ORDER SHEET
IN THE HIGH COURT OF SINDH AT KARACHI
Const. Petition No. 1686 / 2016
Petitioner: Mst. NasreenAkhtar
Through Mr. Muhammad Akbar Khan, advocate.
Respondents: 1. The Secretary, Home Department, Government of Sindh.
2. SIO, Police Station, Garden, Karachi.
3. S.I. Rafiq Ahmed
Through Mr. M. Nawab Mirza, State Counsel.
Mr. Zahoor Shah, A.P.G.
Date of hearing: 02.03.2017
Date of order: 17.03.2017
O R D E R
Khadim Hussain Tunio, J.-Through caption petition, the petitioner Mst. NasreenAkhtar has challenged the impugned orders dated 23.06.2016 passed by Judicial Magistrate-XIII, Karachi-South whereby the applications, submitted by I.O and complainant for issuance of NBWs against all absconding accused in FIR No. 224/2015 under section 395/365-B/376(2)/337(i)A, PPC registered at P.S. Garden, South, have been dismissed.
2. Learned counsel for the petitioner has argued that the orders passed by the learned Judicial Magistrate are illegal and bad in law and facts, hence liable to be set-aside; that the impugned orders are totally based on misinterpretation of case law reported in PLD 2016 Karachi 238, which is applicable only in cases, where the accused have been declared proclaimed offenders, whereas in the present case, after conducting investigation and recording of statement of eye witnesses, charge sheet submitted by the I.O. and request was made for issuance of NBWs against the absconding accused as all the accused persons could not be arrested in the case and were challaned under section 512, Cr.P.C.; that learned Judicial Magistrate cannot refuse the charge sheet submitted by I.O. merely on the ground of non-arrest of absconding accused, as they cannot be declared proclaimed offenders without acceptance of charge sheet on flimsy grounds; that it is settled that if in any case the accused are absconders, the trial of the case must be conducted against the absconding accused in absentia against them, after declaration by the learned trial Court and in accordance with law provided in Section 512, Cr.P.C.; that due to operation of the impugned orders HumairaMisbah, the minor is still in custody of nominated accused and cannot be recovered.
3. Learned counsel appearing on behalf of State submits that local police have authority to arrest absconding accused so there is no need for issuance of NBW(s) against absconding accused and vehemently contended that learned Judicial Magistrate has rightly dismissed the applications and passed the impugned orders.
4. Arguments heard and record perused.
5. Before proceeding further, it would be more appropriate to reproduce the impugned orders, which read as below :-
“I.O submitted application for issuance of NBW against absconding accused under crime No. 224/2015, under section 395/365-B,376(2) PPC at P.S. Garden.
Heard I.O. perusal application and Challan wherein accused are placed in column No. 2 of Challan under section 512 Cr.P.C. Therefore, cognizance is first final in compliance of order passed by the Hon’ble High Court vide PLD 2016, p. 238, circulated by the Hon’ble Sessions Judge, South, therefore, instant application is dismissed as yet cognizance has not been taken. I.O. is directed to submit progress report fortnightly. However, police official is empowered to arrest accused persons in cognizable case without obtaining warrant of arrest from Magistrate and if I.O. does not discharge duly party aggrieved may avail proper forever.
Applicant/complainant moved an application for issuance of NBWs against all absconding accused in the FIR 224/15, under section 395,365-B and 376(2),337(1)A.”
“Heard learned counsel for complainant, perused the Challan and material available on record. It reveals cognizance is first final as all the accused are absconder, in compliance of PLD 2016 Sindh 238, these (the) under signed cannot issue NBW against accused persons, however, any private person is empowered to arrest any person by virtue of section 59, Cr.P.C, thus instant application for issuing NBW against absconding accused is dismissed, complainant is at liberty to under section 59, Cr.P.C.”
6. The learned Magistrate has solely dismissed the application (s) by placing reliance on the case of Nasrullah v. SHO, PS Jacobabad & others, reported as PLD 2016 Sindh 238 which nowhere supports the conclusion drawn by learned Magistrate, which I shall explain later because before that a direct reference to Section 173 of the Code, being material is made hereunder:
“173. Report of police officer: (1) Every investigation under this Chapter shall be completed without unnecessary delay, and, as soon as it is completed, the officer incharge of the police-station shall [through the Public Prosecutor]--
(a) forward to a Magistrate empowered to take cognizance of the offence on a police-report, a report in the form prescribed by the Provincial Government, …., and
(6) ..:
[provided that, where investigation is not completed within a period of fourteen days from the date of recording of the first information report under Section 154, the officer incharge of the police station shall, within three days of the expiration of such period, forward to the Magistrate through the Public Prosecutor, an interim report in the form prescribed by the Provincial Government stating therein the result of the investigation made until then and the Court shall commence the trial on the basis of such interim report, unless, for reasons to be recorded, the Court decides that the trial should not so commence],
The said proviso should leave nothing to doubt that normally the police (investigating agency) legally should complete investigation within a period of 14 days from date of recording of the F.I.R and should submit 173 Cr.P.C report and even in case of non-completion of investigation an interim report has to be submitted within three days of expiration of such period (14 days time). The moment a report under section 173 Cr.PC is submitted the Magistrate has to act within meaning of Section 190 Cr.PC whereby the exclusive jurisdiction lies with Magistrate either to take cognizance or refuse the same. The Code no wherepermits the Magistrate to defeat the said provision (s) hence legally Magistrate cannot create a gap between two connected links (provisions) i.e 173 Cr.PC and 190 Cr.PC by not passing an order onto a report, submitted before him under Section 173 Cr.PCeven where all accused are shown as absconders.
7. Having said so, now it would be proper to refer the relevant portion of the case of Nasrullah v. SHO, PS Jacobabad & 6 others which reads as:
47……..”Similarly, the cases, wherein police submits final report/charge sheet by showing all accused as absconders under section 512, Cr.P.C., shall not be treated as final report; learned Magistrate shall postpone the cognizancein terms of Section 344, Cr.P.C.; while by treating such report as an interim report, shall fix those cases fortnightly for progress report.”
8. The above, nowhere, restricts the Magistrate from taking cognizance nor debars the police (investigating agency) from submitting the report (s) / charge sheet which, as already discussed, is to be submitted within stipulated period, as directed by Section 173 of the Code. The said operative part rather seems to have insisted to treat such a report / charge sheet as interim report while asking to proceed further within meaning of Section 344 Cr.PC because ‘criminal administration of justice’ shall never achieve its purpose and object by process of some papers in black & white but by trial of offenders. This seems to be object of referred part of case of Nasrullahsupra wherein negligence on part of police agency was focused in searching; arresting and sending up of ‘proclaimed offenders or nominated accused persons. Things shall stand further clear from a referral of section 344 Cr.PC, as was referred in referred para which reads as:
344. Power to postpone or adjourn proceedings: If, from the absence of a witness, or any other reasonable cause, it becomes necessary-or advisable to postpone the commencement of, or adjourn any inquiry or trial, the Court may, if it thinks fit, by order in writing, stating the reasons therefore, from time to time, postpone or adjourn the same on such terms as it thinks-fit, for such time as it considers reasonable and may by a warrant remand the accused if in custody :
9. Not only this, but lastly it was ordered to fix such cases on fortnightly basis. The fixing of ‘cases’ should have eliminated all confusions because a report / charge sheet shall attain status of a ‘case’ only after exercise of jurisdiction, vested in a Magistrate under section 190 Cr.P.C. It is also worth to add here that during course of investigation the police may arrest without a warrant but when the report is submitted, it is the Court which has to issue NBW(s) against absconders. The powers of Police or private person to arrest an absconder / proclaimed offender shall not absolve the Magistrate from issuing the NBW(s) against those, mentioned in relevant columns of the challan / charge sheet (report under section 173 Cr.P.C).
10. In result of above discussion, it is prima facie evident that the learned Magistrate has erred while interpreting the case of Nasrullahsupra hence impugned order is not tenable. The learned Magistrate surprisingly rejected/dismissed the applications out-rightly and proceeded in mis-direction and failed to treat the final report as an interim report rather he has refused to take cognizance of the offence against the accused under section 512, Cr.P.C which was never the object and intent of case of Nasrullahsupra. The impugned orders are neither legal nor proper hence are not sustainable under the law. Accordingly, this petition is accepted and impugned orders passed by the learned Magistrate-XIII, Karachi-South are set-aside and the case is remanded to the Civil Judge/Judicial Magistrate-XIII, Karachi-South to pass an speaking order, and record reasons for agreeing or disagreeing with the report under section 173, Cr.P.C. submitted by the Investigating Officer after providing full opportunity of hearing to the prosecutor and complainant.
JUDGE