' HASNAT AHMAD KHAH, J.---Through this writ petition following prayer has been made:-- "In view of the above submissions it is most respectfully prayed that the impugned orders dated 17- 4-2007 and 28-9-2007 respectively passed by learned respondents Nos.1 and 2 may very kindly be declared as illegal, without lawful authority and the impugned F.I.R. No,506 dated 21-10-2006 offence under section 452/506, P.P.C., Police Station Jauharabad District Khushab may very kindly be ordered to be quashed, in the best interest of justice."
2. Compendiously, the facts of the case are that on a written, application, submitted by respondent No,4, a case was registered at Police Station Jauharabad under sections 452/506, P.P.C. Vide F.I.R.
No,506/2006 dated 21-10-2006. According to the complainant/ respondent No,4, on 15-10-2006 at 7-30 a.m. The petitioner along with two unknown persons after barging into the house of the complainant threatened him on the gun-point to vacate the house owned by him (the complainant). The occurrence was allegedly witnessed by two eyewitnesses, on whose intervention the life of the complainant was saved. After the investigation of the said case, the Investigating Officer found the petitioner innocent and reported for cancellation of the case, where after the concerned S.H.O. Submitted a report dated 11-11-2006 for the said purpose before the concerned Judicial Magistrate. However, the learned Judicial Magistrate, after perusal of the relevant file, disagreed with the said report vide his order dated 17-4-2007 which was challenged by the petitioner through a revision petition before the learned Sessions Judge Khushab. The said revision petition finally came up for hearing before Ch. Abdul Sattar, learned Additional Sessions Judge Khushab who also refused to interfere into the matter and dismissed the revision petition vide order dated 28-9-2007.
3. Learned counsel has contended that respondent No,1 had illegally refused to accept the report of the police for cancellation of the case; that similarly respondent No,2 also illegally dismissed the revision petition filed by the petitioner; that both the Courts failed to appreciate that F.I.R. In this case was lodged with an inordinate delay of six days; that during the alleged occurrence the complainant had not received any injury which clearly shows that the prosecution case was totally false and frivolous; that while passing the impugned order, whereby a report for cancellation of the case was discarded, the respondent No,1 failed to go through the statements of the witnesses who had appeared before the Investigating Officer to defend the petitioner, that though the said statements were not recorded under section 161, Cr.P.C. Yet the same could be examined as a legal evidence; that the impugned order dated 17-4-2007 passed by respondent No,1 is not a speaking order and that the defence evidence, recorded during the investigation, was not given due consideration by respondent No,1 while disagreeing with the report for cancellation of the case.
Learned counsel has concluded his argument after placing reliance on the cases of Nazar Muhammad v. Mushtaq Ahmad and others PLD 1996 Lah. 277 and Abdul Majeed v. The State 1995 PCr.LJ 1124.
4. At the very outset, I have noticed that in view of law laid down by the Hon'ble Supreme court in the cases reported as Bahadur and another v. The State and another PLD 1985 SC 62; Arif Ali Khan and another v. The State and 6 others 1993 SCMR 187; Muhammad Sharif and 8 others v. The State and another 1997 SCMR 304 and Hussain Ahmad v. Mst. Irshad Bibi and others 1997 SCMR 1503, the revision petition filed by the petitioner before the learned Sessions Judge, Khushab was not competent against the order passed by the learned Judicial Magistrate whereby he had disagreed with the report of police for cancellation of case. Confronted with this proposition, learned counsel has frankly conceded that revision petition filed by the petitioner against the order of the learned Magistrate was neither competent nor maintainable. However, he has prayed that the order dated 17-4-2007, passed by the respondent No,1 may be treated as impugned order in this petition. I have given anxious thoughts to the said argument but am not persuaded .To interfere in this matter because after excluding and treating the impugned order, dated 28-9-2007, passed by the learned Additional Sessions Judge as non-existent in the eyes of law, this petition is liable to dismissal on the principle of laches as the petition in hand has been filed after a period of more than 7-1/2 months from the order dated 17-4-2007 passed by the learned Magistrate. Nevertheless, I have examined the case on merits also but found no plausible reasons or justification for quashing the impugned order dated 17-4-2007 which reads as under:-- "The file has been produced which reveals that the accused persons are nominated in F.I.R. There is sufficient evidence on the file against the accused persons in the shape of statement of complainant as well as the statements of witnesses recorded under section 161, Cr.P.C. By police.
The perusal of opinion of Investigating Officer shows that it is based on his sweet will, as there is no solid reasons behind his opinion. Hence I disagree with this cancellation report. The accused be summoned through summons to face the trial of this case for 25-5-2007. The prosecution is directed to submit the list of witnesses".
A perusal of the above order reflects that the learned Magistrate passed the impugned order after going through the relevant record. According to impugned order the prosecution case was duly supported by the statement of the complainant as well as those of the witnesses recorded under section 161, Cr.P.C. The case-law cited by the learned counsel for the petitioner is not applicable in the case in hand. There is no cavil with the proposition that the statements made by the witnesses during the investigation can be used by the accused for the purposes of confronting the said witnesses with their statements recorded at the time of trial and if at the relevant stage of the trial the said statements are not furnished to the accused, he can demand the same through intervention of the Court. But on the touchstone of the case-law cited by the learned counsel, the petitioner cannot assail the impugned order passed by the learned Magistrate on the ground that the same does not indicate that the statements made by certain witnesses during the investigation were not considered by him (Magistrate).
5. It goes without saying that the opinion of the police is neither admissible nor binding on Courts. A perusal of the word 'Investigation' as defined by section 4(1), Cr.P.C. Indicates that the investigation means only collection of evidence and no more. There is plethora of judgments of the Hon'ble Supreme Court to establish that determination of the guilt or the innocence of the accused is an obligation vested on the courts of law which task could never be delegated to the police functionaries investigating a case. Reliance in this regard is placed on the cases reported as Muhammad Bashir v. S.H.O. Okara Cant and others PLD 2007 SC 539 and Syed Muhammad Ahmed v. The State and others PLD 2006 SC 316. In the latter case a judgment of this court, whereby an order was passed by the High Court on the basis of a report submitted by the police, was set aside by the Hon'ble Supreme Court, after giving strong remarks. Therefore, in my opinion, the learned Magistrate was not bound to follow the opinion of the Investigating Officer and he was well within his right to disagree with the same. Further, it would be no gain saying that after the submission of report under section 173, Cr.P.C., the petitioner, who admittedly is on bail, would be at liberty to defend himself. The defence witnesses, on the statement of whom the petitioner is relying for setting aside the impugned order, can be produced by him during the trial, if so desired. At this stage the case of the prosecution cannot be throttled just on the basis of the opinion of police.
6. In nutshell, learned counsel has failed to convince me that the impugned order suffers from any illegality irregularity or jurisdictional error, therefore, this petition is found to be meritless and the same is dismissed in limine.