P L D 2012 Sindh 406 (PLP)

MUHAMMAD ALI MAZHAR, J.

This criminal miscellaneous application has been brought to challenge the order dated 6-8-2011, passed by the 3rd learned Judicial Magistrate, Sukkur, whereby he did not concur with the report submitted by the Investigating Officer for cancellation of F.I.R. No.127 of 2011 under C-class, lodged at 'Police Station A-Section, Sukkur under Sections 452, 506/2, 148, 149, P.P.C., and S.I.O. was directed to submit charge sheet within three days.

2. Concisely, the facts of the case are that respondent No.2 lodged an FIR., stating therein that he is Assistant Engineer in Irrigation Department. Applicant No.2 is his brother-in-law. On 18-6-2011 at about 8-00 p.m, when the complainant along with his family members was present in his house, the accused Nasrullah, Lal Muhammad and two unidentified persons came and issued threats and demanded their illegal share in the property. The complainant refused and lodged NC at P.S.A. section Sukkur on the same day. It is further averred that on 19-6-2011 at 6-00 p.m., complainant was present in his house and, on call bell, he,opened the door when suddenly accused Zafrullah, Nasrullah, Yasir alias Raja, Lal Muhammad along with three unidentified persons were there, out of them three persons were armed with pistols while accused Nasrulah had repeater, whereas remaining accused were holding lathies. By force, accused persons entered into the house. Accused Nasrullah and Zafrullah abused the complainant and called upon him why he is not giving share from the property and why he lodged report to the police, thereafter, the accused persons dragged him out and on his cries PWs. Ghulam Mustafa and Sanaullah came and intervened. While leaving, accused Zafrullah and Nasrullah issued threats to the complainant that in case he did not give share in the property and not withdraw his report, he would be murdered and his daughter would be kidnapped from medical college.

3. The learned counsel for the applicants argued that the impugned order is based on surmises. While disagreeing with the report of I.O. under C-class, no reasons have been assigned as to why investigation or the report submitted by the police is not inspiring confidence. It was further averred that on the date and time of alleged incident, applicant Zafarullah was in village Dunhon Ibrahim Shah, district Khairpur, while applicant Nasrullah and co-accused Yasir and Lal Muhammad were in Karachi. The learned Magistrate failed to consider or even failed to mention names of witnesses or any other incriminating material deserving his disagreement with the report submitted by the I.O. in C-class. The learned counsel further argued that it is suffice to grasp from the contents of the F.I.R. that no offence was committed by the applicants. The learned counsel added that after proper investigation, I.O. recommended the case to be cancelled in C-class, but the report was not accepted.

4. Conversely, the learned APG 'for the State argued that after disagreeing with the report by the learned Magistrate, the I.O. has already submitted final report and the cognizance has been taken. He further argued that proper remedy is available to the applicants to move to the trial court and file proper application fortheir acquittal. He further argued that the impugned order does not require any interference.

5. The learned counsel for the respondent No.2 argued that I.O. has not properly investigated the case and due to some mala fide intentions, he recommended the case to be cancelled under C-class. He supported the impugned order and argued that learned Magistrate after considering the entire material available on record disagreed with the report of I.O. and rightly ordered him to submit charge-sheet. 1n support of his arguments, the learned counsel relied upon 2009 YLR 1614 (Sarfraz Hussain v. State), in which it was held that in criminal administration of justice, the quality of evidence is to be considered by the court irrespective of the quantity of the evidence. Even one witness whose evidence was sufficiently confidence inspiring and free from all hypothesis could be treated as sufficient and convincing to convict accused. Magistrate was of the opinion that eye-witnesses supported the occurrence and in such circumstances, he was well within his powers not to accept the report submitted by the I.O. for disposal of matter in B-class. He further referred to 2009 YLR 1479 (Muhammad Hassan v. State), in which it was held that report of I.O. seeking disposal of case: under B-class did not file report in the pro forma prescribed within the meaning of section 173, Cr.P.C, ;therefore, Magistrate was well within his right to direct the 1.0. to tile challan. Both above case-law referred to by learned counsel for the respondent No.2 are distinguishable and not attracted to the facts and circumstances of the present case. Lastly, he referred to 2010 YLR 1357 (Muhammad Arshad Afridi v. State), in which the learned single Judge of this court held that the Magistrate while securitizing the report under section 173, Cr.P.C. and passing order thereon does not act as a court of law and his order is only an administrative order, which must be a speaking order giving vai?`J reasons for the conclusion. Administrative nature of the order of Magistrate does not mean that he can act arbitrarily; the same may not be a judicial order but it must be a judicious order. Magistrate has power to disagree with the conclusion recorded in the police report: So far as this case-law is concerned, there is no cavil to well settled proposition of law that while passing order on final report submitted under section 173, Cr.P.C. though Magistrate acts in administrative nature, but he has no power to act arbitrarily, Order may not be judicial order but it must be judicious order.

6. In the Criminal Revision Application: No. S-69 of 2011, decided by me, it was discussed in detail that when the investigation is completed as envisaged under sections 156, 157, Cr.P.C, report under section 173, Cr.P.C. is required to be submitted to the Magistrate concerned with the opinion of the investigating officer whether he found the accused guilty or innocent and challan can only be submitted when the I:0. comes to the conclusion that the accused is found guilty and recommended to be tried under the relevant Offences. Even in the case of recommendations of the I.O. disposing of the F.I.R. in A, B or C class, the opinidn is not binding upon the court and court may take cognizance if deems fit and proper on the basis of incriminating material available on record. However, it is incumbent upon the court to advert to it, examine it and to take cognizance in the matter,, as envisaged by section 190, Cr.P.C.. Under section 173, Cr.P.C, court may agree or may not agree with the police report and notwithstanding the recommendations of the I.O. regarding cancellation of case could decline to cancel the case and proceed to take cognizance as provided undersection 190, Cr.P.C. and summons the accused to face trial. Magistrate when sees final report should act fairly, justly and honestly by applying his mind to material placed before him, he should pass a speaking order and well reasoned- order after, duly considering pros and cons of matter. He is not expected to put his signatures on dotted line, or blindly ditto report of police which could signify his lack of application of mind or give impression of being led by nose by police. Reference can be made to 1994 MLD 1659 and 1997 SCMR 299.

7. In my another judgment reported in 2012 PCr.LJ 189, Syed Paryal Shah v. Behram Ali and others, it was held that 'report under S:173, Cr.P.C. was not binding upon the court, and Magistrate could ,take cognizance even in case of negative report. Order passed by the Magistrate should be judicious and not an arbitrary order without reasons and justifications. Magistrate was required to consider the report under 5.173, Cr.P.C. in the light of the material collected during investigation and then pass the order. Power conferred upon. the Magistrate though administrative in nature, had to be just and judicious; and while passing the order and showing disagreement to the report submitted - by Investigating Officer under - S.,173, Cr.P.C.; entire material collected during the investigation should be considered. Nothing is available in the impugned order to show that while passing the order the Magistrate had applied his independent mind and considered the material available on record for reaching an unequivocal conclusion, as to - why report of Investigating Officer was not inspiring confidence, and what material was collected or available on the record to connect or link applicant/accused to the case. Order passed by the Magistrate under S.173, Cr.P.C. though being an administrative order, - should be a speaking order giving well reasons for its conclusion. Impugned order did not show that the Magistrate had applied his independent mind and bothered to consider the material collected during the investigation; nor it contained any plausible or cogent reason for disagreeing with the opinion of Investigating Officer.

8. I have carefully gone through the impugned order. The learned Magistrate observed that it is an admitted fact that the complainant and accused are related inter se and there is some property dispute. It was further observed in the order that both the eye-witnesses have supported the version of the complainant but nothing has been mentioned in the impugned order which may suffice to show that what actually the eye-witnesses stated and what incriminating material was available on record sufficient to discard the opinion of the I.O. The learned Magistrate also observed that there is sufficient incriminating material in police file but it is also a fact that not a single incriminating material has been discussed in the impugned order which may suffice to hold that final report submitted by I.0. under section 173, Cr.P.C. was rightly rejected. If sufficient incriminating, material was available in the police file then how the recommendation was made to cancel the F.I.R. in "C" class.. The learned counsel for the applicants pointed out an affidavit of Mst. Bisharat Khatoon real mother of respondent No.2 who inter alia stated that her son Abdul Rasool after death of her husband is trying to usurp properties of her late husband which was inherited by her and her daughters. She further stated that her son-in-law , applicant No.2 and his maternal uncle Zafarullah (applicant No.1) had.requested respondent No.2 to give due share from ancestral property to his mother and sisters which annoyed him and he threatened them that he will falsely implicate the applicants in criminal cases. Similarly, another affidavit has been filed by Mst. Bilqees, real sister of respondent No.2 and she stated almost same facts against the respondent No.2.

9. After going through the entire facts of the case and perusal of impugned order, I am of the firm view that nothing is available in the impugned order to show that the learned Magistrate had applied his independent mind and considered the material available on record for reaching a conclusion as to why report of the I.O. was. not inspiring confidence and what material was collected or available to connect the accused persons.

10. For the foregoing reasons, the impugned order dated 6-8-2011 is quashed. The learned Magistrate is directed to pass a speaking order on the report submitted by I.O. after considering the entire material t collected during investigation within a period of 15 days. This criminal miscellaneous application is disposed of accordingly. M.W.A./Z-6/K??????????????????????????????????????????????????????????????????????????????????? Order accordingly.