2012 P Cr (PLP)

QAISER RASHID KHAN, J.

Aggrieved of the order dated 4-10-2011, passed by the learned Judicial Magistrate-I, Tank, whereby he did not concur with the final report of the police in respect of cancellation of F.I.R. No.133 dated 25-6-2011 under section 302/34, P.P.C. of Police Station Mullazai, District Tank and directed respondent No.3 to submit complete, challan within seven days.

2. Briefly stated facts of the case leading to the filing of instant petition are that Sarwar Khan son of Badshah Khan (paternal uncle of deceased Rafiullah) filed an application under section 22-A, Cr.P.C. before the learned Sessions Judge/Justice of Peace, Tank wherein he prayed for issuance of directions for registration of F.I.R. under section 302, P.P.C. against. Abdul Ghaffar Khan, Head Constable posted as SHO, Aslam Khan Head Constable, Police Station, Mullazai and Abdul Wahab ATS/F.C. Police Force, District Tank. He mentioned that on 24-5-2011, he along with Rafiullah, Azad Khan and Adam Khan sons of Muhibullah had gone to the landed property of their uncle Ghaffar Khan for clearing the wheat crop with thrasher and stayed there for the night. Early in the morning, they headed towards their home. At about sunrise time, when they reached near their home, the petitioners were present there. The petitioners asked all of them to raise their hands up. Out of scare, Rafiullah tried to run away, whereupon the petitioners with the intention of killing fired at him with which he was hit and died on the spot. Later on, local police took away his dead body. The occurrence was witnessed by them. His nephew was unarmed. He was not required to the local police in any cognizable case. The local police had wrongly shown him to be killed in a fake police encounter. Sarwar Khan, complainant tried to register the case against the petitioners at Police Station, Mullazai but they refused. Similarly, local police, Tank also refused to register the case. Petitioner No.1 Abdul Ghaffar was a junior police hawaldar and the police officials in authority at District Tank had wrongly appointed him as SHO who had committed the offence under section 302, P.P.C., therefore, the local police was bound to register the case against the petitioners. The petitioners appeared before the court of learned Sessions Judge/Justice of Peace, Tank and submitted their replies wherein they denied the claim of the complainant Sarwar Khan. The learned Sessions Judge/Justice of Peace, Tank after hearing arguments of the learned counsel for the parties vide order dated 14-6-2011 accepted the application under section 22-A, Cr.P.C. of the complainant Sarwar Khan and directed for the registration of an F.I.R. against the petitioners.

3. After investigation, the police submitted final report under section 173, Cr.P.C. praying for cancellation of the above said F.I.R. against the petitioners, but the learned Judicial Magistrate-I, Tank vide impugned order dated 4-10-2011 did not agree with the said report and instead directed for the submission of complete challan within seven days. Aggrieved of the said order, the petitioners have preferred the instant quashment petition.

4. The learned counsel for the petitioners argued that the learned respondent No.1 has not acted in accordance with the provisions of criminal law and procedure and has also defied the settled principles of law by ignoring a final report submitted by respondent No.3 under section 173, Cr.P.C., that the learned respondent No.1 in case of his disagreement with the opinion of the police could only send the case for trial to the learned Sessions Judge; that the learned respondent No.1 misconceived and misconstrued the provisions of section 173, Cr.P.C. while passing the impugned order.

5. Conversely, the learned A.A.-G. and learned counsel for the complainant also addressed arguments.

6. Arguments heard and record perused.

7. This case has a chequered history. While going through the record, surprisingly no opinion of District Public Prosecutor is available though a letter No.1098 dated 20-9-2011 was addressed by the Superintendent of Police Investigation, Tank to the D.P.P. recommending for the cancellation of the F.I.R. on the basis of the final report. This only shows the disregard of the police officials for the due process of law when in a very perfunctory manner, a police high up thought it fit to order for the cancellation of the F.I.R. against his subordinates. It needs no reiteration that a Magistrate is not necessarily bound by the report submitted by the police under section 173, Cr.P.C. and may not subscribe to the conclusions drawn by the investigating officer in this regard. Section 190, Cr.P.C. caters to such situation where a Magistrate despite the final report of the police under section 173, Cr.P.C. may take cognizance of a case. No clog can be put on the Magistrate not to apply his independent mind to the material available before him and form his own unfettered opinion about the matter. Though the impugned order is not stricto jure a speaking order, but still no illegality or irregularity has been committed by the learned respondent No.1 by disagreeing with the final report of the police. Thus it is directed that the local police should submit complete challan within two weeks of the receipt of the case from this court before the learned Sessions Judge, Tank where the case be decided on its own merits after giving full opportunity to the parties to produce their respective evidence.

9. Before parting with this order, another interesting or rather appalling feature of the case is that despite the registration of an F.I.R., the complainant/respondent namely, Ghulam Sawar has been running from pillar to post to see the effects of the F.I.R. ibid registered by him, but to know avail. The same is not the case with other such F.I.Rs. registered in the ordinary course where the swiftness displayed by the police is par excellence. However, when it comes to their brothers-in-uniform, then they are seen lagging far behind in the performance of their duty cast on their shoulders by law. Such attitude gives rise to despondency in the public-at-large when different yardsticks are applied to persons hailing from different strata of the society.

10. As corollary to what is stated above, I find no substance in this petition which is hereby dismissed.

11. It is clarified that any observations made in this order should in no manner prejudice the proceedings before the learned trial Court where the case be decided strictly in accordance with law and on merit. M.W.A./161/P Petition dismissed.