IN THE HIGH COURT
OF SINDH BENCH AT SUKKUR
Cr. Misc.
Application No.S-702 of 2021
Applicants: Jamsher Ali and others
Through Syed Jaffar Ali Shah
Advocate
Respondent No.2: Khuda Bux, through
Mr.
Manzoor Hussain Ansari,
Advocate
State: Through
Mr. Shafi Muhammad
Mahar,
Deputy Prosecutor General
Cr. Misc.
Application No.S-768 of 2021
Applicant: Khuda Bux,
through
Mr.
Manzoor Hussain Ansari,
Advocate
Respondent
No.5 to 9, 13: Abdul Samad and others
Through Syed Jaffar Ali Shah
Advocate
State: Through
Mr. Shafi Muhammad
Mahar,
Deputy Prosecutor General
Date of hearing: 07.02.2022.
Date
of decision: 28.02.2022.
O
R D E R
Zulfiqar Ali Sangi, J: Through captioned
two applications, the applicants have assailed the order dated 13.10.2021,
passed by learned Civil Judge and Judicial Magistrate, Kingri,
whereby the learned Magistrate by dis-approving the summary submitted by the
I.O for disposal of the case / FIR No.05/2021 of PS Baradi
under “C” class, disposed of the same under “B” class (false class) with
direction to Home Secretary Sindh and AIGP Karachi for taking action against
the complainant party of police officials for lodging false FIR and being
involved in fake and staged police encounter as well as direction to IGP Sindh
to suspend these involved SHOs and delist them from the pool of SHOs till final
decision of their trial.
2. Briefly the facts of the case for disposal of these
applications are that the police officials / applicants in Cr.M.A.No.S-702/2021,
in an alleged encounter committed murder of three persons, who were relatives
of respondent Khuda Bux, and such FIR bearing Crime No.05/2021 was registered by
them at Police Station Baradi against the deceased
persons. Later on the said FIR, after investigation was recommended by the I.O
to be disposed of under cancelled “C” class, however the learned Magistrate
disposed of the same under “B” class (false class), with further directions as
mentioned above, hence these applications.
3. Syed Jaffar Ali Shah learned
counsel for the applicants in Cr.M.A.No.S-702/2021, has submitted that learned Judicial
Magistrate without applying his judicious mind, in a hurriedly manner passed
the impugned order, which is not tenable under the law; that the learned Magistrate
has wrongly assessed the material and documents produced by the investigating
officer; that the learned Magistrate has committed illegalities and
irregularities while passing the impugned order; that the learned Magistrate
has no power to give direction to IG for suspension of the applicants; that the
impugned order appears to be unwarranted under the law and it is liable to be
set-aside. In support of his contentions learned counsel relied upon the cases
reported as Sofi Mureed Hussain Alfuqrah and
another v. The State and another (PLD 2016 Sindh 300), Syeda
Tousif Zohra v Syed Arif Hussain Zaidi and two others
(2008 YLR 2680) and Farooq Sumar
and others v. The State and others (2004
P.Cr.L.J 1023).
4. Mr. Manzoor Hussain Ansari
learned counsel for the applicant in Cr.M.A.No.S-768/2021 has contended that the
impugned order passed by the learned Magistrate is much against the law, facts
and equity; that police officials / respondents are real accused who have
committed the brutal murder of three innocent persons; that the learned
Magistrate has only issued direction to IGP Sindh to suspend the police
officials/ respondents and to delist them from the pool of SHOs which is
against the law, however he was bound by law to take cognizance of offence
against the police officials. He lastly submitted that learned Magistrate be
directed to take the cognizance and register the case by adopting the second
version of applicant as true against all the police officials who have
participated in fake encounter.
5. Learned DPG representing the state has supported the
impugned order to the extent of disposing of the summary under “B” class
however he has not supported the order in respect of directions to the Home
secretary and IG Sindh police for taking action against the police officials.
6. I have heard learned Counsel for
both the parties as well as learned DPG for the State and have gone through the
material available on record.
7. In the case in hand after registration of FIR No. 05
of 2021 at police station Baradi Jatoi
Taluka Kingri District Khairpur
for offences under sections 324, 353, 411 and 34 PPC, the investigation was
conducted by ASI Ali Asghar
Maitlo and after completing the investigation he submitted
report before the learned Magistrate for disposal of the case under “C” cancel
class. Learned Magistrate dis-agreed with the result of investigation and
directed for further investigation to be conducted by an officer of the SSP
rank. It appears from the impugned order that thereafter under the directions
of AIG police Sukkur the investigation was entrusted to SSP Sukkur Mr. Irfan Ali Samo, however
due to some slow progress in the investigation and by finding that he himself
was involved in the inquires of fake encounters, learned Magistrate directed
the Additional IG police Karachi for appointing another police officer of good
reputation. Record further reflects that then Additional IG Police Karachi
appointed Mr. Amjad Ali Shaikh SSP Kashomre @ Kandhkot for conducting the investigation of the case.
8. Record further reflects that Khuda Bux Abro filed Cr.
Misc: Application No.2947 of 2021 before Ex-officio
Justice of Peace for registration of second FIR of the murders for which police
officials had already registered the same as stated above. Learned Ex-officio
Justice of Peace after hearing the parties has dismissed the same application vide order dated: 05-08-2021. Khuda Bux has challenged the
said order before this court by filling Cr. Misc. Application No. S-515 of 2o21
which was disposed of by this court vide order dated:
04-10-2021 in the following terms:-
“SSP Kashmore @ Kandhkot files
compliance report, which is taken on record. Learned counsel for the applicant
and learned counsel for the proposed accused by consent submit that they will
follow the judgment of Honourable Supreme Court in case of Mst. Sughran Bibi v.
The State (PLD 2018 Supreme Court 595) and applicant will approach the new
investigation officer Amjad Ali Shaikh SSP Kashmore @ Kandhkot, who may be
directed to record his statement and investigate his version.
In view of the above this
application is disposed of. SSP Kashmore @ Kandhkot to record the version of applicant
and investigate the same in view of Mst. Sughran Bibi case Supra.”
9. In compliance of the above order of this court Mr.
Amjad Ali Shaikh SSP Kashmore @ Kandhkot filed report under section 173 Cr.P.C before
the Magistrate who passed the above impugned order. The impugned order reflects
that the Magistrate passed an order by giving verdict about the guilt of the
police officials without recording any evidence and declared the encounter as
fake and staged and issued directions for awarding punishments. As to
understand the powers of Magistrate the section 173 Cr.P.C is reproduced as
under:-
"173. Report of police-officer. (1) 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 a 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.
[Provided
that, where investigation is not completed within a period of fourteen days
from the date of recording of the first information report under section 154,
the officer incahrge of the police station shall,
within three days of the expiration of such period, forward to the Magistrate
through the Public Prosecutor, an interim report in the form prescribed by the
Provincial Government stating therein the result of the investigation made
until then and the Court shall commence the trial on the basis interim report,
unless, for reasons to be recorded, the Court decides that the trial should not
so commence.]
(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) .............
(4) .............
(5) .............
10. From perusal of section 173, Cr.P.C. it reflects that said section provides
that after completion of investigation, the incharge of Police Station shall
submit report through Public Prosecutor before the Magistrate empowered to take
cognizance of the offence on it and if he finds that there is sufficient
evidence against the accused then he has power to take the cognizance of the
offence under section 190 Cr.P.C, furthermore if, the Magistrate is of the view
that the proper investigation, has not been conducted and the case required
further investigation then the Magistrate can direct the officer incharge of
the police station to make further investigation (which was done twice by the
Magistrate in the present case). In view of section 190, Cr.P.C. if, a
Magistrate after taking cognizance of offence find that the offence is triable exclusively by a Court of Session, without
recording any evidence shall send the case to Court of Sessions for trial. Reliance
can be place on the case of Muhammad
Nasir Cheema v. Mazhar Javaid
and others (PLD 2007 Supreme Court 31), wherein the Honourable Supreme
Court of Pakistan has held as under:-
"The
only provision relating to the subject which is available in the Code of
Criminal Procedure is section 173 which commands expeditious conclusion of the
investigations and further ordains that on conclusion of every investigation,
the concerned SHO shall submit a report of the result thereof in the prescribed
manner to the Magistrate competent to take cognizance under section 190,
Cr.P.C. No powers vest with any Court including a High Court to override the
said legal command and to direct the SHO either not to submit the said report
(mentioned as challan in the Police Rules and also in the impugned order) or to
submit the said report in a particular manner i.e. against only such persons as
the Court desires or only with respect to such offences as the Court wishes.
The impugned order can also not be sustained because, as has been mentioned
above, the challan in question stood already submitted in Court and was thus
beyond to reach of the concerned SHO."
This Court in case of Hakim Ali
v. The State (PLD
2006 Karachi 302), has held as under:-
'In
view of the afore-cited decision of the Honourable Supreme Court, it would be
seen that the Magistrate while exercising jurisdiction under section 190 of the
Cr.P.C. does so in an administrative capacity and does not function in a
judicial one since he is only to apply his mind to the material present before
him and thereafter decide whether he should take cognizance or not. If he
decides to do so in a case triable by him then he
should pass a speaking order after a fair assessment of such materials and then
proceed to try the case himself. If he accepts the police
report or otherwise discharge the accused where he does not agree with the
same. Similarly he should send the case to the Sessions Court if it is a
Session case upon acceptance of the police report and again discharge the
accused if he does not agree with the same. However, it is to be noted that the
exercise to be conducted by the Magistrate under section 190 Cr.P.C. is not a
judicial one as held by the Honourable Supreme Court in Hussain Ahmed v. Irshad Bibi (supra), he cannot
determine the guilt or innocence of the accused but only has to assess the
evidence on the record in a summary fashion and thereafter make up his mind
whether or not to discharge the accused'.
11. No doubt the opinion of police
officer is not binding upon the court (s); however the court (s) must not
override its jurisdiction while passing the orders on report under section 173
Cr.P.C. In respect of the powers conferred upon the Magistrate this court in
case of Sofi Mureed
Hussain Alfuqrah and another v. The State and another
(PLD 2016 Sindh 300) in paraghraph
11 and 12 has observed as under:-
11. It is the Section 190
of the Code of the Chapter-XV of the Code through which the Magistrate is
competent to take cognizance. The provision, being relevant is reproduced
hereunder:-
190. Cognizance of offences by Magistrates: [(1)
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) ........
(b)
upon a report in writing of such facts made by any
police officer;
(c) .......
The deliberate use of the word 'may' is sufficient to show the
intention of the legislature that discretion has been left with the Magistrate
either to agree or disagree with the police report without being influenced
with ipse dixit of police because it is, now, well settled principle of law
that while concurring with a report, submitted by police, under Section 173 of
the Code, the Magistrate can competently agree or disagree with
recommendation/conclusion or opinion of the investigating officer and such 'inclining'
or 'declining' is to be exercised under Section 190 of the Code. Reference can
be made to the case of 'Syed Muhammad Ahmed v. The State and others (PLD 2006
SC 316), wherein it was held :-
"3. The provisions of section 173 Cr.P.C. provide only that
after the available material had been collected by the S.H.O. during the course
of an investigation then the result of the same had to be reported to the
Magistrate competent to take cognizance under section 190 Cr.P.C, and
thereafter, it was for the competent Magistrate /Court to decide whether an
accused person did or did not deserve to be tried' (under lining and is mine)
In another case of 'Anwar Shamim and
another v. The State (2010 SCMR 1791) is very much relevant hence the
relevant portion thereof is reproduced hereunder:--
'It is also a settled that finding of police is not binding on the
Court. It is pertinent to mention here that investigating agency has only duty
under the law to collect evidence and has no authority whatsoever to give
finding of guilt or innocence qua the accused persons under the provisions of
Criminal Procedure Code, Police Act or Police Order / Rules framed there-under.
It is only prerogative of the Court to give finding after recording evidence and
statements of accused qua guilt or innocence of the accused. In case the
contention of the learned counsel is accepted, then it tantamounts
to delegate powers of the Court to the investigating agency which is not
permissible under the law, Constitution and conventions'.
12. Thus, it is patent
that per Section 173 of the Chapter-XIV of Part-V of the Code a police officer
(investigating officer) is only to complete the investigation by collecting
evidence and then to submit the police report before a Magistrate, competent to
take cognizance of the offence but it is the absolute and exclusive domain of
the Court (Magistrate) to agree or disagree with such report (conclusion or
even recommendation of the I.O.) with reference to Section 190(1)(ii) of the
Code.
12. Turning to the case in hand it is
observed that the learned Magistrate has not applied his judicial mind while
deciding the report under section 173 Cr.P.C as in the first part of the impugned
order which is assailed before this court in Cr. Misc. Application No. 768 of
2021, learned Magistrate while not agreeing with the conclusion of Police
officers observed as under:-
“In view of above discussion, the
I.O has wrongfully recommended the case to be cancelled under “C” class, the
FIR being totally false and fabricated should have been recommended under “B”
class, false class. It is a settled principle of law that the opinion of police
officer is not binding upon the Court. The reliance is respectfully placed upon
following case laws respectfully as in the case of Anwar Shamim & another Vs. State SCMR
1791, Muhammad Ahmed (Mehmood Ahmed) Vs. The State 2010 SCMR 660, Baksh Ali Vs. The State 2013 YLR 1948, Mushtaque
Ahmed Vs. The State
2012 YLR 1101, Muhammad Shahid Khattak Vs. The State PLD 2013 Sindh 220,
Allahdad & Seven others Vs. The State 2011 P.Cr.L.J 1169 and in the case of Farooq
Soomro Vs. The State reported in P.Cr.L.J 2004
1023, as principle laid down that the Magistrate is empowered to agree or
disagree with final report submitted by police as same is not binding upon him.
The final submitted under “C” class is disapproved. I
therefore, dispose off the instant summary under “B”
class (false class). The direct complaint has already been filed by the
brother of one of deceased persons against involved police officials in view of
Honourable Apex Court, given in the case of Mst. Sughra Bibi
Vs., The State (PLD 2018 SC-595) wherein lodging of Second FIR of same incident
is prohibited.
13. It appears that the material collected during the
course of investigation is not sufficient enough to declare that the FIR lodged
by the police officials was maliciously false yet it could be observed that the
material collected during the course of investigation is insufficient to take cognizance
against the accused persons. Thus, the findings of learned Magistrate in
respect disposing of the case are maintained, however is modified from “B”
class to “C” class in view of the discussion made in paragraph 8,9 and 10 above so also the fact that the applicant Khuda
Bux has already filed direct complaint against the police officials, which is
pending before the competent Court of law.
14. Coming to second part of the impugned order challenged
by the police officials in Cr. Misc. Application No. 702 of 2021 which is
reproduced as under:-
“Let a copy of this order be sent to
worthy Home Secretary Sindh at Karachi and worthy AIG P Karachi for taking
action against the complainant party of police officials for lodging false FIR
and being involved in fake and stage police encounter where three innocent
persons have lost their lives. This is clear violation of basic human rights
guaranteed by law. It is further directed to IG P Sindh at Karachi to suspend
these involved SHOs and delist them from the pool of SHOs till final decision
of their trial. Copy be sent to the SSP Khairpur and concerned SHO PS Baradi Jatoi for information.”
15. Perusal of the Impugned Order as reproduced above shows
that the learned Magistrate directed the Inspector General of Police to place
the delinquent police officials under suspension, which is the exclusive domain
of the competent authority for the special reasons to be recorded in writing as
per Rule 16.19, of the Police Rules, which says: “A police officer charged with
a criminal offence shall unless the Deputy Inspector-General of Police or the
Assistant Inspector-General, Government Railway Police for special reasons to be recorded in writing otherwise
directs, be placed under suspension form the date on which he is sent for
trial, if such action has not already been taken under the provisions of rule
16.17, suspension is compulsory during any period in which a police officer is
committed to prison. A police officer, who may be arrested by order of a civil
court in execution of a decree or otherwise shall be
considered as under suspension form the date of arrest till his release form
custody is ordered by the Court”. In Case of Imdad Ali Khawaja
v. The State and others (2016 SCMR 2057), it has been held by the Honourable Supreme
Court of Pakistan that “We are
also not in agreement with the observations made by the learned Judge in the
order dated 12.08.2016 that if an enquiry is initiated, the officer must be
placed under suspension. This is the discretion of the competent
Authority and the discretion can be exercised considering relevant factors in
the enquiry. Under Police Rule 16.19, during the enquiry against a
police officer, who is involved in a criminal case, such police officer needs
to be placed under suspension in order to avoid his influence. Therefore, the perception that an
officer who is facing enquiry must be placed under suspension is against the
spirit of service rules. Even otherwise, it is never encouraged that
the High Court in collateral proceedings can step in the shoes of the competent
Authority by ordering suspension of ‘civil servant’ while directing initiating
of departmental inquiry. The
discretion in regard to placing an officer under 'suspension' falls within the
domain of competent authority under the service law, and in case the competent
Authority considers and or anticipates that during enquiry, the officer may
tamper with the evidence or influence the witnesses or act in a manner to
prejudice the outcome of the enquiry, the competent authority may suspend such
officer. After going through the impugned order reproduced as above and
the relevant provisions of law related to the case in hand, I am of the view
that the Magistrate has exceeded his jurisdiction conferred upon him as he
has no powers to issue such directions, therefore, the Cr. Misc. Application
No. 702 of 2021 is allowed and the second operative part of the impugned order
as mentioned above is set-aside.
16. After the
case has been heard some material has come on record against the police
officials in respect of a suspicious encounter
resulted death of three persons which in my view needed high standard
inquiry against the police officials, therefore under the circumstances by
invoking jurisdiction under section 561-A Cr.P.C the Inspector General of Sindh Police is directed to conduct departmental
inquiry into the matter while constituting a JIT comprising of at least four
members not bellow the rank of SSP who shall complete the inquiry within a
period of two months. The Inspector General of Sindh Police is further
directed to place on record the inquiry report before this court through
Additional Registrar for perusal and further orders.
17. Office is
directed to send the copy of this order to the Inspector General of Sindh
Police through fax and T.C.S courier for information and compliance.
18. In view of
the above facts the captioned Cr. Misc. Applications are disposed of.
J U D G E