'SHAHID ANWAR BAJWA, J--- Brief facts giving rise to this Criminal Miscellaneous Application filed under section 561-A, Cr.P.C. Are that one Mst. Shahzadi along with her sons Azizullah and Abbas Afridi went to police and stated that she was living in House No,119, Gali No,7, Sector B, Hijrat colony, Karachi. She stated that on 12-11-2008 at about 3-00 a.m. Some persons knocked at her door. She peeped through the door from inside the house and saw that some persons in civil dress holding weapons were standing outside and were asking her to open the door. She woke up her son Habibullah and told him the situation. By that time persons standing out started pelting stones on the roof of her house and this state of affair continued for two hours. Cement roof slabs of house were damaged in the process. Family members were very frightened and at last when she could not put up with stone pelting anymore she opened the door. Immediately 10 or so persons entered into her house and introduced themselves as police officials and arrested complainant's sons Habibullah and Azizullah. They also arrested her third son Abdul Karim who had come from Rickshaw. The police also took Shahid, about 14 years old, son of Abdul Karim. The 10 persons searched the house for two hours and complainant alleged that they took away some money, some jewelry items, one revolver, one shotgun etc. Messrs Habibullah, Azizullah, Abdul Karim and Shahid were implicated in a false case. She requested that F.I.R. May be registered against them.
S,-I. Muhammad Arshad Afridi present applicant and Inspector Saleemullah Qureshi were accused by her. Report of the complainant was incorporated in words by S.-I. Azhar Iqbal the duty officer, F.I.R. Was registered under sections 475/395, P.P.C.
2. On the previous day i.e, the day before the incident, it was pleaded by the applicant, that F.I.R.
Bearing No,181 of 2008 was lodged at 9-45 hours at Police Station Artillery Maidan Karachi on verbal statement recorded under section 154, Cr.P.C. This. F.I.R. Was lodged under sections 353/186/34, P.P.C. It was stated by the complainant that he along with Saleemullah Khalid Qureshi, SIP Rao Zaheer, A.S.-I. Faisal Jaffery, A.S.-I. Raza, A.S.-I. Qadeer Jilani, A.S.-I. Mazhar Khan, A.S.-I. .Nafees, A.S.-I.
Nasir, A.S.-I. Sarwar and some other officials were busy in Crime No,363 of 2008 under section 396, P.P.C. Of Police Station Preedy for the purpose of investigation, he received information that at House No,3/119, Gali No,1, Hijra Colony several persons who are absconders from different police stations are present and they have huge quantity of arms and ammunition with them. On such information at 0330 hours the present applicant along with other officials reached at noted place and cordoned of the said house. They knocked at the door upon which 6/7 persons went to roof of the house and starting pelting stones on the police party. At about 0530 hours other persons also started pelting stones and this fact continued till 7-00 a.m. Two persons were arrested at the spot whose names are; Azizullah and Abdullah, both sons of Mir Afzal, and other made good their escape whbse names were disclosed by the arrested accused persons.
3. It is stated in the application that after lodgment of F.I.R. By the applicant the police recorded statements under section 161, Cr.P.C. It is also stated that Saifullah son of complainant is an ex- police constable and is involved in numerous cases of bank dacoity, robbery, murder and other heinous crimes.
4. On the F.I.R. Lodged by Mst. Shahzadi police submitted report under section 173, Cr.P.C. On which report summary order dated 11-4-2009 was passed which has been impugned in this Cr.
Miscellaneous Application.
5. Learned counsel for applicant referred to F.I.R. No,181 of 2008 of Artillery Maidan Police Station, F.I.R.
No,363 of 2008 of Preedy Police Station F.I.R. No,403 of 2008 of Gulshan 'Town Police Station, F.I.R.
No,309 of 2008 of Mauripur Police Station, F.I.R. No,114 of 2009 and F.I.R. No,115 of 2009 of North Nazimabad Police Station and F.I.R. No,116 of 2009 of Saddar Town. Learned counsel submitted that learned Judicial Magistrate South at Karachi instead of perusing report filed in "B" class had passed an order in terms of section 173, Cr.P.C. Directing the Investigating Officer to submit Challan - against applicant in Crime 40 of 2009 under section 475/395, P.P.C. Of Police Station Artillery Maidan. It was further submitted that administrative order passed by learned Judicial Magistrate is contrary to material available on the file and the order has been passed without adhering to rule 24.7 of the Police Rules as well as rules framed thereafter under the Police Order, 2002.
6. Learned counsel made the following submission:--
(a) Learned Judicial Magistrate while assessing the report under section 173, Cr.P.C. Does not act as a Criminal. Court and cannot direct submission of Challan, In this connection he relied upon Bahadur and another v. The State and another PLD 1985 SC 62.
(b) When report under section 173, Cr.P.C. Is placed before the Magistrate it is his duty if he is satisfied after due scrutiny of police report to pass a speaking order. Learned counsel submitted that learned Judicial Magistrate failed to pass a speaking order on the report submitted prior to submission of Challan as is evident by bare reading of the diary sheets dated, 3-4-2009, 10-4-2009 and 11-4-2009.
(c) When there is no challan, learned Judicial Magistrate could not have opened his own enquiry as he did and it .Is evident from diary sheet dated 3-4-2009. Learned counsel also relied on the following case-law:--
(i) Dawood Khan and 8 others v. Ahsan-ur-Rehman 2006 M LD 663.
(ii) Ch. Muhammad Ashraf v. The State 2006 P. Cr. L.J .518.
(iii) Amir Abdullah Khan v. Additional Sessions Judge, Mianwali and another 2007 YLR 208.
(iv) Order on Cr. Miscellaneous. Application No,296 of 2008.
7. Learned Assistant Prosecutor General submitted that in spite of lodgment of F.I.R. Police did not act for 2 months. Therefore, complainant approached Ilaqa Magistrate so as to compel the police to register F.I.R. He further submitted that when report is submitted by police whether `A', 'B' or class it is duty of the Magistrate to scrutinize the report. He further submitted that learned Judicial Magistrate scrutinized the matter and looked at statements of Habibullah, Azizullah, Abdullah and Abdul Karim recorded under section 161, Cr.P.C. He further submitted that on report submitted to Illaqa Magistrate, if Magistrate does not agree with police he can after due scrutiny order that cognizance of offence be taken.' He submitted that this was a case where even though the offence was cognizable police was reluctant to register F.I.R. He concluded that as there was sufficient material available before Ilaqa Magistrate, he acted in accordance with the law. Learned Assistant Prosecutor General relied upon Federation of Pakistan and another v.Malik Mumtaz Hussain and 4 others 1997 SCM R 299 and Safdar Ali v. Zafar Iqbal and others 2002 SCM R 63. Exercising his right of reply learned counsel for applicant submitted that under section 190(2), Cr.P.C. Magistrate cannot take cognizance of matter triable by Sessions Court. He further submitted that there is no provision in section 173, Cr.P.C. For associating the complainant in the proceedings before the Magistrate and the learned Judicial Magistrate by associating the complainant in the process committed serious violation of law and procedure. He, therefore, prayed that the impugned order be set aside and the matter be remanded for submission before another Judicial Magistrate for passing order in accordance with the law.
8. I have considered the submissions of the learned counsel and have also gone through the record as well as case-law cited at the Bar.
9. First ground urged by the learned counsel is that when Judicial Magistrate goes through report and passes order under section 173, Cr.P.C., Magistrate does not act as a criminal Court and cannot direct for submission of Challan. In Bahadur's case which is the seminal case in respect of powers of Judicial Magistrate under section 173, Cr.P.C. Mr. Justice Shafiur Rehman while concluding his judgment summarized the position of law in the following words:-- "Though a Magistrate in cancelling a registered criminal case is required to act judicially in that he has to act fairly, justly and honestly, a duty common to the exercise of all State power, there is no lis before him, there is no duty to hear the parties, there is no decision given, no finality or irrevocability attaching to the order. The party is left free to institute a complaint on the same facts, and the same Magistrate does not even after passing such an order render himself functus officio. On the contrary he is quite competent to entertain and deal with such a complaint on material presented to him. These peculiarities establish beyond any doubt that in so concurring with a report submitted under section 173, Cr.P.C. He does not function as a criminal Court. For that reason his order is not amendable to revisional jurisdiction under sections 435 to 439, Cr.P.C."
10. In Dawood Khan's case scope of powers under section 173, Cr.P.C. Was stated in the following words:--- "Broadly speaking, in the circumstances, three possible courses were available to the Magistrate in terms of subsection (3) of section 173, Cr.P.C., the first one obviously to agree with the report and order the cancellation of F.I.R. The second one was to disagree with the report and to order further investigation and third one was to take cognizance under section 190(1)(b) of Cr.P.C. However, the learned Magistrate while adopting any of the afore-said courses, was required to act judicially and in that he was to act fairly, justly and honestly." (underling is mine).
11. In Ch. Muhammad Ashraf's case it was held that power conferred uponMagistrate is administrative nature and order passed by him is also an administrative order yet it has to be just and judicious one and not arbitrary. It was further held that if Magistrate decides to take cognizance for offence then he should take cognizance directly on the report instead of asking of another report or Challan. If investigating officer does not submit report on the pro forma specified by government Magistrate can ask him to submit report on the pro forma before entertaining it for passing order thereon. It was held in this case that order passed by the Magistrate was arbitrary and did not contain reasons for disagreeing with opinion of investigating officer. In Muhammad Aslam's case reported in 2007 M LD 1247 since investigations by two earlier Investigating Officers were not taken into consideration by the Magistrate while disposing of report submitted by the third Investigating Officer, order of Magistrate was set aside. In Soofi Abdul Qadir v. The State and others 2000 PCr.LJ 520 Mr. Justice Rana Bhagwan Das writing as Judge of this Court (as his lordship then was) for a Division Bench held that reading of section 173, Cr.P.C. Indicated that Investigating Officer had authority to dispose of F.I.R. As cancelled class when he arrives at the conclusion that same is false or founded on a mistake of fact or law, a dispute of civil nature or untraceable after taking all necessary steps to the best of his endeavour and ability, but 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. Thereafter his lordship observed that since offence alleged in the case included offence under section 302 of Pakistan Penal Code and since offence was triable by a Court of Session, Magistrate was not vested with jurisdiction to take cognizance of said offence and he while canceling the F.I.R. On police report had acted without jurisdiction and the order passed by him was coram non judice. In Safdar Ali's case facts of case were that F.I.R. Was lodged by Safdar Ali, inter alia, under section 302, P.P.C. After completion of investigation an application was moved for discharge of accused which application was turned down by Judicial Magistrate. Criminal revision application was filed before Additional Sessions Judge which was dismissed. Thereafter writ petition was filed which was also dismissed. Thereafter respondent preferred application under section 265-K, Cr.P.C. Which was dismissed by Additional Sessions Judge. Such order was assailed before the High Court, however, High Court remanded case to the trial Court for its disposal. What prevailed upon the High Court was that order passed by Judicial Magistrate whereby accused were discharged could not be said to be a speaking order. Honourable Supreme Court observed as under:-- "----It is well settled by now that the Magistrate can take cognizance of an offence even in case of negative report submitted by police that accusation is baseless and no case is made out against the delinquents . There is no cavil to the proposition that the accused placed in column No,2 of Challan cannot be summoned by the learned trial Court to face the trial and there is no legal bar whatsoever that at first instance the evidence should be recorded to ascertain as to whether the prima facie case is made out against them. In this regard reference can be made to case title Waqarul Hqq v. State 1988 SCM R 1428. Malik Rabnawaz Noon learned Advocate Supreme Court could not mention any provision in Cr.P.C. In support of his contention that evidence should have been recorded prior to summoning the respondents whose names were admittedly placed in column No,2 of the Challan. In this regard we are fortified by the dictum as laid down in case titled Falak Sher v. State PLD 1967 SC 425 which has been followed in various judgments passed by this Court and relevant portion whereof is reproduced herein below for ready reference:-- `In our opinion, the action of the Magistrate in issuing summons to these appellants despite the fact that the Investigating Officer in his report under section 173, Cr.P.C. Placed their names in column No,2, was clearly correct. Section 173, Cr.P.C. Is in these terms:-- `173(1). Every investigation under this Chapter shall be completed without unnecessary delay, and, as soon as it is completed, the officer Incharge of the Police Station shall-
(a) Forward to a Magistrate empowered to take cognizance of the offence on a police report, in the form prescribed by the Provincial Government, setting forth the names of the parties, the nature of the information and the names of the persons who appear to be acquainted with the circumstances of the case, and stating whether the accused (if arrested) has been forwarded in custody or has been released on his bond, and, if so, whether with or without sureties, and
(b) communicate, in such manner as may be prescribed by the Provincial Government, the action taken by him to the person, if any, by whom the information relating to the commission of the offence was first given.
(2) Where a superior officer of police has been appointed under section 158, the report shall, in any cases in which the Provincial Government by general or special order so directs, be submitted through that officer, and he may, pending the orders of the Magistrate, direct the officer Incharge of the Police Station to make further investigation.
(3) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit.
(4) ..
'Under subsection (1), when the investigation is completed the police officer is required to forward to the Magistrate a report in the prescribed form. Under subsection (3) when it appears from the report forwarded under section 1, that the accused has been released on his bond the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit'. It is clear that under section 3 a Magistrate may agree or may not agree with the police report. It, however, does not say what Step the Magistrate should take if he disagrees with the police report. If the Magistrate wants to start a proceedings against the accused, he must act under section 190 of the Code of Criminal Procedure.
'Section 190 provides that a Magistrate may take cognizance of any offence (a) upon a complaint
(b) upon a police report, or (c) upon information received by himself.
'Now, the question is, if he disagrees with the report, can he take action under clause (b) against those whose names have been placed under column 2 of the Challan. As already pointed out, the Magistrate is not bound by the report submitted by the police under section 173. When the said report is received by the Magistrate, the Magistrate on the report itself may not agree with the conclusions reached by the Investigating Officer. There is nothing in section 190 to prevent a Magistrate from taking cognizance of the case under clause (b) in spite of the police report. This Court in the case of Sardar Ali and others v. The State P.S.L.A. No,66 of 1966, while dealing with a similar question, observed:-- "Reference to section 173, Cr.P.C., which prescribes the details that must go into a police report of the relevant kind shows that the requirements are of a factual nature, so that, irrespective of the Investigating Officer's opinion, a Magistrate takes cognizance on a police report, when he proceeds against a person whose name is mentioned therein as one accused of the offence reported upon"
12. Reading of the above case-law indicated legal position to be as under:-
(i) A Magistrate while scrutinizing report under section 173, Cr.P.C, and passing order thereon does not act as Court of law and his order is only an administrative order. However it must be a speaking order giving valid reasons for his conclusions.
(ii) Fact that his order is administrative does not mean that he can act arbitrarily. It may not be a judicial order but it must be a judicious order.
(iii) Magistrate has power to disagree with the conclusion recorded in the police report.
(iv) If he disagrees with the report he has the option of ordering further inquiry.
(v) Another option available to the Magistrate is to take cognizance under section 190, Cr.P.C.
(vi) The Magistrate cannot order cancellation of an F.I.R, which is in respect of an offence triable by a Court of session.
(vii) The Magistrate must consider record of investigations by Investigating Officers who conducted investigation but report cannot be submitted by them but by another investigation officer.
13. Thus the Magistrate can avail any of three possible courses available to him. To the first (one obvious) course accept the report and order for cancellation of F.I.R, or send up for trial; second one to disagree with report and to order for further investigation and; third one to take cognizance under section 190(l)(b), Cr.P.C. Whatever may be order of the Judicial Magistrate, it must be a speaking order giving cogent reason of whatever conclusion he had arrived at.
14. Obviously, if Magistrate decides to take cognizance of offence under section 190, Cr.P.C, he can issue direction to police to submit challan or to take steps so that wheel of law of trial is set into motion before the Court competent to try offence.
15. In this case Magistrate has given the following reasons:-
(i) After hearing of both sides and the perusal of contents of F.I.R, of this case, it is clear that the names of P.Ws./eye-witnesses, who are natural witnesses of the incident/occurrence, have been given in F.I.R, of this case namely Habibullah, Azizullah, Abdullah and Abdul Karim all sons of Mir Afzal Khan and these witnesses have fully supported to the version of the complainant/their Mother Mst. Shaahzadi Bibi W/o Mir Afzal Khan in their statements recorded by Investigating Officer under section 161, Cr.P.C, during investigation. Investigating Officer also recorded the statements under section 161, Cr.P.C, of other P.Ws./Neighbours of the complainant namely Amir Nawaz, Bukhtiar Khattak and Ajiz Ali Mirza who have also supported to the version of the complainant regarding incident of this case. Law gives prime importance to the evidence of P.Ws./eye-witnesses of the incident mentioned in F.I.R., but police disposed of this case under B-Class considering the evidence of D.Ws/Police officials as police officials are involved in this case as accused persons.
(ii) In view of above statements of P.Ws and investigation of police, it appears that police incorrectly approved this case for disposal under cancelled 'B' class ignoring the evidence of P.Ws, mentioned in F.I.R, and other P.Ws./Mohallah peoples stated above gathered by police under section 161, Cr.P.C. Hence, disposal of this case under B-Class by the side of police is not approved in above circumstances/ evidence. If the son of complainant namely Saifullah was wanted to police in any case/crime it was the duty of police to take action against him as per law instead of his all family members which is not permissible in law. Therefore, the application of the complainant filed on 3-4-2009 under section 173, Cr.P.C, for submission of Challan is allowed as prayed and Investing Officer above named is directed to submit Challan against accused persons of this case as per law within one weeks of the receipt of this order."
16. One may or may not agree with reasons given by the Judicial Magistrate but I do not think that this is not a speaking order. Names of witnesses have been given in the F.I.R. They have supported version of complainant regarding the incident: Police Officials are allegedly to be involved in this case: For two months after lodgment of F.I.R, police did not act. Complainant had to approach the Judicial Magistrate for getting the F.I.R, lodged. Police officers are alleged to have committed cognizable offence in this case. Therefore, in any case version of police should have been taken, at least, with a pinch of salt.
17. Leamed counsel for applicant referred to diary sheet of Court for 3-4-2009, 10-4-2009 and 11-4- 2009. Same is in following words :- "3-4-2009.
'Mr. Chanzeb Akbar Advocate is present and filed power on complainant and also filed application under section 493, Cr.P.C, and also filed application under section 173, Cr.P.C. Order passed on it.
1. Call report from Investing Officer and call him in person. Put off to 10-4-2009.
10-4-2009.
'Matter called. Complainant Mst. Shahzadi Bibi and her Advocate called absent without any intimation. Report called from Investigating Officer along with his appearance in person on her application under section 173, Cr.P.C, for submission of Challan not received from Investing Officer of Police Station Artillery Maidan nor Investing Officer appeared himself. However Investing Officer sent police investigation paper of this case along with letter of DSP legal dated 19-3-2009 for passing of summary order and approval as this case. Disposed by police under B Class. It is 12-30 p.m. (Friday) put off to 11-4-2009 for consideration of police paper and passing of summary order as per law with direction to complainant and her Advocate to be present without fail giving chance of hearing to complainant side who filed above application praying for direction to Investing Officer for submission of Challan who failed to submit within stipulated period. HC Wahid Bux B. No,661 of Police Station A/Maidan Karachi to send Investigating Officer ASIP Ajmal Awan on 11-4-2009 at 9-00 a.m.
11-4-2009.
'Matter called complainant and her Advocate are called present. Investigating Officer Asip Ajmal Awan called present and submitted report in compliance. The order of this Court dated 3-4-2009 passed on the application of complainant under section 173, Cr.P.C. Heard argument of Advocate for complainant and Investigating Officer above named ASIO perused the police investigation paper of this case sent by SSP Investigation Zone II Karachi (S) through DSP legal for approval as police disposed of this case under class. Summary orderpassed and announced in open Court.
Application under section 173, Cr.P.C, of complainant dated 3-4-2009 for submission of challan against accused is allowed as prayed and disposal of this case by police under B Class is not approved with direction to Investing Officer to submit Challan against accused persons as per law within one week of the receipt 'of the above said order put off to 20-4-2009 for challan, office is directed to return police investigation paper to Investigating Officer for compliance along with copy of above summary order."
18. On 3-4-2009 only Vakalatnama was produced on behalf of the complainant and Court called for report of investigating officer and called him to appear in person. On 10-4-2009 it is recorded in diary sheet that Investigating Officer shall place investigation papers along with letter of DSP (Legal) for passing summary order and approval of case as B class. Judicial Magistrate adjourned the case to 11-4-2009 for consideration of police papers and passing of summary order. Judicial Magistrate deemed it appropriate to hear complainant's Advocate so as to, in the peculiar circumstances that accused are police officials, arrive at a more judicious order. On 11-4-2009 Court heard counsel and Investigating Officer, perused police investigation papers and ordered that Challan be submitted in Court.
19. Although, Judicial Magistrate is under section 173, Cr.P.C. Primarily required to scrutinize police record and since he does not act as a Court, he is not required to hear complainant. However, if on his own he hears a complainant or his counsel who is present in Court or who otherwise requests to be heard (and one must not lose track of the fact that in this case accusations were against police official) no prejudice should deem to have been caused to the police in such pecuniary/ exceptional circumstances. It has not been demonstrated as to what prejudice has been caused in this case by such hearing. There were no police papers or other documents filed by complainant so as to at all assist the Court in scrutinizing police papers or to attempt to tangentially veer the Court. This, therefore, cannot be said to be a situation where Judicial Magistrate had opened his own enquiry.
20. For the above reasons this criminal miscellaneous application is dismissed along with listed applications.