2004 P Cr (PLP)

3. After that. Ahmed Aamir made an application to the same Magistrate that the report submitted by the Investigating Officer may not be agreed to and he shall be directed to submit the charge‑sheet against the accused named in the F.I.R. As the Magistrate had already passed an order he called the complainant Ahmed Aamir and P.Ws. Mst. Asma, Ghufran Javed and Farasat Imtiaz and recorded statements on oath on 26‑6‑2002. After that on 13-7-2002 he passed following orders:

Heard the Advocate of the complainant and P.S.I. for the State and also perused statement of the complainant and his witness appears that he has been able to make a prima facie case against the accused person for his illegal detention in the room of the Security Manager in the Mill till his recovery by the police in the mid‑night, therefore, I am taking cognizance under section 190, Cr.P.C. and declined to allow the cancel report submitted by the police for discharging the accused from the case and it would not be proper to register the case against the complainant under sections 182 and 211, P.P.C., let the case under sections 342, 109, 34, P.P.C. be registered for trial against the accused and issue bailable warrants against the accused person in the sum of rupees 30,000 and R.R. Bond in the like amount to the satisfaction of the Court."

4. After that order present miscellaneous application for quashment of the entire proceedings arising out of the F.I.R. No.61 of 2000 under sections 342/109/34, P.P.C. lodged by Ahmed Aamir including the order passed by the Vth Judicial Magistrate, Malir on 13‑7‑2002 has been filed. Notice of the application was issued to the learned Advocate General and respondent at Katcha Peshi stage. Mr. Adrian Karim, learned Advocate put appearance for complainant Ahmed Aamir. In response to notice issued by Court State Counsel also appeared. At the joint request of the parties counsel, application was fixed for regular hearing. The arguments of parties counsel were heard.

5. Mrs. Ismat Mehdi, learned Advocate for the applicants contended the Judicial Magistrate, Malir acted in excess of jurisdiction rather without jurisdiction by entering into the exercise of inquiry by him. Although under section 173 he was competent to disagree with the report of Investigating Officer and direct him to send accused applications for trial provided the material collected during the investigation was considered by him and found sufficient to proceed against the applicants/accused. Instead of considering the material collected during the investigation the Magistrate recorded the statements of witnesses on oath which was much beyond the scope of section 173, Cr.P.C. In support of her contention she referred to the decision of Honourable. Supreme Court Bahadur and another v. The State and another PLD 1985 SC 62 and Saith Jalal and two others v. The State 1972 SCMR 516.

6. Mr. Adrian Karim, learned Advocate representing the complainant argued that after receiving the report from Investigating Officer under section 173, Cr.P.C. the Judicial Magistrate, Malir was fully empowered not to agree with him and refuse to accept his request for cancellation of the case and initiate the proceedings under section 182, P.P.C. against Ahmed Amir. Not only that but the Judicial Magistrate could take cognizance of the offence and proceed with the case in accordance with law.

7. Learned State Counsel supported the submissions made by Mrs. Ismat Mehdi.

8. For proper appreciation of the contentions, the relevant provision is to be examined. Subsection (3) of section 173, Cr.P.C. under which the Magistrate deals with the report of Investigating Officer recommending cancellation of a case is reproduced below:‑‑ Section 173 (1) ............................................................................ (a) ............................................................................................ (b) ............................................................................................ (2) ............................................................................................ (3) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit. (4) ............................................................................................ (5) ............................................................................................

9. It is evident from the plain reading of the provision that on the report submitted by the Investigating Officer the Magistrate can pass an order as he thinks fit. Obviously, he may agree or not with Investigating Officer. He may refuse to cancel the case and order further investigation or to take cognizance on the basis of that police report under section 190(1)(b), Cr.P.C. It is also settled position of law that the order which the Magistrate passes on the report submitted by the Investigating Officer under section 173, Cr.P.C. is an administrative order. However, while passing such an order he is required to examine the report judicially and as such he has to act fairly, justly and honestly. The Honourable Supreme Court has laid down a clear rule on the subject in Bahadur's case (supra).

10. Obviously the report of Investigating Officer is, prepared on the basis of the material collected during investigation, therefore, the justice and fairness require the Magistrate to examine that material and then pass the order under section 173(3), Cr.P.C.

11. In present case order, dated 6‑6‑2002 passed by Magistrate on the report submitted by Investigating officer does not indicate that the learned Magistrate had considered the material on record and found it to be sufficient for proceeding against the accused. He passed an order for verification of the facts from the complainant. This way he assigned himself the role of Investigating Officer which was outside the scope of subsection (3) of section 173, Cr.P.C. After that the Magistrate went, beyond the scope of that order also and examined the complainant and his three‑ witnesses on oath and then passed another order, dated 13‑7‑2002 and that also after hearing the Advocate of complainant and Prosecuting Sub‑Inspector. In that order he referred to the statements of complainant and his witnesses ignoring the material collected during the investigation and ordered the registration of case against applicants/ accused for offences under sections 342, 109, P.P.C. By same order he also issued bailable warrants in the sum of Rs.30,000 (Rupees thirty thousand) against the accused/applicants. This exercise was entirely' outside the scope of section 173(3), Cr.P.C.

12. The result, of above discussion is that the order passed by the Vth Judicial Magistrate, Malir on the report submitted by Investigating Officer under section 173 and exercise undertaken by him by way of recording the statements of complainant and his witness and then passing another order, dated 13‑7‑2002 were all without lawful authority, therefore, are amenable to inherent jurisdiction of High Court under section 561‑A, Cr.P.C. In support of this view the pronouncement of the Honourable Supreme Court in Hussain Ahmed v. Mst. Irshad Bibi and others 1997 SCMR 1503 and judgment of this Court in Soofi Abdul Qadir v. The State and others 2000 PCr.LJ 520 can be referred to.

13. Consequently, the order passed by Judicial Magistrate, Malir on 6‑6‑2002 and further proceeding by him including the order, dated 13‑7‑2002 are hereby quashed. The Judicial Magistrate shall pass fresh order under section 173(3), Cr.P.C. on the report submitted by the Investigating Officer. In the interest of justice, the Sessions Judge, Malir is advised, to assign the jurisdiction in respect of the report under section 173, Cr.P.C, in present case to some other Magistrate. With this order application accepted. H.B.T./F‑7/K Order accordingly.