2017 PLP 1993 (MLD)

ABDUL MAALIK GADDI, J.

Through this criminal miscellaneous application, the applicant has assailed the legality and propriety of the order dated 01.08.2015, passed by the learned VIth Judicial Magistrate, Malir Karachi on the report under section 173, Cr.P.C. in "C" Class submitted to him by the Investigation Officer of police station CTD, Operation, Garden, Karachi in crime No.103 of 2015, under Sections 365-A and 342, P.P.C. whereby the learned Magistrate after perusing the record has not accepted the said report and passed the following order which is impugned before this Court:-- "Investigation Officer has submitted the report under cancelled "C" Class in crime No.103/2015, under Section 342, P.P.C. of Police Station CTD/OPS, Karachi. Heard the Investigation Officer and perused the record. As per the contents of memo. of recovery of abductee namely Jumma Khan was wrongfully confined under the custody of SIP Nadeem Akhtar Butt, who was recovered later on, prima facie the alleged incident connects the accused SIP Nadeem Akhtar Butt for the offence under Sections 365-A, 342 and 220, P.P.C., whereas the Investigation Officer malafidely submitted the report under cancelled class in order to save the skin of his belt fellow member. However, I hereby take cognizance for the offences under Sections 365-A, 342 and 220, P.P.C. Sections 365-A and 220, P.P.C. are exclusively triable by the Court of Session so that R&Ps be forwarded to the Hon'ble District and Sessions Judge, Malir, Karachi after compliance as per the decision reported in PLD 2010 SC

585. Investigation Officer is directed to submit the list of witnesses within seven (07) days without fail. Parties advocates have been heard and record perused. It is contended by the learned counsel for the applicant that applicant is innocent and has wrongly challaned by respondent No.1 in the above case. He further contended that it is quite clear from the record that the victim Jumma Khan was not appearing before the police despite of the several notices under section 160, Cr.P.C. issued to him which shows that no incident has taken place as alleged in the FIR. He also contended that the learned Magistrate while passing the impugned order has not taking into consideration, the contents of the report under section 173, Cr.P.C. nor applied his judicial mind and passed the impugned order in haste manner which liable to be set-aside and the proceedings by the trial Court in the said FIR may be quashed. On the other hand, learned A.P.G. has supported the impugned order by arguing that as per FIR, the abductee Jumma Khan was wrongfully confined under the custody of applicant who was demanding money for his release but later on recovered from the illegal custody of the applicant which prima facie connect the involvement of the applicant in the present case which is serious and heinous in nature. He further argued that this criminal miscellaneous application is not maintainable as the challan against the applicant has already been submitted; therefore, he was of the view that if the applicant has any grievance then he must approach to the trial Court for redressal of his grievances by filing proper application, if applicant so desired. It is an admitted position that the FIR of the incident has been lodged by complainant Inspector Sajjad Ali posted at P.S. CTD Operation, Garden, Karachi and after investigation, the I.O. of the case has submitted his report to the learned Magistrate under cancelled "C" class which was not accepted by the learned VIth Judicial Magistrate, Malir, Karachi through impugned order. It is settled position of law that the ipse dixit opinion of Investigation Officer is not binding upon Court. It is also well-settled by now that 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. Reliance is placed in the case of Safdar Ali v. Zafar Iqbal and others reported in 2002 SCMR

63. It is the case of the applicant that no such incident has taken place as alleged in FIR but this fact has been denied by the learned APG, thus, it appears that there is words against words and factual controversy are floating from record with regards to facts of the case which cannot be decided by this Court at this stage. As evident from impugned order that the learned Magistrate has already taken cognizance of the case. Therefore, the law is quite settled by now that after taking of cognizance of a case by the trial Court, the FIR registered in that case cannot be quashed and the fate of the case and of the accused persons challaned therein is to be determined by the trial Court itself. It goes without saying that if after taking of cognizance of a case by the trial Court and accused person deems himself to be innocent and falsely implicated and he wishes to avoid the rigours of a trial then the law has provided him a remedy under sections 249-A/265-K, Cr.P.C. to seek his premature acquittal from trial Court if the charge against him is groundless or there is no probability of his conviction. Learned counsel for the applicant though argued at length but he was not able to controvert the above factual and legal aspects of the case since the remedy is available to the applicant for redressal of his grievances by approaching to the trial Court for filing proper application in support of his case, therefore, this criminal miscellaneous application under the aforementioned facts and circumstances of the case is not maintainable, the same is hereby dismissed with no orders as to costs. MH/N-27/Sindh Application dismissed.