2013 P Cr (PLP)

FAROOQ ALI CHANNA, J.

The applicants, through the instant criminal miscellaneous application has assailed the order dated 6-10-2012 passed by the Judicial Magistrate Kingri District Khairpur on the report of Investigating Officer submitted under section 173, Cr.P.C. in F.I.R. No.109 of 2012 of Police Station Ahmedpur under sections 302, 109, 148, 149, 337-H(2), P.P.C., directing issuance of N.B.W. against the applicants whose names were placed in column No.2 of challan. Succinctly the facts of case are that on 3-9-2012, complainant Nabidad lodged the F.I.R. at Police Station Ahmedpur District Khairpur regarding the murder of his uncle Ghulam Hyder and brother Muhammad Kamil, nominating eight accused by names including the applicants Abdul Karim, Abdullah and Ayaz and two unknown persons. During investigation the I/O found insufficient evidence against the applicants therefore, after completing the investigation submitted de report under section 173, Cr.P.C. placing the name of applicants in column No.2 of challan. The Judicial Magistrate on submission of report under section 173, Cr.P.C. and an application filed by the complainant passed the imputed order, which read as under:-- "Challan is accepted. Register the case .302 is exclusively triable by honourable Sessions Judge, As per F.I.R. and complainant submitted application for join in column II. Issue NBW absconder and column II. R/Ps submitted to Sessions Court." There is no cavil to the powers of Judicial Magistrate vested in section 190-1(b)(c), Cr.P.C. for taking the cognizance of an offence against the persons whose names are placed in column No.2 of challan, disagreeing with the opinion of the investigating officer or on information received from any person or knowledge or suspicion of the Judicial Magistrate. The above proposition of law has not been controverted by the counsel for the applicants, however his contention was that the Judicial Magistrate while passing the order on report under section 173, Cr.P.C. was bound to consider all the material collected during the investigation and then to pass a just, fair and speaking order. Learned counsel has further contended that the learned Judicial Magistrate while passing the impugned order has failed to consider the evidence collected during the investigation, offering an opportunity of hearing to the applicants even without impleading them as accused, ordered the N.B.Ws against the applicants without assigning the reason as such the impugned order is arbitrary, vague, against the natural justice and in violation of principle of maxim Audi alteram partem (No one should be condemned unheard), hence such order is liable to be set aside. According to learned State Counsel the impugned order passed on the written complaint of the complainant does not suffer from any infirmity or illegality. The complainant is present in Court states that the applicants are involved in the murder of his uncle and brother and are nominated in the F.I.R. but the Investigating Officer has let-off them malafidely for certain hidden reasons. He has produced copy of application sent to higher authorities, wherein he has narrated his grievance. The impugned order visibly seems to have been passed on the report of Investigating Officer submitted under section 173, Cr.P.C. without considering the material collected during investigation, as it contains no reason for disagreeing with the opinion of Investigation Officer, as such the same appears to be arbitrary order, can be quashed by High Court in exercise of its inherent jurisdiction under section 561-A, Cr.P.C. In a case reported as Shoukat Ali and 2 others v. The State 1995 PCr.LJ 1749, while referring to the case of Haji Muhammad Aslam v. The State 1986 PCr.LJ 1492 following observation was made:-- "After perusal of the report under section 173, Cr.P.C. and the order dated 17-2-1994 passed by the trial Court, I am also of the view that the order has been passed for issuance of process against the petitioners by the trial Court apparently without realising that the names of three petitioners have been placed in Column No.2 of the challan and, according to Police, no evidence was found to implicate the petitioners in the offence in question. This should not be taken to mean that the opinion of the Police is binding on the trial Court. However, it was incumbent upon the trial Court, before issuing the process against the three petitioners, who had been placed in Column No.2 of the challan, to look at the material available with the Police and then pass the order which would have indicated that the Court had come to the prima facie conclusion that on the basis of the material available with the police, the petitioners were involved in the offence in question." For the reasons discussed hereinabove and with profound respect to the observation quoted above, the instant criminal miscellaneous application is accepted partly, consequently the impugned order dated 6-10-2012 is set aside to the extent of issuing the N.B.Ws against the applicants with the direction to the competent Court to pass a proper and speaking order containing solid reasons on the report submitted by the investigating officer under section 173, Cr.P.C. and application submitted by the complainant, after considering the same in accordance with law after allowing opportunity of hearing to both parties and State Counsel. The criminal miscellaneous application is disposed of in above terms. MWA/A-141/K Order accordingly.