ORDER SHEET

ORDER SHEET

IN THE HIGH COURT OF SINDH CIRCUIT COURT AT LARKANA

Crl.Misc.Appln.No.S-402 of 2017

Date Order with signature of Judge

1. For orders on office objection “A”

2. For hearing of case.

Date of hearing : 02.11.2018

Date of decision: 09.11.2018

Mr.Abdul Jabbar A. Lashari, Advocate for applicant

Mr. Raja Imtiaz Ali Solangi, A.P.G

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IRSHAD ALI SHAH, J.- The applicant by way of instant Crl.Misc.Application u/s 561-A Cr.PC has impugned an order dated 21.10.2017, passed by Learned 2^nd Civil Judge & Judicial Magistrate, Jacobabad, whereby police report for cancellation of FIR Crime No.33/2017, offence u/s.302, 201, 147, 148, PPC, P.S Civil Line, was declined and cognizance of the offence was taken in terms of Section 190 (1) (b) Cr.PC for trial of the applicant and others.

2. The facts in brief necessary for disposal of the instant Crl.Misc.Application are that the applicant and others allegedly after having formed an unlawful assembly and in prosecution of their common object committed Qatl-e-Amd of Mst.Imamzadi and then caused disappearance of her dead body to save themselves from legal consequences. On investigation, the police came to conclusion that accused in order to save themselves from legal consequences have lodged a false FIR with untrue facts by making such conclusion another FIR bearing Crime No.37/2017, u/s. 302, 201, 311, 34 PPC was lodged with P.S Civil Line Jacobabad, on behalf of the State under the orders of Senior Superintendent of Police Jacobabad and consequently, the instant case was recommended to be cancelled under false “B” class, by making such report, which was not accepted by learned trial Magistrate by way of his order, which has been impugned by the applicant before this Court by way of making instant Crl.Misc.Application, as stated above.

3. It is contended by learned counsel for the applicant that two separate FIRs have been lodged by the police for single incident, one on behalf of the State and other by an individual, the case outcome of FIR which is lodged on behalf of the State has already come to an end by way of compromise, the applicant could not be tried twicely for the same offence. By contending so, he sought for reversal of the impugned order.

4. Learned A.P.G by supporting the impugned order has sought for dismissal of the instant Crl.Misc.Application.

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

6. Before attending the merits of the case, it is found quite appropriate to first discuss the difference between role of investigating officer and that of ‘Magistrate’ in relation to investigation and outcome thereof. Every investigation is conducted with reference to Chapter-XIV of the Criminal Procedure Code as well relevant 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 limitations including that of version of informant / complainant. Without saying much, in that respect, the authoratitive view of Honourable Apex Court, given in the case of Mst. Sughran Bibi Vs. The State (PLD 2018 SC-595), wherein certain legal position(s) have been 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:-

"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 provision of law would show that it directs that on conclusion of every investigation, a police report shall be forwarded to the Magistrate, so empowered to take cognizance thereon which must include all details, as directed in above provision of law. It no where describes as to how the Magistrate shall deal with such report, it however empowers the Magistrate to agree or disagree with act of 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 hereunder:-

“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. 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 subsection (3) of section 190 of Criminal Procedure Code, a Magistrate who takes cognizance of any offence under any of the clauses of subsection (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 prima facie of commission of offence or otherwise should be seen by him. Once the Magistrate has taken cognizance of the offence exclusively triable by the Court of Session, he has to send the case of that Court to the Court of Session.

12. It would further be added here that taking cognizance alone shall not prejudice the right of accused but keeps the prosecution to prove its charge without harm to presumption of innocence of the accused involved therein. Even otherwise, it is settled by now 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 be not disposed of in ‘B’ or ‘C’ class.

13. Reverting to merits of the case, the perusal of the record shows that it was the applicant who lodged FIR of the incident relating to murder of his disable sister Mst.Imamzadi. During course of investigation Mst.Naseem confessed the guilt by making confessional statement before the Magistrate having jurisdiction, therein she also implicated the applicant to be co-accused with her. The Investigating officer was required to investigate the case from all angles but his conclusion must always be based on facts, discovered during course of investigation and not mere words of informant or defence. In that situation, the investigating officer was never justified to declare the instant case to be false on the basis of confessional statement of co-accused Mst.Naseem, without collecting any proof thereto. In that situation, registration of another FIR for the same incident on behalf of the State was not called for. Further, since taking of cognizance, as already discussed, is nothing more than proceeding further without any harm to obligation of the prosecution to prove its case beyond reasonable doubt and that of right of accused to enjoy fair-trial which includes a fair opportunity to prove their case together with the plea under section 403 Cr.PC or otherwise.

14. For whatever has been discussed above, it is concluded that no illegality or irregularity has been committed by the learned Magistrate while passing the impugned order dated 21.10.2017, which may justify making interference with it, by this Court, by way of instant Crl.Misc.Application, it is dismissed accordingly.

JUDGE