1. ' SPED. ZAWWAR HUSSAIN JAFFERY, J.---This applicationhas been field under section 561-A, Cr.P.C.
2. For seeking quashment of the order, dated 11-9-2009 passed by the learned VIth Judicial Magistrate and Civil Judicial, Malir on a report under section 173, CR.P.C. Of Crime No, 102' of 2006 of P.S. Gadap whereby learned Magistrate approved the summary under B class as per direction disclosed by the Investigating Officer namely Raja Tariq.
3. ' Brief facts as depicted in the F.I.R. Are that a written complaint under section 154, Cr.P.C. Was sent to the police station Gadap at which F.I.R. No, 102 of 2006 for an offence punishable under section 13(d), Arms Ordinance, was registered at P.S. Gadap on 12-7-2006. The contents of the F.I.R. Are reproduced in extenso:-- ' Reference through Crime No,101 pf 2006 under section 353/ 324/186/34, P.P.C., 13-D Arms Ordinance, arrested accused who was arrested at Gadap namely Mashooq Brohi, in whose possession Kalashnikov without number and then live loaded rounds with chamber magazines were recovered, one pistol 9.Mm without number and 6 rounds loaded magazine were recovered and from his shalwar's nefa on left side, and from front seat of the car bearing No,ADG-648 one unnumbered repeater along with 5 round were recovered and on the back seat one magazine SMG in which 28 rounds were loaded was also recovered. Thus, the case falls under section 13-D Arms Ordinance. The case was registered against the accused. The investigation of the Crime shall be conducted by SIO Gadap, F.I.R. Was distributed accordingly.
4. ' During the enquiry proceedings the I.O. Referred the injured Mashooq Brohi for medical examination and treatment through Inspector Serwer Khan along with other staff. The said accused disclosed the name of co-accused Yaseen, Siddiq, Kalhoro. The car bearing No,ADG-648 Honda City was also seized by the police. At the time of incident the pblice Mobile bearing No,SP- 6364 was also damaged due to firing of the accused persons. Hence, this application.
5. ' Mr. Amir Mansoor Qureshi learned counsel for applicant has contended that investigation/enquiry of the case was conducted by three investigating officers. Third Investigating Officer namely Raja Tariq disbelieved the findings of two investigating officers and submitted the report that case may be disposed of under B class. After receipt of report under section 173, Cr.P.C. The learned Magistrate approved summary under B class and permitted the prosecution to proceed against complainant and other responsible officials according to law. The prosecution has filed such report against complainant and other responsible officials in the Court having jurisdiction.
6. ' It is urged that the investigation/enquiry conducted by Investigating Officer Raja Tariq is based on wrong findings as the investigation was wrongly transferred by SP Niaz Khoso in violation of the Police Order, 2002, as such power is invested to board, to transfer the investigation/enquiry, therefore, investigation/enquiry was wrongly conducted by such police officer and entire investigation is illegal and Without adopting the provision of section 18 of the Police Order, 2002. It is further urged that Inspector Dilawar, Inspector Mubeen and lastly Inspector Raja Tariq have conducted investigation/enquiry but two investigating officers namely Dilawar and Mubeen have supported the prosecution case and the third enquiry was wrongly entrusted to S.-I. Raja Tariq whereby the case was disposed of under B class. It is further urged that a case can be reinvestigated as per law but in this case the transfer of investigation/enquiry was wrongly entrusted to unauthorized person without any justification. It is further urged that learned Magistrate has believed the investigation conducted by Raja Tariq and ignored the observations of the two investigating officers while disposing the matter on 11-9-2006. Mr. Qureshi further submits that counter case being Crime 101/2006 registered within the jurisdiction of Nawabshah has been charged in the Court of law whereas this case was dropped by the investigating officer malafidly.
7. During the arguments learned counsel for applicant has suggested that impugned order and the findings of Investigating Officer may be set aside and case may be sent for reinvestigation, to be headed by Mr. Farooq Awan ADIG, who may constitute his team to investigate the matter and then a report shall be filed under section 173, Cr.P.C. In Court of learned Sessions Judge Malir so that the same report may be entrusted to another Magistrate to pass an appropriate order on the basis of report under section 173, Cr.P.C. But not before Mr. Muhammad Ahsan Khan Durrani, Civil Judge and J.M. Malir.
8. ' Mr. Sabir Hyder learned A.A.-G. Has supported the impugned order passed by the learned Area Magistrate. Mr. Hyder has suggested that investigation may be entrusted to Sanaullah Abbasi SSP Investigation or A.D. Khawaja DIG Establishment. The Investigating Officer namely Raja Tariq is also present in Court has conceded that investigation was transferred in violation of Police Order, 2002 and same may be transferred to Farooq Awan ADIG.
9. ' I am of the view that investigation conducted by Inspector Dilawar and Mubeen was not taken into consideration by Inspector Raja Tariq, learned Magistrate while disposing the report, the Area Magistrate had not taken into consideration the evidence already recorded ,by Inspectors Dilawar and Mubeen and investigation was transferred to Raja Tariq in violation of Art, 18 of the Police Order, 2002.
10. ' In view of this position, the impugned order passed by learned Magistrate, dated 11-9-2006 and Summary floated by the prosecution for disposing of the case under B class are set aside. The proceedings initiated against the applicant should also be dropped. I direct that re-investigation shall be carried out by Mr. Farooq Awan ADIG. He may constitute a team of independent officers to reinvestigate the crime and submit his report to the learned Sessions Judge for onward transmission towards another Magistrate except Mr. Muhammad Ahsan Durrani who has already passed impugned order. The case should be re-investigated and report should be submitted as prescribed under the law.
11. 'Criminal Miscellaneous stands disposed in above terms along with listed application.