2019 P Cr (PLP)

IRSHAD ALI SHAH, J.

The applicant by way of instant Criminal Misc. Application under section 561-A, Cr.P.C. has impugned an order dated 13.02.2009, passed by learned 1st Civil Judge and Judicial Magistrate, Kashmore, on police summary/report in FIR Crime No.13/2006, offence under sections 302, 147, 148, 149, P.P.C., Police Station Haji Khan Shar, the operative part whereof reads as under; "The investigation officer has solely relied upon the defense evidence of respondents/accused persons that deceased were criminal persons and murdered in police encounter. There are only copies of FIRs available in police papers, but no any final judgment/verdict from any Court is available or brought on record, though the respondents/accused were given several chances to produce such record against the deceased, but they failed. No background of such enmity is shown to exist between the parties, nor any motive on the part of the complainant, shown to falsely implicate the accused persons in this case. The investigating officer has completely ignored the version of complainant as given in the FIR and he did not record the statements of PWs under section 161, Cr.P.C., who have fully verbally supported the version of complainant before the Court. Even for the sake of arguments, yet there are two versions, one that is stated by the complainant and other as of the defence, in my humble view trial Court is the proper forum to evaluate and appreciate the evidence adduced by both the parties at the time of trial. At this stage, neither the complainant and PWs nor the accused persons have stood the test of cross-examination. Hence, for the above reasons, I do not agree with the report of investigating officer. Consequently, the request made by SIO of Police Station Haji Khan Shar for disposal of case FIR No.13/2006, offence under sections 302, 147, 148, 149, P.P.C., Police Station Haji Khan Shar in "B" class as false is declined. SIO of Police Station Haji Khan Shar is directed to submit final challan/charge sheet against the accused within fifteen days of passing this order".

2. The facts in brief necessary for disposal of the instant Criminal Misc. Application are that as per complainant/private respondent Shah Muhammad, deceased Darwesh and Bhooral have been fired and killed by the applicant and others in prosecution of their common object, under the pretext of police encounter, when he went to lodge the report of incident. It was not recorded by the police. He then sought for direction for recording of his FIR from learned Ex-Officio Justice of Peace having jurisdiction. It then was recorded. On investigation, the FIR so lodged by him (complainant/private respondent) was recommended by the police to be cancelled under false "B" class by submitting such summary/report. It was accepted and FIR was cancelled accordingly by the Magistrate having jurisdiction vide his order dated 30.10.2006. Such order was impugned by the complainant/private respondent before this Court. It was set-aside by this Court vide order dated 07.03.2007, passed in Criminal Misc. Application No.182/2006 "Re. Shah Muhammad v. DSP Iqbal Qureshi and others", with direction to the learned trial Magistrate to pass speaking order. Consequently, fresh order was passed by learned trial Magistrate on 13.02.2009, which is impugned by the applicant before this Court by way of instant Criminal Misc. Application, as stated above.

3. It is contended by learned counsel for the applicant that the persons killed in police encounter were hardened criminals of the area, the FIR lodged by the complainant/private respondent has been recommended to be cancelled by the police under false "B" class, on the basis of honest investigation and learned trial Magistrate has not approved the cancellation of the FIR under false "B" class without any lawful justification. By contending so, he sought for reversal of the impugned order, as according to him, the parties as per his information now has also compounded the offence.

4. Learned A.P.G and learned counsel for the complainant/private respondent have sought for dismissal of the instant Criminal Misc. Application by contending that the impugned order is well reasoned and the opinion of the police has got no binding effect upon the Courts and they are unaware as to whether the parties have compounded the offence.

5. I have considered the above arguments and perused the record.

6. Before attending the merits of the case, it if found quite appropriate to first discuss the difference between role of investigating officer and that of 'Magistrate' in relation to investigation and outcome thereof. Every investigation is conducted with reference to Chapter-XIV of the Criminal Procedure Code as well relevant Police Rules. The vitality of role of investigating officer cannot be denied because it is the very first person, who per law, is authorized to dig out the truth which, too, without any limitations including that of version of informant/complainant. Without saying much, in that respect, the authoratitive view of honourable apex Court, given in the case of Mst. Sughran Bibi v. The State (PLD 2018 SC 595), wherein certain legal position(s) were declared. Out of which, some being relevant, are reproduced hereunder:- (iv) During the investigation conducted after the registration of an FIR the investigating officer may record any number of versions of the same incident brought to his notice by different persons which versions are to be recorded by him under section 161, Cr.P.C. in the same case. No separate FIR is to be recorded for any new version of the same incident brought to the notice of the investigating officer during the investigation of the case; (v) During the investigation the investigating officer is obliged to investigate the matter from all possible angles while keeping in view all the versions of the incident brought to his notice and, as required by Rule 25.2(3) of the Police Rules 1934 "It is the duty of an investigating officer to find out the truth of the matter under investigation. His object shall be to discover the actual facts of the case and to arrest the real offender or offenders. He shall not commit himself prematurely to any view of the facts for or against any person." (vi) . (vii) Upon conclusion of the investigation the report to be submitted under section 173, Cr.P.C. is to be based upon the actual facts discovered during the investigation irrespective of the version of the incident, advanced by the first informant or any other version brought to the notice of the investigating officer by any other person.

7. From above, it is quite clear that an investigating officer is not bound to base his conclusion on version of informant or defence but on 'actual facts, discovered during course of investigation'. Such conclusion shall be submitted in shape of prescribed form, as required by section 173 of the Criminal Procedure Code. At this juncture, it would be relevant to refer the provision of section 173 of the Criminal Procedure Code, which reads as:- "173 (1) Report of Police Officer. Every investigation under this Chapter shall be completed without unnecessary delay, and, as soon as it is completed, the Officer Incharge of the police station shall through the public prosecutor

. (a) forward to a Magistrate empowered to take cognizance of the offence on a police report, in the form prescribed by the Provincial Government, setting forth the names of the parties, the nature of the information and the names of the, persons who appear to be acquainted with the circumstances of the case, and stating whether the accused (if arrested) has been forwarded in custody or has been released on his bond, and, if so, whether with or without sureties, and (b) communicate, in such manner as may be prescribed by the Provincial Government, the action taken by him to the person, if any, by whom the information relating to the commission of the offence was first given. (2) Where a superior officer of police has been appointed under section 158, the report shall, in any cases in which the Provincial Government by general or special order so directs, be submitted through that officer, and he may, pending the orders of the Magistrate, direct the Officer Incharge of the police station to make further investigation. (3) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit.

8. The bare perusal of the above provision would show that it directs that on conclusion of every investigation, a police report shall be forwarded to the Magistrate, so empowered to take cognizance thereon which must include all details, as directed in above provision. It no where describes as to how the Magistrate shall deal with such report, it however empowers the Magistrate to agree or disagree with act of Investigating Officer in releasing an accused during investigation under section 173, Cr.P.C., which, too, to extent of discharge of bonds. Since, this Chapter no-where provides duties/powers of the Magistrate to deal with such forwarded report, therefore we had to jump to next Chapter of the Criminal Procedure Code, section 190 thereof, being relevant, is referred hereunder:- "Section

190. Cognizance of offences by Magistrates. All Magistrates of the first class, or any other Magistrate specially empowered by the Provincial Government on the recommendation of the High Court may take cognizance of any offence; (a) upon receiving a complaint of facts which constitute such offence. (b) upon a report in writing of such facts made by any Police officer, (c) upon information received from any person other than a police officer, or upon his own knowledge or suspicion".

9. In above section, the word 'may' has been used which always vests competence to agree or disagree. This has been the reason for legally established principle of Criminal Administration of Justice that an opinion of the investigating officer is never binding upon the Magistrate dealing with report, forwarded under section 173 of Criminal Procedure Code.

10. In case of Muhammad Akbar v. State (1972 SCMR 335), it has been observed by the Honourable Court that; "Even on the first report alleged to have been submitted under section 173, Cr.P.C., the Magistrate could, irrespective of the opinion of the Investigating Officer to the contrary, take cognizance, if upon the materials before him he found that a prima facie case was made out against the accused persons. After all the police is not the final arbiter of a complaint lodged with it. It is the Court that finally determine upon the police report whether it should take cognizance or not in accordance with the provisions of section 190(i)(b) of the Code of Criminal Procedure. This view finds support from a decision of this Court in the case of Falak Sher v. State (PLD 1967 SC-425)."

11. Even under the recently substituted subsection (3) of section 190 of Criminal Procedure Code, a Magistrate who takes cognizance of any offence under any of the clauses of subsection (1) of that section, is required to apply his mind in order to ascertain as to whether the case is one which he is required to 'send' for trial to the Court of Session or whether it is one which he can proceed to try himself. It must always be kept in view that an act of taking cognizance has nothing to do with guilt or innocence of the accused but it only shows that Magistrate concerned has found the case worth trying therefore, the Magistrate should never examine the matter in deep but only prima facie of commission of offence or otherwise should be seen by him. Once the Magistrate has taken cognizance of the offence exclusively triable by the Court of Session, he has to send the case of that Court to the Court of Session.

12. It would further be added here that taking cognizance alone shall prejudice no right of accused but keeps the prosecution to prove its charge without any harm to presumption of innocence of accused. Even otherwise, it is by now settled that cognizance is taken against offence and not the accused. Therefore, it can safely be concluded that if tentative examination of available material shows prima facie commission of a cognizable offence last justifies proceeding further with case then a criminal case normally be not disposed of in 'B' or 'C' class.

13. Reverting to merits of the case, perusal of the record shows that it was the case wherein two persons have lost their lives allegedly at the hands of the applicant and others, after sustaining fire shot injuries, under the pretext of police encounter. The Investigating officer was always required to investigate the case even from angle of defence plea but his conclusion must always be based on facts, discovered during course of investigation and not mere words of informant or defence. Since, it was root of the defence plea that because of the deceased persons, being desperate and hardened criminals, were done to death in police encounter, hence learned Magistrate was quite right in demanding some proof to such root, which the applicant and his associates failed to produce before him despite availing several opportunities. Since the claimed witnesses of incident prima facie have supported version of informant, as opined by the Magistrate in the impugned order, then the investigating officer was never justified to declare the case to be false on the basis of defence plea without collecting any proof thereto. Further, it is also a matter of record that excepting the applicant, none else (co-accused) has impugned the order of learned trial Magistrate which impliedly reflects that they have accepted the same. Further, since taking of cognizance, as already discussed, is nothing more than proceeding further without any harm to obligation of prosecution to prove its case beyond reasonable doubt and that of right of accused to enjoy fair-trial which includes a fair opportunity to prove his defence plea even or compromise, if it is arrived at by the accused with the complainant party.

14. For whatever has been discussed above, it is concluded that no illegality or irregularity has been committed by the learned Magistrate while passing the impugned order dated 13.02.2009 which may justify making interference with it, by this Court, by way of instant Criminal Misc. Application, it is dismissed accordingly. SA/Z-16/Sindh Application dismissed.