ORDER SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Crl. Misc. Appln. No. 40 of 2010.
Date |
Order with signature of Judge |
For Katcha Peshi.
08.06.2010.
Mr. Sarfraz Khan Jatoi, Advocate for applicant.
Mr. Azizul Haq Solangi, Asstt. A.G.
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By this application, the applicant/ accused ASI Faqir Mohammad prayed to this Court to set aside and quash the impugned order dated 28.03.2009, passed by District Public Prosecutor, Jacobabad, whereby he disagreed with the report submitted by the Investigating Officer under section 173 Cr.P.C. disposing of the case in “B” class and directed him to submit the challan and drop the proceedings against the applicant and discharge him from the case.
Brief facts of the case are that on 10.11.2008; complainant Barkat Ali Sarki lodged an F.I.R bewaring No. 31/2008, at P.S Garhi Hassan, with the following details:
“It is complained that deceased Mohammad Bux alias Keko is my cousin. I reside at above address, alongwith my brother Mohammad Nawaz and relative Dhani Bux son of Hussain Bux and Cousin Mohammad Bux alias Keko. There is long standing murderous enmity between accused Faqir Mohammad and my cousin Keko. Accused Faqir Mohammad usually sends messages that he shall retaliate the murder. Today my brother Mohammad Nawaz, cousin Mohammad Bux alias Keko, relative Dhani Bux and I left our house for agricultural lands. It was about 11.00 a.m. when we reached near “Dera” of Sardar Zulfiqar Ali Sarki, we saw that five accused persons with open faces were standing near “Dera” at road side nearby their two motorcycles were standing. Out of them we identified three accused, namely, Faqir Mohammad armed with kalashnikov, Mullan Dostan armed with T.T pistol, Khuda Bux armed with gun, and two unidentified persons with open faces, who were seen clearly by us were armed with kalashnikoves. Accused Faqir Mohammad gave hakal to my cousin Mohammad Bux alias Keko and said “you have already killed our men, today we shall kill you in revenge”, so he fired from kalashnikov at cousin Mohammad Bux alias Kekoo, which hit him at his chest on right side. The unidentified accused had pointed their weapons being empty handed and fear of life we remained silent. Accused Mullan Dostan fired from his pistol at my cousin Mohammad Bux alias Kekoo, which hit him at his chest on left side and accused Khuda Bux fired from his gun at Mohammad Bux alias Kekoo, which hit him at his loin on left side and he fell down on the ground by raising cries. Accused also caused aerial firing to crate harassment to us and went away on motorcycles towards north. We saw my cousin Mohammad Bux alias Kekoo sustained injuries on his right side chest through and through on the back side and so also left side. He heaved his last breath in our presence. Thereafter, I arranged conveyance and took the corpse of deceased and complain that the above named accused in furtherance of their common intention, duly armed with weapons above three nominated accused directly fired at my cousin Mohammad Bux alias Kekoo and unidentified persons pointed their weapons and caused harassment to us. I am complainant, investigation be made.”
On completion of investigation, the investigating officer found the case as false and disposed it of under “B” class and submitted such report under section 173 Cr.P.C. but the District Public Prosecutor, Jacobabad, in his submission note dated 28.03.2009 did not agree with the report of I.O and directed him to submit the challan. The applicant challenged the impugned order of learned District Public Prosecutor.
Learned counsel for applicant submitted that District Public Prosecutor has failed to evaluate and assess the material available on record and has failed to give due weight to the same. It is further contended by the learned counsel for the applicant that during course of investigation sufficient material was collected to the effect that deceased Mohammad Bux alias Kekoo committed suicide by firing a pistol shot. It is further urged by the learned counsel for the applicant that Investigating Agency came to the conclusion that one of the accused of present case namely Mullan Dostan is paralyzed and the present applicant Faqir Mohammad being Assistant Sub Inspector was in his duty in crime No. 29/2008, registered against Master Manzoor Sarki. Learned counsel for the applicant referred an unreported order of the Hon’ble Supreme Court of Pakistan passed in Crl. Petition No. 105-K of 2002, in the case of Shah Murad and others v. The State; wherein the Hon’ble Supreme Court has held that there can be no cavil with the proposition that the trial Court is not bound by the police report submitted under the provisions of Sections 173 and 190 Cr.P.C. In law it has ample powers to agree or to disagree with the information laid by the police and to discharge a person or to take cognizance of the crime against any person concerned with the commission of the crime whether sent up or not. Since the trial Court did not act without jurisdiction by summoning the petitioners, to this extent we are convinced that the order was rightly upheld by the High Court.
By order dated 12.04.2010 passed by this Court it was observed that record of this case reveals that the learned Magistrate did not pass any order under section 173 Cr.P.C. when the challan was submitted and therefore, report from the Civil Judge & Judicial Magistrate, Thull, was called for and he was directed to explain the position, as to why he has not passed order under section 173 Cr.P.C. In reply to the said direction, the Civil Judge & Judicial Magistrate Thull on 11.05.2010 submitted his explanation, which is as under:
“That on 04.04.09, S.I.O P.S Garhi Hassan submitted challan of case, in which accused Faqir Mohammad, 2. Mullah Dostan and 3. Khuda Bux were shown as absconders of case crime No. 31/2008, under section 302, 147, 148, 149 P.P.C. of Garhi Hassan. That the police and learned Prosecutor have submitted challan in which they forwarded the accused for trial, therefore, the undersigned has sent up the challan to Sessions Court, as offence under section 302 P.P.C. being exclusively triable by the Court of Sessions. That, on 27.01.2010, police submitted subsequent challan of accused Faqir Mohammad for trial, therefore same subsequent challan ha also been sent up to the Sessions Court being exclusively triable by the Court of Sessions. That, when police submitted challan under section 173 Cr.P.C. through Public Prosecutor, in which forwarding the accused persons for trial, therefore, after taking cognizance under section 190 (b) Cr.P.C. the Magistrate, decide that such offence has been committed which is triable by him or Court of Sessions, and if it is triable by the Court of Sessions, therefore, sent up the case to the Court of Sessions. That, now the case is pending trial, before Sessions Court, Jacobabad, for trial. That, for the above reasons it is submitted that there is no need of any order of the Magistrate, for which the learned counsel has raised point before the High Court.”
While Mr. Azizul Haq Solangi, the learned Asstt. A.G. submitted that the explanation of the Civil Judge & Judicial Magistrate Thull dated 11.5.2010, is quite clear, wherein he has stated that on 04.04.2009, S.I.O P.S Garhi Hassan had submitted challan of the case in which accused Faqir Mohammad, 2. Mullah Dostan and 3. Khuda Bux were shown as absconders of case crime No. 31/2008, under section 302, 147, 148, 149 P.P.C. of Garhi Hassan. The police and learned Prosecutor had submitted challan, in which they forwarded accused persons for trial, therefore the Judicial Magistrate had sent up the challan to the Sessions Court as offence under section 302 P.P.C. being exclusively triable by the Court of Sessions. On 27.01.2010, police submitted subsequent challan of accused Faqir Mohammad for trial after his arrest, therefore the subsequent challan had also been sent up to Court of Sessions. It is further stated by the Judicial Magistrate Thull in his explanation that when police submitted challan under section 173 Cr.P.C. through Public Prosecutor forwarding the accused persons for trial after taking cognizance under section 190 (b) Cr.P.C. the Magistrate has to decide whether such offence is triable by him or Court of Sessions and if it is triable by the Court of Sessions, the case is to be sent up to the Court of Sessions. The Judicial Magistrate Thull acting on that principle sent up the case of the applicant to the Sessions Court Jacobabad, where the case is now pending for trial. It is also stated by the Judicial Magistrate Thull in his explanation that there is no need of any order of the Magistrate for which the learned counsel for applicant has raised before this Court.
I have heard arguments of learned counsel for applicant, learned Asstt. A.G and has also gone through the record of the case and the unreported order of the Hon’ble Supreme Court and the case law referred to by learned counsel for the applicant. The Hon’ble Supreme Court has held that there is no cavil with the proposition that the trial Court is not bound by the police report submitted under the provisions of Sections 173 and 190 Cr.P.C. In law it has ample powers to agree or to disagree with the information laid by the police and to discharge a person or to take cognizance of the crime against any person concerned with the commission of the crime whether sent up or not. Learned counsel for applicant has referred to 2000 P.Cr.L.J 520, the case of Sufi Abdul Qadir v. The State, wherein a division bench of this Court held as under:
“Question was whether the Magistrate was competent to take cognizance of the offence in relation to which he had passed an order on the summary submitted by the Superintendent of Police for cancellation of the F.I.R for want of evidence of otherwise. Offences referred to in the F.I.R were ordinarily triable by the Court of Session and not by a Magistrate First Class. Since the Magistrate was not vested with the jurisdiction to take cognizance of the said offences, he while canceling the F.I.R on police report had acted without jurisdiction and the order passed by him was coram non judice and the same was quashed accordingly.”
The other case law cited by the learned counsel for the applicant reported in PLD 2003 Karachi 309; a division bench of this Court has held in placitum (e), that if investigating officer, after investigation of a case comes to a conclusion that he evidence against the accused is deficient, Magistrate, who is competent to take the cognizance, can order for the release of accused upon such report submitted by Investigating Officer. If, however, report of I.O is mala fide and contrary to evidence collected during the course of investigation which makes out a prima facie case, the Magistrate is competent to disagree with the report of Investigating Officer. Magistrate is not supposed to act on police report in a mechanical manner and rubber stamp every action of the investigating officer. Magistrate is required to act judicially. Such order of the Magistrate although is an administrative order but it is his duty to examine the correctness of the report submitted by the investigating officer.
In placitum (g), a division bench has held that case registered under section 324 P.P.C. was ordinarily triable by the Sessions Court, Magistrate, in circumstances, had rightly refused to cancel the case as the Magistrate was not supposed to take cognizance of the matter.
In the present case the District Public Prosecutor has not passed any order which has been impugned by the applicant. The District Public Prosecutor on 18.3.2009, had only made submission note on the challan submitted by the investigating officer under section 173 Cr.P.C. dated 10.11.2008, whereas the police submitted challan No. 7, dated 02.04.2009, wherein the applicant has been shown as absconder. Since the offence under section 302 P.P.C. being exclusively triable by the Court of Sessions, therefore, the said challan was submitted to the Court of Sessions Judge, Jacobabad and the Sessions case No. 108/2009, is pending in the Court of learned Sessions Judge, Jacobabad against the applicant and others. The applicant was refused pre arrest bail by the Sessions Court Jacobabad, thereafter the applicant had filed Crl. Bail Appln. No. 11/2010, before Sessions Judge, Jacobabad, which has been dismissed vide order dated 07.01.2010.
The reported judgments of the division bench of this Court (supra), wherein the Court has discussed the jurisdiction and power of the Magistrate.
According to section 190 (2) Cr.P.C. A Magistrate taking cognizance under subsection (1) of an offence triable exclusively by a Court of Sessions shall, without recording any evidence, send the case to Court of Session for trial. The Magistrate while exercising jurisdiction under section 190 Cr.P.C. would act in an administrative capacity and would not function in a judicial manner and he was only to apply his mind to the material presented before him and thereafter he would decide whether he should take cognizance of the matter or not. If he decide to take cognizance in a case triable by him then he should pass speaking order after fair assessment of such material and then to proceed with the trial himself, if he accepts police report or discharge accused where he did not agree with the same. Magistrate should send the case to the Sessions court if it was sessions case upon acceptance of police report. It is held in 2008 YLR 704, that offence triable exclusively by Court of Sessions, Magistrate to send case to such court for trial. It is also held in 1985 SCMR 1314, where Sessions Court has exclusive jurisdiction to try the case Magistrate cannot pass order of discharge of accused and is bound to send the case to the Sessions Court for trial.
In view of the above facts, circumstances and legal position, the present application merits no consideration and is hereby dismissed for the reasons stated above.
Judge