1. Being aggrieved and dissatisfied with the order dated 19.12.2006 passed by XII Judicial Magistrate, Karachi Central on the report under Section 173, Cr.P.C. by the investigating officer to discharge the case under Class 'B' this Criminal Misc. Application has been preferred.
2. Brief history of the case is that prior to the impugned order, investigating officer had submitted report under Section 173, Cr.P.C. for disposal of case under 'B' class, that was accepted by the then Judicial Magistrate on 20.08.2003, which was challenged before this Court in Cr. Misc. Application No, 156/2005, By order dated 24.03.2005 impugned in that Cr1. Misc. Application it was set aside and case was remanded back to pass an order afresh after taking into consideration the material as a whole instead of simply concurring with the police report. After the remand, report was re- examined by the trial Court and in disagreement to the proposal of investigating officer, he was directed to submit the challan/police report for sending the same to the Court of Sessions.
3. Facts leading to this second Cr1. Misc. Application are that on 30.05.2003, it was reported by complainant Anis Aziz that on the same day in between 2:30 p.m. to 2:40 p.m. there was a bell at his house, one boy aged about 26 to 27 years was found, who introduced himself as Court bailiff. At the same time he saw one another person Badar Maqbool son of Maqbool-ul-Hassan, who was trying to hide behind a wall, Complainant asked bailiff as to why he has brought him, he informed that he had brought him just for identification of house. During these negotiations all of a sudden Badar Maqbool and his four accomplices started beating to complainant. Badar Maqbool put a rope around his neck and dragged him on road. According to complainant, he received injuries on his foot and mark of rope were visible on his neck and scratches on his face.
4. Complainant was examined by Medico Legal Officer of Abbasi Shaheed Hospital on 30.05.2003 and as per report he received about eight (8) injuries on his person by hard and blunt substance.
5. It appears that on an application of applicant a letter was issued from Secretary, Government of Sindh, Health Department, Karachi for constituting a Special Medical Board. The same was constituted and injured Aziz Anis was examined by the Board. As per opinion of the Board Injuries No, 1 to 5 healed with passage of time therefore, could not be seen, whereas Injury No, 6 is a complaint and not injury, if it was considered as an injury then X-Ray would had been advised (for spine). Injuries No, 7, 8 and 9 healed by the passage of time. 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 MLO has written hard blunt weapon, so Injury No, 1 in incorrect.
6. Unanimous opinion of the Board was that Medico Legal Certificate No, 3178/2003 dated 30.05.2003 issued by Dr. Muhammad Talib Junejo, Medico Legal Officer of Abbasi Shaheed Hospital was incorrect.
7. An order of suspension of Dr. Muhammad Talib Junejo was also placed on record but the contents of the same do not reflect that the said suspension was because of the medical certificate issued by him on 30.05.2005, hence it would not be relevant for the purpose of disposal of this application.
8. However, after investigation, it was expressed by investigating officer in his report that he was unable to collect any evidence against applicant. Complainant's witness Adnan also had not stated anything that complainant was dragged by anyone after putting rope in his neck. Even the medical certificate issued on 30.05.2005 was found incorrect.
9. In view of the facts and report of the investigating officer as narrated above, it is argued by learned counsel for applicant that Section 324, PPC does not apply as no intention, of killing the complainant is appearing in the FIR even the injuries alleged to have been sustained by the complainant were not of serious nature, as just after one and half month when complainant was again produced before the Special Medical Board no marks of injuries were appearing on his person.
10. In fact this FIR appears to be outcome of previous enmity in between the parties. This applicant was married with Mst. Najma, out of this wedlock two daughters were born. Subsequently, marriage was dissolved. A Guardianship Application No, 628/2003 for custody of minors was filed by the applicant and the incident happened when for getting the service effected of that guardianship application he had gone alongwith the bailiff at complainant's house, who is the brother of Mst. Naj ma. It is stated that taking benefit of criminal litigation Mst. Naj ma has removed custody of both the daughters and had migrated to Australia. Learned counsel for the applicant contended that it is a case of matrimonial dispute in between the parties and no criminal liability can be alleged and thus the opinion formed by the investigating officer was just and correct.
11. Chapter XXIV of Police Rules, 1934, is relevant in the matter, Rule 24.4. speaks that if the information or other intelligence relating to the alleged commission of a cognizable offence, is such that an officer-in-charge of a police station has reason to suspect that the alleged offence has not been committed, he shall enter the substance of the information or intelligence in the station diary and shall record his reasons for suspecting that the. alleged offence has not been committed and shall also notify to the informant, if any, the fact that he will not investigate the case or cause into be investigated.
12. Rule 24.7 deals with the cancellation of cases that after investigation if the information or other intelligence recorded under Section 154, Cr.P.C. is found to be maliciously false or false owing to mistake of Jaw of fact or to be non-cognizable or matter' for a civil suit the Superintendent shall send the first information report and any other papers on record in the case with the final report to a Magistrate having jurisdiction, and being a Magistrate of the first class for cancellation of order.
13. On receipt of such an order the officer-iri-charge of the police station shall cancel the first information report, by drawing a red line across the page, noting the name of the Magistrate canceling the case with number and date of order.
14. Bare reading of these rule show that they empower an investigating officer that if on the basis of evidence collected by him, he is of opinion that no case has been made out he can with consultation of his high officer, submit report for cancellation of FIR.
15. It is contended by learned counsel for applicant that in view of statements of process server who was with applicant at the time of incident coupled with other 161 Cr.P.C. statement of PWs placed on record and also in the light of report of Special Medical Board dated 22.07.2003 Investigating Officer was justified in reporting that for want of evidence case be disposed of in 'B' Class.
16. May be the nature of injuries sustained by complainant would - not had been so serious but still they reflect the incident happened on 30.05.2003. How far, the certificate issued on 30.05.2003 and the record of Special Medical Board of 27.07.2003 would be beneficial to the parties, and the evidence collected by Investigating Officer makes out any cognizable case or not requires proper examination.
17. Thus for the purpose of examination of 173 Cr.P.C. report, office of Judicial Magistrate be looks in two different categories, one as judicial and other as administrative. While functioning on administrative side, he discharge his duties as a persona designation and not as a Court. And while discharging his duties as a persona designation although he is required to examine the material placed before him, but is not bound to explain each and every aspect of case and give its reason for acceptance and rejection.
18. Reliance is placed on case of Bahadur and another Vs. The State and another (1985 S.C.M.R. 62), wherein it is observed that : "Under the Criminal Procedure Code a Magistrate is entrusted with diverse duties and in discharging the same does not always function as a Court, conduct judicial proceedings or is amenable to the revisional jurisdiction. Some of his powers and duties under the Code are administrative, as an executive or ministerial and he discharges these duties not as a Court but as a persona disegnata. Mere name or designation of a Magistrate is not decisive of the question because as observed, "Judges often administer and administrators often Judge". Robson (Justice and Administrative Law, p.15) has after noticing the difficulties and the limitations provided a basis for classification of judicial functions to serve practical purpose. It is re-produced hereunder as follows :-- `'With so delicately graded a sale of authorities it is scarcely surprising if we find it difficult to discover an infallible test which shall immediately tell us which functions are judicial and which administrative. It is, however, necessary for practical purposes to have some kind of a classification; and we may accordingly suggest that the primary characteristics of 'pure' judicial functions, by whomsoever exercised, are :--
(1) The power to hear and determine a controversy.
(2) The power to make a binding decision (sometimes subject to appeal) which may affect the person or property or other rights of the parties involved in the dispute.
19. Administrative functions, on the other hand, consist of those activities which are directed towards the regulation and supervision of public affairs and the initiation and maintenance of the public service.''
20. It is further observed therein that :-- "a Magistrate even while concurring in cancellation of a case is required to judicially examine the report admitted under Section 173, Cr.P.C, AIR 1968 SC 117 this has led to the impression that he must while doing so be acting and functioning as a Court. This obviously is a mistaken impression".
21. Thus without going in further detail as to the merits and demerits of case, which is not required at this stage, it is found that offence under Section 324, PPC is exclusively triable by the Court of sessions, therefore, after receiving the report under Section 173, Cr.P.C. the learned Magistrate is required to forward the same to the Court of Sessions as provided under Section 190, Cr.P.C. Sub- section (2) of Section 190, Cr.P.C. further clarifies that a Magistrate taking cognizance under sub- section (1) of an offence triable exclusively by a Court of Sessions shall, without recording any evidence, send the case to the Court of Sessions for trial.
22. With this opinion the learned trial Court is directed to forward the report submitted by investigating officer under Section 173, Cr.P.C. to the Court of Sessions for its disposal.
23. With these observations, this Cr. Misc. Application stands disposed of.
24. In the end I would like to observed that the judicial officers of same rank should restrain themselves from passing strictures in the judicial orders against their colleagues as neither the then judicial magistrate was subordinate to the present ranked Judicial Magistrate, Karachi Central, who has passed the order on 19.12.2006 nor he was sitting in the appellate capacity to examine the order of his predecessor and to pass stricture thereon. Such practice is not appreciated. Mr. A. Zahoor Chandio, XII Judicial Magistrate, Karachi Central is advised that in future he should hold himself from making such comments against his colleagues.