ORDER SHEET

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Cr. Misc. Appln. No.S- 296 of 2018

 

For hearing of main case

11.03.2019

Mr. Mushtaque Ahmed Shahani Advocate for the Applicant

Mr. Shakeel Ahmed Kalwar Advocate for private respondent

            Syed Sardar Ali Shah Rizvi, DPG for the State

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Irshad Ali Shah, J; The applicant/complainant by way of Criminal Miscellaneous Application has impugned order dated 13.12.2014 passed by learned 1st Civil Judge  and Judicial Magistrate, Moro, whereby he has disposed of FIR Crime No.258/2013, under Sections 302, 502 and 34 PPC of P.S Moro, under “C” class.

 

2.                    The facts in brief necessary for disposal of instant criminal miscellaneous application are that the private respondents in furtherance of their common intention by using criminal force committed Qatl-e-Amd of Budho by causing hatchet and lathi blows, for that they were booked accordingly. On investigation, police recommended the case to be disposed of under ‘C’ class by filing such report it was accepted by learned trial Magistrate by way of impugned order, as is stated above.

 

3.                    It is contended by learned counsel for the applicant/complainant that learned trial Magistrate has disposed of the FIR lodged by the applicant/complainant without lawful justification by making irrelevant observation.  By contending so, he sought for setting aside of the impugned order with direction to learned trial Magistrate to take cognizance of the offence in accordance with law.

 

4.                    It is contended by learned DPG for the State and learned counsel for the private respondents that the FIR has been lodged with unexplained delay of one month, deceased Budho has died of natural death, there is conflict between medical and ocular account of evidence and the applicant/complainant in order to satisfy his grudge with the private respondents is intending to involve in this case falsely. By contending so, they sought for dismissal of the instant Criminal Miscellaneous Application by supporting the impugned order. In support of their contention, they have relied upon the case of Abdul Razak vs. SHO P.S ‘B’ Section Sukkur (2018 Y L R Note-63).

5.                    I have considered the above arguments and perused the record.

6.                    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.

 

7.                    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.

 

8.                    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”.

 

9.                    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.

10.                  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). "

 

11.                  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.

12.                 It is also 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.

13.                  In the instant case, it is alleged by the applicant/complainant that the private respondents in furtherance of their common intention committed Qatl-e-Amd of his brother Budho by causing hatchet and lathi blows. Whatever is stated by the applicant/complainant in his FIR is supported by his witnesses. In that situation, it would be unjustified to disbelieve them only for the reason that there is unexplained delay in lodgement of FIR and there is conflict and ocular evidence. The allegation so levelled by the applicant/complainant obviously is calling for its determination on merit which could only be achieved after recording of evidence. In these circumstances, learned trial Magistrate ought not to have disposed of the FIR of the applicant/complainant under ‘C’ class.

14.                  The case law which is relied upon by learned DPG for the State and learned counsel for the private respondent is on distinguishable facts and circumstances. It was a case of ineffective firing and enmity between the parties over the landed property was proved. In the instant case, an innocent person has lost his life and apparently there is no dispute between the parties over landed property.

15.                  In view of above the impugned order is set-aside with direction to learned trial Magistrate to pass the same afresh after providing chance of hearing to all the concerned.

16.                  Instant Criminal Miscellaneous application is disposed of in above terms.

 

Judge

 

 

ARBROHI