Criminal Miscellaneous Application No. 391of 2011
Present
Mr. Justice Aqeel Ahmed Abbasi.
Date of hearing : 12.08.2013
Date of order : 12.08.2013
Applicant : Syed Jawaid Haider Qazmi in
person
Versus
Respondents : S.I. Muhammad Zaffaran
& others are called absent.
Respondent No.4 : The State through Mr. Ali Haider
Saleem, APG.
O R D E R
Aqeel Ahmed Abbasi, J. Through instant Criminal Miscellaneous Application filed under Section 561-A Cr.P.C, the applicant appearing in person has impugned the order dated 11.10.2011 passed by the learned 1st Additional Sessions Judge Karachi South in Criminal Revision Application No.99 of 2010 whereby the order passed by the learned 1st Judicial Magistrate Karachi South on an application for registration of an FIR under Section 166 PPC read with Section 155 (c) of Police Order 2002 has been maintained and criminal revision of the applicant has duly been dismissed.
2. The applicant present in person states that he is an advocate by profession and resides at Iqbal Centre, M.A. Jinnah Road, Karachi. It has been contended that the shopkeepers on the first floor of Iqal Centre keep combustible material in their shops, which is hazardous and dangerous, hence the applicant moved an application before SHO, P.S. Risala for registration of FIR under Section 285 PPC against such shopkeepers. However, since the concerned SHO did not register the case, an application under Section 22-A Cr.P.C was filed before the learned District and Sessions Judge Karachi South/Ex-officio Justice of Peace, therefore, directions were issued to the concerned SHO to register the case. Consequently, an FIR was registered on 11.12.2008, which was entrusted to respondent No.1 for investigation, however, respondent No.1 did not submit report under Section 173 Cr.P.C within the stipulated period, whereafter, an application under Section 155 (c) Police Order 2002 was filed before the concerned Magistrate. On such application the investigation was handed over to respondent No.2, who recorded the statement of witnesses, however, did not inspect the place of occurrence nor arrested any of the accused nominated in the FIR. It is further submitted by the applicant that an application seeking transfer of investigation was filed by the applicant before the CCPO, whereafter, the matter was assigned to respondent No.3 to investigate into the matter. However, according to applicant, the said investigating officer, inspite of considerable lapse of time, did not submit challan, on the contrary, furnished a report under Section 173 Cr.P.C for disposal of the case under “A-Class”, which was duly approved by the learned 1st Judicial Magistrate Karachi South vide order dated 16.8.2010. The applicant has further submitted that such delay and inaction on the part of all the investigating officers i.e. respondents constitutes an offence under Section 166 PPC read with Section 155 (c) Police Order 2002 for which an application was moved before the concerned Magistrate for registration of FIR against the concerned investigating police officials, which was dismissed by the learned Magistrate vide order dated 11.10.2010. Being aggrieved by such order, the applicant filed Criminal Revision Application 99 of 2010 before the 1st Additional Sessions Judge Karachi South, who vide impugned order dated 11.10.2011 has dismissed the same and has approved the order of the learned Magistrate as referred to hereinabove.
3. The applicant has submitted that since mandatory requirements of law/Police Order 2002 were not complied with by the concerned police officials, who were assigned the investigation of the aforesaid FIR/Case, within the stipulated period required under law to furnish final report, therefore, a cognizable offence was committed by the concerned police officials, hence an FIR was required to be registered under Section 166 PPC against the respondents. It has been contended that both the Courts below have erred in law and fact while declining to entertain such request of the applicant by impugned orders. It has been submitted by the applicant that the impugned order may be set aside and the case may be registered against the respondents for such violation of the mandatory provision of law.
4. Conversely, learned APG has opposed the maintainability of the instant Criminal Miscellaneous Application filed under Section 561-A Cr.P.C against the order passed by the learned 1st Additional District and Sessions Judge Karachi South on a revision filed by the applicant and has supported both the impugned orders passed by the learned 1st Judicial Magistrate (South) Karachi and the learned 1st Additional Sessions Judge Karachi South in the instant case. It has been contended that the impugned orders do not suffer from any illegality nor any error has been pointed out by the applicant, who has some personal grudge against the shopkeepers and want to settle his private dispute by initiating frivolous proceedings against them. It has been further contended by the learned APG that the prosecution was initially of the opinion that no cognizable offence under Section 166 PPC read with section 155 (c) Police Order 2002 was reported by the applicant, whereafter thorough investigation, report under Section 173 Cr.P.C was furnished before the concerned Magistrate for disposal of the case under “A-Class” which was duly approved, however, such order passed by the learned Magistrate was not assailed by the applicant before any forum, which appears to have attained finality. It is further contended that even through instant criminal miscellaneous application such order passed by the learned Magistrate on the report furnished under Section 173 Cr.P.C for disposal of the case under “A-Class’ has not been impugned, whereas the applicant is merely insisting that the case may be registered against the concerned police officials, who according to him, did not furnish report under Section 173 Cr.P.C within statutory period. Per learned APG, keeping in view the allegations brought to the notice of the concerned police and the learned Magistrate, no cognizable offence was made out by the applicant against the accused persons nominated in the aforesaid FIR, hence the applicant was not justified in fact and law to move an application before the concerned Magistrate to register the case under Section 166 PPC read with Section 155 (c) Police Order 2002 for registration of FIR against the applicant. It has been contended by the learned APG that instant Criminal Miscellaneous Application having no merits, which is liable to be dismissed in limine.
5. I have heard the applicant present in person as well as learned APG and perused the record. From perusal of the impugned order passed by learned Civil Judge and Judicial Magistrate-I, Karachi South dated 01.11.2010, it appears that the application filed by the applicant for registration of the case under Section 166 PPC read with Section 155 (c) Police Order 2002 against the respondents i.e. Police Inspectors, who were assigned the investigation of FIR No.305/2008 registered at P.S. Risala on 11.12.2008, was dismissed on the ground that “since the police has submitted report under Section 173 Cr.P.C for disposal of the case as A-Class”, which was duly approved by the 1st Judicial Magistrate Karachi South, therefore, the application filed by the applicant did call for any orders thereon. Such order was assailed by the applicant by filing Criminal Revision Application No.99 of 2010 before the learned 1st Additional Sessions Judge Karachi South, who vide order dated 11.10.2011, after examining the entire record of the case and having taken cognizance of the proceedings and disposal of the aforesaid FIR under A-Class, concurred that the finding as recorded by the learned 1st Judicial Magistrate Karachi South and dismissed the criminal revision application filed by the applicant with the observation that since nobody was nominated in the FIR for allegedly having committed an offence under section 285 PPC, therefore, the aforesaid FIR was rightly disposed of under A-Class, which order was not challenged by the applicant before any forum, hence attained finality. It has been further observed that since no cognizable offence was reported by the applicant and the FIR was already disposed of on the report furnished under Section 173 Cr.P.C in A-Class, therefore, for registration of FIR under Section 166 PPC against the respondents was not justified under the facts and circumstances of the case. It has been observed that the FIR No.305/2008 was registered on the complaint of the applicant by P.S. Risala against the shopkeepers of 1st Floor of Iqbal Centre for having committed an offence under Section 285 PPC on the directions of the learned District and Sessions Judge Karachi South/Justice of Peace on an application filed by the applicant under Section 22-A Cr.P.C. However, nobody was nominated by the applicant in such FIR. The said FIR was duly investigated by respondents Nos.1 to 3 from time to time and was eventually disposed of in A-Class on a report furnished under section 173 Cr.P.C by the prosecution. It is surprising to note that such disposal of the aforesaid FIR by the learned Magistrate has not been impugned by the applicant before any forum, whereas the applicant has chosen to file an application before the learned Magistrate Karachi South for registration of yet another FIR against the respondents under Section 166 PPC for having violated the provision of section 173 Cr.P.C whereby Investigating Officer (s) was required to submit challan within stipulated period i.e. 14 days or the extended period of three days as provided under the law. Since opinion formed by the prosecution not to furnish challan or to prosecute the FIR lodged by the applicant before the concerned Magistrate and disposal of the same under A-Class was duly approved by the concerned Magistrate, which order was not assailed by the applicant before any forum, therefore, the same attained finality for all practical purposes, hence could not be agitated before any forum by the applicant in the garb of proceedings initiated for registration of the FIR under Section 166 PPC against the respondents. There is no cavil to the legal proposition duly enunciated by the Hon’ble Supreme Court in the case of Muhammad Ramzan v. Rahib and others PLD 2010 Supreme Court 585, according to which compliance of the provisions of Section 173 Cr.P.C. to furnish challan within the stipulated period has been made obligatory upon the Investigating Officer, whereas the concerned Magistrates is also required to ensure the compliance of such legal obligation. However, since in the instant matter, the prosecution was of the opinion that no cognizable office is reported by the applicant, whereas, no one has been nominated in the FIR for having committed an offence under Section 285 PPC, therefore, a report under Section 173 Cr.P.C for disposal of the case under A-Class was furnished and the same was duly approved by the concerned Magistrate. Admittedly, the applicant did not impugn such order passed by the learned Magistrate by filing appropriate proceedings under Section 561-A Cr.P.C before this Court, therefore, such order of disposal of the FIR under A-Class attained finality. It appears that the applicant, having failed to avail remedy as provided under the law, has attempted to re-agitate the same controversy by seeking registration of FIR against the investigating officers under Section 166 PPC for alleged default on their part to submit challan before the concerned Magistrate within the stipulated period, however, without assailing the order which was passed by the learned Magistrate on the report furnished by the prosecution under Section 173 Cr.P.C for disposal of the aforesaid FIR under A-Class.
6. In view of hereinabove facts and circumstances of this case, I am of the opinion that the impugned orders passed by the 1st Judicial Magistrate Karachi South and the learned 1st Additional Sessions Judge Karachi South do not suffer from any illegality nor the applicant could point out any error or defect in the impugned orders. Accordingly, I do not find any merits in the instant Criminal Miscellaneous Application which is hereby dismissed in limine.
JUDGE