2015 P Cr (PLP)

MRS. IRSHAD QAISER, J.

Through this writ petition the petitioner Sibtain Ali Shah has challenged the order of judicial Magistrate Oghi dated 7-10-2010 in case FIR No.332 dated 22-9-2010 under section 337-A(iii), P.P.C. Police Station Oghi vide which the learned Judicial Magistrate instead of cancelling the case, directed the police to submit complete challan.

2. The brief facts of the case in small compass are that respondent complainant Mst. Anila Bibi reported the matter to local police wherein she charged her ex-husband for causing injury on different parts of her body and fracture of her nasal bone. Her report was incorporated in Daily Dairy No.11 dated 21-9-2010, later on case vide FIR No.332 dated 22-9-2010 under section 337-A(iii)/34, P.P.C. was registered against accused. During the course of investigation I.O. recorded the statements of different persons including the alleged eye-witnesses as well as the father of the complainant. The police at the conclusion of investigation had found the FIR as false and had submitted report under section 173, Cr.P.C. for cancellation of the same in the Court of Judicial Magistrate Oghi who had not accepted the same and issued direction to police to submit complete challan vide order dated 7-10-2010. Feeling aggrieved petitioner filed the present petition.

3. We have heard learned counsel for the parties and perused the available record with their assistance.

4. It is argued by learned counsel for the petitioner that the direction of the Judicial Magistrate is against the law and is not maintainable. That there is no truth in the story narrated by complainant in her report. There was a previous ill will between Mst. Anila and her husband and the possibility cannot be ruled out that she had fabricated a false case against accused in order to take revenge from her husband. That the investigation collected by the investigating agency, particularly the statement of father of the complainant, is worth perusal wherein he stated that his daughter had fallen from the stairs and received injuries and the case is fabricated. That on the basis of statement of the father of the complainant I.O. had reached to the conclusion that FIR is fake and had rightly submitted challan under section 173, Cr.P.C. for cancellation of case and issuance of notice under section 182, Cr.P.C. to complainant but the Judicial Magistrate has not applied his independent mind and acted on the application submitted by Mst. Anila and passed an illegal impugned order directing the local police to submit complete challan in the Court of competent jurisdiction. That from the evidence collected by police it is crystal clear that it was a planted and cooked up case which was reported after sufficient delay for which no cogent reasons were given. That the Medico-legal Report and X-ray report was also not in line with the prosecution case.

5. These arguments were rebutted by learned counsel for respondents and while supporting the impugned order has contended that there is material evidence on the record to connect the accused petitioner with the commission of offence. That the ocular account is corroborated with the Medico-legal Report and other circumstantial evidence. That police relied on the statement of father of the complainant but his statement is not based on the facts of the case. That the relation of Abul Hassan is not cordial with his family members and since long his children with their mother are living with their maternal uncle. That the statement of Abul Hassan is false and based on mala fide. He has given the statement in favour of petitioner being his uncle due to strained relation with him. That the accused party being influential in the locality has used his influence and wants to cancel the case before submission of complete challan.

6. We have heard learned counsel for the parties and perused the available record with their assistance.

7. First it is to be seen whether the Judicial Magistrate has the jurisdiction to pass the impugned order. Under Cr.P.C. a Magistrate is entrusted with diverse duties and in discharging the duty, he does not always function as a Court, some of his powers and duties under the Code are administrative, executive or ministerial in nature. When a police officer makes a report under section 173 of the Code of Criminal Procedure that the offence has or has not been committed, the section itself does not say what steps the Magistrate will take and there is no further provision to meet the situation before we reach section 190, Cr.P.C. which provide that a Magistrate may take cognizance of an offence upon a police report. In other words, the police report by itself when received by the Magistrate, does not constitute the taking of cognizance and it is reasonable to expect that something more will be done to show that the Magistrate intends to start the proceedings.

8. In case 2006 PCr.LJ Karachi 518 Ch. Muhammad Ashraf v. The State it is observed as under; "Undisputedly the Magistrate is competent to pass any order on the report submitted by the investigation officer and take cognizance of the offence or even order further investigation into the matter. However, any order means judicious and just order and not an arbitrary order without reason and justification. The Magistrate is required to consider the report under section 173, Cr.P.C. in the light of the material collected during investigation and then pass an order. It is true that some time the I.O. does not investigate the matter properly and sincerely and submit unjustified reports even then it is not expected to disagree with it by non-speaking order without any indication about considering the material collected during the investigation. Although the power conferred upon the Magistrate is administrative in nature and the order passed by him is also an administrative order yet that has to be just and judicious one and not an arbitrary." Reference is also made to NLR 2001 Cr.LJ 556 wherein it is held. "Opinion of Police should not be readily accepted by Magistrate by passing order of discharge of accused in a mechanical manner." Reference is also made to Nasrullah v. The State Quetta (1998 PCr.LJ 2086) wherein it is held; sections 190 and 173, Cr.P.C. Trial Court can take cognizance of the case even if the investigation agency has recommended in its final report under section 173, Cr.P.C. that accused is innocent". Reference is also made to 1998 PCr.LJ Peshawar 743 Azizur Rehman v. Kala Khan.

9. Keeping in view the above facts and circumstances of the case and the judgment of the superior Courts it is proved that judicial Magistrate can pass any order for submission of complete challan for the trial of accused.

10. Now it is to be seen whether the order of the Judicial Magistrate is based on the facts of case and he has applied his judicial and independent mind or not? In order to reach the correct conclusion we deem it proper to reproduce the impugned order of learned Magistrate for ready reference. "Perusal of the record shows that although the local police has submitted a case against the accused for cancellation in the Court after obtaining the opinion of DPP but in my humble opinion, there is sufficient material available against the accused in form of Medico-legal Report and statement of the complainant and at this point of time it is not logical to say that case against the accused is liable for cancellation for the reason that the complainant stated that she has sustained injury and in this respect an FIR along with medical report exists against the accused in the field and at this point of time, it is pre-mature to observe that case against the accused is not fit for put in Court but for cancellation. The points agitated require evidence which can be established well after testimony before the Court and it is cardinal principle of law that no person should be condemned un-heard and a reasonable opportunity must be given to the parties. So, in view of the matter, in my humble opinion, stance of the complainant having force, therefore, prosecution is directed to submit complete challan before the Court within a period of 15 days from instant order."

11. According to FIR complainant lodged report against accused on account of injuries on different part of her body including the fracture of vassal bone and she was also medically examined. In her report she has stated that the occurrence is witnessed by Syed Misbahul Hassain and Syed Ibrar Chan Shah. She has also given the reason of delay of lodging the report. After the lodging of FIR accused submitted BBA petition in the Court of Additional Sessions Judge-II Mansehra and vide order dated 12-10-2010 their bail was confirmed.

12. The cancellation report is mainly based on the affidavit and the statement of Syed Abul Hassan who is the father of complainant and brother of accused Mehboob Hussain and uncle of Sabtain. During the course of arguments counsel for the complainant submitted an affidavit dated 2-2-2009 allegedly executed by complainant as well as her brothers, and sisters. It would be proper to reproduce the contents of the affidavit.

13. In such view of the matter it reveals that prima facie complainant has made out case against accused in view of her statement coupled with the medical examination and X-ray report. The I.O. should not have thrown it out by taking into consideration affidavit and statement of interested person and who has no good relation with his children and wife. It has rightly been held by Judicial Magistrate that it is not logical to say that the case against the accused is liable to cancellation and it is premature to observe that case against the accused is not fit for put in Court but for cancellation. Counsel for the petitioner has not been able to point out any illegality in the order of the Judicial Magistrate.

14. Thus the writ petition being without any force is hereby dismissed. MH/88/P Petition dismissed.