2013 PLP 676 (YLR)

AFTAB AHMED GORAR, J.

By this single order I propose to dispose of abovesaid three Criminal Miscellaneous Applications under section 561-A, Cr.P.C. as in all the applications, the applicant as well as the legal point to be decided is one and the same. Brief facts of the case, as unfolded in the memo of applications, are that the complainants in three cases lodged F.I.Rs. Nos. 662 of 2010, 467 of 2010 at Police Station Boat Basin and F.I.R. No.597 of 2010 at Police Station Nazimabad respectively alleging therein that they invested money for business with the applicant Abdul Aziz and in turn the applicant gave them cheques mentioned in their respective F.I.Rs. However, on presentation of the said cheques at the concerned banks, the same were dishonoured/bounced, hence they lodged the abovesaid F.I.Rs against the applicant/ accused. After registration of F.I.Rs and completion of investigation police submitted challan showing the applicant Abdul Aziz as absconder. However, re-investigation was conducted in the case wherein complainant did not appear and ultimately it was found that the case was false. Thereafter I.O. of the case filed report under section 173, Cr.P.C. for disposal of the case in 'B' Class which was declined by the learned trial Court, hence these Criminal Miscellaneous Applications. Learned counsel for the applicants argued that in appropriate cases High Court may exercise jurisdiction under section 561-A, Cr.P.C. without there being any order having been passed by the trial Court under section 249-A, Cr.P.C. To substantiate his contention he relied upon the case reported in 2012 MLD 1551 and PLD 1999 Karachi

121. Learned counsel further contended that learned trial Court has erred in law and facts while passing the impugned order; that when upon re-investigation it was found that the case was false one and the same was decided to be disposed of in 'B' Class with the approval of competent authority, the learned trial Court ought to have accepted such report and should not have taken cognizance in the matter. In support he relied upon the cases reported in 2000 PCr.LJ 1739 and 2004 PCr.LJ 1023. He prayed for setting aside of the impugned orders and quashment of the proceedings against the applicant. On the other hand, learned A.P.-G. appearing for the State supported the impugned order contending that the learned trial Court was not bound to accept the report under section 173, Cr.P.C. and had the powers to take a different view. He further argued that as cognizance had already been taken in pursuance of earlier report submitted by police under section 173, Cr.P.C. as such there was no justification for disposing of the case in 'B' Class on the basis of subsequent report under section 173, Cr.P.C. He prayed for maintaining the impugned orders. I have heard the arguments advanced by the learned counsel for the applicants as well as learned A.P.-G. and perused the material available on the record. It is now well-settled that Magistrate is not bound to agree with the report submitted by police under section 173, Cr.P.C. and he is at liberty either to agree or disagree with the conclusions reached by Investigating Officer subject, of course, to giving cogent reasons for the conclusion arrived at by him. Nothing has been provided under the provisions of section 190, Cr.P.C. to prevent a Magistrate from taking cognizance of the case under clause (b) of section 190, Cr.P.C. in spite of report submitted by police under section 173, Cr.P.C. for disposal of the case. Of course, the Magistrate was legally bound to apply his independent mind to the material placed before him and then form his own opinion about the matter. Such view has been taken by the superior courts in the cases reported in 2005 PCr.LJ 560 and 2004 PCr.LJ 1023. In the instant case at the initial stage after completion of the investigation, police had submitted challan wherein the accused/applicant was shown as absconder, however after re-investigation of the case F.I.R. was found to have been registered on the basis of false information and as such another report under section 173, Cr.P.C. was moved by the police for disposal of the case in 'B' Class. Certainly, there is no bar on the re-investigation of the case as laid down in the case relied upon by the learned counsel for the applicant viz 2000 PCr.LJ. 1739, however, upon re-investigation of the case if it is found that the case is false one and consequently the I.O. submits report under section 173 Cr.P.C. for its disposal in 'B' Class, even then the Magistrate was not bound to agree with the conclusions arrived at by the I.O. during the re-investigation of the case and he was fully competent either to agree or disagree with such conclusions. The case-law relied upon by the learned counsel are distinguishable except 2012 MLD 1551 and PLD 1999 Karachi 121 wherein it has been held that in appropriate cases jurisdiction of High Court may be invoked directly without moving the trial Court first under section 249-A, Cr.P.C. or 265-K Cr.P.C. In the case reported in 2000 PCr.LJ 1739, earlier police found that no cognizable offence was made out against the accused, however upon re-investigation of the case police arrived at different conclusion and submitted challan against the accused. The position in the case in hand is otherwise. Even in the cited case too it was held that Magistrate under section 173, Cr.P.C. would not be expected to blindly follow investigation undertaken by police as ipse dixit of police was never binding on Magistrate or Court. In 2004 PCr.LJ 1023 relied upon by the learned counsel for the applicant also it was held that Magistrate could pass any order as he would think fit, he could agree or not with the I.O. and he could refuse to cancel the case and order further investigation or to take cognizance. In view of the dictum laid down in the aforesaid case-law, I do not find any irregularity or illegality in the orders passed by the trial Court which are accordingly upheld and Criminal Miscellaneous Applications, being devoid of merits, are dismissed in limine along with Miscellaneous Applications. MWA/A-137/K Applications dismissed.