2009 PLP 612 (YLR)

DR. RANA MUHAMMAD SHAMIM, J.

Through this constitutional petition, the petitioner has assailed the impugned order dated 1-12-2006 passed by the learned IInd: Civil Judge and Judicial Magistrate, Dadu, whereby he approved the summary submitted by the police and disposed of the case in "B" class. The relevant facts of the F.I.R. are that on 3-9-2006 at 7-00 p.m., the complainant Moula Bux was sitting outside of his Kiryana shop situated in Housing Society near Shahabad/Channa Muhalla Dadu and was talking with Akbar Soomro, Abdul Majeed Panhwar and his son Irfan Ali, who were sitting inside the Kiryana shop, when all of sudden accused Ghulam Nabi duly armed with Repeater and accused Ghulam Rasool, Habibullah both armed with pistols while accused Abdullah armed with Mauser, Nisar Ahmed with pistol came there and started abusing and accused Ghulam Nabi and Abdullah forcibly entered into the shop. The licensed K.K. type 7 MM containing 28 live bullets and 65 bullets lying in the bag were forcibly taken by accused Ghulam Nabi while accused Habibullah had taken golden locket and ring from there as well as the salary cash of complainant. Accused Abdullah aimed his Mauser on the son of the complainant namely Irfan Ali, then all the accused while taking all the articles abusing, issuing threats of dire-consequences to them ran away. Thereafter complainant went to police station, Dadu for registration of the F.I.R., but the police refused to register the F.I.R. of the complainant, as the real brother of accused/opponents Nos.1 and 2 namely Ghulam Sarwar Panhwar is Inspector in Investigation Team, Mehar, therefore, complainant filed application under section 22-A and B, Cr.P.C. before the Sessions Court, Dadu, which was allowed and ultimately the police registered the F.I.R. of the complainant on 12-10-2006 in compliance of the Court orders. Similarly the Investigation Team Dadu at the influence of said Ghulam Sarwar, Inspector Investigation Team, Mehar did not conduct the investigation honestly and submitted report under section 173, Cr.P.C. and disposed of the case in "B" class, hence this petition. Learned Addl: A.G. raised objection that on 1-12-2006 the learned II-Civil Judge and Judicial Magistrate, Dadu has passed administrative order and no constitutional petition lies against the said order. He further submits that this court has power under section 561-A, Cr.P.C. to entertain/decide the matter by converting into a Crl. Misc: Application and suggests that this petition be accordingly converted into Crl. Misc: Application and re-numbered. It is ordered that it may be converted into Crl. Misc. Application under section 561-A, Cr.P.C. Learned counsel for petitioner submits that the complainant's version was admittedly supported by witnesses mentioned in the F.I.R. namely Irfan 'Ali and Abdul Majeed in view of their statements recorded under section 161, Cr.P.C. In the impugned order, it is observed that P.W. Irfan' Ali Panhwar, being the son of the complainant has supported the complainant whereas regarding P.W. Abdul Majeed no such observations were recorded. Learned counsel submits that the learned Judicial Magistrate at this stage has patently erred in making such observation. He submits that P.W. Ali Akbar whose statement recorded under section 164, Cr.P.C. has stated that he is un-aware, about the incident and his name was mentioned as witness by the complainant. He further submits that the I.O. has mostly recorded the statements of defence witnesses who favoured the accused person only. He also submitted that from the contents of the F.I.R. the sections 392, 337-H(ii) and 504, P.P.C. are attracted whereas section 17(3), Offences Against Property (Enforcement of Hudood) Ordinance, 1979 does not attract, which section has wrongly been incorporated by the police. From the material available before the learned Judicial Magistrate, he has acted contrary to that and approved the report of I.O. submitted under section 173, Cr.P.C. whereafter ordered to initiate proceedings against the complainant under section 182, P.P.C. which is against the law and parameters laid down by Superior Courts. He referred the cases of Farooq Sumar v. State (2004 PCr.LJ 1023) and Muhammad Dildar Hussain v. Civil Judge and Judicial Magistrate, Shujabad (2000 PCr.LJ 43). The learned Addl: A.-G. submits that instead of approaching this Court, the applicant has to approach Federal Shariat Court, as against the order of the learned Judicial Magistrate and the sections applied in F.I.R. and report under section 173, Cr.P.C. are/can only be agitated before the Federal Shariat Court. While saying so he has relied upon the case reported in 2000 PCr.LJ 1165 and submits that the impugned order is legal, speaking one and no interference in it is required, as he has not committed any illegality or material irregularity. I have heard learned counsel for the applicant as well as learned Addl. A.-G. for the State and perused the material available on record and gone through the case laws referred by the learned counsel. From the contents of the F.I.R., it is nowhere mentioned that the accused persons mentioned in the F.I.R. came for committing the dacoity, which attracts penal provision of section 17(3), Offences Against Property (Enforcement of Hudood) Ordinance, 1979. However, from then contents of the F.I.R. and statements of witnesses namely Irfan Ali, Abdul Majeed and Ali Akbar at the best, the provisions of section 392, P.P.C. are attracted. Apart from the said section 337-H(ii) and 504, P.P.C. have also been inserted on the basis, of the alleged offence committed by the accused persons nominated in the F.I.R. Since his son Irfan Ali was present along with Abdul Majeed at the time of incident who is an eye-witness does not disqualify him to act as witness. Prima facie, the learned Judicial Magistrate has ignored and overlooked the material before him in shape of contents of F.I.R. and statements of eye-witnesses Abdul Majeed Panhwar and Irfan Ali, which attracts the provisions of sections 392, 504 and 337-H(ii), P.P.C. who instead of taking cognizance of the case and sending up of the case for trial to the concerned competent Court of law has agreed with the I.O. and approved the F.I.R. in "B" class whereafter ordered to initiate proceedings against complainant under section 182, P.P.C. The case laws cited by the learned Addl. A.-G. are distinguished from the facts of the present case whereas case laws referred by the learned counsel for applicant are applicable in this case. In pursuance of above case laws and in presence of sufficient material on record as mentioned above, in my considered view the learned Judicial Magistrate should have taken cognizance under section 190(2), Cr.P.C. for sending up the accused persons for trial in competent court of jurisdiction. The application is accordingly allowed and the impugned order dated 1-12-2006 passed by the learned IInd: Civil Judge/Judicial Magistrate, Dadu is set aside. Order accordingly. N.H.Q./M-207/K Petition allowed.