POWERS OF MAGISTRATE

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8 June ·

POWERS OF MAGISTRATE

Sindh High Court
Muhammad All Mazhar, J

Syed Paryal Shah VS Behram Ali And 3 Others
Criminal Miscellaneous Application No. S-16 of 2011
21st October, 2011
Reported As [2012 P Cr. L J 189]

ORDER

MUHAMMAD ALI MAZHAR J. -Through this Criminal Miscellaneous Application filed under section 561-A, Cr.P the applicant has challenged the order dated 4-1-2011, passed by learned Civil Judge and Judicial Magistrate, Pirjogoth in Crime No.24 of 2010, whereby the recommendation of S.I.O for disposal of case in B-Class was not accepted and he was directed to submit report under section 173, Cr.P.C. For the offences under sections 302, 506/2, 147, 148, 149, 34, P.P.C. And produce the accused before him.

2. Concisely, the facts of the case are that the complainant Behram had lodged an F.I.R. On 12-2-2010 that the applicant along with his accomplices caused murder of Oshaque A.I. In the F.I.R., specific role was assigned to the present applicant who allegedly fired upon Oshaque A.I on his backside of head.

3. The learned counsel for the applicant argued that the SIO (respondent No.2) had earlier submitted his report after proper investigation but same was not believed by the learned Magistrate and order was passed on 10-6-2010 for re-investigation. Said order was assailed by the same applicant in this court in Criminal Miscellaneous Application No.336 of 2010 and vide order dated 15-9-2010, by consent of the parties, order dated 10-6-2010 was set aside by this court with the directions to S.P (Investigation), Khairpur to investigate the matter himself and submit the report. In compliance of the order, S.P (Investigation) had conducted a proper investigation and submitted his report on 27-9-2010, in which he recommended the case as false, but in spite of clear report of investigation, the learned Magistrate was not satisfied and he passed the impugned order with directions to SIO to submit the challan and produce the accused persons before him. It was further argued that learned Magistrate has passed the order in a slipshod manner and had no jurisdiction to issue direction to SIO to submit challan. In support of his arguments, the learned counsel relied upon the following case-law:

"2010 YLR 3288 (Imran v. Liaquat A.I). In this case, learned single bench of this court held that once the police report under section 173, Cr.P.C. Is submitted to the 'Magistrate, the Magistrate is required either to agree with the report of the police of cancelling the case or if he does not agree with such report of the police, he can order further investigation of the case by the police and in case no further investigation is required to be conducted the Magistrate should take cognizance of the offence in terms of section 190, Cr.P.C. The Magistrate apparently has no power or authority to make an order directing . The police Investigating Officer to file another report under section 173, Cr.P.C. From the one disagreed by him If he has disagreed, the only option available to him is either to order further investigation or to take cognizance of the offence and nothing else.

2010 PCr.LJ 261 (Muhammad Farooq Qureshi v. Judicial Magistrate and others). In this case, learned single bench of Lahore High Court held that Judicial Magistrate while disagreeing with the discharge report had travelled beyond the jurisdiction in directing the police to submit the challan against the accused, which indicates that learned Judicial Magistrate has pre-judged the case, which can cause prejudice to the accused. He was not supposed to direct arrest of the accused or submission of the challan or recording of evidence. Matter should be, left to the investigating agency to submit report under section 173, Cr.P.C. It will be opened for the Investigating Officer to record his own opinion regarding the guilt or innocence of the petitioner in his report under section 173, Cr.P.C. And if the final opinion of the Investigating Officer is that petitioners are guilty, then he shall be at liberty to submit the challan accordingly.

2006 PCr.LJ 518 (Ch. Muhammad Ashraf v. The State). In this case, learned single bench of this court held that undisputedly, the Magistrate is competent to pass any order on the report submitted by the Investigating Officer and take cognizance of the offence or even order further investigation into the matter. However, any order means judicious and just order and not an arbitrary order without reasons and justification. The Magistrate is required to consider the report under section 173, Cr.P.C. In the light of the material collected during the investigation and then pass an order. It is true that sometimes the Investigating Officers do not investigate the matter properly and sincerely and submit unjustified reports even then it is not expected to disagree with it by a non-speaking order without any indication about considering the material, collected during the investigation. Although the power conferred upon the Magistrate is administrative in nature and the order passed by him is also an administrative order yet that has to be just and judicious one and not an arbitrary. The order impugned through present application is surely an arbitrary one as it does not indicate that the learned Magistrate did bother to consider the material collected during the investigation. Nor does it contain any reason for disagreeing with the opinion of the Investigating Officer.

2010 SCMR 660 (Muhammad Ahmad (Mahmood Ahmed v. The State). In this case, Hon'ble Supreme Court held that the job of the Investigating Officer is only to collect evidence and to place the same before the competent Court. Therefore, whatever expertise, if at all, could be claimed by an Investigating Officer, would be vis-a-vis his field of operation, namely, collection of evidence. Could his opinion ever become admissible in the medico-legal matters which is the area reserved for medical doctors or with respect of archeological matters to determine whether an item was or was not an antique or about handwriting or foot-prints or to find out whether a painting was the actual work of a renowned painter or a fake? If the answer be in the negative, which it has to be, then how come he could be considered an expert and his opinion become admissible vis-a-vis the guilt or innocence of an accused person? It may be added that in the last 110 years since the Code of Criminal Procedure had been in existence in its present form, not once had it been authoritatively declared that an Investigating Officer was an expert in the matter of determining the guilt or innocence of accused persons whose opinion was admissible for the purpose under the law of evidence".

4. On the contrary, the learned counsel for the respondent No.1 argued that learned Magistrate has passed the just and proper order after, considering entire material available on record. He further argued that the report of I.O. Is not binding upon the court and if prima facie material is available on record, there is no legal compulsion upon the learned Magistrate to accept the report and cancel the case according to recommendations made by I.O. He further argued that ample evidence was collected during investigation but in order to favour the applicant, I.O. Has forwarded wrong recommendations which has no legal sanctity. In 'support of his arguments, the learned counsel referred to following dictums:

"1997 SCMR 299 (Federation of Pakistan v. Malik Mumtaz Hussain). In this case, Hon'ble Supreme Court held that it is well-settled law that a report submitted by the Investigating Officer under section 173, Cr.P.C. Is not binding on the Court. The Court, therefore, notwithstanding the recommendation of the I.O. Regarding cancellation of case and discharge of the accused from the case, may decline to cancel the case and proceed to take cognizance as provided in section 190, Cr.P.C. And summon the accused person to face the trial.

2002 SCMR 63 (Safdar All v. Zafar IqbaI). In this case, Hon'ble Supreme Court held that it is well-entrenched legal principle that "when a Magistrate takes cognizance under section 190(1)(b) on a police report he takes cognizance of the offence and not merely of a particular person charged in the report as an offender. He can, therefore, issue process against other persons who also appear to him on the basis of the report and other material placed before him when he has taken cognizance of the case, to be concerned in the commission of the offence when he does so he does not act under clause (c) therefore, section 191 is not applicable." (Mehrab v. Emperor (F.B.) 26 Cr.LJ 181, Lai Bihari Singh v. Emperor 31 Cr.LJ 55). On the touchstone of criterion as discussed hereinabove we are of the considered view that the order passed by learned Illaqa Magistrate dated 8-11-1997 is neither perverse nor capricious but on the other hand it has been passed after having an in-depth scrutiny of the entire record and thus, it cannot be termed as non-speaking".

5. The learned A.P.-G. Has supported the arguments of respondent No.1 and he submitted that since the report is not binding on the court therefore, court has rightly passed the order with the directions to SIO to submit the report under section 173, Cr.P.C.

6. There is no cavil to this proposition that the report under section 173, Cr.P.C. Is not binding upon the court which is well-settled now and the Hon'ble Supreme Court also held supra that the Magistrate can take cognizance even in case of negative report. Such report is not binding upon the court and the court can take the cognizance and summon the accused to face the trial. At the same time it is also indispensable and imperative that the order passed by the Magistrate should be judicious and not an arbitrary order without reasons and justifications. The Magistrate is required to consider the report under section 173, Cr.P.C. In the light of the material collected during investigation and then pass an order. In my view also the power conferred upon the Magistrate though administrative in nature yet that has to be just and judicious and while passing the order and showing disagreement to the report submitted by the I.O. Under section 173, Cr.P.C. Entire material collected during the-investigation should be Considered with raison detre as to why the learned Magistrate is not inclined to accept the report. At the same time I am also fortified by the dictum laid down by the Hon'ble Supreme Court reported in 2010 SCMR 660 in which it was held that the job of the Investigating Officer is only to collect evidence and place the same before the competent court. Therefore whatever expertise if at all could be claimed by an I.O. Would be vis-a-vis is field of operation, namely collection of evidence. Challan is not substitution of report under section 173, Cr.P.C. Challan could only be submitted when I.O. Would come to the conclusion that accused was found guilty and recommended to be tried under the relevant offence. In the judgment reported in PLD 2007 SC 31 (Muhammad Nisaf Cheema v. Muhammad Javed), the Hon'ble Supreme Court dilated upon the provisions of section 173, Cr.P.C. And held that this is the only available section in the Code which commands expeditious conclusion of the investigation and further ordains that on conclusion of every investigation, the concerned S.H.O. Shall submit a report of a result thereof in a prescribed manner to the Magistrate competent to take cognizance under section 190, Cr.P.C. No power vests with any court including a High. Court to override the said legal command and to direct the SI-1.0. Either not to submit the said report 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.

7. In the impugned order, the learned Magistrate has observed that during course of investigation, I.O. Has recorded the statements, under section 161, Cr.P.C. Of the witnesses and after completing the usual investigation, he recommended the case in B-class and since he was not satisfied with the report and case papers, therefore, same were returned for re-investigation. Again after re-investigation in the matter, fresh report was submitted and the case was again recommended to be disposed of as false. The learned Magistrate further stated that supporting evidence as well as postmortem report are showing the injuries caused due to straight firing from both the sides, therefore, the report of SIO (Investigation), Khairpur does not inspire confidence, hence case needs further inquiry. Though in the impugned order several directions have been issued to SIO to submit the report under section 173, Cr.P.C. For an offence under sections 302, 506/2, 147, 148, 149 and 34, P.P.C. Against all nominated accused persons within seven days, but there is nothing available in the impugned order to show that while passing the same, the learned Magistrate has applied his independent mind and considered the material available on record for reaching to an unequivocal conclusion as to why the report of I.O. Is not inspiring-confidence and what material was collected or available on the record to connect or link the present applicant to the case. The order passed by the Magistrate under section 173, Cr.P.C. Though an administrative order but it should be a speaking order giving well reasons for its conclusion. The impugned order does not show that the learned Magistrate has applied his independent mind and did bother to consider the material collected during the investigation nor it contains any plausible or cogent reason for disagreeing with the opinion of I.O.

8. For the foregoing reasons, the impugned order dated 4-1-2011 is quashed. The learned Magistrate is directed to pass a speaking order on the report submitted by I.O. After considering the entire material collected during investigation