1. ' RIAZAT ALI SAHAR, J.---Through this petition, the petitioner seeks following relief:--
(a) To declare the order passed by respondent No,2 is not proper and bad in law without going through the material available on record.
(b) To recall above said order dated 31-12-2012 and respondent No,4 may be directed to submit challah against the accused person in the above said case.
2. ' Precisely, the facts of the case are that the petitioner has three sisters and three brotheRs, Their father died in the month of January, 2008. During his lifetime, her father had gifted the property i,e, House No,B-374/10, F.B. Area, Karachi in favour of the petitioner and her three sisters who executed power of attorney in favour of the petitioner. After the demise of her father, her two brothers namely Syed Farrukh Ali and Syed Asad Ali started threatening, abusing and beating the petitioner and her sisters and also tried to oust them from the house. Upon provocation of her brother Asad Ali who lives in Australia and used to visit Pakistan from time to time, Syed Farrukh Ali used to beat all the sisters and illegally occupied the upper floor of the house in question. In these circumstances, her sister Mst. Mehreen filed Criminal Petition bearing No,976 of 2012 against Syed Farrukh Ali in the Court of II-Additional Sessions Judge, Karachi, Central, which is still pending. According to the petitioner, on 12-11-2012, at 11-00 a.m., when she reached her house from the Court, her brother Syed Farrukh Ali, respondent No,1, who was already present in the house, pointed a pistol upon her and issued threats that he will kill all the sisters including petitioner, if the aforesaid case is not withdrawn by them. At that time he also used filthy language and maltreated the petitioner, however, on the intervention of her sister Mst. Mehwish she was saved and the pistol as well as one bullet dropped from his hand. According to the petitioner, after that incident she filed Criminal Petition No,1203 of 2012 and on the direction of the Court F.I.R. No,351 of 2012 was registered.
3. 2.After registration of F.I.R., the case was investigated by respondent No,4 who submitted final report under section 173, Cr.P.C. For disposal of the case in 'B' Class. However, the learned Judicial Magistrate, the respondent No,2, vide order dated 31st December, 2012, while disagreeing with the I.O. That it is the case of no evidence and be disposed of in 'B' Class, disposed of the case in 'C' class and declined to take cognizance of the case. The instant petition has been filed against the said order.
3. Learned counsel for the petitioner contended that the impugned order is bad in law as the learned J.M. Did not go through the material available on record. According to him, mere statement of the sister of petitioner Mst. Mehwish is sufficient to indict the accused in the crime. He further contended that there are lacunas in the final report and the investigation itself is one sided as the I.O. Has not conducted investigation properly and the Magistrate without going through the same passed impugned order instead of issuing direction to the respondent No,4 to submit challah.
4. 3A. We have heard the arguments of learned counsel for the petitioner and perused the record.
4. It is well settled principle of law that the Magistrate is not bound to agree with the report submitted by police under section 173, Cr.P.C. And he is at liberty under the law, either to agree or disagree with the conclusions reached by the Investigating Officer subject, of course, to give cogent reasons for the conclusion arrived at by him. The Magistrate under section 173, Cr.P.C. Is not expected to blindly follow investigation undertaken by police as ipse dixit of police was never binding on Magistrate or Court. Of course, the Magistrate is legally bound to apply his independent mind to the material placed before him and then form his own opinion about the matter. However, after applying his judicious mind to the material placed before him, if he is of the view that the opinion expressed by the I.O. In the report under section 173, Cr.P.C. Is just and appropriate, he is fully competent to accept the report and dispose of the case as proposed. The Courts are not bound by arbitrary opinions of the Investigating OfficeRs, They have to apply their independent mind to the facts and circumstances of a case. A Court can take cognizance even on negative report and can refuse to take cognizance on a positive report, depending upon facts and circumstances of each case.
5. 5.There is no procedural law in our country in which a Magistrate can grant administrative approval for disposal of a case under "A", "B" or "C" class, but the Magistrate has disposed of the case under "C" class by passing impugned order, therefore, it is to be clarified that these classes are in practice to dispose of the criminal cases after completion of investigation since long, this continuous practice has become usage and is not in consistent with or in derogation of fundamental rights as prescribed by Article 8 of the Constitution, therefore, such usage has force of law and now such practice is a part and parcel of the procedural law. Actually these classes were prescribed by Bombay Presidency Police Guide. According to Bombay Presidency Police Guide, report of investigation under section 173 of the Code of Criminal Procedure, 1898, is to be filed either in the form of a charge-sheet, if the accused is sent for trial, or in the form of a Final Report, in other cases. Final Reports are classified into 'A'---true cases, maliciously false cases, neither true nor maliciously false cases but non-cognizable.
6. As per practice/usage the class "A", "B" and "C" are defined as under:- CLASS 'A': F.I.R. Is true, but accused is/are untraced, therefore, Magistrate can dispose of the case till the appearance/arrest of the accused. CLASS 'B': The F. I. R, is maliciously false and after passing summary orders by directing the S.H.O. To initiate proceedings for offence punishable under section 182, P.P.C. Against the complainant/person, who gives information, which he knows or believes to be false. CLASS 'C': F.I.R. Can be disposed of being non-cognizable offence, but in this class it is suffice to say that if there is evidence regarding non-cognizable offence, the Magistrate can direct the S.H.O. To submit a separate report under section 155, Cr.P.C. For taking cognizance and proceedings or otherwise.
7. Rule 24.7 of Police Rules, 1934 is supportive to the extent of cancellation of F.I.R.
8. 6.It is further clarified that disposal of the case under any of the above classes is an administrative order while taking cognizance of a case is a judicial act, which cannot be nullified by an administrative act. The administrative order passed by the Magistrate can be challenged under section 561-A Cr.P.C. By invoking inherent jurisdiction of this Court, while such type of judicial order can be challenged under revision jurisdiction before the competent forum.
7. From the perusal of the impugned order, it appears that the trial Court has not followed the opinion expressed by the I.O. In the final report blindly but applied his judicious mind to the material placed before him. It appears that in the final report it was stated by the Investigating Officer that in order to get the statements of the witnesses recorded under section 161, Cr.P.C., he issued notices under section 160 Cr.P.C. To the witnesses but except P.W. Mehwish (sister of the complainant) no other witness appeared although another brother of the complainant namely Mohammad Ali was also residing in the same premises, besides the ground floor of the said premises was also occupied by the tenants and there were four shops adjacent thereto. Thereafter the I.O. Issued final notice to the witnesses to get their statements recorded in the matter, but none appeared. Apart from that, complainant also failed to produce her witnesses before I.O.
9. 8.Besides above, .It is also pertinent to mention here that the memo of place of incident reveals that nothing has been secured from the place of alleged incident but one live bullet was given to the I.O. By the complainant herself. No incriminating article including alleged crime weapon has been recovered from the possession of the accused. Moreover, the ocular testimony in respect of the alleged offence under sections 506-B and 337-A(1) PPC is also not supported by other unimpeachable evidence. Section 337-A(1) P.P.C., pertains to the offence of causing injury/assault and in order to ascertain the nature of injury and the particular section under which the offence falls, it is mandatory that the injured is referred to the Medical Officer for obtaining Medico-legal Report. However, from the perusal of the material available on the record, we could not find any such report. In the absence of the said report, it can safely be held that no offence under section 337-A(1), P.P.C. Is made out.
10. 9.It is also pertinent to point out that according to the F.I.R., when the accused pointed the pistol upon the complainant, her sister, Mst. Mehwish, intervened and pushed the accused back whereupon the pistol and one bullet dropped from his hand. Such assertion, on the face of it, does not appeal to a person of prudent mind, as practically it is not possible that merely on the dropping of pistol, a live bullet directly extracts from the magazine or chamber without unloading it. In view of foregoing circumstances, possibility of any cognizable offence does not arise, at the most presumption of offence under section 504, P.P.C. Could be made out which too is non-cognizable.
11. 10.In view of above, the F.I.R. In question, although could not be termed as "maliciously false" so as to bring the same in the category of "B" Class, but at the same time it lacks the ingredients of a cognizable offence, thus would fall in "C" Class. In the circumstances, in our view, the learned J.M.
12. Was absolutely right in disagreeing with the I.O. For disposal of the case in 'B' Class but has rightly exercised the discretion and justifiably disposed of the case in 'C' Class. We do not find any illegality or material irregularity in the impugned order, hence are not inclined to interfere with the same.
13. 11.We, for the foregoing reasons, dismissed the instant petition in liming along with listed applications by our short order dated 11-3-2012.
14. 12.Before parting with the case, we are inclined to direct the learned Registrar of this Court to circulate the observations made in paragraphs 4 and 5 of this order to all the District and Sessions Judges in the province of Sindh with the direction to get the same circulated amongst all their subordinate Judicial Officers in the respective districts. Order accordingly.