2009 PLP 1604 (YLR)

GHULAM DASTAGIR A. SHAHANI, J.

Applicant Malik Dil Nawaz has assailed the order of IIIrd Civil Judge/Judicial Magistrate Karachi South, vide order dated 9-10-2008, passed in respect of F.I.R. No.270/2008 PS Gizri, Karachi under sections 506-B/ 504/451/338 P.P.C., whereby the Magistrate disagreed with the recommendation of police for disposal of the F.I.R. under cancellation class. Facts of the case as alleged in the F.I.R. are that on 24-7-2008 complainant namely Mst. Nusrat Tahira lodged a report stating therein that on 17-2-2008, applicant had divorced the complainant and Iddat period also completed on 17-5-2008, even then accused/applicant visited the house of complainant several times, misbehaved and issued threats of murder and of throwing acid on her face. However on the day of incident applicant again came to the house and knocked the door of the complainant, as she opened the door applicant pushed the complainant and came inside, beaten and abused the complainant. Police investigated the matter and submitted report for disposal of F.I.R, with IIIrd Judicial Magistrate/ Civil Judge, Karachi South, who dis agreed with the report, vide order dated 9-10-2008, which is impugned through this Criminal Misc. Application. Sardar Sher Afzal Advocate for applicant states that impugned order dated 9-10-2008 passed by III-Civil Judge/ Judicial Magistrate Karachi South is illegal, and not in accordance with law, else Investigating Officer of the case recommended for disposal of the case under C-Class. According to him applicant/ accused is innocent and implicated with mala fide intention and there is no reason to disbelieve the report. As such he prayed that the order passed by the concerned Magistrate be set aside and so also quash the proceedings of the F.I.R. No.270/08 registered with P.S Gizri, Karachi. Heard Sardar Sher Afzal Advocate for the applicant, as well as to Miss. Fatima Jamila Jatoi learned State counsel and with their assistance perused the contents of the impugned order, so also relevant material available on record. So far present case concerned, "Magistrate has recorded that memo. of incident states that there were marks of acid at the place of incident. Complainant also produced deed of family settlement in the month of February 2008 between the parties, before Investigating Officer of the case, in which it has been disclosed that divorce has been taken place between the parties and such fact has not been rebutted by the other side." As per record Investigating Officer has recom mended the case for disposal under C-class, because complainant did not produce her witness and failed to prove the fact of divorce. Such opinion of Investigating Officer seems to be contradictory, as on one hand he has recorded that she failed to prove her divorce, whereas, copy of deed of family settlement executed between the parties in the month of February 2008 was produced and supplied to him and in the memo. of incident it has been stated that there were marks of acid at the place of incident. Therefore, the recommendation of the Investigating Officer for disposal of the F.I.R. that complainant has failed to produce her witness prima facie unjustified and without merit. Even otherwise, nothing has been produced on record that complainant or witnesses were called by serving a notice, though it is a duty of the Investigating Officer for disposal of the F.I.R. that complainant has failed to produce her witness prima facie unjustified and without merit. Even otherwise, nothing has been produced on record that complainant or witnesses were called by serving a notice, though it is a duty of the Investigating Officer to investigate the matter, only recording of the F.I.R. is not sufficient, as same is only information and can be recorded by any one and matter is to be investigated in accordance with law. As such, prima facie, at this stage, directions issued by the concerned Magistrate were proper, legal and in accordance with law and passed upon a material, as it is a duty of the Magistrate to scrutinize the matter when report is submitted before him, though it depends upon the Magistrate to agree or disagree, as opinion of the police is not binding upon him. So far merits are concerned that are to be considered and determined at trial. No illegality or material irregularity and violation of law is pointed out by the learned counsel appearing for the applicant, no indulgence of this Court be necessary at this stage. Looking to the aforesaid facts and circumstances, application was dismissed by a short order dated 21-10-2008. These are the reasons for the same. H.B.T./D-7/K Application dismissed.