2011 SCMR 1430 (PLP)

MUHAMMAD MOOSA KHAN LEGHARI, J.

Order dated 17-10-2008 passed by the learned single Judge of High Court of Sindh, Circuit Bench, Sukkar in Criminal Miscellaneous Application No.86 of 2008 has been assailed through this petition for leave to appeal. By said order, the order passed by the Judicial Magistrate, Gambat on a summary submitted by police, was set aside.

2. The facts relevant for disposal of this petition are that respondent No.1 lodged an F.I.R. Crime No.5 of 2006, Police Station Mehmood Channa, District Khairpur against the petitioners. The concerned police recommended the disposal of the case as false. On the recommendation of the police, IInd Civil Judge and Judicial Magistrate, Gambat passed the order dated 20-5-2008 and approved the summary submitted by the police. Being aggrieved of the said order respondent No.1 approached the High Court. Learned Single Judge of the High Court after hearing the parties set aside the order passed by the Magistrate and directed the SP Investigation, Khairpur to submit Challan of the case within two weeks. It appears that after passing of the said order, the police re-investigated the case and submitted the Challan before the competent Court.

3. The grievance raised by Mr. Mehmood A. Qureshi, Advocate Supreme Court for the petitioner is that the order passed by the High Court to the extent, of submission of Challan of the case was invalid, unwarranted in law and without jurisdiction.

4. Mr. Shahadat Awan, Prosecutor-General, Sindh has candidly conceded to the above proposition as according to him the High Court having not been satisfied with the order passed by the Magistrate could have set aside the same and could have remanded the case to the Magistrate concerned. He does not support the order of the High Court to the extent of outright direction of submission of Challan.

5. Learned counsel appearing for the complainant submits that the matter is now pending before the Court of competent jurisdiction and the petitioners can avail the remedy provided under the law.

6. We have considered the submissions and have perused the material available on the record. It may be stated that section 173, Cr.P.C. provides that on conclusion of investigation the concerned SHO is required to submit a report of the result thereof in the prescribed manner to the Judicial Magistrate competent to take cognizance under section 190, Cr.P.C. No power vests with any court including a High Court to override the said legal provision and to direct the police, either not to submit the said report or to submit the said report in a particular manner i.e., against certain persons as the Court desires or only with regard to such offences as the Court wishes.

7. Adverting to the facts of the present case in view of the legal position stated above, it must be observed that the order of the High Court to the extent of setting aside the order of the Magistrate passed on the summary submitted by the police appears to be correct. But further direction to the police for submission of Challan was unwarranted and not sustainable in law. It may be noted that power of investigation into accusation made in the First Information Report vests with the police. On the basis of material collected by the police, the police has either to send up the accused person to stand trial or to submit a report to the Magistrate concerned for disposal in accordance with law.

8. Be that as it may, in view of the fact that petitioners in the above case have been sent up to face trial before the court of competent jurisdiction it is for the trial Court to deal with the case in accordance with law. It is accordingly directed that the trial Court shall dispose of the case strictly in accordance with-law and the evidence brought before it, without being influenced by the observations made by the High Court.

9. With the above observations, the appeal is dismissed with no order as to costs. H.B.T./N-2/SC Appeal dismissed.