ORDER SHEET

ORDER SHEET

IN THE HIGH COURT OF SINDH CIRCUIT COURT AT LARKANA

Crl.Misc.Appln.No.D-18 of 2017 &

Crl.Misc.Appln.No.S-249 of 2017

Date Order with signature of Judge

Before:

Mr.Justice Khadim Hussain Tunio

Mr.Justice Irshad Ali Shah

1. For orders on office objection.

2. For orders on M.A.No.588 of 2017. E/A

3. For hearing of main case.

04.12.2018

M/S. Altaf Hussain Surhio and Safdar Ali Ghouri,

Advocate(s) for applicant Mst.Zarbano.

Mr. Danesh Kumar, Advocate for respondents in

Cr.Misc.A.No.D-18 of 2017

Mr.Muhammad Noonari, D.P.G for the State

~.~.~.~.~.~.~.~.~.~.~

The facts in brief leading to instant order are that applicant Mst.Zarbanu, alleging therein that the police party of P.S Amrot, led by ASI Abdul Qadir, came her house thereafter having formed an unlawful assembly and in prosecution of their common object, took away therefrom two motorcycles and all male members of her house, subsequently killed her son Noor Hassan by causing fire shot injuries to him and then demanded ransom for release of Ghulam Ali and dead body of deceased Noor Hassan, for that she lodged FIR of the present case.

The applicant apprehending unjustified investigation approached this Court by way of filing instant Crl.Misc.Application No.D-249 of 2017, whereby she sought for direction to the following effect;

a). To direct the respondents No.2 to 4 to record 161
Cr.PC, 164 Cr.PC statement of the eye-witnesses mentioned in the FIR.

b). To declare that the act of respondents No.2 to 4 is illegal, malafide, ultra-vire and against the provisions of criminal procedure code and police rules and are liable to be prosecuted.

c). That direct the respondents No.2 to 4 after recording 161 Cr.PC as well as 164 Cr.PC statement submit the challan against the accused persons mentioned in FIR before the Court of law.

d). To appoint another God fearing and honest police officer for redressal of the grievances as mentioned in the main petition and prayer No.C of prayer clause.

e). To award cost of this petition to the petitioner.

f). Grant any other equitable relief which is the circumstances is available to the petitioner.

The investigation continued as consequence whereof the police submitted report under section 173 Cr.PC before learned Judge Anti Terrorism Court Shikarpur, for cancellation of such FIR, such report was accepted by learned Judge Anti Terrorism Court Shikarpur, vide his order dated 06.09.2016, by making the following observation;

“I have gone through the entire police file and find that FIR of this incident was registered on 17.8.2016 on the order of learned 1^st Additional Sessions Judge/Justice of Peace Shikarpur whereafter police inspected the place of incident on next day of lodging of FIR on pointation of complainant and also recovered the last worn cloth of deceased on 18.8.2016. The perusal of police file further shows that eye witnesses of the case as mentioned in the FIR are Gul Hassan, Deedar, Ghulam Ali, Zamiroo, Mst.Rashida and Mst.Fateh Khatoon but during investigation of the case none of the above witnesses appeared before joint investigation team to get their statement recorded u/s 161 Cr.PC. The perusal of file further shows that I.O had issued notice to complainant to produce her witnesses for their statement and such notice was served upon complainant on 20.8.2016, but instead of producing her witnesses before I.O the complainant submitted an application before this Court through her counsel on 23.8.2016 after three days of service of notice that I.O is trying to spoil her case. The perusal of police file further shows that one eye witness of the case namely Gul Hassan is absconder in Crime No.235/2016 of P.S Kot Sabzal Rahimyar Khan and Crime No.16/2016 of P.S Amrot due to which he is avoiding to appear before police for his statement while despite of service of notice, the complainant failed to produce her remaining witnesses before JIT for their statement rather she had purposely filed application before this Court that police is trying to spoil her case for the reasons best known to her. Since the witnesses of the case due to which some unknown reasons are avoiding to appear for evidence, therefore, without recording their statement, it cannot be said at this stage that complainant had lodged false FIR against accused. Therefore, report of I.O for disposal of the case under “B” class as false is disapproved and the I.O/JIT is directed to dispose off the case under “C” class as cancelled”.

The applicant being aggrieved of above said order of learned trial Court impugned the same before this court by way of filing Crl.Misc.Applicatoin No.D-18/2017.

The respondents to some extent have also filed their replies/statements in denial to the averments made by the applicant in her above said Crl.Misc.Applicatoin.

By way of single order both the above said Crl.Misc.Applicatoins are being disposed of as the those are relating to same incident.

It is contended by learned counsels for the applicant that the learned trial Court ought to have cancelled the FIR of the applicant under “C” class on report, as it was based on dishonest investigation. By contending so, they sought for remand of the matter to learned trial Court, for passing an appropriate order afresh, on the basis of fresh investigation.

Learned D.P.G for the State and learned counsel for the private respondents who are in attendance sought for dismissal of the instant Crl.Misc.Applications by contending that the deceased was hardened criminal of the area, he died of police encounter and the applicant is intending to involve the police officials in a false case by pleading wrong facts.

We have considered the above arguments and perused the record.

Before attending the merits of the case, it if found quite appropriate to first discuss the difference between role of investigating officer and that of learned “Magistrate” in relation to investigation and outcome thereof. Every investigation is conducted with reference to Chapter-XIV of the Criminal Procedure Code as well relevant Police Rules. The vitality of role of investigating officer cannot be denied because it is the very first person, who per law, is authorized to dig out the truth which, too, without any limitations including that of version of informant / complainant. Without saying more, in that respect, the authoratitive view of Honourable Apex Court, is given in the case of Mst. Sughran Bibi Vs. The State (PLD 2018 SC-595), wherein certain legal position(s) were declared. Out of which, some being relevant, are reproduced hereunder:-

(iv) During the investigation conducted after the registration of an FIR the investigating officer may record any number of versions of the same incident brought to his notice by different persons which versions are to be recorded by him under section 161 Cr.PC in the same case. No separate FIR is to be recorded for any new version of the same incident brought to the notice of the investigating officer during the investigation of the case;

(v) During the investigation the investigating officer is obliged to investigate the matter from all possible angles while keeping in view all the versions of the incident brought to his notice and, as required by Rule 25.2(3) of the Police Rules 1934 “It is the duty of an investigating officer to find out the truth of the matter under investigation. His object shall be to discover the actual facts of the case and to arrest the real offender or offenders. He shall not commit himself prematurely to any view of the facts for or against any person.”

(vi) …….

(vii) Upon conclusion of the investigation the report to be submitted under section 173 Cr.PC is to be based upon the actual facts discovered during the investigation irrespective of the version of the incident , advanced by the first informant or any other version brought to the notice of the investigating officer by any other person.

From above, it is quite clear that an investigating officer is not bound to base his conclusion on version of informant or defence but on ‘actual facts, discovered during course of investigation’. Such conclusion shall be submitted in shape of prescribed form, as required by Section 173 of the Criminal Procedure Code. At this juncture, it would be relevant to refer the provision of Section 173 of the Criminal Procedure Code, which reads as:-

"173 (1) Report of Police Officer. 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, in the form prescribed by the Provincial Government, setting forth the names of the parties, the nature of the information and the names of the, persons who appear to be acquainted with the circumstances of the case, and stating whether the accused (if arrested) has been forwarded in custody or has been released on his bond, and, if so, whether with or without sureties, and

(b) communicate, in such manner as may be prescribed by the Provincial Government, the action taken by him to the person, if any, by whom the information relating to the commission of the offence was first given.

(2) Where a superior officer of police has been appointed under section 158, the report shall, in any cases in which the Provincial Government by general or special order so directs, be submitted through that officer, and he may, pending the orders of the Magistrate, direct the Officer Incharge of the police station to make further investigation.

(3) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit.

The bare perusal of the above provision would show that it directs that on conclusion of every investigation, a police report shall be forwarded to the Magistrate or the Court having jurisdiction, so empowered to take cognizance thereon which must include all details, as directed in above provision. It no where describes as to how the Magistrate shall deal with such report, it however empowers the Magistrate to agree or disagree with act of Investigating Officer in releasing an accused during investigation u/s 497 Cr.PC, which, too, to extent of discharge of bonds. Since, this Chapter no-where provides duties / powers of the Magistrate to deal with such forwarded report, therefore we had to jump to next Chapter of the Criminal Procedure Code, section 190 thereof, being relevant, is referred hereunder:-

“Section 190. Cognizance of offences by Magistrates. All Magistrates of the first class, or any other Magistrate specially empowered by the Provincial Government on the recommendation of the High Court may take cognizance of any offence;

(a) upon receiving a complaint of facts which constitute such offence.

(b) upon a report in writing of such facts made by any Police officer,

(c) upon information received from any person other than a police officer, or upon his own knowledge or suspicion”.

In above section, the word ‘may’ has been used which always vests competence to agree or disagree with the police report u/s 173 Cr.PC. This has been the reason for legally established principle of Criminal Administration of Justice that an opinion of the investigating officer is never binding upon the Magistrate dealing with report, forwarded under section 173 of Criminal Procedure Code.

In case of Muhammad Akbar v. State (1972 SCMR 335), it has been observed by the Honourable Court that;

"Even on the first report alleged to have been submitted under section 173, Cr.PC, the Magistrate could, irrespective of the opinion of the Investigating Officer to the contrary, take cognizance, if upon the materials before him he found that a prima facie case was made out against the accused persons. After all the police is not the final arbiter of a complaint lodged with it. It is the Court that finally determine upon the police report whether it should take cognizance or not in accordance with the provisions of section 190(i)(b) of the Code of Criminal Procedure. This view finds support from a decision of this Court in the case of Falak Sher v. State (PLD 1967 SC-425). "

Even under the recently substituted subsection (3) of section 190 of Criminal Procedure Code, a Magistrate who takes cognizance of any offence under any of the clauses of subsection (1) of that section, is required to apply his mind in order to ascertain as to whether the case is one which he is required to 'send' for trial to the Court of Session or whether it is one which he can proceed to try himself. It must always be kept in view that an act of taking cognizance has nothing to do with guilt or innocence of the accused but it only shows that Magistrate concerned has found the case worth trying therefore, the Magistrate should never examine the matter in deep but only prima facie of commission of offence or otherwise should be seen by him. Once the Magistrate has taken cognizance of the offence exclusively triable by the Court of Session, he has to send the case of that Court to the Court of Session.

It would further be added here that taking cognizance alone shall prejudice no right of accused but keeps the prosecution to prove its charge without any harm to presumption of innocence of accused. Even otherwise, it is by now settled that cognizance is taken against offence and not the accused. Therefore, it can safely be concluded that if tentative examination of available material shows prima facie commission of a cognizable offence last justifies proceeding further with case then a criminal case normally be not disposed of in ‘B’ or ‘C’ class.

Reverting to merits of the case, perusal of the record shows that it was the case which contained with it serious allegation of cognizable offence. It was the duty of the Investigating officer to have investigated the case from all angles and then to have submitted his report on the basis of investigation conducted by him. The investigating; officer ought not to have disbelieved the version of the applicant/complainant in her FIR by disbelieving her that she has failed to produce her witnesses, which apparently was intending to produce since beginning. In that situation, learned Judge Anti Terrorism Court Shikarpur was not justified to have accepted the police report for cancellation of FIR of the applicant/complainant under “C” class, such order could not be sustained and it is set aside.

Above are the reasons of our short order dated 04.12.2018, whereby both the instant Crl.Misc.Applicatoins were disposed of, in the following terms;

“For the reasons to be recorded later- on, SSP, Shikarpur is directed to handover the re-investigation of the matter in hand to a God fearing and on honest Police officer, not below the rank of DSP who shall record the statements of PWs and submit fresh report under section 173 Cr.PC before the concerned Court having jurisdiction for disposal in accordance with law.

Instant Crl.Misc.Applications No.18 and 249 of 2017 stand disposed of in above terms”.

JUDGE