IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

 

 

Cr. Misc. Application No.S-702 of 2021

 

 

Applicants:                              Jamsher Ali and others

                                                Through  Syed Jaffar Ali Shah

                                                Advocate

Respondent No.2:                    Khuda Bux, through

                                                Mr. Manzoor Hussain Ansari,

                                                Advocate

 

State:                                       Through Mr. Shafi Muhammad

                                                Mahar, Deputy Prosecutor General

 

 

Cr. Misc. Application No.S-768 of 2021

 

Applicant:                                Khuda Bux, through

                                                Mr. Manzoor Hussain Ansari,

                                                Advocate

 

Respondent No.5 to 9, 13:       Abdul Samad and others

                                                Through  Syed Jaffar Ali Shah

                                                Advocate

 

State:                                       Through Mr. Shafi Muhammad

                                                Mahar, Deputy Prosecutor General

Date of hearing:                       07.02.2022.

Date of decision:                      28.02.2022.

 

O R D E R

 

Zulfiqar Ali Sangi, J:                   Through captioned two applications, the applicants have assailed the order dated 13.10.2021, passed by learned Civil Judge and Judicial Magistrate, Kingri, whereby the learned Magistrate by dis-approving the summary submitted by the I.O for disposal of the case / FIR No.05/2021 of PS Baradi under “C” class, disposed of the same under “B” class (false class) with direction to Home Secretary Sindh and AIGP Karachi for taking action against the complainant party of police officials for lodging false FIR and being involved in fake and staged police encounter as well as direction to IGP Sindh to suspend these involved SHOs and delist them from the pool of SHOs till final decision of their trial.

 

2.                Briefly the facts of the case for disposal of these applications are that the police officials / applicants in Cr.M.A.No.S-702/2021, in an alleged encounter committed murder of three persons, who were relatives of respondent Khuda Bux, and such FIR bearing Crime No.05/2021 was registered by them at Police Station Baradi against the deceased persons. Later on the said FIR, after investigation was recommended by the I.O to be disposed of under cancelled “C” class, however the learned Magistrate disposed of the same under “B” class (false class), with further directions as mentioned above, hence these applications.

 

 

3.                Syed Jaffar Ali Shah learned counsel for the applicants in Cr.M.A.No.S-702/2021, has submitted that learned Judicial Magistrate without applying his judicious mind, in a hurriedly manner passed the impugned order, which is not tenable under the law; that the learned Magistrate has wrongly assessed the material and documents produced by the investigating officer; that the learned Magistrate has committed illegalities and irregularities while passing the impugned order; that the learned Magistrate has no power to give direction to IG for suspension of the applicants; that the impugned order appears to be unwarranted under the law and it is liable to be set-aside. In support of his contentions learned counsel relied upon the cases reported as Sofi Mureed Hussain Alfuqrah and another v. The State and another (PLD 2016 Sindh 300), Syeda Tousif Zohra v Syed Arif Hussain Zaidi and two others (2008 YLR 2680) and Farooq Sumar and others v. The State and others (2004 P.Cr.L.J 1023).

4.                Mr. Manzoor Hussain Ansari learned counsel for the applicant in Cr.M.A.No.S-768/2021 has contended that the impugned order passed by the learned Magistrate is much against the law, facts and equity; that police officials / respondents are real accused who have committed the brutal murder of three innocent persons; that the learned Magistrate has only issued direction to IGP Sindh to suspend the police officials/ respondents and to delist them from the pool of SHOs which is against the law, however he was bound by law to take cognizance of offence against the police officials. He lastly submitted that learned Magistrate be directed to take the cognizance and register the case by adopting the second version of applicant as true against all the police officials who have participated in fake encounter.

 

5.                Learned DPG representing the state has supported the impugned order to the extent of disposing of the summary under “B” class however he has not supported the order in respect of directions to the Home secretary and IG Sindh police for taking action against the police officials.

6.                I have heard learned Counsel for both the parties as well as learned DPG for the State and have gone through the material available on record.

 

7.                In the case in hand after registration of FIR No. 05 of 2021 at police station Baradi Jatoi Taluka Kingri District Khairpur for offences under sections 324, 353, 411 and 34 PPC, the investigation was conducted by ASI Ali Asghar Maitlo and after completing the investigation he submitted report before the learned Magistrate for disposal of the case under “C” cancel class. Learned Magistrate dis-agreed with the result of investigation and directed for further investigation to be conducted by an officer of the SSP rank. It appears from the impugned order that thereafter under the directions of AIG police Sukkur the investigation was entrusted to SSP Sukkur Mr. Irfan Ali Samo, however due to some slow progress in the investigation and by finding that he himself was involved in the inquires of fake encounters, learned Magistrate directed the Additional IG police Karachi for appointing another police officer of good reputation. Record further reflects that then Additional IG Police Karachi appointed Mr. Amjad Ali Shaikh SSP Kashomre @ Kandhkot for conducting the investigation of the case.

 

8.                Record further reflects that Khuda Bux Abro filed Cr. Misc: Application No.2947 of 2021 before Ex-officio Justice of Peace for registration of second FIR of the murders for which police officials had already registered the same as stated above. Learned Ex-officio Justice of Peace after hearing the parties has dismissed the same application vide order dated: 05-08-2021. Khuda Bux has challenged the said order before this court by filling Cr. Misc. Application No. S-515 of 2o21 which was disposed of by this court vide order dated: 04-10-2021 in the following terms:-

            “SSP Kashmore @ Kandhkot files compliance report, which is taken on record. Learned counsel for the applicant and learned counsel for the proposed accused by consent submit that they will follow the judgment of Honourable Supreme Court in case of Mst. Sughran Bibi v. The State (PLD 2018 Supreme Court 595) and applicant will approach the new investigation officer Amjad Ali Shaikh SSP Kashmore @ Kandhkot, who may be directed to record his statement and investigate his version.

 

            In view of the above this application is disposed of. SSP Kashmore @ Kandhkot to record the version of applicant and investigate the same in view of Mst. Sughran Bibi case Supra.”

 

9.                In compliance of the above order of this court Mr. Amjad Ali Shaikh SSP Kashmore @ Kandhkot filed report under section 173 Cr.P.C before the Magistrate who passed the above impugned order. The impugned order reflects that the Magistrate passed an order by giving verdict about the guilt of the police officials without recording any evidence and declared the encounter as fake and staged and issued directions for awarding punishments. As to understand the powers of Magistrate the section 173 Cr.P.C is reproduced as under:-

"173. Report of police-officer. (1) 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 a 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.

[Provided that, where investigation is not completed within a period of fourteen days from the date of recording of the first information report under section 154, the officer incahrge of the police station shall, within three days of the expiration of such period, forward to the Magistrate through the Public Prosecutor, an interim report in the form prescribed by the Provincial Government stating therein the result of the investigation made until then and the Court shall commence the trial on the basis interim report, unless, for reasons to be recorded, the Court decides that the trial should not so commence.]

(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) .............

                                           (4) .............

                                           (5) .............

 

10.                        From perusal of section 173, Cr.P.C. it reflects that said section provides that after completion of investigation, the incharge of Police Station shall submit report through Public Prosecutor before the Magistrate empowered to take cognizance of the offence on it and if he finds that there is sufficient evidence against the accused then he has power to take the cognizance of the offence under section 190 Cr.P.C, furthermore if, the Magistrate is of the view that the proper investigation, has not been conducted and the case required further investigation then the Magistrate can direct the officer incharge of the police station to make further investigation (which was done twice by the Magistrate in the present case). In view of section 190, Cr.P.C. if, a Magistrate after taking cognizance of offence find that the offence is triable exclusively by a Court of Session, without recording any evidence shall send the case to Court of Sessions for trial. Reliance can be place on the case of Muhammad Nasir Cheema v. Mazhar Javaid and others (PLD 2007 Supreme Court 31), wherein the Honourable Supreme Court of Pakistan has held as under:-

"The only provision relating to the subject which is available in the Code of Criminal Procedure is section 173 which commands expeditious conclusion of the investigations and further ordains that on conclusion of every investigation, the concerned SHO shall submit a report of the result thereof in the prescribed manner to the Magistrate competent to take cognizance under section 190, Cr.P.C. No powers vest with any Court including a High Court to override the said legal command and to direct the SHO either not to submit the said report (mentioned as challan in the Police Rules and also in the impugned order) or to submit the said report in a particular manner i.e. against only such persons as the Court desires or only with respect to such offences as the Court wishes. The impugned order can also not be sustained because, as has been mentioned above, the challan in question stood already submitted in Court and was thus beyond to reach of the concerned SHO."

    

This Court in case of Hakim Ali v. The State (PLD 2006 Karachi 302), has held as under:-

           

'In view of the afore-cited decision of the Honourable Supreme Court, it would be seen that the Magistrate while exercising jurisdiction under section 190 of the Cr.P.C. does so in an administrative capacity and does not function in a judicial one since he is only to apply his mind to the material present before him and thereafter decide whether he should take cognizance or not. If he decides to do so in a case triable by him then he should pass a speaking order after a fair assessment of such materials and then proceed to try the case himself. If he accepts the police report or otherwise discharge the accused where he does not agree with the same. Similarly he should send the case to the Sessions Court if it is a Session case upon acceptance of the police report and again discharge the accused if he does not agree with the same. However, it is to be noted that the exercise to be conducted by the Magistrate under section 190 Cr.P.C. is not a judicial one as held by the Honourable Supreme Court in Hussain Ahmed v. Irshad Bibi (supra), he cannot determine the guilt or innocence of the accused but only has to assess the evidence on the record in a summary fashion and thereafter make up his mind whether or not to discharge the accused'.

 

11.              No doubt the opinion of police officer is not binding upon the court (s); however the court (s) must not override its jurisdiction while passing the orders on report under section 173 Cr.P.C. In respect of the powers conferred upon the Magistrate this court in case of Sofi Mureed Hussain Alfuqrah and another v. The State and another (PLD 2016 Sindh 300) in paraghraph 11 and 12 has observed as under:-            

 

11.       It is the Section 190 of the Code of the Chapter-XV of the Code through which the Magistrate is competent to take cognizance. The provision, being relevant is reproduced hereunder:-

 

190. Cognizance of offences by Magistrates: [(1) 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) ........

           

(b) upon a report in writing of such facts made by any police officer;

           

(c) .......

                       

The deliberate use of the word 'may' is sufficient to show the intention of the legislature that discretion has been left with the Magistrate either to agree or disagree with the police report without being influenced with ipse dixit of police because it is, now, well settled principle of law that while concurring with a report, submitted by police, under Section 173 of the Code, the Magistrate can competently agree or disagree with recommendation/conclusion or opinion of the investigating officer and such 'inclining' or 'declining' is to be exercised under Section 190 of the Code. Reference can be made to the case of 'Syed Muhammad Ahmed v. The State and others (PLD 2006 SC 316), wherein it was held :-

           

"3. The provisions of section 173 Cr.P.C. provide only that after the available material had been collected by the S.H.O. during the course of an investigation then the result of the same had to be reported to the Magistrate competent to take cognizance under section 190 Cr.P.C, and thereafter, it was for the competent Magistrate /Court to decide whether an accused person did or did not deserve to be tried' (under lining and is mine)

 

In another case of 'Anwar Shamim and another v. The State (2010 SCMR 1791) is very much relevant hence the relevant portion thereof is reproduced hereunder:--

           

'It is also a settled that finding of police is not binding on the Court. It is pertinent to mention here that investigating agency has only duty under the law to collect evidence and has no authority whatsoever to give finding of guilt or innocence qua the accused persons under the provisions of Criminal Procedure Code, Police Act or Police Order / Rules framed there-under. It is only prerogative of the Court to give finding after recording evidence and statements of accused qua guilt or innocence of the accused. In case the contention of the learned counsel is accepted, then it tantamounts to delegate powers of the Court to the investigating agency which is not permissible under the law, Constitution and conventions'.

 

12.       Thus, it is patent that per Section 173 of the Chapter-XIV of Part-V of the Code a police officer (investigating officer) is only to complete the investigation by collecting evidence and then to submit the police report before a Magistrate, competent to take cognizance of the offence but it is the absolute and exclusive domain of the Court (Magistrate) to agree or disagree with such report (conclusion or even recommendation of the I.O.) with reference to Section 190(1)(ii) of the Code.

 

 

12.              Turning to the case in hand it is observed that the learned Magistrate has not applied his judicial mind while deciding the report under section 173 Cr.P.C as in the first part of the impugned order which is assailed before this court in Cr. Misc. Application No. 768 of 2021, learned Magistrate while not agreeing with the conclusion of Police officers observed as under:-

            “In view of above discussion, the I.O has wrongfully recommended the case to be cancelled under “C” class, the FIR being totally false and fabricated should have been recommended under “B” class, false class. It is a settled principle of law that the opinion of police officer is not binding upon the Court. The reliance is respectfully placed upon following case laws respectfully as in the case of Anwar Shamim & another Vs. State SCMR 1791, Muhammad Ahmed (Mehmood Ahmed) Vs. The State 2010 SCMR 660, Baksh Ali Vs. The State 2013 YLR 1948, Mushtaque Ahmed Vs. The State  2012 YLR 1101, Muhammad Shahid Khattak Vs. The State PLD 2013 Sindh 220, Allahdad & Seven others Vs. The State 2011 P.Cr.L.J 1169 and in the case of Farooq Soomro Vs. The State reported in P.Cr.L.J 2004 1023, as principle laid down that the Magistrate is empowered to agree or disagree with final report submitted by police as same is not binding upon him. The final submitted under “C” class is disapproved.  I therefore, dispose off the instant summary under “B” class (false class). The direct complaint has already been filed by the brother of one of deceased persons against involved police officials in view of Honourable Apex Court, given in the case of Mst. Sughra Bibi Vs., The State (PLD 2018 SC-595) wherein lodging of Second FIR of same incident is prohibited.

 

13.              It appears that the material collected during the course of investigation is not sufficient enough to declare that the FIR lodged by the police officials was maliciously false yet it could be observed that the material collected during the course of investigation is insufficient to take cognizance against the accused persons. Thus, the findings of learned Magistrate in respect disposing of the case are maintained, however is modified from “B” class to “C” class in view of the discussion made in paragraph 8,9 and 10 above so also the fact that the applicant Khuda Bux has already filed direct complaint against the police officials, which is pending before the competent Court of law.

 

 

14.              Coming to second part of the impugned order challenged by the police officials in Cr. Misc. Application No. 702 of 2021 which is reproduced as under:-

            “Let a copy of this order be sent to worthy Home Secretary Sindh at Karachi and worthy AIG P Karachi for taking action against the complainant party of police officials for lodging false FIR and being involved in fake and stage police encounter where three innocent persons have lost their lives. This is clear violation of basic human rights guaranteed by law. It is further directed to IG P Sindh at Karachi to suspend these involved SHOs and delist them from the pool of SHOs till final decision of their trial. Copy be sent to the SSP Khairpur and concerned SHO PS Baradi Jatoi for information.”

15.              Perusal of the Impugned Order as reproduced above shows that the learned Magistrate directed the Inspector General of Police to place the delinquent police officials under suspension, which is the exclusive domain of the competent authority for the special reasons to be recorded in writing as per Rule 16.19, of the Police Rules, which says: “A police officer charged with a criminal offence shall unless the Deputy Inspector-General of Police or the Assistant Inspector-General, Government Railway Police for special reasons to be recorded in writing otherwise directs, be placed under suspension form the date on which he is sent for trial, if such action has not already been taken under the provisions of rule 16.17, suspension is compulsory during any period in which a police officer is committed to prison. A police officer, who may be arrested by order of a civil court in execution of a decree or otherwise shall be considered as under suspension form the date of arrest till his release form custody is ordered by the Court”. In Case of Imdad Ali Khawaja v. The State and others (2016 SCMR 2057), it has been held by the Honourable Supreme Court of Pakistan that “We are also not in agreement with the observations made by the learned Judge in the order dated 12.08.2016 that if an enquiry is initiated, the officer must be placed under suspension. This is the discretion of the competent Authority and the discretion can be exercised considering relevant factors in the enquiry. Under Police Rule 16.19, during the enquiry against a police officer, who is involved in a criminal case, such police officer needs to be placed under suspension in order to avoid his influence. Therefore, the perception that an officer who is facing enquiry must be placed under suspension is against the spirit of service rules. Even otherwise, it is never encouraged that the High Court in collateral proceedings can step in the shoes of the competent Authority by ordering suspension of ‘civil servant’ while directing initiating of departmental inquiry. The discretion in regard to placing an officer under 'suspension' falls within the domain of competent authority under the service law, and in case the competent Authority considers and or anticipates that during enquiry, the officer may tamper with the evidence or influence the witnesses or act in a manner to prejudice the outcome of the enquiry, the competent authority may suspend such officer. After going through the impugned order reproduced as above and the relevant provisions of law related to the case in hand, I am of the view that the Magistrate has exceeded his jurisdiction conferred upon him as he has no powers to issue such directions, therefore, the Cr. Misc. Application No. 702 of 2021 is allowed and the second operative part of the impugned order as mentioned above is set-aside.

 

16.              After the case has been heard some material has come on record against the police officials in respect of a suspicious encounter resulted death of three persons which in my view needed high standard inquiry against the police officials, therefore under the circumstances by invoking jurisdiction under section 561-A Cr.P.C the Inspector General of Sindh Police is directed to conduct departmental inquiry into the matter while constituting a JIT comprising of at least four members not bellow the rank of SSP who shall complete the inquiry within a period of two months. The Inspector General of Sindh Police is further directed to place on record the inquiry report before this court through Additional Registrar for perusal and further orders.

 

17.              Office is directed to send the copy of this order to the Inspector General of Sindh Police through fax and T.C.S courier for information and compliance.   

 

18.              In view of the above facts the captioned Cr. Misc. Applications are disposed of.   

 

 

 

J U D G E