2006 PLP 663 (MLD)

SAJJAD ALI SHAH, J.

1. Granted subject to all just exceptions.

2. Since Criminal Miscellaneous Applications bearing Nos.165 and 171 of 2005 under section 561-A, Cr.P.C., have been filed by the same set of applicants charged in Crime No.374 of 2004 and since they involve common question of law and fact as such I propose to decide both these applications by this order. Briefly stated facts are that respondent No.1 in Criminal Miscellaneous Application No.165 of 2005 on 17th October, 2005 lodged an F.I.R. bearing No.374 of 2004 under sections 109/365, P.P.C. at Police Station Taimuria against the applicants who appear to be his step?brothers/close relatives stating therein that they tried to abduct him and his real brother, however, he (respondent No.1) managed to escape whereas his real brother (respondent No.2) was abducted. On the basis of this report a criminal case was registered by the Police against the applicants. The respondent No.1 on 5th March, 2005 through his Advocate moved an application before XIIth Judicial Magistrate Karachi Central informing that his brother on 26-2-2005 managed to escape from the custody of applicants and further showing his grievance against the Investigating Officer by alleging that he is mixed up with the accused persons and prayed that the statement of respondent No.2 i.e. abductee be recorded under section 164, Cr.P.C. The Judicial Magistrate on 7th March, 2005 granted this application by ordering issuance of notices to the accused persons intimating the recordal of evidence of abductee on 10-3-2005. On the same day i.e. 7-3-2005 in the late hours the Investigating Officer submitted his report under sections 169 and 173(3), Cr.P.C. on which the Judicial Magistrate passed the following order: "Call the parties. All accused, complainant and his witnesses be called on 28-3-2005". On 28-3-2005 the applicants/accused persons moved an application , for recalling of order dated 7-3-2005 passed on the application of the complainant directing rccordal of evidence of the abductee. The learned Magistrate after hearing the parties rejected the application vide his order dated 13-6-2005. The applicants/accused, therefore, filed a Criminal Revision Application No.29 of 2005 before the learned 1st Additional District and Sessions Judge Karachi Central against the order of the learned Magistrate, which was also dismissed vide order dated 22-9-2005 by holding that 164, Cr.P.C. can be recorded by the Judicial Magistrate not only at the instance of the police but at the instance of the accused, aggrieved person or the victim himself during the investigation. Criminal Miscellaneous Application No.165 of 2005 has been preferred against this order. Whereas Criminal Miscellaneous Application No.171 of 2005 has been preferred against the order dated 7-3-2005 passed by the learned Magistrate on the reports submitted by the Investigating Officer under section 173(3), Cr.P.C. After issuance of notice, the arguments have been heard for deciding this application at Katcha Peshi. Learned counsel for the applicant while advancing arguments in support of Criminal Miscellaneous Application No.165 of 2005 has urged that there is no denial of the legal position that the learned Judicial Magistrate had the powers to record the statement of the alleged abductee at the instance of respondent No.1 i.e. aggrieved party or the respondent No.2 i.e. alleged victim but such powers could only be exercised during the course of investigation and since the police has completed the investigation by filing report under section 173, Cr.P.C., therefore, learned Judicial Magistrate erred in law by ordering the recordal of statement of the alleged victim under section 164, Cr.P.C. While arguing Criminal Miscellaneous Application No.171 of 2005, the learned counsel has contended that the order of learned Magistrate dated 7-3-2005 passed on the report filed by the Investigating Officer under sections 169/173(3), Cr.P.C., whereby he called the parties, accused and witnesses amounts to taking cognizance of the matter without assigning any reasons for rejecting the report of the Investigating Officer. He has further contended that it is by now well-settled principle of law that the Magistrate is empowered to pass any order on the report of the Investigating Officer submitted under section 173(3), Cr.P.C., but such power cannot be exercised arbitrarily and the order passed on such report must be judicious and upon considering the material collected during the investigation. It is contended that the order, impugned, does not reflect that the learned Magistrate has considered the material placed before him by the Investigating Officer as such the said order is liable to be quashed. In support of his contention, the learned counsel has placed reliance on the cases of Hussain Ahmed v. Irshad Bibi (1997 SCMR 1503) and Sufi Abdul Qadir v. The State (2000 PCr.LJ 520). On the other hand, learned counsel for respondent No.1/complainant has contended that learned Magistrate has passed the order dated 7-3-2005 on his application directing recordal of evidence of the abductee under section 164, Cr.P.C. before the submission of report by Investigating Officer under section 173(3), Cr.P.C., but the statement could not be recorded for various reason as such the order dated 7-3-2005 directing recordal of evidence was passed when the investigation was not concluded as such it is a valid legal order. As to the order passed on report of the Investigating Officer under sections 169/173(3), Cr.P.C., the learned counsel has submitted that the order does not amount to taking cognizance of the matter and the Magistrate has yet to pass a proper order. I have heard the learned counsel at length and perused the record. The record reflects that the Investigating Officer completed the investigation on 23-12-2004 and recommended the disposal of the case as 'B' class and consequent to such recommendation ADIGP Investigation directed to dispose off the case as 'B' class (false) vide his letter dated 26-2-2005: In this background the Investigating Officer on 7-3-2005 filed final report under sections 169/173(3) of Criminal Procedure Code. No doubt that at the time the learned Judicial Magistrate passed the order on respondents' application for recordal of statement of abductee the final report was not before him and he was not aware as to whether the investigation has been completed but soon after passing of this order on the same day in the late hours when the Investigating Officer filed his final report under sections 169/173(3), Cr.P.C. it had become more obligatory upon the Magistrate to consider all the material collected during the investigation and placed before him along with final report and to come to a conclusion whether in the changed circumstances the recording of statement of abductee under section 164, Cr.P.C., is called for or not. Broadly speaking, in the circumstances, three possible courses were available to the Magistrate in terms of subsection (3) of section 173, Cr.P.C., the first one obviously to agree with the report and order the cancellation of F.I.R. The second one was to disagree with the report and to order further investigation and third one was to take cognizance under section 190(1)(b) of Cr.P.C. However, the learned Magistrate while adopting any of the aforesaid courses, was required to act judicially and in that he was to act fairly, justly and honestly. However, the order passed by the learned Magistrate on the report of the Investigating Officer under section 173(3), Cr.P.C. clearly depicts that he did not agree with the final report and consequently directed the attendance of complainant, accused and witnesses. No doubt, it is open for the Magistrate to pass any order on the report submitted by the Investigating Officer. However, while passing an order on such report the learned Magistrate is bound to consider all the material collected during the investigation and then to pass a just, fair and speaking order. If the learned Magistrate was of the opinion that the Investigating Officer has not properly investigated the matter and the report submitted by him was under the influence of accused persons he had the prerogative to disagree with the report but such order of disagreement should reflect that the material placed with the report under section 173(3), Cr.P.C., has been considered and there are reasons to disagree with it. I have no doubt in my mind that the order passed by the learned Magistrate on 7th March, 2005 whereby he called the parties, accused, complainant and his witnesses amounts to taking cognizance of the matter without assigning any reason for disagreeing with the report filed by the Investigating Officer. In the circumstances, the order dated 7-3-2005 passed by the Judicial Magistrate on the final report as well as the order of the same date directing recordal of statement of abductee are hereby quashed. The Magistrate is directed to first pass a judicious proper speaking order after considering all the material produced along with the final report filed by the Investigating Officer in accordance with law and thereafter, if necessary, to consider the application of the respondent No.1 seeking recording of statement of abductee under section 164, Cr.P.C. afresh. In above terms both these applications are accepted.

3. In view of the above order, this application has become infructuous which accordingly stands disposed of. N.H.Q./D-29/K?????????????????????????????????????????????????????????????????????????????????? Petitions accepted.