2009 PLP 1479 (YLR)

SAJJAD ALI SHAH, J.

Through this criminal miscellaneous application under section 561-A, Cr.P.C. the applicant has called in question order, dated 24-11-2008 passed by Judicial Magistrate-I Sakrand, whereby the learned Magistrate while rejecting the recommendation of the Investigating Officer for disposal of the case in B-Class directed him to submit challan. Briefly, one Malik Mabroor Ahmed lodged a complaint under sections 506(2), 471, 468, 420, P.P.C. against the present applicant, which was registered at Police Station Sakrand as Crime No.210 of 2008. The Investigating Officer after investigating the crime; recommended the disposal of the case in B-Class. The Judicial Magistrate-I Sakrand while rejecting the recommendation directed the Investigating Officer to file challan within one month. The applicant being aggrieved with filed a Criminal Revisional Application before the learned Sessions Judge, Shaheed Benazirabad, who placing reliance on various adjudications of the apex Court rejected the revision as not maintainable. Thereafter the applicant has challenged the said orders through instant application. Learned counsel for applicant while placing reliance on the judgment of Lahore High Court in the case of Muhammad Ashraf alias Bhullar v. The State (2008 YLR 1462) contended that the judicial Magistrate can accept or reject the report of Investigating Officer but had no power to direct the Investigating Officer to submit challan and therefore, the order of the Judicial Magistrate could not sustain. In view of this position, Messrs Madad Ali Shah and Zahoor Ahmed Baloch, Advocates, who were present in Court were appointed as Amicus Curiae to assist the Court on this aspect. Mr. Madad Ali Shah by placing reliance on the judgment of the Honourable Supreme Court in the cases of Muhammad Akbar v. The State (1972 SCMR 335), Safdar Ali v. Zafar Iqbal (2002 SCMR 63) and Hidayatullah v. The State (2006 SCMR 1920) and of this Court in the case of Manzoor Shaikh v. The State (2005 YLR 3244) contended that the Magistrate is fully empowered to accept or reject the report of the Investigating Officer and once he rejects the report of the Investigating Officer and decides to take the cognizance then he can direct the police officer to file challan and it would be for the I.O. to place the name of the accused in any of the columns he likes and therefore the learned Magistrate committed no illegality by directing the I.O. to file challan. Likewise, Mr. Zahoor Ahmed Baloch while supporting the impugned order contended that the issuance of direction by the Magistrate to file challan only means filing of investigation report on the proper Pro forma provided for that purpose by the Government and therefore impugned order contains no illegality which could be called in question through instant application. Likewise Mr. Allah Bachayo Soomro, learned Addl. A.G. also supported the impugned orders by contending that the learned Magistrate committed no illegality while directing the Investigating Officer to file challan within one month. I have heard the learned counsel for respective parties as well as learned Amicus Curiae and have perused the record and the case laws cited above. After lodging an F.I.R. investigation starts and upon completion of investigation, the Investigating Officer has to form an opinion as to whether the accused have committed the reported offence or not. In case the opinion is in negative, the accused can be released by the police and in cases where there is sufficient material to connect the accused with the commission of the crime and the opinion is in positive then the accused is to be forwarded to the Magistrate empowered to take cognizance. The opinion of the Investigating Officer in both cases i.e. negative or positive a report is to be furnished before the Magistrate. In cases where the report is in positive a proper challan on the pro forma provided by the Provincial Government within the meaning of clause (b) of subsection (1) of section 173, Cr.P.C. is to be filed, however, in cases where the opinion of the Investigating Officer is in negative by recommending the disposal of the case, the Investigating Officer normally files the report giving detail of the investigation and the reason for reaching the conclusion seeking disposal of the case in either of the clauses. The difficulty, arises only where the Magistrate rejects such report and take cognizance then he wants the report of the I.O. on the proper Pro forma provided by the Provincial Government for such purpose, which facilitates the trial of the case, as such pro forma describes different columns i.e. (1) Name of complainant, (2) Name of absconder, (3) Names of the accused persons under Custody, (4) Case property, (5) Names of witnesses with their addresses, and (6) Brief facts of the case. A perusal of the report of Investigating Officer seeking disposal of the case under B-Class reflects that it has not been filed in the pro forma prescribed by the Government within the meaning of section 173, Cr.P.C., therefore, the Magistrate was well within the rights to direct the Investigating Officer to file challan. Even the judgment relied upon by the learned counsel for the applicant in the case of Muhammad Ashraf alias Bhuller (supra) learned single Judge of the Lahore High Court has not held that no directions for filing of challan could be issued by the Magistrate on the contrary it has been held that no Court can direct the Investigating Officer to place the name of the accused persons in any particular column. In view of this position, no case for interference is made out. The Criminal Miscellaneous application is dismissed in limine. H.B.T./M-68/K Application dismissed.