1. This is an application under section 561-A Cr.P.C. Filed by Aziz Anis complainant in Crime No.56 of 2003 registered at Police Station Gulbahar on 30-5-2003 at 1515 hours against Badar Maqbool/respondent No.2 and others under section 324/34, P.P.C, seeking quashment of the order dated 20-8-2003 passed by VIII Judicial Magistrate Karachi (Central) approving the report submitted by the Investigating Officer under section 173 Cr.P.C. For disposal of the case in '13' Class as false in view of the report of a subsequently constituted Medical Board, and further ordering for proceedings under section 182, P.P.C. Against the complainant/applicant Aziz Anis.
2. ' The facts in brief appear to be that there existed some dispute between the complainant and respondent Badar Maqbool whose marriage with Mst. Najma sister of the complainant, had resulted in dissolution. Family Appeal No.66/2003 for custody of children was pending between Mst.
3. Najma and Badar Maqbool at the relevant time. As per F.I.R. Lodged by Aziz Anis on the day of incident at about 2-30 p.m. While he was present in his house, he was called outside the house by somebody who on inquiry disclosed that he was a bailiff of the Court. No sooner the complainant opened the door, respondent Badar Maqbool along with his four (4) accomplices allegedly started beating the complainant, and by putting a rope in his neck dragged him on the ground as a result whereof complainant allegedly received injuries on various parts of his body including his neck and feet. After the departure of the said persons complainant reached at the police station and lodged the F.I.R whereafter he was referred by the police to the Medico-legal Officer for examination, treatment and certificate. Dr. Muhammad Talib Junejo who examined the complainant on the same day found as many as nine injuries on various parts of his body including ligature mark 18 c.m. x 1 c.m. Over the back of the neck up to the right side of the neck oblique in direction; bruise 2.5 c.m. x 1 c.m. Over the right lower lid of eye which was found red; abrasion over the nose, mid of frontal region, neck and feet. Some of the injuries were found to be Shuja-e-Khafifa whereas some appeared to be Jurh Ghayr Jafiah Damiyeh. All the injuries were found to be fresh having been caused by some hard and blunt substance.
4. ' It appears that the medical certificate issued by Dr. Muhammad Talib Junejo was challenged by accused Badar Maqbool, and special Medical Board was constituted at his request. The appellant/ complainant was summoned to appear before the Board after about one month of the alleged incident. The members of the Board examined the complainant and found healed injuries on his person due to passage of time. The opinion of the Medical Board is reproduced hereinafter for ready reference.
5. "In the opinion of the Board ' Injured Aziz Anis identified by confirming marks of identification as under:--
(1) Mole right cheek
(2) Scar left elbow ' Injuries Nos. One (1) to five (5) healed with passage of time therefore could not be seen.
6. ' Injury No.(6) is a complaint and not injury, if, it was considered as an injury then X-Ray would have been advised (for spine).
7. ' Injuries Nos. 7, 8 and 9 have healed by the passage of time.
8. ' Injury No.1, which has been mentioned as ligature like contusion around the neck, which could have been caused by some soft flexible object but the M.L.O. Has written hard blunt weapon. So Injury No.1 is incorrect.
9. ' Unanimous opinion of the Board members is as follows:- ' Overall M. L. Certificate No.3178/03 dated 30-5-2003 issued by Dr. Muhammad Talib Junejo, Medico-legal Officer, Abbasi Shaheed Hospital Karachi is incorrect."
10. It appears that the police instead of submitting the challan, submitted a report on 4-8-2003 under section 173, Cr.P.C. Before the learned Magistrate for disposal of the case under '13' Class being false, and the learned Magistrate without application of judicial mind and without taking into consideration other material available on record as well as the medical opinion recorded by the Board which suggests that indeed there were injuries on the person of complainant but in healed condition, in a slipshod manner allowed the report and passed the following order:- "Report of 'B' Class is approved in view of the Medical Board Report and as suggested by I.O. I.O. Is further directed to do according to Law about proceedings under section 183, P.P.C.
11. (Sd/-)
12. VIII Juridical Magistrate, Karachi Central."
13. ' Mr. Muhammad Ali Mazhar learned counsel for the petitioner has argued that the material collected by the police during the investigation did not justify thr rlisposal of the case under 'B'
14. Class while treating it to be a false case. More particularly when the Medical Officer who examined the applicant in the first instance soon after the alleged incident found a number of injuries on his person and recorded such opinion. The opinion by the Medical Board after one month of the incident also does not negate that the factum of injuries on the person of the applicant though the same were found to have been healed up due to lapse of time. He further argued that initially the police before referring the applicant for medical examination found that in view of the nature of allegation and injuries on the person of the applicant/complainant, there appeared to be a cognizable office. Learned counsel further argued that as a result of fresh injuries on the person of complainant noted by police, factum of scuffle stood fully established, though it may not have made out to be a cognizable case, but it does not mean that the case was false and the petitioner should have been ordered to be run under section 182, P.P.C. Learned counsel further argued that the learned Magistrate did not discuss the evidence available on record and passed an order in a mechanical and slip shod manner without applying judicial mind as such it cannot be treated or termed to be an order which could be sustained under the law. Learned counsel further argued that statements of P.Ws. Adnan and Anis father of the complainant as well as the bailiff show the presence of the present respondent Badar Maqbool along with his companion at the site at the relevant time and fight having taken place, as such there was no occasion for treating the whole incident to be a false and concocted story so as to justify passing of such order. In support of his contention learned counsel has referred to the cases reported as Muhammad Aksar v. Arshad and others (NLR 2000 Criminal 604), Khalil A. Malik and others v. Mian Aftab Saigol and others (1994 MLD 1659) and Mehdi Hussain Shah v. Malik Khizar Hayat Khan and another (1983 PCr.LJ 1601).
15. ' On the other hand, Syed Ziauddin Nasir learned counsel for the respondent No.2 vehemently contested the present application and argued that it is not maintainable in view of the law laid down in the cases reported as The State v. Muhammad Nawaz (2002 SCMR 634), Muhammad Akram v. The State and others (1997 MLD Lahore 1569), Zahooruddin v. Khushi Muhammad and others (1998 SCMR 1840) and Shaukat Hussain v. State (PLJ 1999 Cr.C. Lahore 889). The cases cited by the learned counsel do not stand attracted to the facts and law involved in the case in hand Syed Ziauddin Nasir has also vehemently argued that in view of the opinion of the Medical Board the whole case appears to be false and as such the learned Magistrate was justified in concurring with the report of the police and the order passed is based on proper appreciation of the factual and legal points involved in the matter. Learned counsel has also referred to the bailiff's report, which shows that during the scuffle he (the bailiff) also received injuries at the hands of the present applicant Aziz Anis. However, he was unable to show if Badar Maqbool or the bailiff filed any criminal case against applicant Aziz Anis.
16. ' Mr. Sardaruddin Qureshi learned State counsel states that indeed the order is non-speaking but even if the material available on record would have been discussed by the learned Magistrate the result would have been the same.
17. ' I have given due consideration to the arguments of the learned counsel for the petitioner, learned State counsel and learned counsel for the respondent No.2. I have also examined the material placed on record and the case-law cited at the bar. After the decision in the case of Bahadur and another v. The State and another (PLD 1985 SC 62), Arif Ali Khan, v. The State (1993 SCMR 187) and Sofi Abdul Qadir v. The State and others (2000 PCr.LJ 520), the only remedy left for the party in such situation is to invoke the jurisdiction of this Court under section 561-A, Cr.P.C.
18. As a result of the scanning of the record, I have come to the conclusion that the learned Magistrate did not take into consideration or discuss the entire material available on record and felt herself satisfied while passing the impugned order and thereby concurring the police report and without considering the opinion of the Medical Board which did not say that Medical Certificate issued by Dr. Junejo was false but opined to be incorrect. Thus, it appears that the opinion of the Medical Board was not understood or followed by the learned Magistrate while keeping it in juxtaposition with other material collected during the investigation. It is also interesting to note that one day prior to passing of the impugned order the learned Magistrate had recorded the examinationin-chief of Aziz Anis in which he has stated on oath regarding the incident and it is not clear from the copy placed on record as to what was the occasion for recording such statement to that extent and why it was not completed.
19. Anyhow, without touching the merits of the case, lest it may cause prejudice to the case of the parties and, while setting aside/quashing the impugned order, I will direct the learned Magistrate to pass an order afresh after taking into consideration the material as a whole instead of simply concurring with the police report.
20. ' The Criminal Misc. Application stands disposed of the in the above terms.