' SHAHID ANWAR BAJWA, J.--F.I.R. No, 10 of 2011 was recorded at Police Station Baloch Colony Karachi South on 14-1-2011 for an incident alleged to have occurred on 28-12-2010. Complainant was one Muhammad Yousuf Butt. He stated that on 28- 1-2010 at about 2205 hours his son Muhammad Ali Butt was sitting by a fire and complainant as well as Azhar and Amir were sitting with him when two mobiles of Ferozabad Police Station and Corolla Cars came from the opposite sides. Out of them alighted 10 persons some in uniforms and some in mufti. The present applicant was in the lead. When he caught hold of son of the complainant, and tried to take away his Motorcycle, the complainant asked the applicant as to why he was taking away his son and the applicant is said to have told the complainant to come Ferozabad Police Station. When the complainant approached the Ferozabad Police Station, a Constable at the gate did not allow him to enter. When the complainant asked him to let him talk to the present applicant, the Constable at the gate went in and came out and said that the applicant was busy in investigation. Next day S.H.O. Ferozabad Police Station told him that his son had been killed and his dead body was in Edhi Morgue. After F.I.R. Was lodged and after police investigation report under section 173, Cr.P.C. Was submitted and it was recommended that the F.I.R. Be disposed of in 'B' class. The learned Judicial Magistrate vide order dated April 7, 2011 declined to accept the report in 'B' class and ordered that the case be registered, formalities be completed and thereafter it be sent to Sessions Court' for trial. This order has been challenged through this Criminal Miscellaneous Application.
2. Learned counsel for the applicant submitted that the order passed by the Judicial Magistrate is not a speaking order and the Magistrate has not applied his mind to the material available before him. He further submitted that prosecution witness Muhammad Haroon has since been murdered.
3. Mr. Mehmood A. Qureshi, learned counsel for the complainant submitted that after order was passed by the Judicial Magistrate, report under section 173, Cr.P.C, challan has been filed and trial has commenced. He submitted that how son of the complainant died can now only be decided after recording of evidence and after due trial. Learned counsel further submitted that F.I.R., which has been recorded by police in respect of the police encounter though, alleges sustained firing in encounter but it does not show any injury to any police personnel or any bullet mark on any police mobile or any motorcycle. He referred to Medico Legal Report and submitted that as many as 19 injuries are stated in the postmortem report including a fracture and there is blackening, of injuries 1, 2, 3 and 4. Learned counsel extensively referred to the report submitted by the District Public Prosecutor to the Prosecutor General. He submitted that the complainant is a honourable member of the Bar and this issue has been raised not only by the Association of Human. Rights Commission but also in a series of resolutions passed by the Bar. He submitted that witnesses Azhar Hussain and Amir Hussain have fully supported version stated in the compliant. He submitted that even if A the version as sought to be put forward by the applicant is accepted the medical evidence clearly indicates excessive use of force. Learned counsel relied upon Ch. Muhammad Yaqoob and others v. The State and others 1992 SCM R 1983 Mst. Malka Jan v. Inspector-General of Police N.-W.F.P., Peshawar and 2 others, 2010 PCr.LJ 320, Amir Ullah v. The State and 2 others 2004 PCr.L.I 821, Munshi Singh Gautam (D) and others v. State of M.P., AIR 2005 SC 402, Sube Singh v. State of Haryana and others, AIR 2006 SC 1117 and SUO MOTU CASE NO., 10 of 2011: In the matter of: (Brutal Killing of a Youngman by Rangers), PLD 2011 SC 799.
4. Learned D.P.-G. Adopted arguments of Mr. Mehmood A. Qureshi and supported the impugned order.
5. I have considered the submissions made by the learned counsel and have also gone through the record.
6. The postmortem examination recorded the following in respect of injuries:-- "(1) Fire arm wound of cutry, circular in shape, on front of left side of chest, upper region, slightly below the left clavicle, about 1/2 cm in diameter, with inverted margins, would of entry. Blackening around the wound present Fire arm would of exit 2 cm X 1 cm, lacerated manner, on back of the lower chest left side.
(2) Fire arm wound of cutry avoid in shape, on left side of abdomen in the line of umbilicus, 1 cm x 1 cm, Blackening around the would present-Five arm would of exit 2 cm x 1 cm lacerated manner, on back of the trunk, right side.
(3) Fire arm wound, gutter shape manner, 4 cm x 1 cm, over the right arm, anteno-medical aspect, upper 1/3 region, oblique, in direction Blackening around the wound present.
(4) Two fire arm wounds of entries, on back of the trunk, left lumber region, 0.25 cm in diameter- Blackening around the would present Fire arm wound of exit on left lower buttock, medical aspect, close to the anal region.
(5) Fire arm wound of entry 1.5 cm x 1.5 cm, lacerated manner, on posterior to feral aspect of right High No Blackening around the wound Fire arm wound of exit 2 cm x 2 cm on medical aspect of right thigh:
(6) Lacerated wound 3.5 cm x 1/2 cm, scalp deep on right posterior pavieto-occipital region.
(7) Lacerated wound 1 cm x 2 cm, skin deep, with mild deformity on bridge of nose.
(8) Confused abrasions, variable sizes, on different parts of nose, below Injury No,7.
(9) Confused abrasion 1 cm x 1/2 cm, between outer angle of left eye and left temporal region.
(10) Superficial laceration on the pinna of right ear, skin partially torn.
(11) Confused abrasion, just close to the right ear about 1/4 cm in diameter towards check.
(12) Confused Abrasion 1 cm x 1 cm left maxillary prominence.
(13) Confused abrasion 2.5 cm x 1 cm on back of the middle finger of left hand.
(14) Lacerated wound 2 cm x 1 cm, skin deep on palm of right hand.
(15) Deformity of right thigh, with fracture of right femur bone.
(16) Abrasion 1 cm x 1/2 cm on front of left axilla.
(17) Multiple abrasions of variable size on front of right knee and left knee.
(18) Multiple abrasions of variable size on front of right foot and 2nd toe of right foot.
(19) Abrasion 2 cm x 1/2 cm on medial. Aspect of left ankle- Blackening present on the wounds of entry of injuries Nos. 1,2, 3 and 4- Multiple corresponding punctures of fire arm present in the clothes, stained with blood- which sealed and handed over to I/O.
7. The Judicial Magistrate, in report concluded as under:-- "From perusal of police file, there is nothing in evidence to show that, the complainant had lodged a criminal case against the accused persons knowing the same to be false. Furthermore, the I.O. Of the case nowhere stated that the case -was false and was reported by the complainant dishonestly intending thereby to cause or knowing it to be likely that he will thereby cause, such public servant to use his lawful power of such public servant to the injury or annoyance of the complainant.
' According to the F.I.R. The names of accused persons find place in the F.I.R. And they joined the investigation, material evidence collected to connect the accused persons as narrated hereinabove, on that basis, prima facie case is made out. Hence I declined to accept the police report under section 173, Cr.P.C. As B Class and the cognizance of the case is hereby taken in Case Crime No, 10 of 2011 of Police Station Baloch Colony under sections 302/365/ 109/34, P.P.C."
8. In Ch. Muhammad Yaqoob's case (Supra) in respect of police encounter and private defence it was observed as under:-- "14. It is in the evidence that immediately after the incident, police officials who took part in the encounter, as is alleged by defence were rewarded and promoted even before the final order was passed under section 173, Cr.P.C. By the Magistrate. This state of affairs shows that if, police claims encounter then the matter is not subjected to scrutiny by any court of law but is investigated in a formal manner by the police themselves and order is obtained under section 173, Cr.P.C. For cancellation of the case. There is no warrant of law or legal justification for police encounter. It is apparent that undue advantage s taken of the situation for the reason that no F.I.Rs, are filed or allowed to be filed by the relatives of the deceased against police office. Under such circumstances, police feels absolutely .Secure that of their action which is proclaimed as police encounter, no judicial scrutiny can be made by a Court of law, hence immediately after the incident, such police officials who took part in the killing are rewarded and promoted, which provides as a seal of approval and legal sanctity on the killing even if it is calculated, pre-planned and intentionally done. This gives the police a free licence to kill any person they want and then manipulate a story of encounter and no further questions can be asked by any Court. It is a sorry state of law and it is high time that Legislature should amend the law in such a way as to make police answerable before a Court of law to satisfy that Court that encounter was genuine and attack was opened on police party by aggressors first, who have been killed.
(15) Under the law, after registration, if plea of private defence is taken, then such plea is to be considered by the Sessions Court or its equivalent in juxtaposition with prosecution case and then it is left open to the trial Court to accept that plea or not. As against that if plea is taken of encounter with police, then the Court does not get an opportunity to consider the plea in the same manner and at par with case between private persons in which F.I.R. Is registered, for reasons already stated above. Of course, remedy of filing direct complaint in the Court is available but that is not pressed into service for the reason that relatives of deceased in such circumstances, it would be better to amend the law in such a way that such cases of police encounters be allowed to be investigated by independent agencies and presented in the Court of law at the level of Sessions Court for examination and consideration of such plea strictly according to law."
9. In Malka Jan's case (Supra) where certain allegations have been made against the police officers, it was observed as under:-- "The police is not possessed with right to murder or kill or take life of any citizen accused of any offence only for the reason that such person was involved in criminal cases and keeps a previous bad record. A person keeping bad record may be innocent in the case registered against him because under the law presumption of innocence will continue until he is proved guilty. If the police machinery takes law in their hands they are to be dealt with in the same manner as the ordinary citizens are dealt with. Nobody can be allowed to take law into his hands and it is the duty of the Courts to curb the high-handedness sternly."
10. Similarly in Amir Ullah's case (Supra) it was observed as under:-- "(14) Police officials are to act in aid of enforcement of Article 9 of the Constitution of the Islamic Republic of Pakistan which guarantees a fundamental right that no person shall be deprived of life or liberty save in accordance with, law, therefore, the public functionaries like police force, are to act in aid of enforcement of above Constitutional provisions rather than to violate the same and to expose themselves to criminal prosecution. Wisdom in this regard has been sought from Ch. Muhammad Yaqoob and others v. The State and others 1992 SCM R 1983."
11. In Sube Singh's case (Supra), it was observed by the Supreme Court of India as under:-- "23. Unfortunately, police in the country have given room for an impression in the minds of public, that whenever there is a crime investigation usually means rounding up all persons concerned (say, all servants in the event of a theft in the employer's house, or all acquaintances of the deceased in the event of a murder) and subjecting them to third-degree interrogation in the hope that someone will spill the beans. This impression may not be correct, but instances are not wanting where police have resorted to such a practice. Lack of training in scientific investigative methods, lack of modern equipment, lack of adequate personnel, and lack of mindset respecting human rights are generally the reasons for such illegal action. One other main reason is that the public (and men in power) expect results from police in too short a span of time, for, getting that methodical and scientific investigation is a time consuming and lengthy process. Police are branded as inefficient even when there is a short delay in catching the culprits in serious crimes.
The expectation of quick results in high profile or heinous crimes builds enormous pressure on the police to somehow 'catch' the offender. The need to have quick results tempts them to resort to third degree methods. They also tend to arrest 'someone' in a hurry on the basis of incomplete investigation just to ease the pressure. Time has come for an attitudinal change not only in the- minds of the police, but also on the part of the public. Difficulties in criminal investigation and the time required for such investigation should be recognized and police should be allowed to function methodically without interferences or unnecessary pressures. If police are to perform better the public should support them. Government should strengthen and equip them and men in power should not interfere or belittle them. The three wings of the Government should encourage, insist and ensure through scientific investigation under proper legal procedures followed by prompt and efficient prosecution. Be that as it may.
(24) Custodial violence requires to be back led from two ends that is, by taking measures that are remedial and preventive. Award of compensation is one of the remedial measures after the event.
Effort should be made to remove the very causes which lead to custodial violence, so as to prevent such occurrences. Following steps if taken may prove to be effective preventive measures:
(a) Police training should be re; oriented to bring in a change in the mindset and attitude of the Police personnel in regard to investigations, so that they will recognize and respect human rights and adopt thorough and scientific investigation methods.
(b) The functioning of lower level Police Officers should be continuously monitored and supervised by their superiors to prevent custodial violence and adherence to lawful standard methods of investigation.
(c) Compliance with the eleven requirements enumerated in D.K. Basu (supra) should be ensured in all cases of arrest and detention.
(d) Simple and fool-proof procedures should be introduced for prompt registration of first information reports relating to all crimes.
(e) Computerization, video-recording and modern methods of records maintenance should be introduced to avoid manipulations, insertions, substitutions and ante-dating in regard to F.I.Rs, Mahazars, inquest proceedings. Post-mortem Reports and statements of witnesses etc. And to bring in transparency in action.
(f) An independent investigating agency (preferably the respective Human Rights Commissions or CBI) may be entrusted with adequate power to investigate complaints of custodial violence against police personnel and take stern and speedy action followed by prosecution, wherever necessary. The endeavour should be to achieve a balanced level of functioning where police respect human rights, adhere to law, and take confidence building measures (CBMs) and at the same time firmly deal with organized crime, terrorism, white collared crime, deteriorating law and order situation etc."
12. It is settled law that ipse dixit of the police is not binding on the Magistrate scrutinizing report under section 173, Cr.P.C. The Magistrate can agree or disagree and even remit it for further investigation. In the present case certain allegations have been levelled in the F.I.R. Medical evidence indicates 19 injuries. The question would be whether it is a case of custodial killing or even if it is not a case of custodial killing, whether in the facts and circumstances use of force by police was justified or was it excessive. All these facts can be gone into only after evidence is recorded by the trial Court.
13. Mr. Khawaja Naveed Ahmed, vehemently argued that the order passed by the Judicial Magistrate is not a speaking order. Extract from the order passed by the Judicial Magistrate have quoted above which in summary states reasons given by the learned Judicial Magistrate. It is settled law that the order passed by the Judicial Magistrate is not a judicial order but is an administrative order Bahadur and another v. The State and another PLD 1985 SC 62. Therefore to expect from the order of the Judicial Magistrate a brick by brick reasoning would not be a fair and justifiable expectation. If an order passed by the Judicial Magistrate seems to be reasonable and appropriate in the circumstances, High Court cannot, and should not, apply to it the tests judicially laid down for scrutinizing a judicial verdict of a Court below.
14. There is yet another reason for which the order passed by the Judicial Magistrate should not be interfered with. After the order was passed by the Judicial Magistrate challan has been submitted and now the matter is pending before the trial Court. If applicant feels that there is no probability of his being convicted he has full remedy of making an application under section 265-K, Cr.P.C. Before the trial Court and the trial Court, if such an application is filed, shall I have no doubt in my mind, consider such an application in the light of all the material available to it, apply all the due tests of judicial scrutiny and evaluation and thereafter decide such an application in accordance with law.
' Result of the above discussion is that this Criminal Miscellaneous Application is dismissed.