ORDER SHEET
IN THE HIGH COURT OF
SINDH, BENCH AT SUKKUR
Cr. Misc. Appln. No.S- 868 of 2018
Date Order with Signature of Hon’ble Judge
For hearing of main case
(Notice issued)
04.3.2019
Mr. Rab
Dino Makwal Advocate for the applicant
Mr. Zamir
Ahmed Memon, Advocate for respondent No.5
Mr. Abdul Rehman Kolachi, DPG for State
>>>>>>>…<<<<<<<<
Irshad Ali Shah, J; The applicant by way of instant Criminal
Miscellaneous Application under section 561-A Cr.PC,
has impugned order dated 24.09.2018, passed by learned Civil Judge and Judicial
Magistrate, Pir-Jo-Goth, whereby he has taken
cognizance of the offence against him (applicant) and two others (Imtiaz & Asadullah).
2. The impugned order reads as
under;
“Heard I/O and perused the
material placed before me, perusal of the material shows that PWs have fully
implicated all accused persons in their statements u/s 161 Cr.P.C,
besides this complainant has implicated them in FIR with role, however I-O has
placed their names and let of accused on the basis of statements of some
independent persons on the plea of Alibi, as plea is of weakest type of
evidence and would be determined by the trial Court, hence cognizance against
all accused persons, including let of accused is hereby taken for committing
offence u/s 302, 324, 337-A(i), 337-F(i), 114 and 34 PPC. Issue P.O of arrested
accused and NBWs against let of accused persons.”
3. The facts in brief necessary
for disposal of instant Criminal Miscellaneous Application are that the
applicant and others after having formed an unlawful assembly and in
prosecution of their common object not only caused injuries to PW Haibat with intention to commit his murder, but committed
murder of Abdul Rauf by causing him fire shot
injuries, for that the private respondent lodged FIR of the incident with
police. On investigation, the applicant and two others (Imtiaz
and Asadullah) were let off by the police finding
them to be innocent by placing their names in column No.2 of the challan sheet. The recommendations of the police were not
consented by learned trial Magistrate and then the applicant and others (whose
names were placed in column No.2 of the challan
sheet) were joined in trial as accused, such order the applicant alone has
impugned before this Court by way of instant Criminal Miscellaneous Application,
as stated above.
4. It is contended by learned counsel for the
applicant that the applicant being innocent has been involved in this case
falsely by the private respondent, he on very fair investigation was found to be
innocent by the police and learned trial Magistrate has joined him in trial
without lawful justification. By contending so, he sought for setting aside of
the impugned order.
5. Learned DPG for the State and learned counsel for
the private respondent have sought for dismissal of the instant Criminal
Miscellaneous Application by contending that the impugned order is well
reasoned.
6. I 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) were set.
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 is mandated 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 nowhere 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 nowhere
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 offender. 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
no accused normally can be let off by the police finding him to be innocent by
placing his name in column No.2 of the charge sheet.
14.
In the instant case, the
applicant is named in the FIR specifically, whatever
is stated in the FIR is supported by the witnesses of the complainant. The
complainant and his witnesses have been disbelieved by the Investigating
Officer, on raising of plea of alibi by the applicant
and others (Imtiaz and Asadullah).
By doing so, the investigating officer has assumed the role of the Court which
was not permissible at law. In that situation, the learned trial Magistrate was
justified to have taken cognizance of the offence against the applicant and
others (Imtiaz and Asadullah),
such order of learned trial Magistrate could not be said to be illegal or
perverse to be interfered with by this Court in exercise of its inherent
jurisdiction, which even otherwise is not challenged by rest of the two persons
(Imtiaz and Asadullah). If
the applicant is having a feeling that he being innocent has been involved in
this case falsely by the private respondent then he may prove his innocence by
joining the trial, if so is advised to him.
15. For what has
been discussed above, the instant Criminal Miscellaneous Application is
dismissed.
Judge
ARBROHI