IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Cr. Misc. Application No.S-402 of 2019

Applicant: Abdul Wahab through Mr.Muhammad Aslam Shahani, Advocate.

Respondent: The State and others

Through Mr.Sardar Ali Shah DPG

Date of Hearing: 17^th June, 2019.

Date of order: 17th June, 2019.

O R D E R

Adnan-ul-Karim Memon, J:- Basically the Applicant has assailed the Judgment dated 28.5.2019 passed by the learned Additional Sessions Judge Ubaro, in Criminal Revision Application No.10 of 2017, whereby he concurred with the Order passed by the learned first Civil Judge/Judicial Magistrate Ubuaro, and dismissed the Revision Application. Applicant being aggrieved by the aforesaid decision has filed the instant Criminal Miscellaneous Application before this Court on 13.6.2019.

2. The crux of the case of the Applicant is that sections 364 read with section 511 PPC were dropped by the Investigating Officer in the Final Report under section 173 Cr.P.C, duly concurred by the learned Magistrate is/was against the basic sprit of law. Per Applicant the aforesaid sections were fully attracted in his case, but the same were wrongly deleted by the I.O, from the challan therefore the cognizance of the aforesaid sections ought to have been taken by the learned Magistrate, thus the case of the Applicant has been highly prejudiced due to the aforesaid omission. In support of his contention, he relied upon the contents of F.I.R and statements recorded by him and his witnesses before the police as well as before the learned Magistrate. He lastly prayed for setting aside the police report to the extent of deletion of section 364 read with section 511 PPC and acceptance of the Report by the concerned Magistrate. He has further asked for setting aside the Revisional order passed by the learned Additional Session judge Ubaro and prayed for sending the case of the Applicant to the Court of Session for trial by adding the aforesaid sections in the charge-Sheet.

3. Mr. Muhammad Aslam Shahani, learned Counsel for the Applicant has briefed me on the factual as well as legal pleas and argued that the Applicant lodged the F.I.R No.50/2011 at Police Station Wasti Jiwan Shah for offences u/s 364, 511, 337Aii, 452, 149, 148, 147, 337Hii PPC against the private respondents, who abducted the brother of petitioner Abdul Sattar in order to commit his murder; that after lodging of F.I.R Investigating officer neglected to add the sections 364 and 511 PPC and submitted final report before the learned trial Court, which was accepted vide order dated 4.7.2011; that an application for addition of aforesaid section was moved but the same was declined vide order dated 8.5.2014 without assigning any reason; that the deposition of the applicant was recorded by the trial Court on 5.5.2014 but the same is not in accordance with law; that the case of applicant was not considered by the learned trial Court on the aforesaid factum and necessary relief was declined to him without justifiable reason; that the case of the applicant ought to have been sent-up before the learned Sessions Judge Ghotki but the same was not done; that the learned Courts below failed to appreciate that from the contents of F.I.R and depositions of the PWs explicitly show ingredient of offence u/s 364 and 511 PPC but the learned trial Court wrongly accepted the police report, who failed to add the aforesaid section in the final report, thus prejudiced the case of applicant. He lastly prayed for allowing the instant miscellaneous application. During the course of arguments I inquired from the learned counsel as to how this criminal miscellaneous application is maintainable. In reply to the query he has reiterated his aforesaid submissions. I have noted that due to urgency shown by the learned counsel for the applicant, he has argued the entire case on merits at the Katcha Peshi stage.

4. I have heard the learned counsel for the applicant on the issue of maintainability of the instant Criminal Miscellaneous Application and perused the record.

5. To appreciate the aforesaid factum of the case, it is expedient to have a glance at the summary order dated 4.7.2011 passed by the learned Magistrate who accepted the Final Report of I.O and agreed with his opinion, whereby certain sections of PPC were deleted by the I.O. An excerpt of the order is reproduced as under:-

“The SHO PS Wasti Jiwan Shah has submitted final report/challan against accused Qutub, Shah Muhammad, Bahadur, Jahan, Saindad, Illimdin, Anwar Farman, Shabir and Nadir all the accused are shown as absconders, while accused Noor Hassan an Soonharo are shown in column No.2 of challan. The SHO of P.S Wasti Jiwan Shah also moved application u/s 491 Cr.P.C for release of arrested accused Soonharo presently who is confined in Judicial Lock-up Ubuaro in the instant case.

Perusal of police papers reveals that witnesses shown in the F.I.R namely Abdul Ghafoor, Abdul Sattar and Abdul Khaliq have fully supported the version of complainant in their statements u/s 161 Cr.P.C recorded by the I.O. The witnesses are injured/victim of incident and have received injuries at the hands of all accused. The Medical certificate of injured/witnesses are reveals that injured Abdul Ghaffar sustained six injuries, injured Abdul Sattar sustained thirteen (13) injuries and injured Abdul Khaliq sustained five injuries at the hands of accused. Hence, sufficient material is available against all the accused including the accused shown in column No.2. However, the ingredient of provisions of section 364 r/w S-511 PPC does not attract as according to F.I.R, accused party were in 13 in numbers while complainant were four in number then how complainant party rescued the said Abdul Sattar from kidnapping at the hands of accused persons.

In view of above facts and circumstances the final report is accepted for offence punishable u/s 452, 337F (v), Aii, Ai, Lii, H (ii), 147, 148, 149, PPC. The accused namely Soonharo and Noor Hassan shown in column No.2 are joined with the commission of offence to face their trial accordingly. The application u/s 497 Cr.P.C submitted by SHO for releasing the accused Soonharo is declined. Issue P.O for accused Soonharo. Issue notice to proposed accused Noor Hassan and issue BW against all absconding accused. Order accordingly”.

6. Record reflects that the learned Magistrate also passed another order dated 8.5.2013, whereby he dismissed the Application of the complainant/Applicant for addition of the aforesaid sections on the premise that the since charge has been framed and no offence under section 364, 511 PPC were made out. For convenience sake an excerpt of the order is reproduced as under:-

“This is an application for sent up of case to Court of Honourable Sessions filed by the leaned Advocate for the complainant on the ground that section 364, PPC is making out from the contents of F.I.R, so also from story of the deposition of the complainant.

Heard the learned Counsel for the accused. He mainly argued that cognizance was taken by this Court and section 364, 511, PPC were deleted by the Magistrate, such order was passed on 04.07.2011 and same order have never been challenged by the complainant, therefore that order attends finality and present application merits no consideration as such the wording of section 364, PPC shows that the kidnapping or abduction for intention to commit murder may be completed then it constitute the Section 364, PPC for which the illustration a & b are very much clear. Therefore he prayed that application may be dismissed. He further argued that section 511, PPC is also not attracting from the story of F.I.R and illustration of a & b of Section 511 PPC are very much clear. He argued that earlier order dated: 04.07.2011 have not been challenged, therefore application merits no consideration.

Heard, Mr.Imtiaz Ahmed Kolachi advocate for the complainant, he has argued that story of F.I.R and statement of the complainant are making out section 364, 511 PPC and same are triable by the Court of Honourable Sessions, which are exclusively triable by the Court of Honourable Sessions, therefore the case may be sent-up by re-calling the earlier order dated:04.07.2011.

Since the cognizance have been taken by my predecessor and the charge of the case was framed. The order dated 04.07.2011 not challenged by the complainant therefore Court is not competent to re-call its earlier order passed on merits. Particularly in circumstances when there was no error in the earlier order passed by this Court. The section 364, 511 PPC are not making out from the story of F.I.R. Therefore the application merits no consideration and same is hereby dismissed”.

7. In view of forgoing, Prima-facie the deposition of the complainant and his witnesses explicitly show that, no offence under section 364 read with section 511 PPC were attracted to claim Sessions trial.

8. I have noticed that this Court vide order dated 2.4.2018 directed the learned Additional Sessions Judge to record his reasoning whether to agree with the order passed by the learned magistrate or otherwise, the learned court dismissed the Revision Application vide impugned order dated 28.5.2019.

9. The principal question which arises for determination in the instant Criminal Miscellaneous Application is whether the learned Magistrate by virtue of powers conferred upon him under the Code of Criminal Procedure (Cr.P.C.) is empowered to add or delete sections of PPC in the charge sheet or take cognizance of the offence(s) and order for registration of case, after the same was submitted by the police on completion of investigation based upon first information report (F.I.R) registered under Section 154 Cr.P.C.

10. In order to resolve the controversy in its true perspective, it may be relevant to give the background of case as stated in the FIR. In the FIR it has been stated by the complainant that on 29.05.2011 he along with his brother Abdul Ghaffar, Abdul Khaliq and Abdul Sattar were present and at that time accused Qutub, Shah Muhammad, Bahadur, Jehan, Saindad, Ilamdin armed with lathies, Anwar, Farman with guns, Sooharo, Shahmir with lathis, Nadir with rifle and Noor Hassan with lathi all by cast Gurgej entered in his house dragged his brother Abdul Sattar for the purpose of kidnapping and murder and caused lathi blows to his brothers Abdul Ghaffar, Abdul Sattar and Abdul Khaliq, who sustained injuries on their bodies thereafter aforesaid F.I.R was lodged against the accused. However, challan was submitted by the police u/s 452, 337Fv, Aii, Ai, 147, 148, and 149 PPC in which section 364 and 511 PPC were omitted. As per record learned Ist Civil Judge Ubauro vide order dated 17.10.2016 opined that section 364 PPC was attracted. The accused being aggrieved by and dis-satisfied with the aforesaid order assailed the same in Revision Petition whereby the order dated 7.2.2017 of the learned Magistrate was set aside on the ground that at-least two witnesses be examined before passing such order, thereafter he examined two witnesses thereafter the applicant moved fresh application for addition of the aforesaid sections which was dismissed vide order dated 13.4.2017. However the aforesaid proceedings were culminated into the order dated 2.4.2018 passed by this Court in Crl. Misc.Application No. 504/2017 whereby certain direction was issued to the learned Ist Addl. Sessions Judge Ghotki. However, th learned Additional Sessions Judge Ubauro has passed the impugned order dated 28.05.2019 by declining the request of the applicant and concurred with the view of learned Magistrate..

11. From, the pleadings of the parties and arguments extended thereon, the following pivotal Questions arise in the present proceedings;-

i) Whether from the ingredients of F.I.R offence under section 364 and 511 PPC are made out or otherwise?

ii) Whether the learned Magistrate has rightly taken cognizance of the offence under section 452, 337Fv, Aii, Ai, 147, 148, and 149 PPC on the police report?

12. I have noticed that Judicial Magistrate has been conferred with wide powers to take cognizance of an offence not only when he receives information about the commission of offence from a third person but also where he has knowledge or even suspicion that the offence has been committed.

13. Elaborating further on the aforesaid proposition, I have to see whether the applicant had the remedy under Section 200 Cr.P.C in view of the facts and circumstances of the case, in my view there is no embargo on the powers of the Magistrate to entertain a private complaint as envisaged under section 4(h) Cr.P.C if approached by the complainant and when on receiving complaint the Magistrate can apply his mind for the purpose of proceeding under Section 200 Cr.P.C. (Examination of complainant) and the succeeding sections in the Cr.P.C., that the Magistrate can even take cognizance of the offence on information received by a 3rd party and thus there are no fetter or embargo on the powers of the Magistrate when he thinks it proper to include more sections on the basis of private complaint lodged for conducting the trial of the accused and it is open to the Magistrate to take cognizance of the offence under Section 190 (1) (c) Cr.P.C on the ground that after having due regard to the Final report under section 173 Cr.P.C (Report of police-officer) and the police records placed before him if he has reason to suspect that an offence has been committed, it is open to the Magistrate to take cognizance of the offence under Section 190 (1) (c) Cr.P.C, thus the applicant has remedy to avail which he has failed to invoke for the reasons best known to him.

14. While analyzing the controversy raised in the present Application, it is obvious that the entire dispute revolves around the procedural dispute and as per opinion of I.O no offence under Section 364 and 511 PPC was made out but it appears that there is distinction between a case lodged by way of private complaint before the Magistrate commonly referred to as complaint case under Section 190 Cr.P.C. and a case registered on the basis of a first information report (F.I.R) under Section 154 of the Cr.P.C. before the police. The learned Magistrate has carefully dealt with the issue in hand while accepting the police report, in view of the forgoing no case is made out for indulgence of this Court. However, the following analysis is very essential for future guidance:-

In the present scenario it is necessary to have a look at Section 190(1) of the Cr.P.C. which contains the provision for cognizance of offences by the Magistrate and it provides three ways by which such cognizance can be taken which are reproduced hereunder:-

(a) Upon receiving a complaint of facts which constitute such offence;

(b) upon a police report in writing of such facts–that is, facts constituting the offence–made by any police officer;

(c) upon information received from any person other than a police officer or upon the Magistrate’s own knowledge or suspicion that such offence has been committed.

An examination of these provisions makes it clear that when a Magistrate takes cognizance of an offence upon receiving a private complaint of facts which constitutes such offence, a case is instituted in the Magistrate’s Court and such a case is one instituted on a complaint. Again when a Magistrate takes cognizance of any offence, upon a police report in writing of such facts made by any police officer it is a case instituted in the Magistrate’s Court on a police report (F.I.R). The scheme underlying Cr.P.C. clearly reveals that anyone who wants to give information of an offence may either approach the Magistrate or the officer in charge of a Police Station. If the offence complained of is a non-cognizable one, the Police Officer can either direct the complainant to approach the Magistrate or he may obtain permission of the Magistrate and investigate the offence. Similarly anyone can approach the Magistrate with a complaint and even if the offence disclosed is a serious one, the Magistrate is competent to take cognizance of the offence and initiate proceedings. It is open to the Magistrate but not obligatory upon him to direct investigation by police. Thus two agencies have been set up for taking offences to the court.

The instant matter arises out of a case which is based on a police report as the FIR was lodged at Police Station Wasti Jiwan Shah for offences u/s 364, 511, 337Aii, 452, 149, 148, 147, 337Hii PPC against the private respondents, under Section 154 Cr.P.C. and, therefore, the investigation was conducted by the police authorities in terms of procedure prescribed in the Cr.P.C. and thereafter report was submitted by omission of such sections as discussed supra. At this stage, the Judicial Magistrate after submission of report appears to have taken cognizance for the aforesaid offences by deleting Section 364 and 511 PPC and registered a case against the Applicants under sections 337Aii, 452, 149, 148, 147, 337Hii PPC only, under Section 190 (a) of the Cr.P.C., obviously the Magistrate had full authority and jurisdiction to conduct enquiry into the matter and if at any stage of enquiry, the Magistrate thinks it appropriate that other additional sections also were fit to be included, he would not be precluded from adding them after which the process of cognizance would be taken by the Magistrate and then the matter would be committed for trial before the appropriate Court. But it was obligatory for him to have a glance whether the ingredients of the offence under section 364 and 511 PPC were made out or not before taking cognizance, which factor is apparent on the face of record.

Crux of the above discussion is that if a case is registered by the police based on the FIR registered at Police Station under Section 154 Cr.P.C. and not by way of private complaint under Section 190 (a) of the Cr.P.C. before the Magistrate, obviously the magisterial enquiry cannot be held in regard to the FIR which had been registered as it is the investigating agency of the police which alone is legally entitled to conduct the investigation and, thereafter, submit report under section 173 Cr.P.C. or charge sheet under Section 170 Cr.P.C , unless of course a complaint before the Magistrate is also lodged where the procedure prescribed for complaint cases would be applicable. It is further clarified that in a police case, however after submission of the report, the matter goes to the Magistrate for forming an opinion as to whether it is fit case for taking cognizance and committing the matter for trial in a case which is lodged before the police by way of FIR and the Magistrate cannot exclude or include any section of PPC into the charge-sheet or take cognizance of the offence other than triable by him, after investigation has been completed and charge-sheet has been submitted by the police, however it is made clear that if he is not satisfied with the investigation report, he can order for further investigation on that aspect of the case, which the prosecution has left or if he finds sufficient material to take direct cognizance of the matter.

In the light of forgoing, My view is that the Magistrate in a case which is based on a police report cannot add or subtract sections of PPC at the time of taking cognizance as the same would be permissible by the trial court only at the time of framing of charge under section 221 of the Cr.P.C (Charge to state offence) or under section 227 of the Cr.P.C (Court may alter charge) as the case may be which means that after submission of the charge-sheet it will be open for the prosecution to contend before the trial court at the stage of framing of charge to establish that on the given state of facts the appropriate sections of PPC which according to the prosecution should be framed can be allowed to be framed. Simultaneously, the accused also has the liberty at this stage to submit whether the charge under a particular provision should be framed or not and this is the appropriate forum in a case based on police report to determine whether the charge can be framed and a particular section of PPC can be added or removed depending upon the material collected during investigation as also the facts disclosed in the FIR and the charge-sheet or Investigation Report. The Cr.P.C. has clearly engrafted the two channels defining the powers of the Magistrate to conduct an enquiry in a complaint case and police investigation based on the basis of a case registered at a police station where the investigating authorities of the police conducts investigation and there is absolutely no ambiguity in regard to these procedures.

15. The instant case is based on the FIR, the correct stage for addition or subtraction of Sections of PPC will have to be determined at the time of framing of charge, which has ben framed and depositions have been recorded accordingly. The learned Magistrate in the impugned order has assigned reasons for not adding section 364 and 511 PPC and has made an opinion that he order was seconded by the Additional Sessions Judge. I am of the view that the basic ingredients of the offence under section 364 and 511 PPC are missing in the present case and the Magistrate had no powers under the law to add such sections without material. My view is supported by the decision rendered by the Honourable Supreme Court in the case of Muhammad Ajmal and others v. The State and others (2018 SCMR 141) the Honourable Supreme Court has held at paragraphs 21& 22 as under:-

“It may also be pointed out that the successor Additional Sessions Judge while passing the impugned order dated 23.4.2015 has fallen into patent error, holding that the earlier judgment of the Additional Sessions Judge, Bahawalpur has not debarred the Magistrate to add section of law i.e. section 302 PPC because the then Additional Sessions Judge had rightly held that the Magistrate may exercise powers after holding the trial and recording evidence. The mode and manner adopted by the Magistrate examining the senior medical officer on the point of cause of death of the deceased, is completely alien to the Law of Evidence and Code of Criminal Procedure.”

16. As a consequence of aforesaid analysis, I do approve the order of learned Magistrate duly concurred by the learned Additional sessions Judge Ubaro who did not permit addition of Section 364 and 511 PPC in the aforesaid case. I, therefore, dismiss this Criminal Miscellaneous Application in limini along with pending application(s), if any.

JUDGE