2011 YLR 1230 (PLP)

IRFAN SAADAT KHAN, J.

The applicant is aggrieved by the order dated 27-8-2010 whereby the First Judicial Magistrate/Civil Judge, Karachi East disposed of the final report under section 173, Cr.P.C. under "C" class instead of "B" class in Summary No.52 of 2006 in F.I.R. No.423 .of 2010 under section 489-F, P.P.C. registered at Police Station Ferozabad, Karachi on 17-4-2010.

2. Although a lengthy petition has been tiled narrating various disputes between the applicant and his younger brother but the crux of the matter is that an F.I.R., bearing No.423 of 2010, was lodged against the applicant by a lady namely Miss Tehseen at Ferozabad Police Station under section 489-F, P.P.C. on 17-4-2010 for dishonouring of cheque. Since the applicant was in Canada, therefore, after coming to Pakistan he met with the Investigating Officer on 28-5-2010 and totally denied having ever opened any account in KASB Bank and also denied having issued any cheque to the said person. During investigation it transpired that the account was opened by a former employee of the Bank, namely, Mustafa Bande Ali on the basis of an application dated 6-3-2010 on the letterhead of "Huzaima Enterprises" which 'did not contain any phone number or fax number or other details. The letter sent to the account holder to verify his address also showed that the address was wrong. It also transpired that the cheque book in respect of the said' account was issued to one Ghulam Murtaza, a resident of Gilgit, on the basis of a fraudulent letter purportedly issued by the applicant. Even the person who lodged the above F.I.R. never came forward to pursue the matter and when contracted she stated that the said cheque was not given to her by the applicant but by one Nasreen whose whereabouts were not known to her/the complainant. She also stated that she did not know the applicant. She also stated that after marriage she has shifted to Lahore and was not in a position to come to Karachi. It was in these circumstances that the Investigating Officer submitted the above report to S.P.O., Ferozabad vide letter dated 24-5-2010 who forwarded the same to SP Investigation-II. The applicant also filed a petition wherein it was ordered that the police has submitted report in "B" Class before the concerned Magistrate, who shall positively pass the orders within one week from today and report compliance through MIT. However, vide the impugned order the Judicial Magistrate disposed of the final report under "C". The only cause of concern shown by the applicant is that the Judicial Magistrate wrongly disposed of the report in, "C" Class as it was to be disposed of in "B" Class in order to enable the applicant to proceed against the person behind the scam under section 182, P.P.C. for lodging false F.I.R.

3. Learned counsel for the applicant submitted that the applicant never opened ally account at the KASB Bank and thus no question of arises of having ever issued any cheque drawn on such bank, he also submitted that provisions of section 489-F, P.P.C. are being misused to settle personal score; that whole report of the I.O. has been accepted except disposal of the case under "B" class as recommended by the I.O. the impugned order has been passed under the influence of police officers and is not sustainable, in law.

4. Mr. Zafar Ahmed Khan, learned. A.P.-G., submitted that the order of the Magistrate is proper and the applicant may seek his grievance if "so advised. He submitted that this matter requires evidence and it is settled law that F.I.R. is not an evidence but information only.

5. According to the Bombay Presidency Police Guide, report of investigation under section 173 of the Code of Criminal Procedure, 1898, is to be filed either ill the form of a charge-sheet, if the accused is sent for trial, or in the form of a Final Report, in other cases. Final Reports are classified into 'A' -- true cases, 'B' maliciously false cases, 'C' --neither true nor maliciously false cases and non-cognizable cases.

6. The fate of the F.I.R. lodged against the applicant is to be decided on the basis whether the same falls within "B" Class i.e. the same is maliciously false or in "C" Class i.e. neither it is true nor maliciously false and for this purpose the evidence gathered by the I.O., in the case is to be sifted.

7. In this case the facts which tilt the 'balance in favour of the applicant are that the applicant denies having ever opened any account at the said branch of KASB Bank. This fact was further corroborated by the fact that the Manager of the KASB Bank admitted that the account was opened by a former employee of the Bank. It is also surprising that after filing the complaint/ F.I.R. the complainant did not come ' forward at all. It is also surprising that the complainant does not know the applicant and admits that the cheque on the basis whereof the F.I.R. was lodged by the complainant against the applicant was given to her by one Nasreen and not by the applicant. However, in her complaint she clearly mentions that the cheque was given to her by the applicant. The applicant completely denied having ever opened a bank account at the said Bank or having issued any cheque to the complainant.

8. There is no doubt that Courts are not bound by arbitrary opinions of the Investigating Officers. They have to apply their independent mind to the facts and circumstances of each case. A Court call take cognizance even on negative report and can refuse to take cognizance on a positive report depending upon facts and circumstances of each case.

9. It may be emphasized that a Magistrate while exercising his powers under section 173, Cr.P.C. does not act in a mechanical manner. His order must show his application of mind, his, opinion must be supported by reasons and his conclusion must be laced with evidence that judicial mind has been applied. Though he is required to apply his judicial mind but the order passed by him is not a judicial order, it is an' administrative order. In spite of being an administrative order it must be a judicious order.

10. In the present case the Judicial Magistrate, rather than dilating upon the facts brought before him, has gone astray and decided the matter on extraneous grounds. He has totally ignored that the complainant has admitted that the cheque in question was not given to her by the applicant but by one Nasreen; she has also not come forward to assist in the proper investigation of the case, the opening of the bank account in KASB' Bank is also shrouded in mystery as the applicant never visited the said Bank. All these facts prima facie show that the applicant was trapped by fraudulent means. In case the applicant can prove that all this exercise of lodging F.I.R. was a sham then he is fully entitled to the mechanism provided under section 182, P.P.C. so that .all those involved in this fraudulent transaction are brought to book.

11. Accordingly, this criminal misc. application is allowed and the impugned order is set aside and the case is remanded to the Judicial Magistrate concerned to decide it afresh in. accordance with law strictly within 15 clays of receipt of this Order. H.B.T./A-24/K Case remanded.