2017 P Cr (PLP)

SHAHNAWAZ TARIQ, J.

Through captioned criminal miscellaneous application, applicants have impugned order dated 15.10.2015, passed by the Court of learned Civil Judge and Judicial Magistrate, Ghotki, whereby Investigating Officer was directed to submit Challan before Anti-Terrorism Court by inserting section 365-A, P.P.C.

2. Relevant facts spelt out from instant miscellaneous application are that Mst. Rakhul wife of Dinal Khan Dunrani, on 29.08.2015, lodged FIR at PS Sarhad, which is reproduced as under:- "On 05.06.2015, in the morning, I along with my son Chanesar, Mst. Khilan and her son Shahid went to Ghotki by Motorcycles, and on our return at about 1.30 p.m, we reached at Police Post No.5 near Sarhad, where SHO Rabnawaz mercilessly maltreated us and arrested Chanesar and Shahid. ASI Allah Dino Bullo forcibly took away cash of Rs.15000/-, two silver bangles from me, Rs.10000/- and two silver bangles from Mst. Khilan. SHO Rabnawaz took Chanesar and Shahid along with both motorcycles to Police Post. Thereafter, Khair Mohammad brother of Shahid and another went together to Police Post Sarhad, where Chanesar and Shahid were detained, and they met them, and asked ASI Allah Dino Bullo to release them along with motorcycles, and return the cash and silver bangles, but ASI told them that both were arrested by SHO, hence he could not release them. Then Khair Mohammad and Mohammad Nawaz approached SHO for release of detainees and return of articles but he refused to do so and threatened to book them in false criminal case or to murder them in police encounter. I filed case before the High Court, but SHO denied the incident, and Court directed him to produce detainees, so he released them. On 24.06.2015 Chanesar and Shahid appeared before the Court and disclosed facts regarding their arrest by SHO and Court issued show-cause notice to him. On 07.07.2015 SHO submitted his reply to notice but Court ordered for framing the charge. On 12.08.2015, High Court recalled the previous order and allowed complainant to file application before Justice of Peace, as SHO Rabnawaz and ASI Allah Dino had committed theft of motorcycles, cash amount and silver bangles, and illegally detained Chanesar and Shahid. I filed application in Court and obtained the order, hence instant FIR."

3. Learned Counsel for the applicant contended that applicants are innocent and have been falsely implicated by respondent No.2 in instant crime as one Journalist namely Hakim Ali Abro was abducted and recovered from the custody of real brother and close relatives of respondent No.2, hence she has managed instant false case to save her relatives from the clutches of crime lodged by one Shafi Mohammad; that respondent No.2 filed application under section 491, Cr.P.C. against applicants for illegal detention of Chanesar and Shahid at Police Station Sarhad; that learned counsel for applicant filed statement dated 18.06.2015 before this Court and produced both detainees voluntarily before this Court and said application was disposed of vide order dated 24.06.2015; that respondent No.2 filed application under section 22-A, Cr.P.C. before the Court of learned Sessions Judge/Justice of Peace, Ghotki and then lodged FIR but no allegations for abduction or demanding ransom were made therein except causing of maltreatment and snatching of cash and silver bangles; that learned Magistrate while taking cognizance of the offence had directed Investigating Officer to submit Challan before Anti-Terrorism Court by inserting section 365-A, P.P.C. which is totally illegal. Learned Counsel relied on the case of Muhammad Nasir Cheeman v. Mazhar Javaid and others (PLD 2007 SC 31), Ch. Khalid Mushtaque v. Special Judge (Admn) and 8 others (PLD 2010 Lahore 114).

4. While controverting the above submissions, learned Counsel for respondents No.2 vehemently contended that she has no concern with the abduction of the journalist and his recovery from the culprits who have already been challaned; that both detainees were arrested by applicants but they were released during the night so they appeared before this Court along with their advocate; that family members of the respondent No.2 are not involved criminal cases as mentioned in the list; that this Court was convinced regarding of the offence, hence she was permitted to file application for lodging of FIR; that Investigating Officer did not conduct investigation properly, hence learned Magistrate took the cognizance and directed the Investigating Officer to submit challan before Anti-Terrorism Court by inserting section 365-A, P.P.C. Learned Counsel has relied on the case of Matahir Shah v. The State and 4 others (2009 MLD 156).

5. Learned APG contended that alleged incident was investigated twicely and both Investigating Officers have recommended summary reports under "B"-Class and such report was submitted but learned Magistrate did not properly examine and has wrongly directed the Investigating Officer to include section 365-A, P.P.C. and submit the challan before Anti-Terrorism Court; that summary report may be approved under 'C'-Class.

6. Heard arguments advanced by learned counsel for the parties and perused the material placed on record prudently.

7. Perusal of record reflects that respondent No.2 at the first instance filed Miscellaneous Application No.291 of 2015 against SHO PS Sarhad and others, under section 491, Cr.P.C. before this Court regarding the alleged detention of Chanesar and Shahid by SHO Police Station Sarhad. Admittedly, alleged both detainees were not recovered from the custody of applicant but they made their voluntarily appearance before this Court through their counsel and stated that they were arrested by SHO Police Station Sarhad but they were released during the night, while such allegations were controverted by the police officials. However, show-cause notice was issued by this Court to SHO Sarhad and ultimately, said criminal miscellaneous application was disposed of and respondent No.2 was permitted to approach the concerned Justice of Peace for redressal of her grievances. Respondent No.2 filed Criminal Miscellaneous Application No.1631 of 2015 before the learned Sessions Judge/Justice of Peace Ghotki, which was allowed and FIR No.48 of 2015 was lodged by her. Perusal of memo of criminal miscellaneous application and the averments of FIR emanates that respondent No.2 had not alleged that both detainees were abducted for payment of ransom, but on the contrary, she had alleged that SHO Rabnawaz of Police Station Sarhad and ASI Allah Dino Bullo snatched cash and silver bangles from them, and detained Chaneser and Shahid illegally and caused maltreatment.

8. Section 365-A, P.P.C. is attracted when any person is kidnapped or abducted for the purpose of extorting from the said person, or from any person interested in the person kidnapped or abducted, any property, whether moveable or immoveable, or valuable security, or to compel any person to comply with any other demand, whether in cash or otherwise, for obtaining release of the person kidnapped or abducted. Bare perusal of the averments of Criminal Miscellaneous Application No.291 of 2015, under section 491, Cr.P.C., Criminal Miscellaneous Application No.1931 of 2015, under section 22-A, Cr.P.C. and FIR No.48 of 2015, reflects neither both alleged detainees were recovered from the custody of police officials nor respondent No.2 levelled allegations of abduction of Chanesar and Shahid and demanding of ransom against the police for their release. There are mere allegations of causing maltreatment as well as snatching of cash and silver bangles etc from respondent No.2 and others, thus no offence under section 365-A, P.P.C. is made out. Indeed, instant crime was investigated twicely by two different police officials, at the first instance, offence was investigated by ASI Mohammad Hashim Hakro who concluded the investigation and recommended disposal of the case under 'B'-Class. Subsequently, on application of respondent No.2, matter was re-investigated by Inspector Rahim Bux Kalhoro who also recommended the case under 'B'-Class and submitted such report before the learned Magistrate but he did not agree with recommendations and directed the Investigating officer to include section 365-A, P.P.C. and submit the challan before Anti-Terrorism Court under Anti-Terrorism Act, 1997.

9. Learned APG submitted a list of criminal cases lodged against 37 family members and close relatives of complainant Mst. Rakhul wife of Dinal Sundrani, which is reproduced as under:- S.No Name FIRs No Under section Relationship

1. Fazloo son of Aqil 33/08 395, P.P.C. Brother

2. Jeejal son of Aqil 33/08 395, P.P.C. Brother

3. Godal son of Aqil 33/08 395, P.P.C. Brother

4. Dado son of Sono 12/96 379, P.P.C. Maternal cousin

5. Aadat son of Ishaq 14/05 382, P.P.C. Maternal uncle

6. Akul son of Fateh Muhammad 11/99 365-A Close relative

7. Ahimdan son of Sadiq 10/95 12/96 15/96 33/01 14/05 27/08 32/08 9/09 24/09 39/12 307, 353 379 324, 147 302, 201 382 395 395 427 324, 147 324, 353 Maternal cousin

8. Rafiq son of Qaiser 15/96 40/05 4/06 19/06 01/09 35/09 21/13 18/14 324, 147 324 302 302 337H2, 427 395,397 302,201 368,353 Cousin 9 Mevo alias Shaheedo son of Sanwlo 23/01 33/01 32/08 395, 397 302, 201 395, 427 Maternal uncle 10 Manzar son of Rafiq 23/01 395, 397 Cousin 11 Sobdar son of Noor Khan 33/2000 379, 215 Brother-in-law 12 Sanwlo son of Sodho 33/01 16/10 302, 201 337Ai Maternal Grand father 13 Sonaro alias Khano son of Suhno 33/01 14/05 7/12 302, 201 382 337F Maternal cousin 14 Pannah son of Sanwlo 23/01 33/01 32/03 24/09 16/10 395, 397 302, 201 395 324, 427 337Ai Maternal uncle 15 Haban son of Jamshed 14/04 14/05 13/14 379 382 458, 489 Cousin 16 Sharif son of Jhanghi 14/04 14/05 379, 215 382 Sister's husband 17 Nazo son of Gahi 14/05 7/12 382 337Fi Maternal cousin 18 Allahdino son of Azeem 14/05 382 Maternal cousin 19 Manjhi son of Gahi 14/05 7/12 382 337A(ii) Maternal cousin 20 Noor Khan son of Sobdar 14/05 32/08 9/15 382 395 337A(ii) Sister's son 21 Sabir son of Jan Muhammad 5/05 33/08 379 395 Maternal cousin 22 Karim Bux alias Bholo son of Sadiq 14/05 27/08 32/08 9/09 24/09 16/10 395 395 395 427 324 337Aii Maternal cousin 23 Sanaullah son of Wahab 11/05 40/05 19/06 52/05 27/08 32/08 1/09 9/09 35/09 39/12 21/13 13/14 15/14 302 324 302 17/3HO 395 395 427 427 324 324, 353 302, 201 459 324, 353 Cousin 24 Misri son of Khuda Bux 8/05 9/05 37/05 4/06 9/06 19/06 3/07 31/08 32/08 38/08 324 395 17/3HO 302 324 302 324 324, 147 395 302, 324 Son of cousin 25 Arab alias Kolo son of Hadan 8/05 12/05 324 435,506/2 Maternal cousin 26 Ganhwar son of Hashim 40/05 52/05 9/06 19/06 27/08 32/08 1/09 16/11 39/12 11/05 38/08 324 17/3HO 324 302 395 395 427 324, 353 324, 353 302 303 Cousin 27 Noor Muhammad son of Dosoo 27/11 28/11 29/11 36/11 31/12 39/12 2/13 324, 353 324, 353 324, 353 38/A 324, 353, 324, 353 324/353 Maternal cousin 28 Yasin son of Wahab 14/04 5/04 40/05 19/06 1/09 9/09 35/09 382 324 324 395, 302 427 427, 337H2 395 Cousin 29 Jawan alias Ganwar son of Suhno 5/96 33/01 14/05 24/09 7/12 324, 353 395, 397 382 324 337Aii Maternal cousin 30 Piyaro son of Jaffar 8/05 12/05 35/09 324 435 395, 397 Cousin 31 Wassand alias Hassan alias Gullan 33/01 16/10 302 337Aii Maternal cousin 32 Gahi son of Sobdar 33/2000 379, 215 Aunt's husband 33 Manzoor son of Peeral 24/09 324, 429 Close relative 34 Nazeer son of Ali Gohar 24/09 324, 429 Co-Villager 35 Ahsan son of Qurban 24/09 324, 429 Son of cousin 36 Andal son of Retho 10/04 2/05 12/08 28/11 29/11 11/12 12/12 302 382 324, 353 324, 353 324, 353 324, 353 324, 353 Husband of father's sister 37 Nakar son of Rafiq 32/08 9/09 35/09 13/14 395 337H2 395 458, 459 Nephew

10. In the case of Muhammad Nasir Cheeman v. Mazhar Javaid and others (PLD 2007 SC 31), the honourable Supreme Court has observed that "no power vested with any Court, including High Court to override the legal command and to direct Station House Officer either not to submit investigation report (challan) or to submit the report in a particular manner i.e against only such persons as the Court desired or only with respect to such offences as the Court wished."

11. Indeed, one Journalist namely Hakim Ali Abro was abducted and FIR No.24 of 2015 lodged by one Shafi Mohammad under sections 365-A, 395, 337-H(2), P.P.C., and said journalist was allegedly recovered from the custody of close relatives of the respondent No.2, and said culprits are facing their trial before the learned trial Court. Conversely, respondent No.2 at the first instance filed application under section 491, Cr.P.C. vide Criminal Miscellaneous Application No.291 of 2015 against SHO Police Station Sarhad and others for recovery and production of Chanesar and Shahid before the Court illegally detained by the police. Thereafter learned counsel for respondent No.2 filed statement dated 18.06.2015 before this Court in said miscellaneous application and both alleged detainees made their voluntarily appearance before the Court and said application was disposed of vide order dated 24.06.2015, and she was permitted to approach the concerned Justice of Peace. Respondent No.2 filed Cr. Misc. Application No.1631/2015, under sections 22-A and 22-B, Cr.P.C. before the Court of learned Sessions Judge/Justice of Peace Ghotki against SHO Police Station Sarhad and others which was allowed and she lodged FIR.

12. Perusal of entire available material reflects that there is no iota of evidence or any tangible proof which may prima facie establish the allegations leveled by respondent No.2 against the police officials and she has managed instant false story only to put pressure upon the respondents and save her relatives from the consequences of alleged offence of kidnapping of the journalist. Perusal of impugned order emanates that learned Magistrate has failed to examine the record produced judiciously and in absence of any specific allegation tangible evidence and any convincing material, he was not competent to direct the Investigating Officer to insert section 365-A, P.P.C. and submit the challan before Anti-Terrorism Court under Anti-Terrorism Act, 1997, but on the contrary, Magistrate had travelled beyond its jurisdiction while passing impugned order. Section 173, Cr.P.C. confers powers upon Magistrate to accord or discard the summery report, but no legal authority have been assigned to Magistrate to direct the Investigating Officer to submit final report/challan under any specific section or to delete any section from the extract of challan, thus order passed by the learned Magistrate is without any legal substance.

13. Considering the facts and circumstances referred supra, applicants have succeeded to point out material illegality and serious infirmity committed by the learned Magistrate while passing the impugned order which calls for interference by this Court. Consequently, impugned order dated 15.10.2015, passed by the learned Magistrate is set-aside and summary report submitted by Investigation Officer is approved under 'C'-Class. However, respondent No.2 is at liberty to avail alternate remedy by filing direct complaint, if she is so advised. WA/R-30/Sindh Order accordingly.