IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Constt: Petition.No.D-727 of 2018

Crl.Misc.Appln.No.S-289 of 2018

Date of hearing

Order with signature of Judge

Present:

Mr. Justice Khadim Hussain Tunio,

Mr. Justice Irshad Ali Shah,

· For orders on maintainability of M.A.No.3568/2018 (S/A).

· For orders on maintainability of main case.

Date of hearing : 18.12.2018

Date of decision: 24.12.2018

Mr. Habibullah G.Ghouri, Advocate for the petitioners

in C.P.No.D-727 of 2018.

Mr.Wazeer Hussain Khoso, Advocate for applicant

in Crl.M.A.No.S-289 of 2018

Mr.Abdul Rehman Bhutto, Advocate for respondent No.4.

Mr.Sharafuddin Kanhar, Assistant Prosecutor General a/w

SIP Sanaullah Jalbani.

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1. The applicant Ali Raza and petitioners Mir Jan Muhammad and Bakhshal Khan by way of filing Crl.Misc.Application under section 561-A Cr.PC and Constitutional Petition under Article 199 of Constitution of Islamic Republic of Pakistan, have impugned order dated 18.10.2018, passed by learned 2^nd Civil Judge & Judicial Magistrate, Warrah, whereby he has declined to make disposal of FIR Crime No.91/2008, U/S.302, 324, 364, 114, 148 PPC r/w Section 17/3 HO, of P.S Warrah, under “C” class.

2. The operative part of the impugned order reads as under;

“I am of the considered view that accused are nominated in the FIR and among them several accused have specific roles while others have common object, accused Manzoor fired straightly with his K.K upon Abdul Ghaffar and he died at the spot, accused Ali Raza fired straightly with his K.K upon Bashir and he died at the spot. Accused SPO Jan Muhammad Barhamani fired straightly with his K.K upon Akbar and he died at the spot. Accused Shabir Choliani fired with his K.K upon Allah Dino which hit him and he fell down getting injured. Sufficient material against accused have been brought on record, thus prima facie case is made out against them. I, therefore, while taking cognizance of offence u/s. 190 (i) (b) Cr.PC disapprove the police report under “C” clause and have taken the cognizance of offence in the interest of justice. Keeping in view of case law reported in case law of Honourable High Court of Sindh reported in 2009 YLR 1479 [Karachi] Muhammad Hassan Vs. The State and another. The SHO PS Warrah is hereby directed to submit the challan within 07 (seven) days on prescribed proforma without fail”.

3. The narration of the incident is disclosed in FIR lodged by complainant Sher Muhammad with P.S Warrah, which reads as under;

“Complaint is that 2 ½ years back, my nephew Zamir Hussain son of Sher Khan was abducted and killed by accused Ali Raza Choliani and others and then they caused disappearance of his dead body, which has not yet been recovered, such case is pending before Sessions Court, Qamber, against the said accused, they oftenly were threatening us of murder by sending messages to withdraw from the said case. Today, I, my nephews Abdul Ghaffar son of Shah Nawaz and Bashir son of Sabir, Akbar son of Ali Dost and Aziz alias Allah Dino son of Sher Khan when were sitting in our house, there at about 06.00 a.m, came lot of person(s) duly armed with weapons in police uniforms and civil dresses, they cordoned our houses, they were identified by us to be Ali Raza son of Imdad Hussain Choliani with K.K, 2). Manzoor son of Jurial Choliani with K.K, 3). SPO Mehar Jan Muhammad Barahmani with K.K, 4). Bachal son of Allan with gun, 5). Sikandar son of Allan alias Ali Muhammad Choliani with K.K, 6). Aijaz son of Abdul Sattar with gun, 7). Badar son of Shamoo Khan Choliani with gun, 8). Khalid son of Mukhtiar Choliani with gun, 9). Mazhar son of Haji Khan with gun, 10). Liaquat son of Bachal Choliani with rifle, 11). Aamir son of Abdul Sattar with gun, 12). Shabir son of Singhoo with gun, 13). Mukhtiar son of Singhoo Khan Choliani with rifle, 14). Javed son of Bashir Choliani with pistol, 15). Bhaledino son of Chandio Khan with repeater, 16). Shahul son of Chandio Khan with gun, 17). Bhai Khan son of Bachal with rifle, 18). Hubdar son of Allan Choliani Chandio with repeater, 19). Talib son of Achar with gun, 20). Latif son of Achar Choliani with pistol, 21). Jalal son of Ghouso with rifle, 22). Hussain son of Jan Muhammad with gun, 23). Fayaz son of Ghulam Rasool with repeater, 24). Khairoo son of Asghar Choliani with rifle , 25). Asghar son of Bachal Choliani with gun, 26). Usman son of Allahando Wako with K.K, 27). Khalid son of Ghouso Choliani with rifel, 28). Bashir son of SHamoo Khan Choliani with K.K, 29). Hameed son of unknown Chabro with rifle, 30). Deedar son of Ali Hassan with rifle, 31). SHO Faridabad Muhammad Hanif, 32) SHO Thariri Muhbat Muhammad Qasim Panhwar and 33). SHO K.N.Shah Bakhshal Khan Jamali of District Dadu. Out of them, accused Bachal Choliani by raising hakal said to us that we are not going to withdraw from our case, therefore we would be killed and he then instigated rest of the accused to kill us. On his instigation, accused Manzoor fired with his K.K at Abdul Ghaffar, who by sustaining those fires fell down. Accused Ali Raza fired with K.K at Bashir, who by sustaining those fires fell down. SPO Jan Muhammad Barhamani fired with his K.K at Akbar who by sustaining those fires fell down. Accused Bashir Choliani fired with his K.K at Allah Dino who by sustaining those fires fell down. Rest of the accused made indiscriminate fires and then trespassed in our house and therefrom SPO Mehar took 15 Tola gold, licensed DBBL Gun of Bashir, licensed rifle of Abdul Ghaffar, 7.MM licensed rifle of Allah Dino, licensed SBBL Gun of Ali Dost, licensed Gun of Deedar Ali and licensed Gun of Muhammad Sharif. We raised cries of murder murder. On our cries and fire shot reports, Shah Wali son of Karim Bux, 3). Ali Jan son of Hussain Bux, 3). Chanesar son of Miandad and 4). Ameer Jan son of Hussain Bux Choliani came running, they were also caught hold by the accused and then were made to sit in their vehicles and then they went away. We found that Abdul Ghaffar, Bashir, Akbar have died, while Allah Dino has sustained fire shot injuries, he was referred to hospital for examination of his injuries and treatment and I have come myself to lodge report of the incident that the above named accused by committing trespass in our house have committed robbery, have killed Abdul Ghaffar, Bashir and Akbar and have injured Allah Dino. I am complainant and action be taken”.

4. It is contended by learned counsel(s) for the applicant and petitioners that in June 2008, adopted son of Dr.Dayali Gul was abducted within jurisdiction of P.S K.N.Shah, he was kept on bondage within jurisdiction of P.S Warrah with dacoits Gul Bahar Mugheri and others and on information, the police parties comprising of Districts Qamber-Shahdadkot and Dadu on directions of high-ups conducted raid at the pointed place on 06.06.2008, serious encounter took place between police personnel and the dacoits, as result of such encounter, HC Khuda Bux and PC Ghulam Mustafa of P.S Mehar sustained fire shot injuries, dacoits Shabir, Akbar, Ghaffar Choliani, Imam Ali Marfani and Sikandar Ali Choliani were killed, while Aziz alias Allah Dino son of Sher Khan sustained fire shot injuries, for that FIR Crime No.89/2018, under section 324, 353, 148, 149 PPC was lodged with P.S Warrah, that private respondent/complainant Sher Khan by exercising political influence also got lodged FIR Crime No.91/2018, U/S 302, 324, 364, 114, 148 PPC r/w Section 17/3 HO, at P.S Warrah, only to save skin of his relative and to create pressure against the police officials, that such FIR was recommended to be cancelled under “C” class on the basis of honest investigation, such recommendation of the police has not been accepted by learned 2^nd Civil Judge & Judicial Magistrate, Warrah, without lawful justification through contradictory order. By contending so, they sought for reversal/quashment of the impugned order.

5. Learned A.P.G and learned counsel for the private respondent/complainant have sought for dismissal of the instant Crl.Misc.Application and Constitutional Petition by contending that the impugned order is well reasoned and as per order dated 08.10.2018, passed by this Court in C.P.No.S-320/2018, the challan (charge sheet) of the case has already been submitted by the police before the Court having jurisdiction and the case is ripe for trial.

6. We have considered the above arguments and perused the record.

7. Before touching the merits of the case, it is found quite appropriate first to discuss the difference between role of investigating officer and that of learned “Magistrate” in relation to investigation and outcome thereof. Every investigation is to be conducted with reference to Chapter-XIV of the Criminal Procedure Code and the 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 limitation including that of version of informant / complainant. Without saying more in that respect, the authoritative view of Honourable Apex Court is given in the case of Mst. Sughran Bibi Vs. The State (PLD 2018 SC-595), whereby certain legal position(s) are 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.

8. 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 under;

"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.

9. The bare perusal of the above section would show that it directs that on conclusion of every investigation, a police report shall be forwarded to the Magistrate having jurisdiction, so empowered to take cognizance thereon which must include all details. It no-where describes as to how the Magistrate shall deal with such report. It however empowers the Magistrate to agree or disagree with the opinion/act of the 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 which reads as under;

“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”.

10. 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.

11. 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). "

12. Even under the recently substituted sub-section (3) of section 190 of Criminal Procedure Code, Magistrate who takes cognizance of any offence under any of the clauses of sub-section (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 to make prima facie assessment of the facts about the commission of offence or otherwise. Once the Magistrate has taken cognizance of the offence exclusively triable by the Court of Session, he has to send the case to that Court.

13. It would further be added here that taking cognizance shall not prejudice right of accused but rests the burden upon the prosecution to prove its charge without any harm to presumption of innocence of the accused involved in the offence. Even otherwise, it is by now settled that cognizance is taken against offence and not against 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 cannot be disposed of under ‘B’ or ‘C’ class on the basis of recommendation of the police.

14. Turning to merits of the case, perusal of the record shows that it was the case which contained serious allegation of robbery, death of three persons and injuries to fourth one. It was the duty of the Investigating officer(s) to have investigated the case from all angles and then to have submitted his report on the basis of investigation conducted by him. It was not done honestly despite consuming ten years time. The investigating officer(s) ought not to have disbelieved the version of the applicant/complainant in his FIR by making a conclusion that the incident was result of police encounter and the private respondent/complainant has failed to produce his witnesses, which he since beginning was intending to produce. Indeed, no person with prudent mind would withhold his evidence at investigation in case like the present one. In that situation, the learned trial Magistrate was justified to have taken cognizance of the offence, such order could not be said to be illegal or perverse to be interfered with most particularly when the very case is ripe for trial.

15. For what has been discussed above, the instant Crl.Misc.Application and Constitutional Petition are dismissed accordingly.

JUDGE

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