1. ' MRS. QAISER IQBAL, J.---Being aggrieved and dissatisfied with the impugned order dated 18-11- 2008 passed by XIIIth (I/C of XIth Judicial Magistrate Karachi South) in F.I.R. No,17/2008 under sections 365, 506-B, 337-A(i), P.P.C. Of Police Station Risala whereby the challan filed was accepted, the applicant has preferred this criminal miscellaneous application.
2. ' Succinctly the facts disclosed in written complaint along with order of VIIth Additional Sessions Judge at Karachi was received by Police Station Risala which is reproduced herein below in extenso:-- "To 'The S.H.O., Police Station Risala, Karachi South.
3. ' SUBJECT: APPLICATION FOR LODGING F.I.R. AGAINST
(1) Shahid Mehmood, son of unknown, S.I.O. Of Police Station, Peerabad (2) Muhammad Yasin son of unknown, S.-I. P.S. Peerabad (3) Muhammad Younis son of unknown S.-I. Peerabad (4) Abdul Hameed son of unknown, S-I.P. P.S. Peerabad, (5) Muhammad Mehboob son of unknown, A.S-I. P.S. Peerabad, (6) Tariq Habib and (7) Khalid Habib both sons of Habib Ullah of Universal Trading, 3/4, Police Officers names and Residence unknown, but identifiable.
4. 'Respected Sir, ' I am running my business with the name and style of Kamran processing Rice, at F-373-B, Metro Villa Karachi and I am also owner of the said business. On 19-1-2007 at 2-30 p.m., after lodging F.I.R.
5. Vide F.I.R. Bearing No,141/2007, under sections 420/ 468/ 471/ 380/34, P.P.C. Against accused Tariq Habib, Khalid Habib at Police Station Risala, and came to Rice market near city Courts, within the territorial limits of Police Station, Risala, that accused 1 to 4 with weapons police officials with SMG guns, Tariq Habib and Khalid Habib who were in white dress on private vehicles holding TT pistols, in the presence of witnesses and shop keeper, abducted me on gun point and took into vehicle. On the way Inspector Shahid on gun point snatched Rs,3,50,000 and two mobile phones Nokia and Samsung, Credit Card, and thereafter took the applicant to police station Peerabad, and beaten me, and at 3-30 p.m. Lodged a false F.I.R. Against, for saving themselves. On the very next day I was produced before the Court of Judicial Magistrate and on gun point I kept to remain silent and my remand was sought, all the accused persons, 1, 2, 7 and 8 during the journey maltreated me and I received injuries. They demanded Rs,6,50,000 as ransom on gunpoint and through maltreatment.
6. Therefore I in compulsion, call at my home, and bring my cheque book, and also meal for the police officials at police station as I was threatened that if I will not fulfil their demand I and my relatives will be implicated in false currency cases. During this period Shahid Mehmood, Muhammad Younus, Hameed, Tariq Habib and Khalid Habib tied my feet and hanged me and started beating with knives at my feet and sensitive parts. Shahid Mehmood with the intention of killing hold my neck, but fortunately I saved as my family members brought cheque book and meal for them. After taking cheque book and meal from my relatives, the police let them out from the police station. After late at night Tariq Habib, Khalid Habib and Shahid Mehmood beaten me and also took two cheques amounting Rs,52,00,000 and also snatched Rs,12,00,000 from me. Both the cheques were to be encashed on 22-12-2007. On the direction of Judicial Magistrate I was medically examined. Later it came into my knowledge that accused Shahid Mehmood not only usurped Rs,350000 of my personal search but also usurped Rs,289,000 now my claim is against accused persons for abducting me and receiving cheque in ransom and also holding my neck with the in-tention of killing, keeping me in illegal detention and injuring me. Now at the direction of VIIth ADJ South I have come to report, the copy of my medical is also available at the record of Court, and all other proof is available in the Court.
7. (Sd.)
8. Musawar Iqbal S/o Muhammad Shafi"
9. ' During the course of business complainant Mussawar Iqbal approached the applicant and purchased 1000 bags of super rice on 4 months credit basis issued a post-dated Cheque No,921490 of Askari Commercial Bank amounting to, Rs,5208273 in lieu thereof applicant delivered 1000 bags of rice. Complainant approached the applicant for running of the business of processing of rice called upon the applicant to send the rice to his Mill for processing rice, on the complainant's assurance applicant sent 1473 super rice bags for processing to complainant's Mill. It is averred that complainant Musawar Iqbal did not return rice bags, applicant visited the Mill requested him to return rice bags finally on 4-10-2007 the complainant and his employees extended threats therefore, applicant lodged F.I.R. No,474/2007 under sections 406/506-B, P.P.C. At police station SITE pending adjudication in the Court of Ist Judicial Magistrate West at Karachi. The complainant was arrested on 5-10-2007 and on the same day on his pointation 1473 rice bags were recovered. The applicant filed an application under section 516-A of Criminal Procedure Code on the same day, complainant Musawar Iqbal also filed an application. The application of the applicant was dismissed against which criminal Revision Application was .Filed bearing No,32/2007 ultimately bags of rice were handed over to the . Applicant under the order of District & Sessions Judge West Karachi. Complainant Musawar Iqbal lodged F.I.R. No,115/2007 against the applicant under section 25 of the Telegraphic Act and with sections 507/504 of P.P.C. Which was finally disposed of under B-class which was not challenged from the other side. The complainant Musawar Iqbal as a counterblast lodged F.I.R. No,141/2007 under sections 420/ 468/471/380/34, P.P.C. The Investigating Officer submitted B-class report which was approved by the Judicial Magistrate. The applicant presented the cheque issued in his favour by the complainant Musawar Iqbal against contractual obligation which was dishonored by the Bank on its presentation on account of insufficient balance, applicant lodged F.I.R. No, 297/2007 under section 489-F at P.S. Pirabad. Complainant Musawar Iqbal lodged F.I.R. No,17/2007 which was also approved by the PDSP as C-class. Investigating Officer submitted report before Deputy District Public Officer for sanction upon which Deputy District Public Officer without mentioning his opinion "directly issued direction to the Investigating Officer to submit challan against the applicant. Complainant Musawar Iqbal to take the revenge concocted F.I.R. No,21/2008 registered at Police Station, Gulshan-e-Maymar which was disposed of in A-class, the complainant had moved an application for the transfer of investigation. On account of various litigations between the parties in some of the F.I.Rs reinvestigation was ordered by the competent authority. In reply to the allegations levelled on behalf of the applicant Mr. Sadat Hassan has made appearance for complainant Musawar Iqbal submitted that the allegations per se are false impugned order does not suffer from any legal infirmity therefore it is not liable to be set aside.
10. It is well settled law that for reaching a final conclusion for cancellation of case Magistrate is required to examine the record in terms of section 173, Cr.P.C. It is an admitted factum that complainant Musawar Iqbal is habitual of filing false cases against the applicant which was disposed of on the basis of report submitted by the Investigating Officer. In the present case a report was submitted to the Deputy District Public Prosecutor for its sanction, the relevant quarter despite endorsing his opinion directly issued direction to the Investigating Officer for submitting challan. Learned Judicial Magistrate without applying its judicial mind proceeded to pass stereotype order without adhering to the provisions of law and examination of the record acted arbitrarily in violation of principle of natural justice.
11. The findings ex-facie show that Judicial Magistrate has not acted independently, failed to exercise its discretion in lawful manner by deciding the matter in a slipshod manner, without giving cogent reasons and taking into consideration the material placed on record. For the disposal of the investigation report learned Judicial Magistrate was required to go reasonably, fairly, justly and for the advancement of the purpose of enactment and assigns reason for making such order under section 24-A of the General Clauses Act.
12. ' In case of Muhammad Dian Sheller v. The State (2007 YLR 2038), learned Single Judge relying on the case of Arif Ali Khan and another v. The State and 6 others (1993 SCM R 187) had come to the conclusion that Court can rectify the injustice in the case when an order was a result of mala fide and on the part of the police and the manner in which the order was obtained from the Magistrate by the police for discharge of the petitioner. This view was also reiterated in case of Muhammad Sharif and 8 others V. The State and another 1997 SCM R 304.
13. ' On behalf of the applicant learned counsel has relied to substantiate his arguments in case of Choudhry Muhammad Sharif v. The State (2006 PCr.LJ 518), the relevant portion is reproduced herein below:- "Ss.561-A, 190 &173-Penal Code (XLV of 1860), Ss. 447, 511 & 506/34-Quashing of order- impugned order passed by the Magistrate on the report submitted by the Investigating Officer under section 173, Cr.P.C, was surely an arbitrary order, as it did not indicate that the Magistrate* while passing the same had considered the material collected during investigation, nor did it contain any reason for disagreeing with the opinion of the Investigating Officer-Direction issued to the Investigating Officer by the Magistrate for submission of challan also was not the requirement of law-If the Investigating Officer had not submitted the report on the proforma specified by the Government, Magistrate could ask him to submit the report on such pro forma, before entertaining it and passing an order-However, the direction for submission of challan by itself would not affect the legality of further proceedings- Even an administrative order if found arbitrary could be quashed by High Court in exercise of its inherent jurisdiction under S.561 A Cr.P.C. -Impugned order was consequently quashed with the direction to the Magistrate to pass a proper order on the report submitted by the Investigating Officer after having considered the same in accordance with law."
14. ' In case of Sofi Abdul Qadir v. The State and others 2000 PCr.LJ Karachi 520 following observations have been made:- "Ss.169, 170 & 173-Police Rules, 1934, Rr.
15. 24.7 & 25.27 Disposal of F.I.R, by Investigating Officer-Investigating Officer has the authority to dispose of a first information report as cancelled after having found the same as false, founded on a mistake of fact or law, a dispute of a civil nature or untraceable, after taking all necessary steps to the best of his endeavour and ability, but the order of cancellation of F.I.R, must be obtained from a Magistrate competent to take cognizance of the offence and to try the case or to send the matter for trial to a superior Court. "
16. ' In case of Habib v. The State (1983 SCM R 370) following preservations have been made:-- "We notice that this contention is based on the assumption that the learned Sessions Judge had interfered with the investigation as he had required the Investigating Officer to submit a challan showing the accused as guilty persons against whom there is sufficient evidence justifying their being setup for trial. But after reading the order in question we are of the view that this assumption is not correct because the learned Sessions Judge had not given any such direction. Moreover the two authorities cited by the petitioner's counsel are not applicable to the facts of the present case.
17. In Khawaja Nazir Ahmed's case the High Court had quashed the proceedings and prohibited further investigation in exercise of its jurisdiction under section 561-A, Cr.P.C, and it was held by the Privy Council, on appeal, that section 561-A, Cr.P.C, did not give any such power to the Court. In the case of Shahnaz Begum v. The Honourable Judges of the High Court of Sindh and Baluchistan a learned Judge of the Sindh High Court had called upon the Inspector-General of Police to produce before him all the investigation papers relating to a sensational murder case in Karachi, which was under investigation by the police, so that he may examine whether the conduct of the investigation had been fair or partial and whether ends of justice required that further investigation be entrusted to any other officer qr Court of law. This action was taken by the High Court under the purported exercise of its powers, under clause (22), of the Letters Patent but on an appeal by Shahnaz Begum who was the suspected accused in that case, this Court held that clause (22) of the Letters Patent gives no such powers to the High Court. In the present case the learned Sessions Judge neither prohibited the investigation nor quashed the same in exercise of his powers under section 561-A, Cr.P.C, nor had he interfered with it suo motu to check whether the investigation was being conducted fairly in the purported exercise of powers under clause (22) of the Letters Patent (which are in fact not conferred on subordinate Court). In the present case, it is the police itself which filed an application before the learned Sessions Judge for cancellation of the case under section 169, Cr.P.C, under a misconception that such an application could be moved under the said section. "
18. In case of Muhammad Ashraf alias Bhuller (2008 YLR 1462 Lahore) it has been emphatically laid down that District Public Prosecutor is not competent to direct Investigating Officer to submit challan in a Court of law as the District Public Prosecutor is assigned duty to submit an opinion which has no legal sanctity for the guilt of the accused and the Court has to charge the accused.
19. The relevant provisions of law keeping in view the evidence available on record regarding the crime alleged and not the District Public Prosecutor.
20. Keeping in view the facts and circumstances of the case I am constrained to hold that the impugned order was passed by the Judicial Magistrate without applying his mind on the basis of the report of District Public Prosecutor, which is not just, capricious not warranted under the law therefore the orders dated 5-11-2008, 12-11-2008 and 11-12-2008 are hereby set aside. Learned Sessions Judge Karachi South is hereby directed to withdraw the case from XHIth Judicial Magistrate South and forward the same to any other Judicial Officer serving under him for reconsideration of the report under section 173 of Criminal Procedure Code in accordance with law.
21. Consequently, Criminal Misc. Application stands allowed in above terms.