ORDER SHEET

ORDER SHEET

IN THE HIGH COURT OF SINDH CIRCUIT COURT AT LARKANA

Crl.Misc.Appln.No.S-286 of 2018

Date Order with signature of Judge

1. For hearing of main case

2. For orders on M.A.No.4713/2018.

30.11.2018

Mr.Mazhar Ali Bhutto, Advocate for applicant

Mr. Sharafuddin Kanher, A.P.G

Mst.Parveen Khatoon in person

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IRSHAD ALI SHAH, J.- The applicants by way of instant Crl.Misc.Application u/s 561-A Cr.PC has impugned an order dated 29.09.2018, passed by Learned 1^st Civil Judge & Judicial Magistrate, Larkana, whereby police report for cancellation of FIR Crime No.28/2018, offence u/s. 435, 427, 148, 149, 337-H(ii) PPC of P.S Aqil, under “B” class was dismissed and consequently, cognizance of the offence was taken in terms of Section 190 (1) (b) Cr.PC for trial of the applicant and others in accordance with law.

The facts in brief necessary for disposal of the instant Crl.Misc.Application are that the applicants and others allegedly after having formed an unlawful assembly and in prosecution of their common object, committed mischief by setting a “dugdigi” machine on fire, went away by making aerial firing to create harassment, for that the private respondent lodged FIR of the incident with police. On investigation, the FIR lodged by the private respondents was recommended to be cancelled by the police by filing such report u/s 173 Cr.PC. It was not accepted and consequently learned trial Magistrate taking the cognizance of the offence vide impugned order.

The operative part of the impugned order reads as blow;

“Perusal of record shows that all P.Ws have supported the version of FIR in their statement u/s.161 Cr.PC recorded before the police. learned ADPP also assisted this Court and argued that there is sufficient material available on the record which connects all the accused persons with the commission of the offence. Record reveals that I.O has opined for disposal in “B” class on the basis of statements of different D.Ws, wherein plea of Alibi had been taken as a defense. Plea of Alibi is pure question of evidence, which cannot be agitated at this juncture. The function of I.O is to collect the evidence which substantiate the prosecution case. In event of ample and sufficient evidence of complainant version in FIR, it is incomprehensive what need has arise to record the statement of D.Ws, it is settled principle of law and practice that ipsi-dixit of the police is not binding on the Court. Court is empowered to form its opinion on the basis of material available on the record”.

It is contended by learned counsel for the applicants that the very case was recommended by police to be cancelled under false “B” class on the basis of very honest investigation, it was not consented by learned trial Magistrate without lawful justification. By contending so, he sought for reversal of the impugned order.

Learned A.P.G who is assisted by the private respondent/complainant in person by supporting the impugned order has sought for dismissal of the instant Crl.Misc.Application.

I have considered the above arguments and perused the record.

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.

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.

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”.

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.

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). "

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.

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.

Turning to merits of the present case, the perusal of the record shows that FIR of the incident has been recommended to be cancelled by police on the basis of statement of the defence witnesses. It is not function of the police to disbelieve the evidence of the complainant and then to believe the evidence of the accused. By doing so, the police assumed the role of Court, which is not permissible at law.

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, which may justify making interference with it, by this Court. Consequently, the instant Crl.Misc.Application is dismissed accordingly.

JUDGE