IN THE HIGH COURT
OF SINDH BENCH AT SUKKUR
Criminal Misc.
Application No.S-509 of 2020
Applicant: Abdullah
s/o Ghulam Nabi, through Mr. Jamal Nasir Bullo, Advocate.
Respondents No.5 to 9: Mr. Niaz Muhammad Korai,
Advocate.
State: Through Khalil Ahmed
Maitlo, D.P.G.
Date of hearing: 30.08.2021
Date of decision: 11.10.2021
O
R D E R
Zulfiqar
Ali Sangi, J: Through this application, the
applicant has assailed the order dated 31.08.2020, passed by learned Judicial
Magistrate-I, Pano Aqil, whereby learned Magistrate accepted the report under
Section 173 Cr.P.C, arising out of FIR No.49/2020, Police Station Pano Akil,
offence under sections 452, 147, 148, 149, 506/2, 114, 427 and 447 PPC.,
submitted by police under cancelled “C” class.
2. Learned Counsel
for the Applicant submits that the impugned order passed by learned Magistrate
is contrary to both law and facts; that from the bare reading of FIR, a
cognizable offence is made out; that firstly Investigating Officer conducted
the investigation and submitted final report under Section 173 Cr.P.C; however,
while disagreeing with his recommendation, learned Magistrate on his own accord
without mentioning any cogent reason, forwarded the case to SSP, Sukkur for
further investigation; that subsequently, 2nd Investigating Officer
without conducting fair investigation, submitted his final report for disposal
of case under cancelled ‘C’ class, which was accepted by learned Magistrate
through impugned order in hasty manner, hence this application.
3. Learned counsel
representing the Respondents submits that learned Magistrate has rightly passed
the impugned order 31.08.2020, which does not warrant any interference by this
Court as it is prerogative of learned Magistrate either to agree or disagree
with the police report or even remit the case for further investigation.
Learned Counsel further submits that the case was investigated twicely; that earlier investigation report was disagreed;
however second has been accepted and case was disposed of under cancelled “C”
class, therefore, the argument advanced by learned Counsel for the Complainant with
regard not to apply its judicious mind by learned Magistrate while passing the
impugned order is unjustifiable as it is an admitted fact that civil
litigations are pending between the parties; besides story narrated in the FIR appears
to be false one.
4. Learned DPG
appearing for the State submitted that learned Magistrate has rightly passed
the impugned order as it is privilege of learned Magistrate either to agree or
disagree with the final report submitted under Section 173 Cr.P.C or even remit
the case for further investigation. Admittedly, civil dispute exists between
the parties and there is no any illegality or infirmity is found in the
impugned order, hence the same is liable to be maintained.
5. I have heard
learned Counsel for the Applicant, Complainant and DPG as well, perused the
record with their able assistance.
6. Record reflects
that applicant/complainant has filed an application under Section 22-A Cr.P.C
before Ex-Officio Justice of Peace wherein it is stated that the
accused/Respondent dispossessed him from his house, which was allowed and an
FIR bearing Crime No.49/2020, at P.S. Pano Aqil, was registered. Thereafter
investigation was entrusted to ASI Riaz, who has
submitted his final report under Section 173 Cr.P.C for taking cognizance;
however learned Magistrate vide order dated 30.05.2020 did not agree with the
opinion of Investigating Officer and recommended the matter for further
investigation. Subsequently, in compliance of order dated 30.05.2020, SSP
Sukkur entrusted further investigation to SHO PS Dadloi, who after completion
of inquiry/investigation, submitted final report under Section 173 Cr.P.C under
cancelled “C” class, which was accepted by learned Magistrate vide order dated
31.08.2020. I felt it necessary to re-produce the order dated: 30-05-2021
because it clears the entire position as to why learned Magistrate passes the
same for further investigation which reads as under:-
“Heard and perused the material collected
during the course of investigation shows that there are two investigation officer in this case first Investigation
Police officer ASI Riaz, who recorded the statements
of witnesses under section 161 Cr.P.C, visited the place of incident, and
prepared the Summary report for approval under ‘C’ class duly forwarded by DDPP
for State on 13.04.2020 and attested copy of Summary was submitted by the
learned Advocate for accused is available on record, thereafter investigation
was transferred to SIP Haq Nawaz Kalwar
without any written order either but as per his argument that he received the
investigation on the verbal order of SSP, Sukkur and he subsequently submitted
the final report for taking cognizance but he did not made the part and parcel
of earlier conclusion of first Investigating Officer in police paper which
requires further probe. Apart from this learned advocate submitted the
order of Additional Sessions Judge Pano Aqil and the memo of Cr. Misc.
Application No.210/2020 by which he challenged the order of Additional Sessions
Judge, Pano Aqil before
Hon’ble High Court Sindh Bench at Sukkkur requested
therein for the directions to be passed to investigating officer to submit the
summary prepared by the first Investigating officer before the court having
jurisdiction, which is fixed on 15.06.2020. All the above circumstance shows
that investigation does not conduct properly needs further investigation as the
learned DPP for State also vide his opinion
recommended the matter for further investigation”.
7. The Magistrate can take cognizance of
offence if report submitted by the investigating officer in negative that
accusation is baseless and also no case is made out against the accused as has
been held by Honourable Supreme Court in case of Safdar Ali v. Zafar Iqbal (2002 SCMR 63), and the ipse dixit
(opinion of the I.O.) cannot be accepted to exonerate the accused from the
commission of the alleged offence as has been held by the Supreme Court in case
of Mst. Qudrat Bibi v. Muhammad Iqbal
and another (2003 SCMR 68). However, in the present case the first
investigating officer who recorded the statements under section 161 Cr.P.C and
visited the place of vardat was of the opinion that the case is liable to be
disposed of under “C” class and when such report was concurred by the DDPP then
without assigning any reason, investigation was changed even no formal
order/latter was issued for such change of investigation. Record reflects that
the second investigating officer, who submitted report against the accused,
admitted before the Magistrate that he received the investigation under oral
orders of the SSP and he had also not made the conclusion of first
investigation as a part of his investigation and then order for further
investigation was passed by the learned Magistrate, which was not challenged by
the parties and attained finality.
8. In case of Sughran Bibi
reported as PLD 2018 Supreme Court 595, the Honourable Supreme Court has held that 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.” Ordinarily no person is to be arrested
straightaway only because he has been nominated as an accused person in an FIR
or in any other version of the incident brought to the notice of the
investigating officer by any person until the investigating officer feels
satisfied that sufficient justification exists for his arrest and for such
justification he is to be guided by the relevant provisions of the Code of
Criminal Procedure, 1898 and the Police Rules, 1934. According to the relevant
provisions of the said Code and the Rules a suspect is not to be arrested
straightaway or as a matter of course and, unless the situation on the ground
so warrants, the arrest is to be deferred till such time that sufficient
material or evidence becomes available on the record of investigation prima
facie satisfying the investigating officer regarding correctness of the
allegations levelled against such suspect or
regarding his involvement in the crime in issue. It was further held in the judgment (supra)
that upon conclusion of the investigation the report to be submitted
under section 173, Cr.P.C 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. In
the case in hand it was third investigation officer who conducted the
investigation of the present case and after the investigation he too
recommended the case to be disposed of under “C” class. Learned Magistrate
after giving an opportunity of hearing to the parties passed the following
detailed order:-
“Heard
and perused the record, I am of the considered opinion that the FIR is lodged
with delay of 20 days without any plausible explanation though the police
Station is at the distance of two furlong from the place of incident. Admittedly civil dispute exists in between
the parties on the said house in question and such civil litigation is pending
before the lodgment of this FIR. Apart from this the main ingredients of
Section 452 PPC are missing in this case. The
complainant failed to produce the documents of property to show the ownership
and his complete possession over the disputed property though it is matter of
record Hon’ble Senior Civil Judge, Sukkur have passed the judgment and decree
against the complainant in respect of said house and in compliance thereof
report of bailiff dated 27.06.2020 shows that complainant has handed over the
peaceful possession of disputed property. Apart from this civil litigation
is/ are also pending between both the parties before different forums. The
Hon’ble High Court of Sind in Case of Abdul Khalique
and 03 others v. 4th Civil Judge and Judicial Magistrate, Khairpur
and 03 others (2012 P Cr. L J 1770) discussed in detail the main ingredients of
“criminal trespass”. It has been held by the Hon’ble High Court that the ingredients
of criminal trespass defined by Section 441 PPC were to commit trespass to
intimidate, insult or annoy any person in possession of the property in
dispute. Difference existed between civil trespass by way of taking possession
of the property without consent of the person in possession and criminal
trespass for which insult or annoyance to the person in possession of such
property was a condition precedent. In the case of Syed Ali Kausar
Zaidi vs. Muhammad Shafique
and others (1990 SCMR 536), Hon’ble Supreme Court of Pakistan maintained the
acquittal of the accused persons in a case registered under Sections
452/448/457/147/148 & 380 PPC wherein Civil Suit was pending between the
parties.
So
far as the ingredients of Section 506(ii) PPC are concerned, the complainant
has not established the ingredients of the said offence against the present
accused persons. It is matter of record that the disputes were going on between
the parties and during which the accused persons had no motive or reason to go
and visit the house of the complainant merely for issuance of threats in
presence of his entire family members who are not shown to be the witnesses of
the alleged incident. Even otherwise, “Simple threats are not sufficient to
constitute a criminal intimidation within the scope of this section [506 PPC]
unless it is caused that person to do an act who was not legally bound to do or
to omit to do any act which that person was legally bound to do”. Reliance is
placed on the case of Wajid Ali v. Civil Judge and
Judicial Magistrate No.1 and 5 others (PLD 2014 Sindh 164).”
9. During the arguments learned counsel
for the applicant has also admitted that
the possession of the disputed house is with the applicant/complainant and some
civil proceedings in respect of the same property are pending before the courts
having jurisdiction. Learned counsel for the applicant has failed to point
out any illegality, infirmity or irregularity in the impugned order, which
being based on sound and cogent reasons do not warrant any interference by this
Court and is accordingly maintained. Resultantly, instant Cr. Misc. Application
is dismissed in the above terms.
JUDGE