IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

 

Crl. Misc. Application No.S-338 of 2024

    

DATE OF

HEARING

 

ORDER WITH SIGNATURE OF JUDGE

 

1.      For orders on O/objection at flag-A.

2.      For hearing of main case.

3.      For orders on M.A. No.2817/24.

 

 

Date of hearing         04.10.2024.

 

 

Mr. Achar Khan Gabole, Advocate for applicant.

Mr. Illahi Bux Jamali, Advocate for  complainant.

Syed Sardar Ali Shah, Addl.PG for State.

                        ***************

 

 

                                                O R D E R

 

           

 

                  On 19.08.2024 when the matter was presented by the learned counsel for applicant for the first time following order was passed;

 

“Mr. Illahi Bux Jamali, Advocate files power on behalf of respondents Nos.3 to 8 however, both learned counsel present requires time in order to look into the element of powers available to the concerned Magistrate specially where at the stage of the matter being considered for Magistrate or Sessions trial, such powers with regard to add or delete the sections are available with the Magistrate or not”.

 

 

Learned counsel for the applicant in respect to the question referred above made his submissions summarized is “that the Magistrate on submission of Section 173 report does not have powers to add or delete Sections for taking of cognizance”. He has referred to paragraph-6 of the impugned order which for a ready reference is as follows;

 

“As far as subsequent inclusion of section 324 PPC is concerned, from perusal of record it appears that instant FIR No.84/2024 was lodged on 03.03.2024, statements under section 161 Cr.P.C, were recorded on same date, however complainant alongwith his witnesses have recorded their further statements under Section 162 Cr.P.C, on 14.03.2024 and thereupon have made verbal improvements to their earlier stance without any supporting material available on record, hence same is deleted while cognizance is taken against the accused persons under Sections 337H(ii), 506/2, 147, 148, 149, 504 PPC. Case be registered against the accused, let the process be issued to each accused on bail namely 1. Asif. 2. Aazam, 3. Tariq, 4. Farooq, all sons of Sikandar by caste Mari, 5. Sikandar S/o Keehar Mari”.

 

 

Learned counsel further contends that in the present case the powers not being available the result of the investigation as coming out in the final report was not liable to be disturbed as the case was required to be sent-up for trial to the Sessions Court and in support of his contentions he relies upon the following authorities;

1.      Khalid Hussain and 6 others v. Asif Iqbal and 2 others

(2021 P Cr. L J 242

 

2.      Rab Nawaz and another v. The State and 2 others.

(2017 P Cr. L J Note 195)

 

3.      Abdul Hameed v. IInd Civil Judge and Judicial Magistrate Badin and 3 others. (2021 P Cr. L J 198)

 

4.      Haji Muhammad Zakria Seth v. The  State and 2 others

(2010 P Cr. L J 691)

5.      Muhammad Zaffar Saleem v. The State,

(2009 Y L R 489).

 

Learned counsel for the complainant however, first read over the FIR whereafter he contended that the record before the concerned Magistrate bears that the alleged offence is said to have taken place at 9:45 whereas the FIR was promptly lodged at about 11:30 hours and alleged accused were efficiently and promptly arrested at 12:O’clock. It is further contended that the visit to the alleged place of incident was made at 1400 hours. It is also contended that no recovery was effected, no empties were collected and learned Magistrate on the second date after looking to the record was pleased to order for the accused to be sent for jail and remand was not entertained. He further contends that the Section 324 PPC which is now being opposed had no supporting material at the time of lodging of the FIR or bearing from the record otherwise as per the investigation required, however the same was acquired by first filing an application before the relevant courts obtaining an order for recording of statement u/s 162 Cr.P.C, and the said exercise was made on 14th i.e. after 11 days of the incident. Thereafter, learned counsel read over the 162 Cr.P.C, statement stressing upon the improvement said to have made. He further contended that impugned order has rightly been passed and no disturbance is required.

 

Learned Additional Prosecutor General contends that it is the duty of police officer to collect material and put-up a report however, in the present case it seems that the complainant has attempted to take-over the role of I.O, and got the sections incorporated by not so available use of his being an Advocate. He however, contends that concerned Magistrate at the time of submissions of report/challan is not to act as post-office and is empowered to ensure that the correct Sections are applied according to the merits of the case. In support of his contentions he relied upon reported case of Matahir Shah v. The State and 4 others (2009 MLD 156).

 

Having heard learned counsels and gone through the record. Section 173 of the Cr.P.C, is as follows;

“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 incharge 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 of such 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) 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.

 

(4) A copy of any report forwarded under this section shall, on application, be furnished to the accused before the commencement of the inquiry or trial: Provided that the same shall be paid for unless the Magistrate for some special reason thinks fit to furnish it free of cost.

 

[(5) Where the officer incharge of a police station forwards a report under sub-section (1), he shall along with the report produce the witnesses in the case, except the public servants, and the Magistrate shall bind such witnesses for appearance before him or some other Court on the date fixed for trial.]”

 

Whereas Section 190 Cr.P.C, provides as follows;

 

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) 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, that such offence has been committed which he may try or send to the Court of Session for trial.

 

 

(2) A Magistrate taking cognizance under sub-section (1)of an .offence triable exclusively by a Court of Session shall, without recording any evidence, send the case to the Court of Session for trial.

 

 

The contention of the learned counsel of the applicant that the Magistrate is not empowered to add or delete sections is not available in a blanket formation it dependent upon each and every case. In case sufficient material with the application of a Judicial mind is available both forgiven Sections for the required exercise not only restrict acting as a post-office the same require the determination of applicable Sections of PPC, in the understanding of the law as referred above it is not a question of adding or deleting sections rather to determine the Courts of trial or procedure wherein the Magistrate has to come to a conclusion in the first place as to whether the trial is of Magisterial nature or is to be proceeded before the Sessions Court. This determination has to made by applying the judicial mind but with the supporting/relied upon material available before him. Rather it is his duty to determine the Court of trial as provided  in law and hearing from the record. The authorities as referred by the learned Counsel for applicant are restricted to the facts as stated therein whereas in the present case the variation available u/s 162 Cr.P.C causing the application of Section 324 PPC being without support as no such material has even been shown to this Court whereby the 162 Cr.P.C, statement can be relied upon for the applicability of Section 324 PPC.

I have deliberately restricted myself from passing any further remarks as the trial is yet to proceed. Even otherwise it is always available to a party to call for applicability of the proper sections before a Court of law as and when the material is available in criminal trial however as to the impugned order no defect has been shown to disturb the same. Accordingly, this Crl. Misc. Application stands dismissed having no merits.  

 

 

                                                                                         J U D G E

 

Ihsan/PS