1. ' GULZAR AHMED, J.---The applicant is aggrieved by order dated 15-7-2010 passed by the Civil Judge and Judicial Magistrate-H, Mirpurkhas, on summary of Crime No, 51 of 2009, under sections 324, 436, 506(2), 427, 504, 337A(i), H(ii), 147, 148, 149, P.P.C. Of Police Station Phulladhyoon.
2. ' It seems that the I.O. Has submitted the final report under section 173, Cr.P.C. For disposal of the case under "C" Class, to which the learned Magistrate has not agreed on the ground that sufficient evidence was available on the record to connect the accused persons in the crime and required the 1.0 to submit report accordingly.
3. ' Learned Counsel for the applicant contends that under section 190, Cr.P.C. The Judicial Magistrate was required either to agree with the report or to disagree with the same but could not direct the I.O. To resubmit the report. In support of his submission he has relied upon the case Muhammad Farooq Qureshi v. Judicial Magistrate Section 30 (2010 PCr.LJ 261).
4. ' Learned Additional Prosecutor General Sindh on the other hand has pointed out that in fact the learned Judicial Magistrate has taken cognizance of the matter and that the fact of requiring of submission of a report could be ignored. He states that in the recent judgment of the Honourable Supreme Court in the case of Muhammad Ramzan v. Rahib (PLD 2010 Supreme Court 585) wherein observation has been made that there is no difference in the report under section 173 Cr.P.C.
5. Whether be it of challan or a report of cancellation of case and that the Magistrate is empowered under the law to take cognizance of the offence in case the report is of cancelling class.
6. It seems that summary was filed by the 1.0. For cancelling the case under "C" Class upon which the learned Civil Judge and Judicial Magistrate-H, Mirpurkhas, has passed order dated 15-7-2010 noting that A sufficient evidence is available on record to connect the accused nominated in the F.I.R. With the offence and required the I.O. To submit report in compliance accordingly.
7. What I understand from this order is that the learned Magistrate has not accepted the report of police of cancelling the case under "C" Class rather has found that there is material on record to connect the accused nominated in the Crime and apparently seem to have directed the I.O. To submit report/challan. Once the police report under section 173 Cr.P.C. Is submitted to the Magistrate, the Magistrate is required either to agree with the report of the police of cancelling the case or if he does not agree with such report of the police, he can order further investigation of the case by the police and in case no further investigation is required to be conducted the Magistrate should take cognizance of the offence in terms of section '190 Cr.P.C. The Magistrate apparently has no power or authority to make an order directing the police Investigating Officer to file another report under section 173 Cr.P.C. From the one disagreed by him. If he has disagreed, the only option available to him is either to order further investigation or to take cognizance of the offence and nothing else.
8. In such view of the law, the impugned order passed by the learned Civil Judge and Judicial Magistrate-II, Mirpurkhas, cannot be sustained in law and the same is set aside. He is directed to pass appropriate orders on the report submitted by the police in accordance with law.
9. ' This Criminal Miscellaneous application in above terms stands disposed of along with list application.