2014 P Cr (PLP)

SHAHNAWAZ TARIQ, J.

Through instant application, the applicant has called in question the order dated 24-5-2013 passed by learned Civil Judge and J.M. Digri, District Mirpurkhas, whereby the Court has approved the report submitted by the I.O. under "B" class for disposal of the case bearing Crime No.16/2013 of Police Station Jhudo under sections 436, 427, 147, 148, 149, 337H(2), P.P.C.

2. Relevant facts leading to the instant criminal miscellaneous application are that on 12-3-2013, applicant/complainant lodged F.I.R. No.16/2013, alleging therein that on 18-2-2013 at about 3-00 p.m., he along with his brother Pono, Hoti, Ramesh and other family members were present in their house, where his grinding machine was also functioning. The respondents Nos.1 to 7/accused armed with lathies, hatchet and guns, after aerial firing, entered in his house and pointed their weapons upon the complainant party and asked them to vacate the house and remove the grinding machine. Thereafter on the instigation of accused Murtaza, other co-accused set the house of complainant on fire and removed grinding machine with their tractor. Accused persons demolished the house of the applicant and occupied the same.

3. After registration of the F.I.R., the case was investigated by the police and on conclusion, the I.O. submitted his report recommending disposal of the case in "B" class, and said reported was approved by the learned Judicial Magistrate through impugned order.

4. Learned counsel for the applicant has contended that the incident was published in five daily Sindhi as well as Urdu newspapers and all newspapers have been filed by the applicant along with instant petition. The impugned order suffers from legal infirmity as the learned Magistrate did not examine the record properly and judiciously, and even he failed to appreciate that P.Ws. in their 161, Cr.P.C. statements, have fully supported the contents of the F.I.R. Learned counsel further contended that the I.O. did not conduct impartial and fair investigation and was mixed up with the accused party and even did not properly inspect the place of incident. I.O. has malafidely concluded his report on the basis of statements of D.Ws. which were not ought to be considered during investigation. Learned counsel further contended that the I.O. has also based his opinion on the basis of statement of P.W. Laloo who was managed by the accused party in collusion with the I.O. and even the said witness was not called by the learned Magistrate to verify his statement. Learned counsel further submitted that there was sufficient evidence for taking cognizance against accused but the learned Magistrate did not consider the same and approved the report submitted by the I.O. in haste manner. He prayed for setting aside the impugned order.

5. Learned counsel for the respondents Nos.1 to 7/accused opposed this application, and contended that no such incident had taken place but the applicant managed false story and registered a false case. The complainant showed P.W. Laloo to be one of the eye-witnesses of the incident but the said P.W. in his statement under section 161, Cr.P.C. as well as affidavit submitted before the I.O., has denied his presence and even shown his unawareness about the incident which shows that no incident had taken place. He further contended that the I.O. conducted impartial and proper investigation and besides recording statements of the P.Ws., he has also recorded statements of the independent witnesses, and they had disowned the incident as alleged by the complaint. Learned counsel submitted that the learned Magistrate after hearing the parties and examining the record passed detailed order which does not call for any interference by this court. Learned counsel lastly contended that the applicant has to file Direct Complaint before the competent court instead of agitating the impugned order before this Court. He has relied upon 2011 SCMR 1354, 2010 SCMR 1791, PLD 1997 Lahore 164 and 2013 YLR 1948.

6. Learned Assistant P.G supported the arguments of the learned counsel for the applicant and opposed the impugned order. He contended that learned Magistrate did not discuss/consider the statements of all the P.Ws., therefore, impugned order is liable to be set aside. He further contended that matter may be remanded to the learned Magistrate to consider the statements of all the P.Ws. and pass appropriate order in accordance with law.

7. I have heard learned counsel for the parties as well as learned AGP for the State and perused the available record minutely.

8. Perusal of record reveals that the complainant in the F.I.R. has clearly stated that applicant and other accused persons duly armed with deadly weapons entered into his house/plot and made aerial firing and threatened them to vacate the same. Accused party allegedly put the house of applicant on fire and taken away his grinder/Flour Mill by their Tractor. The contents of the F.I.R. prima facie reflect commission of cognizable offence which was witnessed by three P.Ws., and out of them two witnesses have fully supported the contents of F.I.R., but one witness namely Laloo has submitted his affidavit before the I.O. and disowned the incident. During the course of investigation, I.O. also recorded statements of D.Ws. and submitted report under "B" class before the learned Magistrate, and learned Magistrate even has not called the P.W. Laloo to verify the contents of his affidavit submitted by him before the I.O. and by accepting report under "B" class, disposed of the case vide impugned order.

9. So far the enmity between the parties over the plot in question is concerned, the enmity is a double-edged weapon and cannot be considered in favour of any party and it is yet to be determined at the trial after recording evidence as to whether the accused party has been falsely implicated due to said enmity or otherwise.

10. In case of Hafiz Muhammad Ahmed v. Dar Muhammad and others, Criminal P.L.A. No. 92-K of 2013, whereby the order dated 3-9-2013, passed in Criminal Miscellaneous Application No.105 of 2013, the learned Single Judge in High Court of Sindh, Sukkur Bench, has granted requisite relief to the complainant by setting aside the order of the trial Judicial Magistrate, Ghotki, was maintained for the following reasons:-- "(7) The record reveals that F.I.R. was lodged very promptly by attributing the specific role of straight fire upon deceased Mir to the respondent No.3 Hafiz Muhammad Ahmed. The. F.I.R. is well corroborated by the statements of P.Ws. under section 161, Cr.P.C. So far as the question of plea of 'Alibi' is concerned, it requires deeper appreciation which would be determined by the trial Court during the course of the trial. (8) In view of the above, the impugned order dated 6-11-2012 is hereby set aside. Consequently, the instant Criminal Miscellaneous Application stands disposed of with directions to the trial Court to join the respondent No.3/accused Hafiz Muhammad Ahmed in the trial."

11. In case of Hayatullah Khan and another v. Muhammad Khan and others 2011 SCMR 1354, it is held that question of determination of guilt or innocence of accused squarely fell within the jurisdiction of trial Court, where sufficient incriminating material connecting accused prima facie with commission of alleged offence had come on record, then the trial Court had no power to endorse opinion/view of Investigating Officer. It is also held by the honourable Supreme Court that Investigating Officer could not be considered such a skillful person to give his opinion on medical evidence. The question as to whether medical evidence corroborated ocular version or not and what was evidentiary value of expert's report could be decided only by the Trial Court having substantial bearing on merits of case. The plea of 'Alibi' being a distinct plea would require to be substantiate by accused by adducing cogent and concrete evidence.

12. In case of Anwar Shamim and another v. The State, 2010 SCMR 1791, it is held that finding of the police is not binding on the court and investigating agency has the only duty under the law to collect evidence. Investigating agency has no authority whatsoever to give finding of guilt or innocence regarding accused persons under the provisions of Criminal Procedure Code, 1898, Police Act, 1861, or Police Order, 2002/Rules framed thereunder. It is only the prerogative of court to give finding, after recording evidence and statements of accused regarding guilt or innocence of accused. Deciding cases on finding of police tentamounts to delegate powers of court to investigating agency which is not permissible under the law, Constitution and conventions.

13. In case of Abdul Hameed v. The State, PLD 1997 Lahore 164, it is held that prosecution witnesses had fully implicated the accused in their statements under section 161, Cr.P.C., therefore, Magistrate 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 application in the High Court for the annulment of the aforesaid order of discharge passed by the Magistrate.

14. In case of Riaz Gul v. The State through Superintendent of Police, 2011 PCr.LJ 991, it is observed as under:-- "Investigating Officer even the suspicion about the guilt of accused should be based on reasonable grounds on any material on record and general rule that falsely involved the opponents in criminal cases cannot be accepted, therefore, it was directed to submit challan in the court of law."

15. Consequently, I am of the view that the Investigating Officer is bound to carry out the process of investigation of the offence registered with police strictly in accordance with the relevant provisions of Cr.P.C., Police Rules 1934, Police Order 2002 and submit report before the Magistrate as envisaged under the relevant. However, the Investigating Officer has no power to conclude the process of investigation by means of judicial proceedings. The iota of evidence produced by the complainant and P.Ws. though suffering from minor discrepancies, could to be discarded on the strength/basis of defence evidence including documents or affidavits produced by the accused party before the Investigating Officer. The factum of genuineness of defence evidence be left upon the concerned trial Court to determine such fact during trial.

16. For the foregoing reasons, circumstances and identical rulings, instant Criminal Miscellaneous application stands allowed as prayed, and the impugned order dated 24-5-2013, passed by the learned Trial Magistrate is hereby set aside with direction to the trial Court to join accused/respondents in the trial in accordance with law. MWA/H-10/Sindh Application allowed.