2011 P Cr (PLP)

SALMAN HAMID, J.

Brief facts of the case, deducible from the F.I.R. No.133 of 2008 are that the applicant and his other relatives were going to a hotel for tea. When they reached near the hotel, the accused mentioned in the F.I.R. also came there. The complainant party and the accused party indulged in argument respecting a false case that was registered by the complainant party against the accused party's son. The arguments aggravated with the result that both the parties got physical (sic.) and injuries were sustained on either side. In the F.I.R. it was further mentioned by the complainant party that after such fight, the complainant party first went and obtained necessary letter from the police station concerned and thereafter went to CMC Hospital Larkana for first aid. As against the above exposition, contained in the F.I.R., according to the report submitted under section 173, Cr.P.C. it was mentioned by the concerned investigating officer that the medical report dated 18-12-2008 suggest that the injured came to casualty ward on 10-12-2008 but left without examination by the medico legal officer and that the injured were not admitted in the hospital. It was therefore, suggested by the Investigating Officer that the case be placed under cancelled 'C' Class. Upon receipt of such investigation report by the concerned Magistrate, he accepted the report and also the prayer of the Investigating Officer, keeping in view the medical report and decided the matter as such in terms of order dated 14-1-2009. It is against this order of the Magistrate concerned that the present application under section 561-A of Cr.P.C. has been preferred. The learned counsel argued that the order passed by the learned Magistrate was contrary to law and facts and therefore, was not maintainable; that the bare reading of the F.I.R. would show that the cognizable offence was made out and that case having been disposed of under 'C' Class by appreciating the report of police surgeon was not justified, without appreciating the fact that the version of the complainant was fully corroborated by the eye-witnesses and also the fact that the accused persons had been categorically nominated in the F.I.R. with specific role. Under the circumstances, it was argued that the learned Magistrate had given undue weight to the opinion of police which was not called for and that it was for the trial Court to have given credence to the evidence and therefore, the order passed by the learned Magistrate lacks cogent reason thereby he acted unjustly. Appearing on behalf of the State, it was reiterated by the learned counsel that despite grave allegations by the complainant side on the accused side and/the injuries which were attributed with them fell under sections 337-A(i),(ii) and 337-F(i) of P.P.C. the complainant party still chose not to appear for medical examination and/or first aid before the concerned Police Surgeon and/or M.L.O. All this created doubts and that even if they were presumed to have appeared and/or attended the hospital the same is not reflected in the medical report which goes against the complainant side. It was also mentioned that only the prosecution witnesses attempted to corroborate the story as mentioned in the F.I.R.; that there was an inordinate delay of two days in lodging the F.I.R. It was also mentioned that there was enmity between the complainant and the accused side and therefore, the contents of the F.I.R. were not free from doubts and malice. Heard arguments and perused the record. It is well-settled by now that a Magistrate is fully empowered to agree or otherwise with the Investigating Officer's Report, seeking cancellation of an F.I.R. Once the Investigation report is received by a Magistrate, then he is seized of the matter and is competent to assume jurisdiction and pass proper order as it is within his domain to exercise exclusive authority as a Judicial Magistrate and pass necessary order. A Magistrate under section 190, Cr.P.C. could take cognizance of any offence upon a complaint or upon a police report or upon information received by him. It is also well established by now that a Magistrate is not bound by report submitted by police under section 173, Cr.P.C. and that a Magistrate may or may not agree with the conclusions reached by an Investigation Officer. Under section 190(b) of Cr.P.C, the Magistrate is empowered to take cognizance of a case in spite of police report. Since under law a Magistrate is required to apply independent mind to the material placed before him and form his opinion about the matter, in the present case upon an information report being received by the learned Magistrate concerned and after looking into the same and the fact that despite grave allegations against the accused party, specially in respect of the injuries as envisaged under 337-A(i), (ii) and 337-F(i), A P.P.C. no one from the complainant side appeared before the Police Surgeon and/or M.L.O, prima facie established that the F.I.R. was lodged to settle score by the complainant against the accused party in respect of the case whereby a false theft was reported by the accused party against the son of the complainant party. Had there been injuries of the nature as stipulated under sections 337-A(i),(ii) and 337-F(i), P.P.C. there was no question of the complainant party not to have medical report reflecting such fact. This unfortunately was completely missing in the case. It was under these circumstances that the Magistrate concerned came to the conclusion and rightly so that the case had fallen within the cancelled class 'C' and disposed of the F.I.R./case as such. I, therefore, find no merits in the application and dismiss the same as such. H.B.T./B-10/K Application dismissed.