ORDER SHEET
IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR
Cr. Misc. Appln.
No.S- 87 of 2019
Date Order with Signature of Hon’ble
Judge
For hearing of case
1.
For orders on office objection at flag ‘a’
2.
For hearing of main case
26.04.2019
Mr. Muhammad Qayoom Arain Advocate
for the Applicant
>>>>>>>…<<<<<<<<
Irshad Ali Shah, J; The facts in brief necessary for passing the
instant order are that as per the complainant Mst. Lal Khatoon, the applicant
and others while committing trespass in her house after outraging her modesty
committed rape with her, after keeping her under fear of death, for that they
were booked accordingly. Learned trial Magistrate, took the cognizance of the offence against the
applicant and others by way of his order dated 19.01.2019, which significantly
is impugned by the applicant alone.
2. It is contended by learned counsel for the
applicant that learned trial Magistrate has ignored the report of the police
which was based on the very honest investigation and learned trial Magistrate
even otherwise was not competent to have passed the impugned order. By contending so, he sought for issuance
of notice against the respondents. In support of his contention, he relied upon
cases of Abdul Ghafoor alias Chaudhry vs. The State (2003 MLD 739) and Akhtar
Sher vs. The State and others (1991 MLD 1977).
3. I have considered the above arguments and perused the record.
4. 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.
5. From
above, it is quite obvious 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.
6. The bare perusal of the above
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”.
7.
The used of word ‘may’
in above Section always
vests competence to agree or disagree with the police report u/s 173 Cr.P.C. 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.
8. 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). "
9.
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.
10. It
would further be added 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 any class on the
basis of recommendation of the police / investigating officer.
11.
In the present case, it
is alleged by the complainant that the applicant and others by committing
trespass in her house after outraging her modesty and keeping her under fear of
death committed rape with her, the complainant in that respect is supported by
her witnesses, their statements were disbelieved by the investigation officer
on the basis of defence version without lawful justification. By doing so, the
investigating officer 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, 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 in its inherent jurisdiction. If the applicant is having a
feeling that he has been involved in this case falsely by the complainant then
he may prove his innocence before learned trial Court.
12. The case-law which is relied upon
by learned counsel for the applicant is of distinguishable facts and
circumstances, same even otherwise could not be given preference over the
authoritative view of the Honourable Apex Court, as is discussed above.
13.
For what has been
discussed above, the instant Criminal Miscellaneous Application; is dismissed
without notice to other side.
Judge
ARBROHI