2019 PLP 1114 (MLD)

MUHAMMAD IQBAL MAHAR, J.

The applicants/accused have challenged the order dated 23.04.2018 passed by learned IInd Civil Judge and Judicial Magistrate Kotdiji on final report submitted in FIR No. 64/2018 of Police Station, Kotdiji, whereby the names of the applicants were placed in Column No.2 of the charge sheet. The learned Magistrate disagreed with the opinion of I.O. and took cognizance against the applicants/accused and joined them as accused.

2. The facts in nut-shell are that accused Imtiaz Hussain used to ask Mst. Asia, the daughter of complainant Mst. Arbab Khatoon, for friendship and on her refusal, the accused had issued threats of murder. On 05.04.2018 complainant, her sons and daughter went to Bungalow for getting treatment. At about 9.00 pm when they reached near National Bank, saw one Car from which accused Zaheer Hussain, Imtiaz Hussain, Waheed Ali, Bahawal and one unknown person, armed with pistols got down. The accused persons controlled over the complainant party and accused Imtiaz Hussain challenged that they would not spare Mst. Asia. Saying so he and Waheed Ali caught hold the arms of Mst. Asia and accused Zaheer Hussain fired upon her which hit her and she fell down on the road. The complainant party raised cries which attracted the citizens who came running there and the accused persons seeing them went away in their Car. The complainant party went over Mst. Asia and found her sustaining injuries and dead. Having left the witnesses over the dead body complainant herself went to PS and lodged the FIR.

3. The Investigating Officer after completing investigating submitted charge sheet showing the names of the applicants in Column No. 2 of the challan. On the application of complainant, the learned Magistrate took cognizance and joined them as accused, hence the applicants have filed instant Misc. Application.

4. Learned counsel for the applicants contended that the impugned order has been passed by learned Magistrate without applying judicious mind which is not sustainable under the law; that learned Magistrate has wrongly taken the cognizance of offence which is not triable by the Court of Magistrate; that learned Magistrate has not considered the material, collected by I.O. during investigation, while passing the impugned order, therefore he prayed for setting aside the impugned order. In support of his arguments learned Counsel relied upon case of Zulfiqar Ali and others v. The State (PLD 1992 Lahore 211) and S. Ifitikhar Sher v. The State and another (1991 MLD 1977).

4. Conversely, learned counsel for the complainant supported the impugned order and submitted that the applicants/accused are nominated in the FIR which is lodged promptly without any loss of time; that the specific role in the commission of offence has been assigned to the applicants/accused which is supported by the PWs in their 161, Cr.P.C. statements and is corroborated by medical evidence, therefore he prayed that instant Misc. application may be dismissed.

5. Learned Addl. P.G. adopted the arguments of learned counsel for the complainant and further submitted that learned Magistrate is competent to take cognizance even in the offence triable by Sessions Court. In support of his contention he relied upon case of Arif Rehmat v. The State (2015 MLD 161) and Safdar Ali v. Zafar Iqbal and others (2002 SCMR 63)

6. I have heard the learned counsel for the parties and examined the material available on record.

7. Perusal of record reflects that the alleged incident occurred on 05.04.2018 at 210.0 hours and the FIR was lodged by the complainant at 2200 hours on the same day without any loss time, hence no question of pre-consultation does not arise. The applicants and one co-accused are specifically nominated in the FIR as carrying pistols in their hands at the time of incident, applicant Waheed and co-accused Imtiaz Hussain caught hold the arms of deceased and applicant Zaheer Hussain fired which hit her and she fell down. The prosecution witnesses in their respective statements under section 161, Cr.P.C. have fully implicated the applicants accused in the commission of offence. The post mortem report of deceased also corroborates the version of complainant party but the Investigating Officer on the strength of defense evidence placed the names of the applicants in Column No. 2 of the charge sheet. It is well settled law that a Magistrate takes cognizance of the offence as a whole, and not against a particular person. Once the Magistrate finds that there is prima facie evidence connecting a person with the commission of the crime, he can summon him even the person who may be found innocent by the Investigating Officer. In this respect reliance can be placed upon case of Safdar Ali v. Zafar Iqbal and others supra.

8. Adverting to the contention of learned counsel for the applicants that taking cognizance by Magistrate for an offence triable by Sessions Court is coram non judice. It is necessary to mention here that the Magistrate while dealing with final report submitted by the Investigating Officer is competent under section 173, Cr.P.C. to agree or disagree, considering the facts and circumstances of the case prudently. I have examined the impugned order passed by learned Magistrate which is self explanatory and speaking one, hence does not require interference -by this Court. In case of Syed Muhammad Ahmed v. The State and others reported in PLD 2006 Supreme Court 316, it has been observed that: The provisions of section 173, Cr.P.C. provide only that after the available material had been collected by the S.H.O. during an investigation then the result of the same had to be reported to the Magistrate competent to take cognizance under section 190, Cr.P.C. and thereafter it was for the competent Magistrate to decide whether an accused person did or did not deserve to be tried."

8. In view of above I am of the considered view that the applicants/accused have failed to make out a case for interference by this Court. The facts of case law relied upon by learned Counsel for applicant is distinguishable from the facts of present case. Accordingly instant Criminal Miscellaneous Application being devoid of merits is dismissed. MQ/B-18/Sindh Application dismissed.