1. SHAHID ANWAR BAJWA, J.---F.I.R. No, 83 of 2010 was recorded at Police Station, Padidan, District Naushahro Feroze for an incident alleged to have taken place on 23-4-2010. Complainant was one Mst. Gulshan daughter of Muhammad Iqbal. The complaint was registered after an order had been passed by the Additional Sessions Judge, Naushahro Feroze on 14-6-2010.
2. ' Brief facts of the incident are that it was alleged by the complainant that during the fateful night at about 3-30 a.m. present applicants entered into house of the complainant and robbed them, of various valuables. After investigation police submitted report under section 173, Cr.P.C. It recommended that F.I.R. be disposed of in 'B' Class. The matter was considered by the Judicial Magistrate and vide order dated 4-8-2010 the learned Ist Judicial Magistrate, Naushahro Feroze did not agree with the police report and directed the police to submit the charge sheet against the accused persons. This criminal miscellaneous application has been filed to challenge an impugn order dated 4-8-2010 passed by the Ist Judicial Magistrate.
3. ' Learned counsel for the applicants submitted that there is a dispute between the complainant and the present applicants because the complainant is a tenant of the present applicants and an application for eviction is pending before a Rent Controller. He further submitted that the complainant had gone to the police with unclean hands because she did not disclose pendency of that litigation. He submitted that as it is stated in the F.I.R. that Mobile Phone was snatched and then it is stated that call was made from Mobile, how is it possible that a call was made from a Mobile which had already been snatched. Learned counsel further submitted that police has properly, after investigation, declared it as a false and baseless case. Lastly learned counsel submitted that two witnesses were called on telephone who resided 15 KMs away and therefore were not natural witnesses. Learned counsel relied upon Ch. Muhammad Ashraf v. The State (2006 PCr.LJ 518), Dawood Khan and 8 others v. Ahsan-ur-Rehman and 2. others (2006 M LD 663), Farooq Sumar and others v. The State and others (2004 PCr.LJ 1023), Muhammad Zaffar Saleem v. State (2009 YLR 489), Soofi Abdul Qadir v. The State and others (2000 PCr.LJ 520) and Mst. Eram and 4 others v. Muhammad Adnan Choudhry and another (2010 YLR 1580).
4. ' Learned counsel for the complainant submitted that the complainant is not a tenant of the applicants and the applicants have forged and managed documents to deprive of the complainant of her property. Regarding a Mobile Phone learned counsel stated that it is stated in the F.I.R. that a Mobile Phone snatched was phone of brother of the complainant and the complainant made subsequent calls from her mobile phone number. Learned counsel referred to Paragraph 10 of the application where it is stated that 30 persons were produced before the Magistrate by the Investigation Officer which were independent witnesses residing within the same Mohalla and were aware of the facts. Learned counsel submitted that there is no provision in law for production of any witness before the Magistrate who is considering the , report under section 173; Cr.P.C. because the Magistrate acts in an administrative capacity and not in judicial capacity.
5. Learned counsel relied upon Muhammad Hassan v. The State and another (2009 YLR 1479), Sarfaraz Hussain v. The State and 2 others (2009 YLR 1614), Safdar Ali v. Zafar Iqbal and others (2002 SCM R 63) and Muhammad Ahmed (Mahmood Ahmed) and another v The State (2010 SCM R 660).
6. Learned D.P.-G. for the State supported the order passed by the Judicial Magistrate. He submitted that the order passed by the Judicial Magistrate was in accordance with the law. He submitted that the witnesses have supported the case of the complainant and it is not duty of the police to sift the statements of the witnesses as it is function of the Court which adjudicates upon the matter.
7. ' I have considered the submissions made by the learned counsel and have gone through the record as well as the case law cited at the bar.
8. ' First contention of the learned counsel for the applicants was that there is pending litigation between the parties and therefore the complainant has lodged the complaint to thwart pending litigation. Pendency of litigation between the parties and enmity between the parties is a two edged swords which cuts both ways; whereas it can be argued that the complainant lodged false complaint because there was pending litigation, it can also be argued with equal vehemence that the accused committed the offence because of the pending enmity. Therefore the fact that the litigation was pending, at this stage at-least, neither supports the applicants nor supports to the complainant. Similarly fact that complainant did not disclose pending litigation Would not be fatal for the complainant.
9. ' As far as question relating to Mobile Phone is concerned, the learned counsel for the complainant has argued that Mobile Phone snatched was that of brother of the complainant and the complainant made phone call from her own phone. Again this aVect of the case can only be sorted out after evidence is recorded.
10. ' Emphasis of the learned counsel for the complainant was that the Magistrate could not have ordered that challan be filed. Learned counsel relied upon in this regard on the case of Ch. Muhammad Ashraf (supra). In that case a Single Judge of this Court observed that if the Magistrate decided to take cognizance of the offence then lie should take cognizance directly on the report instead of asking for yet another report or challan. It was further observed that if Investigation Officer does not submit the report on the pro forma specified, by the Government the Magistrate can ask him to submit the report on the pro forma before entertaining it and then pass an order.
11. ' Second case relied upon was that of Dawood Khan (supra). In that case the another Single Bench of this Court obseryed as under:-- "However, the order passed by the learned Magistrate on the report of the Investigating Officer under section 173(3), Cr.P.C. clearly depicts that he did not agree with the final report and consequently directed the attendance of complainant, accused and witnesses. No doubt, it is open for the Magistrate to pass any order on the report submitted by the Investigating Officer. However, while passing an order on such report the learned Magistrate is bound to consider all the material collected during the investigation and then to pass a just, fair and speaking order. If the learned Magistrate was of the opinion that the Investigating. Officer has not properly investigated the matter and the report submitted by him was under the influence of accused persons he had the prerogative to disagree with the "report but such order of disagreement should reflect that the material placed with the report under section 173(3), Cr.P.C. has been considered and there are reasons to disagree with it."
12. ' Third case relied upon by the learned counsel was Farooq Sumar's case prevailed with the Court in that case was that the order passed by the Magistrate did not indicate that the `Magistrate had considered the material on record. Muhammad Zaffar Saleem's (supra) -was the last case relied upon by the learned counsel for the applicants. It was observed in this case that since the Magistrate was not vested with jurisdiction to take cognizance of the offence he acted without jurisdiction. Reliance was primarily placed on the case of Soofi Abdul Qadir (supra) wherein a Division. Bench of this Court has held that if the Magistrate is not competent to take cognizance of an offence, even if a report is submitted by the police that F.I.R. be disposed of in 'B' or 'C' Class the Magistrate cannot dispose of the F.I.R. Last case relied upon by the learned counsel was of Mst.
13. Eram's case (supra) which was decided by me. In this case the order passed by the Magistrate was only a thirteen words order which merely stated "Admit/Register Issue BWs against the accused at a sum of Rs,50,000 each". It was held that the order was not speaking order and the matter was remanded to the Magistrate for passing a speaking order.
14. ' On the other hand, the learned counsel for the complainant relied upon Muhammad Hassan's case (supra). Investigation Officer in this case recommended disposal in 'B' Class. Judicial Magistrate rejected the recommendation and directed the 1.0. to file challan within one month. The matter was taken-up to the High Court. It was observed by the High Court a perusal of the report of the I.O. seeking disposal in 'B' .Class reflected that it had not been tiled in the pro forma prescribed by the Government. It was therefore held that the Magistrate was right in directing the I.O. to the challan. Second case relied upon by the learned counsel was Sarfaraz Hussain's case (supra). In this case also the Magistrate did not agree with the report submitted by the. I.O. and directed him to submit challan. The High Court observed that perusal of impugned order passed by the Judicial Magistrate showed that some of the prosecution witnesses had fully supported the occurrence but the I.O. had disbelieved their version because of the reason that there were more witnesses on the other side. Although case of Muhammad Ahmed (supra) was also relied upon by the learned counsel but this is a case where appeal was being decided rather than report under section 173, Cr.P.C. being considered. Last case reported was Safdar Ali's case (supra). The Honourable Supreme Court in this case firstly held that the trial Court can also summon those persons who were placed in column-2 of the Challan to face the trial and there is no legal bar that at the first instance evidence should be recorded to ascertain as to whether prima facie case was made out against them or not. Supreme Court further observed that Magistrate while taking cognizance under section 190, Cr.P.C. on a police report takes cognizance of the offence and not merely that of a persons charged. Regarding the order passed by the Magistrate, the Supreme Court observed that the order was neither perverse nor capricious and it had been passed after having made scrutiny of the entire record and therefore it could not be termed as a non-speaking order. The above case law clearly indicate that the Magistrate dealing with the report under section 173, Cr.P.C. though does not acts in. a judicial capacity and only act is an administrative capacity (PLD 1985 SC 62). However, order must be a speaking order and if the Magistrate comes to the tentative conclusion that prima facie there is some material he can disagree with the report submitted by the police and order the police to submit challan in the prescribed pro forma before the Court competent to try the offence. In Soofi Abdul Qadir's case (supra) it was held that if the Magistrate is not competent to take cognizance of the offence, then even if he agrees with the police report that F.I.R. should be disposed of in 'B' Class, he can not order it to be done because it can only be done by the Court competent to take cognizance.
15. ' In the present case the learned Court below has noticed there are prosecution witnesses who have supported case of the prosecution and then there are defence witnesses who have stated otherwise. Obviously as to which witness which can be more reliable than the other can be sorted out only after trail and recording of evidence. Therefore, I am of the opinion that the Magistrate has given a reasonable and plausible explanation for disagreeing with he police report and has been right in ordering that the challan in the prescribed pro forma be filed in the Court competent to try the offence. If the Magistrate comes to the conclusion that he cannot agree with the police report that the F.I.R. be disposed of or cancelled as B or C Class obviously he has to order that next logical step be taken i.e,, challan in prescribed form be filed.
16. ' This Criminal Miscellaneous Application is dismissed along with listed application.