ORDER SHEET

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR.

Cr Misc App 637 of 2016

1. = &nb= sp; For KatchaPeshi.

2. = &nb= sp; For hear= ing of M.A 7336/2015.

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02.01.2017

Mr. Aj= eebullahJunejo advocate for the applicant.

= Mr. A.R. Kolachi A.P.G.

ORDER

FAHEEM AHMED SIDDIQUI,-J= By this order, I propose to dispose of = the instant criminal miscellaneous application wherein the order dated 10-7-2015 passed= by learned Judicial Magistrate-I, Pano-Akil, is ca= lled in question. By passing the impugned order, the learned Magistrate treated = the report submitted by the investigating officer under section 173 of the Code of Criminal Procedure in B-class as final report (challan) and took cognizance against the applicants in FIR No. 134/2015 lodged at police station PanoAkil.

2. = The facts of the case are th= at complainant MstHaleemanRehman lodged FIR No. 13= 4/2015 at police station PanoAkilafter getting an orde= r from learned Sessions Judge, Ghotki in the capacity = of ex-officio Justice of Peace. In the said FIR, she levelled allegations against the applicants that they entered in her house during the odd hours of night whi= le armed with weapons. On the instigation of accused Qaim= uddin, they maltreated the complainant party and causedlathis= blows to complement and also caused kicks and fist blows to the brother and sister of complainant. It is also alleged in the FIR that they tore the clo= th of sister of complainant. During investigation, the investigating officer recorded statements of some alleged independent witnesses and then submitted report under B-class, meaning thereby that no such incident was taking place and the contents of FIR are false. However, the learned Magistrate did not agree with the opinion of investigating officer and took cognizance in the matter.

3. = &nb= sp; The learned counsel for the applicant made his submissions at length. According to him, earlier the incident reported by complainant as non-cog, which is contradictory to the facts narrated in FIR. Per him, the number of= accused nominated in non-cog report are lesser than the number of accused nominated= in FIR. He submitted that as per investigation carried out by DSP Liaquat Ali Abbassi, the = accused nominated in FIR were falsely involved by the complainant. He submitted that the learned Judicial Magistrate overlooked the collected evidence during investigation. According to him, the learned Magistrate failed to consider = the real facts properly. He took reliance from 2011 SCMR 1430, 2000 MLD 1075, a= nd 2014 MLD 1477.

4. = &nb= sp; The learned APG submitted that the police opinion is not binding upon the learned Magistrate. He pointed out that the accused persons are well nominated in the FIR and medical report corroborated the version taken by t= he complainant in her FIR.

5. = &nb= sp; Having heard the arguments advanced, I have gone through the relevant record annexed with the instant application. It is the settled law that the Magistrate can take cognizance against the accused even in case of a negati= ve report submitted before him by the investigating officer. In this respect reliance may be taken from the case of Hon’ble Supreme Court reported asFalakSher and Another v. the State (PLD 1967 SC 425)wherein it is held as:=

“The Magistrate is not bound by the rep= ort submitted by the police under section 173. When the said report is received= by the Magistrate, the Magistrate on the report itself may not agree with the conclusions reached by the investigating officer. There is nothing in secti= on 190 to prevent a Magistrate from taking cognizance of the case”<= /span>

The dictum laid down in FalakSher (supra) is follow= ed in teaming number of cases of the Apex Court including the cases reported asMuhammad Sharif and 8 others v. the State and another (1997 SCMR 304) and Safdar Ali v. Zafar Iqbal and Others (2002 = SCMR 63)and now it is the settled legal position that the magistrate is fully competent= to take cognizance on a negative report or vise-versa.

6. = &nb= sp; In the present case, it is contended by the learned counsel for the applicants that the learned Judicial Magistrate overlooked the real facts at the time of taking cognizance on a negative report submitted by the investigating officer. In my humble view, the facts referred by the learned counsel for the applicants are those, which actually collected by the investigating officer without some corroboration. The order of learned Magistrate is a speaking order in which he did not concur with investigating officer on the ground that all those facts required evidence especially when the prosecution witnesses supported the case of the complainant duly corroborated by medical certificate.It is worth noting that the incident was timely reported to police in the shape of a non-cog report in which four accused were nominated while the wording of the vernacular language of non-= cog report indicating that there might be some other persons also associated with the nominated culprits. The medical report suggests about happening of something and that may be in a twisted style which can be thrashed out only after recording of evidence.

7. = &nb= sp; The Courts are not bound by arbitrary opinions of the Investigating Officers. The presiding officer of each Court has to apply his, independent mind to the facts and circumstances of a case. A Court can take cognizance = even on negative report and can refuse to take cognizance on a positive report, depending upon facts and circumstances of each case. Since the Magistrate h= ad already taken cognizance of the case and initiated proceedings for the tria= l of the accused, which was his judicial act, no exception can be taken to his administrative act of not approving the report of the investigation for the disposal of case in B-class, which was filed after recording statement of s= ome of the defence witnesses. As such, the instant application is dismissed bei= ng meritless. The case laws cited by the learned counsel for the applicant deal with non-speaking orders of the magistrates, as such the same are distinguishing.

JUDGE