2025 PLP 1976 (MLD)

Muhammad Saleem Jessar, J.

Through instant application, applicant/complainant has called in question order dated 07.05.2020 passed by learned 1st Judicial Magistrate, Karachi (South) whereby report filed by the police in terms of Section 173, Cr.P.C was accepted. Since, the offence punishable to Sections 376 and 337-F(i), P.P.C are exclusively triable by the Court of Session, therefore, learned Magistrate, after accepting challan, submitted case papers to the Court of Session being ultimate Court of the trial where it has been instituted. Later, it has been assigned to learned 3rd Addl. Sessions Judge, Karachi (South) vide Sessions Case No.1101 of 2020 (re-The State v. Habib Bawa and others) Hence, instant application has been maintained.

2. Learned counsel for the applicant submits that respondents Nos.4 to 6 were nominated by the applicant in his FIR as an accused; however, the police have submitted charge sheet against respondent No.4 Habib Bawa, only, while remaining were let off, therefore, Magistrate concerned did not take cognizance against them, which constrained the applicant to maintain instant application. Learned counsel further argues though the names of respondents/accused were mentioned in the FIR with specific role but the police have let them off by placing their names in column No.2 of the challan; hence, the Magistrate was competent to take cognizance against those whose names were placed in column No.2 of the challan as required by subsection 190(i), Cr.P.C; however, he did not take cognizance nor joined them in the case as an accused. He; however, prays that by setting aside impugned order, instant application may be granted. Besides, he prays that case may be re-investigated as the first I.O had failed to conduct proper investigation.

3. Learned Addl. P.G, Sindh appearing for the State, opposes the application and submits that the impugned order has been acted upon; besides, ultimate Court of trial has taken cognizance, therefore, application in hand has become infructuous. As far as prayer for re-investigation of the case is concerned, she adds that at this belated stage particularly when the trial Court has framed charge against the accused/respondents, it is not maintainable.

4. Learned counsel for the respondents No.4 to 6 submits that as far as question of re-investigation is concerned, challan has been submitted before the Court having jurisdiction, therefore, at this belated stage, prayer so made for re-investigation, is unwarranted by the law. In support of his contention, learned counsel places reliance upon the case of Qari Muhammad Rafique v. Additional Inspector General of Police (INV), Punjab and others (2014 SCMR 1499).

5. Heard arguments, record perused. Admittedly, the applicant has impugned order dated 07.05.2020 whereby learned Magistrate having jurisdiction had accepted the report/challan submitted by the I.O under Section 173, Cr.P.C and then submitted case papers to the Court of Sessions as required by Section 190(3), Cr.P.C. The Court of Sessions being ultimate Court of the trial, has taken cognizance of the offence by instituting it as Sessions Case No.1101 of 2020 (re-State v. Habib Bawa and others) later has assigned the same to 3rd Addl. Sessions Judge, Karachi-South (trial Court) where it is pending for trial. Moreover, the trial Court has also framed charge against the accused/respondent on 11.07.2020 and the case is now fixed for recording evidence of the parties. In case, after recording evidence of the complainant, if he deposes or implicates the respondents Nos.5 and 6 with their role as per FIR, then provisions of Section 193, Cr.P.C would become operative. Since, the Magistrate after accepting report under Section 173, Cr.P.C, sent the case papers to the Court of Session being ultimate Court of the trial, where charge against respondent(s)/accused has also been framed; hence, the impugned order has not only been acted upon but has attained finality, thereby the forum has also been changed/created.

6. The legal question is that, the offence is exclusively triable by the Court of Sessions and after accepting challan, the Magistrate had submitted case papers to the Court of Session being ultimate Court of trial. Upon receipt of case papers, Court of Session has taken cognizance of the offence; besides, framed formal charge against the respondents/accused, therefore, the impugned order has been acted upon and it is not in existence. I am of the clear view that if the impugned order is no more in filed and the trial Court has taken cognizance, applicant is required to file fresh application before the trial Court for the relief sought for, as the law has provided fresh forum. Thus, the applicant can file fresh application before the trial Court or after recording his evidence, if such material is to be brought on record and the trial Court feels satisfied then it being competent can take cognizance as per its own motion or may pass an order upon an application ought to be submitted by the applicant/complainant. Hence, in view of above legal position, the application in hand has become infructuous.

7. As far as, prayer for re-investigation of the case is concerned, learned counsel for the applicant has failed to pinpoint any provision out of the Statue or precedential Law through which it could be deduced that re-investigation of the crime can be ordered at belated stage particularly after submission of the challan. In instant case, not only the case has been challaned but the trial Court has also framed charge against the accused/respondent(s). In case of Qari Muhammad Rafique v. Additional Inspector General of Police (INV), Punjab and others (Supra), Hon'ble Supreme Court of Pakistan while dealing with same issue in the case, has laid down dicta in para-5 of the judgment, as under; "

5. We have heard the learned counsel for the parties and perused the available record. Learned counsel for the petitioner while arguing the matter before the learned Division Bench, seized of the Intra Court Appeal No.288 of 2013, admitted in clear terms that the challan was submitted in court at least two months prior to the transfer of investigation and at that time charge had also been framed against the accused by the learned trial Court. The trial had also commenced at the time of transfer of investigation, as such, the order for transfer of investigation at that belated stage was not sustainable in view of the law laid down by this Court in the case of Muhammad Nasir Cheema v. Mazhar Javaid and another (PLD 2007 SC 31). In such circumstances learned Single Judge in Chamber had rightly accepted the Writ Petition filed by respondent No.6 and had committed no illegality or material irregularity and we also find no jurisdictional defect in the said order. The learned Division Bench had also dismissed the Intra Court Appeal for valid reasons which findings cannot be interfered with by this Court in its constitutional jurisdiction under Article 185(3) of the Constitution."

8. Accordingly and in view of above legal position, instant application being devoid of its merits as well as legal status, is hereby dismissed along with pending application(s). JK/S-46/Sindh Application dismissed.