1. IMAM BUX BALOCH, J.---Through this criminal revision application, the applicants have assailed the order dated 24-9-2007, passed by the learned IV-Civil Judge and Judicial Magistrate, Shikarpur, under section 173, Cr.P.C., directing the Investigating Officer to submit the challan before the competent Court of law. The applicants submitted that the order passed under section 173, Cr.P.C. may be quashed.
2. ' In brief the prosecution story is that Manzoor Ali Sirmastani Balouch lodged F.I.R. No,147 of 2007 at Police Station New Foujdari, Shikarpur, under sections 364, 148, 149, 452, P.P.C., stating therein that he along with his family members resides at Baloch Colony, Rustam Chowk, Shikarpur. His elder brother Abdul Ghaffar contracted marriage with Mst. Seema and from that wedlock five issues had born. In the month of January at about 1-00 a.m., Abdul Ghaffar wokeup and found that his wife Mst. Seema was not available and he went to trace his wife and he found his wife in objectionable condition with Ghulam Muhammad. In that circumstances, Abdul Ghaffar divorced his wife Mst.
3. Seema, which annoyed brothers of Mst. Seema and they issued threats to kill complainant of the case. On 8-6-2007, at 11-00 a.m., when complainant was available in' his house along with his brother Abdul Ghaffar, father Muhammad Nawaz, Mst. Zareena, Mst. Aisha, where accused persons, namely, Allahdad, Abdul Wahab, Abdul Rehman, Ali Hassan, Abdul Raheem, Fazal Rehman, Rafiullah, Imdad Ali, all sons of . Ali Bux, all residents of Sukkur Society, and Nisrullah son of Rasheedullah Memon, forcibly entered in the house of complainant armed with guns and they started beating to complainant party and forcibly kidnapped Abdul Ghaffar at the gunpoint and put him in a Datsun, which was available outside the house.
4. ' During investigation Investigating Officer recorded the statements of eye-witnesses mentioned in the F.I.R. and apart from that the Investigating Officer recorded the statements of witnesses, namely, Kamran, Umar Farooque, Abdul Khalique, Muhammad Tufail, and Ghulam Hussain in defence of the applicants/accused. After completing the investigation the Investigating Officer recommended the case as cancelled "B" class and after obtaining the permission from competent authority submitted a report under section 173, Cr.P.C. before the learned IV-Civil Judge and Judicial Magistrate, Shikarpur. The learned Magistrate after perusing the summary and material collecting during investigation passed the impugned order and directed the Investigating Officer to submit challan.
5. ' The learned counsel for the applicants contended that the learned Magistrate has not applied his judicial mind while passing order under section 173, Cr.P.C. He further submitted that an F.I.R. bearing Crime No,86 of 2007, under section 17(3) of. the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 was lodged by the applicants against the complainant party. The learned counsel for the applicants further contended that the learned Magistrate has not given reason for disagreement with the Investigating Officer. He further contended that the applicants have not been heard and in the circumstances, the learned counsel contended that the order of the learned Magistrate may be quashed. The learned counsel has relied upon the case-law Miraj Khan v. Gul Ahmed (2000 SCM R 122), Soofi Abdul. Qadir v. The State (2000 PCr.LJ 520), Hussain Ahmad v. Irshad Bibi (1997 SCM R 1503), Muhammad Haseenuddin v. The State (1987 PCr.LJ 2096) and State v. Ashiq Ali Bhutto (1993 SCM R 523).
6. ' On the other hand, Miss Rubina Dhamrah, learned State counsel, strongly supported the impugned order. She contended that the learned Magistrate has powers under section 173, Cr.P.C. to agree or disagree with the recommendations of the Investigating Officer. She further contended that the learned Magistrate has rightly passed orders directing the Investigating Officer to submit challan in the competent Court of Law: ' I have considered the submissions advanced at the bar and have perused the material available on record. Section 173, Cr.P.C. 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] (a)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 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.
7. [Provided that, where investigation is not completed within a period of fourteen days from the date of recording of the first information report under section 154, the officer incharge of the police station shall, within three days of the expiration of such forward to the Magistrate through the Public Prosecutor, an interim report in the form prescribe by the Provincial Government stating therein the result of the investigation. made until then and the Court shall commence the trial on the basis of such interim report unless, for reasons to be recorded, the Court decides that the trial should not be so commenced.] (2)Where as 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.
8. (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 lie thinks fit.
9. (4)A copy of any report forwarded under this section shall, on application, be furnished to the accused before the commencement of the inquiry or trial: Provided that the same shall be paid for unless the Magistrate for some special reason thinks fit to furnish it free of cost.
10. (5)Where the officer incharge of a police station forwards a report under subsection (1), he shall along with the report produce the witnesses in the case, except the public servants, and the Magistrate shall bind such witnesses for appearance before him or some other Conn on the date fixed for trial." '
11. ' During investigation, the Investigating Officer has power under sections 169, 170 and 173; Cr.P.C. For ready reference, sections 169 and 170, Cr.P.C. are reproduced hereunder:-- "169. Release of accused when evidence deficient.---If, upon an investigation under this Chapter, it appears to the officer incharge of the police station, or to the police-officer making the investigation that there is no sufficient evidence or reasonable ground or suspicion to justify the forwarding of the accused to a Magistrate, such officer shall, if such person is in custody, release him on his executing a bond, with or without sureties, as such officer may direct, to appear, If and when so required, before a Magistrate empowered to take cognizance of the offence on a police- report and to try the accused or [send] him for trial.
170. Case to be sent to Magistrate when evidence is sufficient.---(1) If, upon an investigation under this Chapter, it appears to the officer incharge of the police station that there is sufficient evidence or reasonable ground as aforesaid, such officer shall forward the accused under custody to a Magistrate empowered to take cognizance of the offence upon a police-report and to try the accused or [send] him for trial or, if the offence is bailable and the accused is able to give security, shall take security from him for his appearance before such Magistrate on a day fixed and for his attendance from day to day before such Magistrate until otherwise directed.
(2) When the officer incharge of police-station forwards an accused person to a Magistrate Or takes security for his appearance before such Magistrate under this section, he shall send to such Magistrate any weapon or other article which it may be necessary to produce before him, and shall require the complainant (if any) and so many of the persons who appear to such officer to be acquainted with the circumstances of the case as he may think necessary to execute a bond to appear before the Magistrate as thereby directed and prosecute or give evidence (as the case may be) in the matter of the charge against the accused.
12. [(3) If the Court of District Magistrate or Sub-Divisional Magistrate is mentioned in the bond, such Court shall be held to include any Court to which such Magistrate may refer the cases for inquiry or trial, provided reasonable notice of such reference is given to such complainant or persons.] (4)x x xxxx
(5) The officer in whose presence the bond is executed shall deliver a copy thereof to one of the persons who executed it, and shall then send to the Magistrate the original with his report."
13. ' In the case of Safdar Ali v. Zafar Iqbal (2002 SCM R 63) following observations were recorded by the Hon'ble apex Court:-- "8. It is well-entrenched legal principle that "when a Magistrate takes cognizance under section 190(1)(b) on a police report he takes cognizance of the offence and not merely of a particular person charged in the report as an offender. He can, therefore, issue process against other persons who also appear to him on the basis of the report and other material placed before him when he has taken cognizance of the case, to be concerned in the commission of the offence when lie does so he does not act under clause (c), therefore, section 191 is not applicable." (Mehrab v. Emperor (5.B) 26 Cr.LJ 181, Lal Bihari Singh v. Emperor 31 Cr.LJ 55). On the touchstone of criterion as discussed hereinabove we are of the considered view that the order passed by learned Illaqa Magistrate dated 8-11-1997 is neither perverse nor capricious but on the other hand it has been passed after having an in-depth scrutiny of the entire record and thus, it cannot be termed as non-speaking as held by the learned High Court in the impugned judgment and being unexceptionable it hardly calls for any interference. We are inclined to convert this petition into appeal and accordingly while allowing the same the impugned order, dated 11-5-2001 is hereby set aside being violative of the relevant provisions of law and consequently order, dated 8-11-1997 is restored. The learned trial Court is directed to proceed with the case in accordance with law."
14. ' In the case of Falak Sher v. The State (PLD 1967 SC 425), the Hon'ble Supreme Court held "In our opinion, the action of the Magistrate in issuing summons to the appellants despite the fact that the Investigating Officer in his report under section 173, Cr.P.C. placed their names in column 2, as clearly correct."
15. ' In the case of Muhammad Akbar v. The State (1972 SCM R 335), the Hon'ble Supreme Court has held as under:-- "Even on the first report alleged to have been submitted under section 173, Cr.P.C., the Magistrate could, irrespective of the opinion of the Investigating Officer to the contrary; take cognizance , if upon the materials before him he found that a prima facie case was made out against the accused persons. After all the police is not the final arbiter of a complaint lodged with it. It is the Court that finally determine upon the police report whether it should take cognizance or not in accordance with the provisions of section 190(1)(b) of the Code of Criminal Procedure."
16. ' An identical issue remained in subject in case titled in the case of Khushbakhtur Rehman v. The State (1985 SCM R 1314), wherein the Hon'ble apex Court quoted as under:-- "Before us, too, learned counsel for the petitioner reiterated the contentions that application of mind being a prerequisite of taking cognizance, the Magistrate, who had acted mechanically and without application of mind in sending the case to the Court of Session, could not be said to have legally taken cognizance of the case. In ihis connection, he urged that the case against the petitioners, who had been found innocent by the police could not have been sent along with that of the other accused without express reasons. The arguments addressed by learned counsel in fact showed that he laboured under the impression that cognizance is to be taken of an offender, but that is not the law. Under section 190(3), Cr.P.C. the Magistrate takes cognizance of the case as a whole and not qua only some of the accused found by the police to be implicated in the case.
17. Cognizance can be taken even if the offenders be unknown. On taking cognizance of the offence the Court acquires jurisdiction over all the persons involved and not only over persons against whom the challan is submitted. The. word "cognizance" is a term of art implying application of mind to the facts of a case in order to determine whether the facts disclosed constituted an offence triable. Application of mind for the purpose of cognizance Under sections 190(1) and (3) read with section 193, Cr.P.C., is for the purpose of determining. whether the facts disclosed the commission of an offence triable exclusively by the Court of Session, in which case- the Magistrate is bound to send the case to the Court of Session for trial."
18. 'The arguments of learned counsel that the learned Magistrate has not applied his judicial mind is not correct. Under section 173, Cr.P.C. the learned Magistrate is not duty bound to act on the ipse dixit of police. The learned Magistrate after scrutinizing the material available in the report submitted under section 173, Cr.P.C. by the Investigating Officer has come to the conclusion that the prima facie case for submission of challan is made out, hence he has directed the Investigating Officer to submit the challan.
19. ' In the case of Soofi Abdul Qadir (supra) a Division Bench of this Court has held as under:-- "9. Having held above, we proceed to examine whether learned S.D.M. was competent to take cognizance of the offence in relation to which he passed an order on the summary submitted by Superintendent of Police for cancellation of the F.I.R. for want of evidence or otherwise.. Plain answer to this question would be in negative for according to Schedule II to the Criminal Procedure Code, the offences referred to above are ordinarily triable by the Court of Session and not by a _Magistrate of the First Class. The position in law is very clearly amplified after the separation of the Judiciary from the Executive with effect from 20th March, 1996 when .Legal Reforms Ordinance XL of 1996 was promulgated which assumed the status of Legal Reforms Act, 1997 with effect from 3rd July, 1997. Now section 28 of the Criminal Procedure Code which enumerates the categories of Magistrates stipulates that offences falling in Chapters VIII, X, XIII and XIV of Pakistan Penal Code, except offences specified in section 153-A and section 281 of the said Code shall be tried by the Executive Magistrate. Admittedly offences mentioned in the F.I.R framing the subject-matter of both the 'petitions do not fall under Chapters VIII, X, XIII and XIV of the Pakistan Penal Code which have now been assigned to the jurisdiction of Executive Magistrates after the separation of Judiciary from Executive, and thus, it can be safely concluded that learned S.D.M. was not competent to take cognizance of such offences and to try the accused or to send him for trial before a competent court ,f law."
20. ' In the case of Hussain Ahmad v. Mst. Irshad Bib (supra), the Hon'ble Supreme Court has held as under:-- "In the above first case this Court has held that though sections . 435 to 439, Cr.P.C., cannot be pressed into service by a High Court in a case in which a Magistrate concurs with the report of an Investigating Officer under section 173, Cr.P.C., but the High Court can invoke aid of section 561-A; Cr.P.C."
21. ' In the case of Miraj Khan (supra), following observations were recorded:-- "The main consideration to be kept in view would be whether the continuance of the proceedings before the trial forum would be futile exercise, wastage of time and abuse of process of Court or not. If on the basis of facts admitted and patent on the record no offence can be made out then it would amount to abuse of process of law to allow the prosecution to continue with the trial."
22. 'After going through the citations of Hon'ble apex. Court and of this Court and following the dictum laid down in the case of Safdar Ali v. Zafar Iqbal (supra), I am of the considered view that the order passed by the learned IV-Civil Judge and Judicial Magistrate, Shikarpur, dated 24-9-2007 is neither perverse, nor capricious, but on the other hand it has been passed after having an in-depth scrutiny of entire record and thus it cannot:be termed as a non-speaking order, hence does not call for any interference by this Court.
23. ' For the foregoing reasons, this criminal miscellaneous application is hereby dismissed.