' ATTAULLAH KHAN, J.---Noor Muhammad Khan petitioner has filed this petition under section 561-A, Cr.P.C. Against the order dated 21-12-2009 passed by the learned Additional Sessions Judge-III Bannu whereby his revision petition filed against the order dated 16-11-2009 passed by the learned Judicial.Magistrate-VI Bannu was dismissed and case F.I.R. No,256 dated 4-6-2008 under sections 324/148/149, P.P.C. Was cancelled.
2. Brief facts of the case are that an F.I.R. Was lodged by the petitioner bearing No,256 dated 4-6- 2008 under sections 324/ 148/149, P.P.C. In Police Station Cantt. Bannu against the private respondents. During investigation of the said case, A the local police submitted report under section 173, Cr.P.C. To the Magistrate concerned seeking cancellation of the said case against the respondents and also initiating proceedings against the petitioner under section 182, P.P.C. The said report of the police was accepted by the Magistrate vide order dated 16-11-2009 and the case was cancelled. This cancellation order was assailed in a revision petition and vide order dated 21-12- 2009 passed by the Additional Sessions Judge-III Bannu, it was dismissed. Hence this petition.
3. Learned counsel for the petitioner argued that the report under section 173, Cr.P.C. Was not submitted by the S.H.O., therefore, it was bad in the eyes of law and could not be acted upon by the Magistrate. He further argued that the allegations contained in F.I.R. No,256 ibid could only be resolved after recording of evidence and, therefore, the impugned orders of the Courts below are not sustainable.
4. On the other hand, learned counsel for the respondents submitted that there is no need of submitting report by the S.H.O. It was urged that the Magistrate has passed a speaking order by taking into account all aspects of the case and, therefore, his impugned order is correct and legal.
The third submission was that the evidence could only be recorded during trial and during the stage of proceedings under section 173, Cr.P.C. When an opinion is formed by the Investigating Officer and the Magistrate, there is no need to record evidence of the parties. The Magistrate has to take into consideration the available record of the case tentatively. The next submission was that the petitioner has availed the alternate remedy by filing a private complaint which has been dismissed by the Court of learned Additional Sessions Judge on 23-12-2010 but this fact has been concealed by the petitioner.
5. I have carefully examined the record of the case and anxiously considered the arguments of the learned counsel for the parties.
6. I would first take the argument regarding the non-submission of the Challan to the Court through the S.H.O. I have perused the provisions of section 173, Cr.P.C. Which provides for submission of result of complete investigation before the competent Court of law. For the sake of ready reference, I would like to reproduce the provisions of section 173 which reads as under:-- "173: Report of Police Officer:--
(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 through the Public Prosecutor;
(2) Forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the Provincial Government, setting forth 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
(3) 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".
7. The above provision of law reveals that the report of enquiry is to be submitted by the Incharge of the Police Station through the Public Prosecutor. The word "Police Officer" used in the Police Order, 2002 has been defined as Member of the C police who is subject to this Order. This definition is given in section 2(xviii). Furthermore, under this Order, the function of the Police Department has been reorganized which include the creation of Investigation Department. So under the reorganized system, in pursuance to the Police Order, 2002, the S.H.O. Is replaced by other Police Officers belonging to the Investigating Department. In this case, as would be seen from the report, it was prepared and submitted by one Ayub Khan Sub Inspector, Incharge Investigation and thus the case is in accordance with the Police Order, 2002 and cannot be objected.
8. Moreover, this report is submitted through Public Prosecutor. Again, the provision of law has been complied with and so the first objection of the counsel for C petitioner is ruled out. As far as the second objection regarding non-recording of evidence is concerned, it is not convincing for the reason that the matter pertains to "police report under section 173, Cr.P.C. Relating to a very initial stage. The evidence is always recorded at the trial stage and not at the stage of submission of report under section 173, Cr.P.C. This section of law deals with reports containing facts of the case and findings of the Investigating Officer. Recording of evidence is not required legally. What is necessary under section 173, Cr.P.C. Has been given in the report and the case in hand after examination of all facts and legal aspects of the case has been prepared. So the question of providing opportunity to either of the party to produce evidence is uncalled for.
9. I have gone through the order of the Magistrate recorded on 16-11-2009. He has given detailed reasons for concurring with the police report. It is a speaking order. The views of the Superior Courts are D that the Magistrate while ordering cancellation of a case is required to judiciously examine report submitted under section 173, Cr.P.C. And then to pass a detailed judgment. In the case reported in PLD 1985 SC 68 it has been observed that:-- "A Magistrate even while con- curring in cancellation of a case is required to judiciously examine the report submitted under section 173, Cr.P.C. AIR 1968 SC 117."
10. The Magistrate is required to pass an order after considering the materials before him.
Reference may be given to 2009 MLD 56 wherein it has been held that:-- "So far present case is concerned, prima facie, it appears that entire materials collected by the Investigating Officer of the case is considered by him and then he has passed the order on merits and disclosed all merits and demerits of the case and pinpoint that on the place of incident some bullet marks on the wall of the complainant house were seen and empties were recovered but same were not produced before him by the Investigating Officer and in a memo of place of incident it has not been shown that empties were sealed and further that Habib Shah produced his pistol to Investigating Officer of the case but same was not taken in possession and empties were even not sent to the Ballistic Expert in order to ascertain from which type of weapon same were said to have been fired. Looking to the afore-said facts he ordered for cancellation of the F.I.R."
11. The other aspect of the case is that Judge, Bannu and its photo copies produced by the counsel for respondents discloses that on the directions of the learned Sessions Judge, an inquiry was held by the Magistrate and after holding some evidence, its report was submitted on 21-1-2010. The learned Sessions Judge vide his detailed order dated 23-2-2010 held that no prima facie case is made out and resultantly dismissed the complaint. So, in this way, the petitioner has availed the alternate remedy by way of filing a private complaint which stands dismissed. The submission of private complaint was an alternate remedy available to the petitioner which he availed and he rightly availed the same keeping in view the principles laid down in 2000 PCr.LJ 31 wherein it has been held that there is no bar for a petitioner to file a private complaint on the same facts before the same Court which is to be decided in judicial proceedings. The availment of the said remedy has been concealed.
13(sic). Even now a door is open for the petitioner to challenge the dismissal of his complaint. The petitioner seems in hurry to involve the respondents in various criminal litigations, i.e, filing private complaint as well as petition for quashment.
14. In my opinion, the remedies available to the petitioner stands exhausted and to intertain this petition would be an exercise in futility as the matter has attained finality and now it is a past and closed chapter.
15. Consequently, I find no substance in this petition which is accordingly dismissed.