2013 PLP 1948 (YLR)

SALAHUDDIN PANHWAR, J.

By this Application under section 561-A, Cr.P.C. Applicant/complainant, Bakhsh Ali Jagirani has assailed order dated 9-6-2012 passed by the 3rd Judicial Magistrate, Khairpur on summary report under section 173, Cr.P.C.

2. The relevant facts of the case are that on 17-5-2012 at 7 a.m., complainant Bakhsh Ali along with his brother Sikander Ali and nephew Liaquat Ali reached at the door of Riaz Hussain Jagirani where they saw accused Ali Nawaz (respondent), Shahmeer, Nawab Ali, Babar Ali and one unidentified person armed with pistols. They intercepted them. Accused Ali Nawaz caused straight fire shot upon Sikander Ali which hit him on his mouth; he raised cries and fell down. Then accused Shahmeer caused fire shot at Sikandar, which also hit him at the thigh of left leg. Many persons attracted there while accused person escaped. Such report was lodged.

3. Record further reveals that investigation was carried out, during the course of investigation, an enquiry was conducted by SP Headquarter, Khairpur with the finding that the complainant has involved the accused Ali Nawaz due to personal enmity and at the time of offence accused was available with his senior counsel at his office, applicant is District reporter of ARY T V channel and enrolled Advocate, nekmards of locality have given affidavits in support of his plea of alibi, thereby accused is innocent. On the basis of that enquiry, accused Ali Nawaz was released by investigation officer, and his name was placed in Column 2, report under section 173, Cr.P.C. was submitted before the concerned Magistrate, who accepted the same by impugned order.

4. Learned counsel for the applicant has inter alia argued that ocular evidence was against the accused Ali Nawaz, medical evidence is in conformity with the same, in spite of that SP Headquarter, Investigation Officer and concerned Magistrate have believed the plea of alibi taken by accused; accused being afluential person has managed to get favourable enquiry report; order passed by the Magistrate is not speaking and the same is based on the report of police, no independent finding has been recorded. He has relied upon the case law reported as Saeen Bux v. Civil Judge and Judicial Magistrate, Matiari and 9 others (2010 PCr.LJ 1060), Riaz Gul v The State through Superintendent of Police, Gilgit (2011 PCr.LJ 991).

5. On the other hand learned counsel appearing for the accused/respondent has argued that the applicant has alternate and efficacious remedy to approach the trial Court for joining the accused in the case; the order passed by the Magistrate is speaking and maintainable under the law; learned D.P.G. has adopted the arguments as advanced by the counsel for the applicant.

6. I have carefully considered the arguments of the learned counsel for the parties, examined the police papers, enquiry report and the case-law.

7. Counsel for applicant has relied above referred case-law, the case of Saeen Bux (supra) it was held:-- "two witnesses instead of supporting the complainant stated that the allegations are advancing threats and taking away the buffalo and goats of complainant are false and recommendation was made for 'B' Class but two witnesses filed their affidavits but their statements were not recorded, therefore impugned order was set aside and reinvestigation was ordered". In another case of Riaz Gul (supra) it was held:-- "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".

8. Plain reading of relevant sections of Cr.P.C., is that under section 169, Cr.P.C. the Investigation Officer can release an accused if it appears to him that there is no sufficient evidence to justify forwarding of the accused to a Magistrate. Similarly under section 173, Cr.P.C. the Magistrate is empowered to make such order of discharge, without entering into controversy as to which of the above referred section of the Cr.P.C. would cover questioned act of the I.O. and order of the Magistrate, it is to be examined in subject matter that whether report under section 173, Cr.P.C. and impugned order passed thereon falls within the legal parameters, answer this legal aspect, circumstances of instant case reflect that act of releasing the accused/respondent on the plea of alibi before the commencement of his trial and recording of any evidence whatsoever was not consistent with the weight of ocular and medical evidence available against the accused which is normally considered sufficient to warrant conviction, in exercise of powers under Chapter-XIV of Cr.P.C. regarding investigation, the Investigation Officer is duty bound to act with great care and caution. Legal obligation is that to investigate the case independently, honestly, consciously and within all legal parameters to bring the culprit/accused in the court of law. It is not the duty of police officer to only collect the evidence in defence of accused in order to oblige them for ulterior motive; I.O. is also not supposed to arrogate himself the function of adjudication in order to determine nature of offence and then give a pre-trial verdict of the innocence of the accused.

9. Admittedly, name of respondent/ accused transpires in F.I.R., with specific role of causing direct fire shot injury to Sikander Ali. This is a day time incident; eye-witnesses have supported the version of complainant narrated in first information report; medical evidence is in conformity with ocular version, in, presence of ocular and medical evidence, finding of inquiry report that at the time of incident accused was available with his senior counsel he is District Reporter of ARY News Channel and enrolled Advocate and his senior counsel Zulifquar Ali Sindhu and other notables have given affidavits, in support of plea of alibi have no evidentiary value under the law and such affidavits cannot be considered at the stage of investigation, such plea can be established by adducing evidence in the trial Court and only trial Court is competent to decide the fate of that special plea while deciding the case.

10. Accumulative effect of the above discussion is that impugned order of the learned Magistrate completely negates the norms settled by honourable Supreme Court, in case of Hayatullah Khan and another v. Muhammad Khan and others reported in SCMR 2011 page 1354, it is held that:-- "The learned Judicial Magistrate has no authority to endorse the view of Investigation Officer where sufficient incriminating material connecting the accused, prima facie, with the commission of alleged offence has come on record. The question of alibi, its repercussion and implication, medical evidence which corroborates the ocular version and evidentiary value of fire-arm Expert's opinion can only be decided by the learned trial Court having substantial bearing on merits of the case". And also impugned order, is against the authoritative proposition of law that while deciding the question of cognizance on report under section 173, Cr.P.C., the Magistrate has to apply his judicial mind and is not bound to follow the ipse dixit report of police officer thus the impugned order is illegal, perverse and not maintainable in the law.

11. Consequently the impugned order dated 9-6-2012 is hereby set aside and the accused Ali Nawaz is arraigned as an accused along with other co-accused.

12. Above are the reasons of a short order dated 27-8-2012 whereby this Criminal Miscellaneous Application was allowed. MWA/B-10/K Application allowed.