the ingredients of the said offence against the present accused persons. It is matter of record that the disputes were going on between the parties and during which the accused persons had no motive or reason to go and visit the house of the complainant merely for issuance of threats in presence of his entire family members who are not shown to be the witnesses of the alleged incident. Even otherwise, “Simple threats are not sufficient to constitute a criminal intimidation within the scope of this section [506 PPC] unless it is caused that person to do an act who was not legally bound to do or to omit to do any act which that person was legally bound to do”. Reliance is placed on the case of Wajid Ali v. Civil Judge and Judicial Magistrate No.1 and 5 others (PLD 2014 Sindh 164).”

9. During the arguments learned counsel for the applicant has also admitted that the possession of the disputed house is with the applicant/complainant and some civil proceedings in respect of the same property are pending before the courts having jurisdiction. Learned counsel for the applicant has failed to point out any illegality, infirmity or irregularity in the impugned order, which being based on sound and cogent reasons do not warrant any interference by this Court and is accordingly maintained. Resultantly, instant Cr. Misc. Application is dismissed in the above terms.

JUDGE