1. ' NISAR MUHAMMAD SHAIKH, J.---The applicant Mst. Kalsoom Fatima has filed this Criminal Miscellaneous Application, which his directed against the order dated 5-1-2011 passed by Civil Judge and Judicial Magistrate-I, Nawabshah, whereby he accepted the report under section 173, Cr.P.C. Of SIO of Police Station, Airport, Nawabshah for cancellation. F.I.R. NO.131 of 2010 in '13' Class.
2. ' The relevant facts, briefly stated are that the applicant/complainant Mst. Kalsoom Fatima lodged F.I.R. No.131 of 2010 at Police Station, Airport on 10-12-2010 for the offences under section 365/511, 337- L(2), 506, 147, 448, P.P.C. Alleging therein that on 14-10-2010 at about 5-00 p.m. When she and her two sisters were present at their portion of house, the six accused nominated in F.I.R., arrived there and caused kicks and fists blows to the complainant and her two sisters and ousted them from their portion of house, which was then occupied by the accused persons who also issued threats to the complainant party of dire consequences and also tried to abduct Mst. Asia sister of complainant, but due to the cries of complainant party the witnesses namely Shah Nawaz, Arif Ali and others came running who saved the complainant party.
3. ' On such F.I.R., the police conducted investigation and after completing the same, recommended the case for cancellation of F.I.R., -under 'B' Class as per their final report under section 173, Cr.P.C.
4. And the same was accepted/ approved by learned Judicial Magistrate vide his order dated 5- 1;2011, the last and relevant portion of which is as under:-- "From careful examination of evidence available on record it appears that complainant Mst.
5. Kalsoom Fatima, witness Mst. Asia, Mst. Naseem and accused Mst. Ruqia, Mst. Rabia and Muhammad Aslam are legal heirs of Muhammad Mohsin Fareedi and they have dispute about their inherited shares in Fareedi Manzil due to that dispute both parties have lodged criminal cases against each other only to disgrace and pressurize each other. From the evidence available on record, report of Investigation Officer is accepted. Let FIR. Be cancelled as recommended , by SIO Police Station, Airport."
6. ' The learned counsel for the applicant assailed the above order relying upon the cases reported as 1972 SCM R 335, 2009 YLR 1604 and an unreported case being Criminal Miscellaneous Application No.S-245 decided by this Court on 17-11-2008. According to him, the very F.I.R. Lodged by the complainant was' showing a prima facie case but the police malafidely recorded the statements of defence witnesses and found the version of complainant as false though her witnesses supported her in respect of the incident reported hi the very F.I.R., therefore, the impugned order cannot sustain in law and as such the same is liable to be set aside.
7. ' On the other hand, learned D.P.-G., appearing for the State contends that there is family dispute between the parties over inherited property and it is therefore that false cases are being registered by the parties without any proof and since the impugned order furnishes the reasonable grounds, therefore, this application of the applicant is liable to be dismissed as her own witnesses falsify her version.
8. ' I have considered the above submissions and also perused the relevant record. It appears from the very F.I.R., that at the time of alleged incident the independent witnesses namely Shah Nawaz and Arif Ali had arrived at the spot and they saved the complainant party from the accused persons. But, the impugned order very clearly indicates that both these witnesses did not support the version of the complainant in their statements recorded under section 161, Cr.P.C. By the Investigating Officer who subsequently found that no incident as alleged in was committed. Thus, the learned Judicial Magistrate after discussing the relevant aspects of the case rightly accepted the recommeidation of the Investigation Officer for cancellation of the F.I.R. In 'IV Class. In the case of Muhammad Akbar v. State and another (1972 SCM R 335) as relied upon by learned counsel for the applicant, it was held that the Magistrate could, irrespective of opinion of. Investigating Police Officer, take cognizance, if upon materials before him he finds prima facie case made out against accused. But, in the instant case, the Magistrate found on the basis material available before him that no prima facie case is made out against the proposed accused. In another case of Malik Dil Nawaz v. State 2009 YLR 1604 it was held that it is a duty of the Magistrate to scrutinize the matter when report is submitted before him, though it depends upon the Magistrate to agree or disagree, as the opinion of the police is not binding upon him. Accordingly, in the case in hand, the Magistrate appears to have acted in accordance with law while scrutinizing the matter with his independent mind. Whereas, in the unreported case of Syed Irfan Ahmed Shah v. Civil Judge and Judicial Magistrate-I, Nawabshah and other (Criminal Miscellaneous Application No.S-245 of 2008), decided by this Court on 17-11-2008, it was observed that only defence version available in the police file, could not be made a base for gauging authenticity and correctness of the applicant's version and the documentary' evidence available in support of F.I.Rs., could not be ignored. Accordingly, in the instant case, the report of Investigating Officer and the order of learned Magistrate is not based on mere defence version and moreover, there is no documentary evidence available with the present applicant/complainant in support of her version contained in the F.I.R. In the circumstances. These authorities are not helpful to the case of the applicant.
9. ' Consequently, the present application of the applicant is hereby dismissed. However, the applicant shall be at liberty to file a criminal complaint/direct complaint in the matter, if so advised.