P L D 2013 Sindh 220 (PLP)

AFTAB AHMED CORAR, J.

By this single order 1 propose to dispose of abovesaid two Criminal Miscellaneous Applications filed under section 561-A, Cr.P.C. as in both the applications, same common order has been challenged. Through these Applications the applicants Mohirnmad Shahid Khattak and Rizwan Khan have impugned the order dated 19-4-2012 passed by Special Judge Anti-Corruption (Provincial) Karachi whereby she disagreed with the report submitted by police under section 173, Cr.P.C. and took cognizance of the alleged offence against the applicants. Precisely, the facts giving rise to the filing of instant applications, are that F.I.R. No.8 of 2010 was lodged by one Mohammad Farooq Awan under sections 161/34 read with section 5(2) Act-II of 1947 against the present applicants and others. The Assistant Director (E) DACE, Karachi submitted report under section 173 Cr.P.C. for disposal of the case. However, vide order dated 6-10-2011 the learned Special Judge did not agree with the said report and directed for submission of final charge sheet against all the accused persons. The said order was challenged in Criminal Miscellaneous Application No. 412 of 2011 and vide order dated 11-4-2012 this Court set aside the order dated 6-10-2011 and directed for passing fresh order on the final report within the four corners of law. The learned Special Judge vide order dated 19-4-2012 again disagreeing with the report under section 173, Cr.P.C. took cognizance against the accused persons including the present applicants, hence this Criminal Miscellaneous Application. Learned counsel for the applicants contended that learned trial court has erred in law and facts while passing the impugned order; that no trap 'laid was conducted and case was registered without trap proceedings; that neither any permission was accorded by the competent authority (Anti-Corruption Committee-II) for registration of the case nor any sanction advice of the competent authority for challan of the applicant was obtained, as such the entire exercise of taking cognizance is without jurisdiction; that when the case has been decided to be dropped with the approval of competent authority, the learned trial court cannot take another view. In support he relied upon the cases reported in PLD 2002 Karachi 464 and 1989 PCr.LJ 1361: He prayed for setting aside of the impugned order and quashment of the proceedings against the applicants. Conversely, learned A.P.-G. supported the impugned order contending that the learned trial court was not bound to accept the, report under section 173, Cr.P.C. and had the powers to take cognizance. I have heard the arguments advanced by the learned counsel for the applicants as well as learned A.P.G. and perused the material available on the record. It is now well settled that Magistrate is not bound by the report submitted by police under section 173, Cr.P.C. and he may or may not agree with the conclusions reached by Investigating Officer. Nothing was provided in section 190, Cr.P.C. to prevent a Magistrate from taking cognizance of case under clause (b) of section 190, Cr.P.C. in spite of police report. The Magistrate was only required by law to apply his independent mind to the material placed before him and form his own opinion about the matter. If any case-law is needed reference may be made to 2005 PCr.LJ 560 and 2004 PCr.LJ 1023. So far as the contention that no trap raid was conducted and case was registered without trap proceedings is concerned, suffice it to refer to Annexure P/3 to the Criminal Miscellaneous Application which is a letter dated 10-8-2010 written by Ist Civil Judge and Judicial Magistrate, Malir, Karachi which shows that he was deputed to supervise the trap proceedings and accordingly on 9-8-2010 he associated with Mr.Abdul Aleem Bullo, Assistant Director (Executive), Directorate of ACE, Karachi arrived at the pointed place along with the complainant and mashirs and when ACE police party along with the Magistrate rushed towards Anwar Balouch Hotel firing started from inside the hotel. The Magistrate and others rescued themselves and after stoppage of firing Assistant Director ACE dropped him at District and Sessions Court Malir. During such firing one Raja Anwar was injured and accordingly F.I.R. No. 360 of 2010 was lodged at Police Station Airport. In this view of the matter, contention of the learned counsel is totally devoid of force. As regards the contention of the learned counsel that no permission and sanction advice was obtained from the competent authority, it may be pointed out that initially the applicant filed Criminal Miscellaneous Application wherein he had challenged the order of the Special Judge whereby she disagreed with the report under section 173, Cr.P.C. and ordered Director ACE to direct the I.O. to submit final charge sheet against the accused persons. In the said Application no such ground was taken and only grievance of the applicant was that although the learned Special Judge had powers to take cognizance, however she could not issue direction for submitting challan. Said application was disposed of with direction to pass fresh order within the four corners of the law and accordingly the learned Special Judge while declining the report under section 173, Cr.P.C., took cognizance in the matter. I do not find any irregularity or illegality in the said order. The case-law relied upon by the learned counsel are distinguishable. In PLD 2002 Karachi 464 the contention was that lodging of F.I.R. against a civil servant at a local police station in presence of Anti-Corruption police station was without jurisdiction, while in the present case F.I.R. lodged at Police Station ACE Karachi. In 1980 PCr.LJ point was whether Public Prosecutor without the orders of the Court under section 10(4) of Act-II, 1947 could withdraw the case against the accused, whereas there is no such point in the instant case. For the foregoing reasons, I do not find any irregularity or illegality in the order passed by the trial court which is accordingly upheld and Criminal Miscellaneous Application, being devoid of merits, is dismissed in limine. MWA/M-166/K Application dismissed.