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

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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