2019 PLP 2178 (YLR)

ABDUL MAALIK GADDI, J.

Through this constitutional petition, the petitioner has assailed the legality and propriety of the order dated 03.12.2015, passed by the learned XIIth Civil Judge and Judicial Magistrate, Hyderabad on a final report under Section 173 Cr.P.C. submitted by the Inspector / Investigating Officer Altaf Arain in Crime No.47 of 2015 under Sections 20 H.O., 436, 452, 147, 148, 149, P.P.C. of Police Station Makki Shah for approving "C" Class duly forwarded by the ADPP, whereby the learned Magistrate after going through the record found no sufficient evidence to take cognizance against the accused and satisfied with the report submitted by the Investigating Officer, hence, accepted the report under Section 173, Cr.P.C. under "C" Class.

2. Concisely, the facts as disclosed in the FIR are that the petitioner lodged FIR being Crime No.47 of 2015, under Sections 20 Haraaba, 436, 452, 506(2), 337-H(2), 147, 148, 149, P.P.C. of Police Station Makki Shah against the accused persons nominated in the FIR. It is alleged in the FIR that on 18.06.2015, the accused nominated in the FIR came to the house of the complainant at 02:00 a.m. where they damaged the articles available in the house and set the house on fire. It is further stated in the FIR that the accused by issuing dire consequences looted Rs.25,00,000/- and 10 Tola of Gold from the house of the complainant. This incident was witnesses by the complainant namely Bano, her daughter Najma, Naeem being the husband of Najma and so also neighbourers Zubair and Kashif.

3. Perusal of record shows that after registration of the FIR of the incident, the investigation was carried out by the I.O. of the case, who after due investigation of the case submitted report by recommending the case for disposal under "C" Class before the learned Judicial Magistrate, Hyderabad and the same was accepted in "C" Class, which order has been assailed by the petitioner through the instant petition.

4. It is contended by the learned Counsel for the petitioner that the impugned order passed by the learned trial Court is against the law and facts, as such, the same may be set-aside; that the FIR was lodged by the complainant Bano against the accused persons with the specific allegations that at the time of incident the accused persons entered into the house of the complainant / petitioner with deadly weapons and issued murderous threats to the complainant party and set the complainant's house on fire by taking away Rs.25,00,000/- and 10 Tola of Gold; that this incident was witnessed by the complainant, her daughter Najma and Naeem as well as two private witnesses namely, Zubair and Kashif, who came into the house of the complainant after hue and cry; that these witnesses in their statements recorded under Sections 161 and 164, Cr.P.C. have supported the prosecution case but the learned trial Court did not agree with the statements of these witnesses and passed the impugned order on the ground that there exists longstanding enmity in between the parties; that after the incident was over, the complainant made his hectic efforts for registration of the FIR but the local police refused to lodge such FIR, therefore, she approached to the Sessions Judge, Hyderabad through Criminal Miscellaneous Application No.1375 of 2015 and the learned Presiding Officer of the said Court, vide order dated 30.06.2015, directed the SHO Police Station Makki Shah, Hyderabad to register the FIR, as such, the FIR was registered. Learned Counsel for the petitioner has, however, admitted that though there is delay in lodgment of FIR, but the same has been satisfactorily explained. Even otherwise, according to him, the delay in criminal cases, by itself, in lodging the FIR was immaterial. Factors to be considered by the courts, were; firstly, that delay stood reasonably explained; and secondly, that the prosecution had not derived any undue advantage through the delay involved. Delay in lodging of report was material only when there was doubt regarding identity of culprits; or there existed enmity between the parties; that the respondents Nos.2 and 3 due to mala fide and ulterior motives have not carried out investigation in the case in accordance with the law but they prepared a report to get the case disposed off summarily in order to favour the accused party, thus, the order passed on the basis of such report amounts to abuse of process of law, as such, the same may be set-aside.

5. As against this, the learned Counsel for the private respondents has supported the impugned order by arguing that the impugned order is perfect in law and facts. He further submitted that the incident took place on 18.06.2015, whereas, the FIR was lodged on 01.08.2015 after the expiry of sufficient period, for which no satisfactorily explanation has been furnished, as such, according to him on this ground alone, false implication of the accused in this case cannot be ruled out. He further submitted that there is variance in between the statements of the prosecution witnesses recorded under Sections 161 and 164, Cr.P.C, therefore, no reliance can safely be placed upon the contradictory statements of the prosecution witnesses. He further submitted that respondent / accused Irfan alias Guddo has lodged the FIR against the complainant party being Crime No.42 of 2015 of Police Station Makki Shah for offence under Section 302, P.P.C. and due to that reason the complainant party has falsely registered the case against the respondents / accused just to harass and humiliate them.

6. Learned D.P.G has supported the impugned order by arguing that the order passed by the learned Judicial Magistrate is perfect in law.

7. We have heard the learned Counsel for the parties and perused the record so made available before us.

8. It appears from the record that the accused are nominated in the aforementioned FIR with specific role. During the course of investigation, I.O. of the case has recorded the statements of eye-witnesses namely, Mst. Bano, Najma, Naeem, Zubair and Kashif under Section 161, Cr.P.C. Besides that, the statements of these witnesses under Section 164, Cr.P.C. were also recorded before Judicial Magistrate, Hyderabad and the prosecution witnesses have supported the case and claim of the complainant. Since the FIR lodged by the complainant, containing the names of the accused persons with specific role, the I.O. has submitted the report, recommending the case for disposal under "C" Class, which has been accepted by the learned Magistrate under "C" Class without assigning any cogent reason. Perusal of record reveals that the I.O. of the case has submitted the summary in "C" Class on the basis of enmity in between the parties as well as minor discrepancies in the statements of the P.Ws. namely, Zubair and Kashif recorded under Section 161, Cr.P.C. Under the law, at this stage the Court has to make only a tentative assessment of the material collected by the I.O. and produced before the Court. It is not necessary to pass exhaustive order by dilating upon each and every aspect of the matter, detailed and deeper appreciation is to be made at the stage after recoding the evidence.

9. It has been held by our superior Court that where prosecution witnesses have fully implicated the accused in their statements recorded under section 161, Cr.P.C.; Magistrate cannot discharge the accused on the basis of police opinion. In this connection we are fortified with the case law reported as Abdul Hameed v. State (PLD 1997 Lahore 164), wherein it is held as under:- "

Ss. 173 & 561-A

Penal Code (XLV of 1860), Ss.302/ 334/ 148/149/440

Discharge of accused by Magistrate on police report

Prosecution witnesses had fully implicated the accused in their statements recorded under S. 161, Cr.P.C.

Magistrate, therefore, could not discharge the accused on the basis of police opinion that they were innocent as such a finding could either be given by the competent Court or by High Court in quashment proceedings

Prosecution was consequently directed to move an appropriate application in the High Court for annulment of the aforesaid order of discharge passed by the Magistrate."

10. Further, the Magistrate can take cognizance of offence if report submitted by the I.O. is negative by police that accusation is baseless and also no case is made out against the accused. In this connection we are fortified with the case law reported as Safdar Ali v. Zafar Iqbal (2002 SCMR 63), wherein it was held as under:- "

S. 190

Cognizance of offence by Magistrate

Magistrate can take cognizance of an offence even in case of negative report submitted by police that accusation is baseless and no case is made out against the delinquents."

11. As per police papers it appears that in the aforementioned FIR serious allegations have been levelled against the accused/private respondents, who by the dint of weapons entered into the house of the petitioner, issued murderous threats, violated the principle of "Chadar and Char Deewari" and took away Rs.25,00,000/- and 10 Tola of Gold with them and this fact is supported by the statements of the prosecution witnesses recorded under sections 161 and 164, Cr.P.C., but surprisingly neither the I.O. nor the learned Magistrate took care of it and passed the impugned order wrongly by giving weight to the minor contradictions in between the statements of P.Ws Zubair and Kashif and accepted the summary under "C" class blindly and without assigning any cogent / valid reason, which cannot be approved in any manner. It is settled principle of law that ipse dixit (opinion of the I.O.) cannot be accepted to exonerate the accused from the commission of the alleged offence. In this connection, we are again supported by the case law reported as Mst. Qudrat Bibi v. Muhammad Iqbal and another (2003 SCMR 68).

12. The compendium of the above discussion is that, prima facie, there is sufficient material to corroborate the contention of the petitioner and there is no reasonable ground and justification to disbelieve the evidence of the P.Ws. at this initial stage of the case.

13. With these findings / observations we do not agree with the report of the I.O. as well as the order passed by the learned Magistrate. Accordingly, the instant petition is allowed and the impugned order is set aside. The I.O. is directed to submit the challan in the above matter before the learned Magistrate as early as possible, preferably within a period of 15 days from the receipt of this order. Office is directed to send copy of this order to the learned XIIth Civil Judge and Judicial Magistrate, Hyderabad as well as SIO Police Station Makki Shah for information and compliance.

14. This petition was allowed in the earlier part of day in open court after hearing the parties counsel and these are the detailed reasons for the same. SA/B-8/Sindh Petition allowed.