' SHAHID ANWAR BAJWA, J.--- Mr. Muharram G. Baloch Advocate is present to assist this Court on behalf of the complainant therefore no further order is required to be passed on this criminal miscellaneous application.
2. Granted subject to all just exceptions.
3. F.I.R. No,153 of 2009 was recorded at Police Station Rizvia Society on 17-7-2009 on complaint of one Dawood Ali Khan son of Mehmood Ali Khan. Complainant stated that two years ago he gave his car to his friend Jaseemul Haq for use and about 5 months ago he demanded back his car.
When persist demand was made Imranul Haq son of Jaseemul Haq sent obscene messages from various mobile numbers to daughter of Complainant. Complainant stated that when he spoke to Jaseemul Haq he apologized. On 17-2-2009 at about 1-30 p.m. Complainant stated that when he was in the office of SITE Association his Wife Rubina Khan called on telephone and she was crying.
She told him that Imranul Haq barged into her house and used abusing language with her. .Imranul Haq was said to have gripped shirt of said Mst. Rubina Khan at below her neck and same got torn.
Imranul Haq is also alleged to have pointed pistol at her and told her that if car is demanded again in future he would -murder her husband. Complainant stated that he immediately informed emergency police at 15 when he reached home his servant Mst. Sughra wife of Mushtaq corroborated entire incident and then he came to Police Station to lodge F.I.R.
4. Investigation was entrusted to A.S.-I. Saleem Mughal who recorded statement of Dawood, Mst.
Rubina Khan, Mst. Sughra and Shahida. He seized torn shirt of Mst. Rubina Khan. However, at this stage investigation was transferred to Mr. Qudrat Sher Lodhi Sub-Inspector of Police Station Landhi.
He prepared report under section 173, Cr.P.C. He recommended that matter be treated as '13' Class.
However, when matter went to higher officers it was approved, as `A' Class and report was accordingly submitted to the Judicial Magistrate.
5. Learned Judicial Magistrate on the report passed order on October 3, 2009. Operative part of the order reads as undei:--- "I, therefore, in obedience to an authority reported in 1997 SCM R 299 disapprove the report under section 173, Cr.P.C. section 173, Cr.P.C. And in exercise of power under section 190(a)(c), Cr.P.C. Take the cognizance of offence under sections 452/354/506-B, P.P.C. And convert this report into challan and register the case. Investigating Officer is directed to supply the list of witnesses, within 3 days and office is directed to issue N.B.W. Against the accused Imranul Haq son of Jasimul Haq."
6. Being aggrieved by the order this application under section 561-A, Cr.P.C. Has been filed.
7. Mr. Raza Hashimi, Advocate for applicant has submitted that a car was leased by complainant Dawood Ahmed Khan from Bank AlFalah and Mr. Dawood authorized said Jaseemul Haq to collect original documents and N.O.C. From the bank. He also referred to letter from Bank Al-Falah stating a mutual agreement between complainant and Jaseemul Haq and where it was declared that Mr. Jaseemul Haq would pay monthly instalments but Mr. Dawood will use and will have right to collect documents on maturity. He submitted that for sometime complainant paid instalments but thereafter since complainant stopped paying instalments Mr. Jaseemul Haq had to pay instalments on.His own. Jaseemul Haq refused to return car to the complainant and therefore concocted this shamefaced story to rope in Jaseemul Haq and his son, Imranul Haq. He extensively referred to report under section 173, Cr.P.C. Which is stated as final report to contend that there is no probability of accused being convicted on the basis of available evidence. He further submitted that learned Judicial Magistrate can accept a report or reject the same but had no authority whatsoever to pass order that she did. Learned counsel relied upon Ch. Muhammad Ashraf v. The State 2006 P.Cr.LJ.518 and Hussain Ahmed v. Mst. Irshad Bibi and others 1997 SCM R 1503.
8. Learned Assistant Prosecutor General read out statement of Mst. Rubina Khan and Mst. Sughra recorded by first Investigating Officer Mr. Saleem Mughal. He further submitted that these statements have not been incorporated in the report under section 173, Cr.P.C. Submitted to Judicial Magistrate and supported order of the Judicial Magistrate. Mr. Muharram G. Baloch learned counsel appearing for complainant stated that it is a premature stage. He submitted that applicant has been fully implicated firstly in the F.I.R. And secondly in the statements of Mst. Rubina Khan and Mst. Sughra Khatodn. Reliance placed in this regard on Gianchand v. The State 1968 SCM R 380, Hyder Ali Bhimji v. The State 2009 PCr.LJ 989, Muhammad Salman and 3 others v. The State 2009 PCr.LJ 881.
9. I have considered contentions of the learned counsel and have also gone through the record as well as the case-law.
10. There are two parts of incident. First part is regarding allegedly giving threats and sending obscene S.M.S. Messages through various Mobile phones. On this aspect Mr. Raza Hashmi submitted that no mobile phone number has been disclosed in any of the statements recorded under section 161, Cr.P.C. Or in the F.I.R. Similarly, Mr. Hashmi's contention regarding car being leased by Bank Al-Falah lend documents, issued by Bank Al-Falah it led credence at least, prima facie, to his contention that car was leased by complainant and it as given to Mr. Jaseemul Haq.
11. However, second part of incident, where Jaseemul Haq does not figure in and applicant Imranul Haq has been alleged to have barged into house of the complainant and is alleged to have torn Mst. Rubina's shirt and threatened her is at a different footing. Complainant witness Mst. Sughra wife of Mushtaq has clearly implicated accused in the statement under section 161, Cr.P.C. So has Mst. Rubina. It does seem how strange that after statements had been recorded by one Investigating Officer then matter was entrusted to another Investigating Officer and who did not make even a single reference of these statement recorded earlier. Neither does report of second Investigating Offider says anything in this regard. The second Investigating Officer says that he called complainant repeatedly and complainant did not come forward and then got statement of his wife recorded. However, it was complainant who dictated it and when he asked his wife to sign it she did not do so but only put her thumb impression on it. All this, might have happened but the question why statements recorded by first Investigating Officer were completely ignored by second Investigating Officer. His report says, to the effect, that he did not leave any stone unturned but also he just did not turn page of his own file. His Herculean efforts would have been commendable had they not been in the face of indolent lethargy.
12. In Ch. Muhammad A shraf's case allegation in F.I.R. Was that petitioner forged documents in respect of amenity plot reserved for a girls school in a housing society and when he was prevented by employees of society he issued them threats. Report was submitted by Magistrate under section 173, Cr.P.C. And the matter was disposed of in `B' class. This order was assailed in this Court through application under section 561-A, Cr.P.C. And it was in this context observed that Magistrate is competent to pass any order on the report submitted by the Investigating Officer and can take cognizance of the offence- or even can order for further investigation in the matter. However, any order means judicious and just order and not arbitrary order without reason and justification.
Magistrate it was held, was required to consider report under section 173, Cr.P.C. in the light of material collected during investigation and then pass order (emphasis added). It was further held that every report under section 173, Cr.P.C. Has to be on pro forma prescribed by the government.
Therefore, if Magistrate is to take cognizance in the matter he should take cognizance directly a report instead of asking for another report or challan. It was further observed that direction for submission of challan by itself will not effect legality of further proceedings. In Hussain Ahmed's case factual background was that F.I.R. Was lodged in which it was alleged that complainant was in her house when her three brothers-in-law came and enquired about her husband and their brother. Thereafter three brothers-in-law went out and after sometime she heard sound of a fire shot. She ran towards road and saw the three brothers/accused duly armed running and she also saw that her husband was lying dead. It was also observed that there was dispute about property.
Three brothers and Hussain Ahmed were arrested. In the investigation it was reported that accused were innocents and on this report M.I.C., Naushahra recorded order that they be released under.
Section 169, Cr.P.C. As requested by Crime Branch, Peshawar. Learned Sessions Judge dismissed criminal revision application holding that it was executive order and therefore was not amenable to revisional jurisdiction. Criminal miscellaneous application was filed in High Court and High Court held that Magistrate concurred in a mechanical manner and order was quashed. Matter was taken to the Honourable Supreme Court. Primary contention was that High Court could not ipterfere with administrative order, Honourable Supreme Court did not agree with the contention and observed that if order is passed by subordinate Court which clearly amounts to abuse of process of Court, High Court is empowered to rectify injustice. Honourable Supreme Court further observed Magistrate has no power in a murder case, to held a trial for the purpose to deciding the question of innocence and once F.I.R. Is registered and witness mentioned therein supports the allegations contained in the F.I.R. Magistrate has no power to hold a trial and decide that the accused is guilty or innocent.
13. On the other hand learned counsel for complainant relied upon Gianchand's case where it was held that stage for deciding guilt or innocence of accused is only after all facts are examined and circumstances revealed during the trial and such stage cannot be urged on an application for quashment of proceedings. In Hyder Ali Bhimji's case it was observed that though proceedings could be quashed at any stage if there is probability of conviction of accused even if material available on record was taken to be gospel truth. In Abdul Haleem's case 1982 SCM R 988 it was held that if there is civil litigation between the same parties against on same matters pending in criminal complaints, the complaint should remain stayed during pendency of civil litigation.
14. In present case applicant is implicated in F.I.R., Mst. Rubina and Mst. Sughra Khatoon have recorded their statements under section 161, Cr.P.C. And have supported what was in the F.I.R.
Inquiry officer was changed and the entire story it appears attempt was made turn to turn into another story. Magistrate is competent to take cognizance of offence, if, as held in 'Ch. Muhammad Ashraf's case upon considering not only report under section 173, Cr.P.C. But also material collected during investigation and that passed order he comes to conclusion that a cognizable offence has been made out. In this case where material had been collected by first Investigating Officer which second Investigating Officer did not even refer to in his report and Magistrate scrutinized all such material (and it is clearly and glaringly reflected in her order) and was, therefore, under the circumstances rightly took cognizance of the offence in exercise of power under section 190(a)(c), Cr.P.C., I, therefore, dismiss this criminal miscellaneous application.
15. Let a copy of this order be sent C.C.P.O., Karachi for looking into matter as to why second inquiry officer has completely ignored statements recorded earlier and to take such departmental action as may be deemed necessary under the circumstances.