ORDER-SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA  

Crl. Misc. Appln. No. S- 138 of 2020.

Date of hearing

Order with signature of Judge

17.11.2022.

            Mr. Wakeel Ali Shaikh, Advocate for the applicant.

            Mr. Mushtaq Ali Chandio, Advocate for respondent No.3, who is called absent.

            Mr. Aitbar Ali Bullo, Deputy Prosecutor General.

ORDER

Amjad Ali Sahito, J: Through instant application under Section 561-A, Cr.P.C, applicant Aziz Ahmed Hingoro has assailed Order dated 06.5.2020, passed by Judicial Magistrate-II, Mehar, in Crime No.08/2020, registered at Police Station Farid-abad, under Sections 489-F and 506 (2) P.P.C, whereby the learned Judicial Magistrate accepted the report under Section 173, Cr.P.C submitted by SHO concerned and disposed of the said case/ FIR under “C” class.

            Precisely, facts of the case are that complainant Aziz Ahmed lodged F.I.R at Police Station Farid-abad to the effect that, accused Sattar Shaikh purchased 70 bags of Urea Fertilizer from him against Rs.1,50,000/- and paid him Rs.50,000/- and for remaining amount worth Rs.100,000/- he issued cheque to complainant and on presentation the said cheque was dishonored by the bank authorities, hence this F.I.R.  

            During investigation, the investigating officer examined witnesses of complainant as well as independent persons and recommended disposal of the subject FIR under “C” class.  The learned Judicial Magistrate agreeing with the report of Investigation officer, approved disposal of the case/ FIR under “C” class.

            Learned counsel for the applicant has, inter alia, contended that the impugned order is illegal, which has resulted in miscarriage of justice; that the impugned order has been passed in violation of the law laid down by this Court; that learned Magistrate has not considered the fact that I.O recommended the final report under “C” class on the basis of statements of extraneous persons/ defence witnesses, which has no value in the eyes of law; that no fair, impartial and transparent investigation has been carried out by the Investigation Officer; that the concerned police with a view to save the respondent/ accused got recorded the statements of interested persons produced by the respondents/ accused. Lastly, the learned counsel for the applicant submitted that the learned Magistrate has not passed reasonable and speaking order, which is liable to be set-aside. 

            Learned D.P.G has supported the impugned order and submitted that the same is legal and has been passed after giving due consideration to the material available on record. He further submitted that independent witnesses in their statements have not implicated the accused in the alleged incident; hence acceptance of the report under “C” class by the learned Magistrate does not suffer from any illegality or infirmity.

            I have given due attention to the submissions made by the learned counsel for respective parties and carefully perused the record.

            It is well established law that the police opinion is not binding upon the Court and Magistrate is not bound to agree with the police report and he is at liberty under the law, either to agree or disagree with the conclusion drawn by the Investigation Officer. The Magistrate is not expected to blindly follow the investigation conducted by the police, as ipse dixit of police is not binding on Magistrate. Of course, the Magistrate is legally bound to apply his mind to the material brought before him and then form his opinion about the matter. However, after applying his judicious mind to the material placed before him, if he is of the view that opinion formed by the I.O in the report under Section 173 Cr.P.C is just and appropriate, he is fully competent to accept the report and dispose of the case as proposed by the Investigating officer.

            The requirement to take cognizance or otherwise on a police report is subject to satisfaction of the Magistrate to the effect that such ‘offence’ has been committed, which opinion should also not result of detailed appraisal of inquiry because taking cognizance, at the most, does not necessarily result in declaring one as ‘culprit’ but he continues with status of ‘accused’ which too with presumption of innocence.

            Perusal of impugned Order reflects that, during course of investigation the I.O of the case also recorded statements of prosecution witnesses shown in F.I.R, in terms of Section 161 Cr.P.C., who in their statements before the police did support the version of complainant. Besides, the I.O also recorded statements of independent persons, who falsified version of the complainant. While passing the impugned order the learned Magistrate has dilated upon merits of the case and has observed as under:

                        “Now, I revert to the facts of present case, as per facts, the cheque was returned back to complainant with a return memo wherein reasons for return were assigned as, “Cheque to be signed in the presented of and attested by an officer of bank and photo account”. The reasons should require to be examined in order to ascertain whether such memo speaks about the prima facie attraction of an offence under section 489-F P.P.C or otherwise. The term “photo count” means photo accounts shall be issued for account holders who are unable to provide a signature, and can only provide a thumb impression (as per the NADRA database) .Whereas, first reason for return of cheque speaks that the cheque should be signed in the presence of an attesting officer of the bank at the time of its presentation. As per the facts of F.I.R the complainant presented alleged dishonor cheque in absence of accused, therefore, due to requirement of aforementioned reasons, the alleged cheque was returned back to complainant. In the prevailing situation, there is no dishonestly is behind the issuance of cheque nor returning cheque memo bring the instant matter within the ambit of an offence under section 489-F P.P.C.”

            Keeping in view the above factual position, the learned Magistrate has passed the impugned order concurring his opinion with the police report; which appears to be legal and proper and does not call for interference by this Court.

            In the light of above position and discussion, this criminal miscellaneous application being without merit is hereby dismissed. However, the applicant/ complainant is at liberty to file a direct complaint of the matter before the Court having jurisdiction, if so advised.

                                                              Judge

Ansari