2020 P Cr (PLP)

ABDUL MAALIK GADDI, J.

Through this constitutional petition, the petitioner has prayed for the following relief(s):- "a That this Honourable Court may be pleased to set-aside the order dated 30.05.2018 passed by learned respondent No.1 by accepting the Summary in "C" Class. b. That this Honourable Court may be pleased to direct the respondent No. 8 to submit the challan in the above matter before respondent No.1 against the above named private respondents. c. Any other relief which this Honourable Court deems fit and proper under the circumstances of the case."

2. Through instant petition, the main grievance of the petitioner is that he lodged/registered FIR being- Crime No.71/2018, under sections 342, 436, 506(ii), 452, 427, 147, 148, 149, 509 and 114, P.P.C. at Police Station Khipro, District Sanghar against respondents Nos.2 to 7 with allegations that on the day of incident he was available in his house along with other family members. Suddenly', accused, nominated in the aforesaid FIR, carrying guns, rifles, pistols and lathis in their hands, forcibly entered into his house, extended threats of dire consequences and then put fire to his house and then left scene by taking away 25 maunds of wheat and other household articles by saying that in election they will not cast votes to their head. According to the FIR, this incident was witnessed by P.Ws. Essa Khan son of Meer Khan and Jamal Khan son of Soomar.

3. Perusal of record shows that an FIR of this incident being Crime No.71/2018 of Police Station Khipro was registered against the private respondents Nos.2 to 7, who were nominated in tie aforesaid FIR and after registration of the same the investigation was carried out and thereafter the Investigating Officer of the case has submitted a report recommending the case for disposal under "B" class before the learned Civil Judge and Judicial Magistrate, Khipro but same was accepted on 30.05.2018 in "C" Class, which order has been assailed by the petitioner through instant petition.

4. We have heard the learned counsel for the parties and perused the record.

5. It appears from the record that the accused are nominated in the aforementioned FIR with specific role(s). During the course of investigation, I.O. of the case has recorded the statements of eye witnesses namely Essa Khan and Jamal Khan under section 161, Cr.P.C., who have fully supported the prosecution version and have completely implicated the accused (private respondents Nos.2 to 7) in the commission of the alleged offence. Admittedly, the accused/private respondents are nominated in the FIR with their specific role(s); however, the I.O. has submitted report recommending the case for disposal under "B" class, which has been accepted by the learned Magistrate under "C" class without assigning any cogent reason. Perusal of record reveals that I.O. of the case has submitted the summary in "B" class on the basis of the statements of defence witnesses recorded' under section 161, Cr.P.C. Under the law, at this stage, the Court has to make only a tentative assessment of the material collected by the I.O. and produced before the Court. It is not necessary to pass an exhaustive order by dilating upon each and every aspect of the matter; detailed and deeper appreciation is to be made at the stage after recording the evidence.

6. It has been held by our Superior Court that where prosecution witnesses have fully implicated the accused in their statements recorded under section 161, Cr.P.C, Magistrate cannot discharge the accused on the basis of police opinion. In this connection we are fortified with the case law reported as Abdul Hameed v. State (PLD 1997 Lahore 164.), wherein it is held as under:- "

Ss. 173 & 561-A- Penal Code (XLV of 1860), Ss.302/334/148/149/440

Discharge of accused by Magistrate on police report

Prosecution witnesses had fully implicated the accused in. their statements recorded under S. 161, Cr.P.C.

Magistrate, therefore, could not discharge the accused on the basis of police opinion that they were innocent as such a finding could either be given by the competent Court or by High Court in quashment proceedings

Prosecution was consequently directed to move an appropriate application in the High Court for annulment of the aforesaid order of discharge passed by the Magistrate."

7. Further, the Magistrate can take cognizance of offence if report submitted by the IO is negative by police that accusation is baseless and also no case is made out against the accused. In this connection we are fortified with the case law reported as Safdar Ali v. Zafar Iqbal (2002 SCMR 63), wherein it was held as under: "

S. 190

Cognizance of offence by Magistrate

Magistrate can take cognizance of an offence even in case of negative report submitted by police that accusation is baseless and no case is made out against the delinquents."

8. As per police papers it appears that in the aforementioned FIR serious allegations have been leveled against the accused/private respondents, who by the dint of weapons entered into the house of the petitioner, issued murderous threats, violated the principle of "Chadar and Char Deewari" and while making aerial firing took away 25 maunds wheat and other house hold articles with them and this fact has also found support from the statements of the prosecution witnesses in their statements recorded under section 161, Cr.P.C., but surprisingly neither the IO nor the learned Magistrate took care of it and passed the impugned order wrongly given weight to the statements of D.Ws and accepted the summary under "C" class blindly and without assigning any cogent/valid reason, which cannot be approved in any manner. It is settled principle of law that ipse dixit (opinion of the I.O.) cannot be accepted to exonerate the accused from the commission of the alleged offence.

9. The compendium of the above discussion is that, prima facie there is sufficient material to corroborate the contention of the petitioner and there is no reasonable ground and justification to disbelieve the evidence of the P.Ws at this initial stage of the case.

10. With 'these findings/observations we do not agree with the report of the IO as well as the order passed by the learned Magistrate. Accordingly, the instant petition is allowed and the impugned order is set aside. The I.O. is directed to submit the challan in the above matter before the learned Magistrate as early as possible, preferably within a period of 15 days from the receipt of this order and the learned Magistrate is directed that after receipt of the challan he would proceed with the matter expeditiously and decide the same within two months without being influence upon with his earlier order (impugned order).

11. This petition was allowed in the earlier part of day in open Court after hearing the parties' counsel and these are the reasons for the same. Office is directed to send copy of the order to the learned Judicial Magistrate, Khipro as well as SIO Police Station Khipro for information. SA/S-35/Sindh Petition allowed.