' ABDUL RASOOL MEMON, J.---Through this Criminal Miscellaneous Application under section 561-A Cr.P.C. The applicant has prayed to quash the proceedings of Criminal Case No,66 of 2012 arising out of Crime No,54 of 2012 Police Station Mithi, District Tharparkar pending before the learned Civil Judge and Judicial Magistrate Mithi. The F.I.R. Of this case was lodged by A.S.-I. Nanji Mal on behalf of the State on 4-7-2012 at 1530 hours.
2. The facts of the case are that a police party headed by the complainant by official vehicle, during the course of patrolling, reached at Kashmir Chowk while checking vehicles, it was 1330 hours, they saw a grey, colour potohar jeep coming from eastern side. The traffic police constable Sanbol Mal identified its driver as Madad Ali Rind who leaving the jeep ran away. The police recovered the jeep bearing No,BA-0744 Engine No,110891 and Chassis No,335146C in presence of police Mashir and they brought it at police station and it was followed by registration of the F.I.R.
Under section 411, P.P.C.
3. In the recourse of investigation it came on record that jeep in question belong to Health Department and it was given to the accused with the consent by officer to whom it was allotted and the case of its theft had not been registered on the basis whereof after approval of DPP a summary/final report was submitted for disposal of the case under cancelled clause, which was not accepted and the Magistrate took the cognizance of the case under sections 419, 427, 420, 411, P.P.C. And directed the Investigating Officer to submit fresh charge sheet.
4. The learned counsel for the applicant has argued that the police with mala fide intention showed the jeep in question as stolen property but in fact it is government jeep which had not been stolen nor such case was registered at police station; that the Magistrate by passing the order for submission of challan against present accused travelled beyond his jurisdiction. Lastly he prayed for quashment of the proceedings. In support of his contentions he has placed reliance on the cases of HAQ NAWAZ v. HAJI ALAM KHAN and 8 others (2012 M LD 1075) and NASEER AND OTHERS v.
KHUDA BAKHSH and others (2011 SCM R 1430).
5. Learned state counsel has conceded the submissions made by the learned counsel for the applicant.
6. I have considered the arguments advanced at bar and have gone through the material available on record. It is settled proposition of law that the order which the Magistrate passes on the report submitted by Investigating Officer under section 173, Cr.P.C. Is an administrative order (PLD 1985 SC 627). While passing such an order Magistrate has to act fairly, justly and honestly and same can be looked into under section 561-A, Cr.P.C. By exercising inherent powers by the High Court.
7. Perusal of order dated 24-7-2012 passed by the Magistrate reveals that on one hand the Magistrate rejected the final report under section 173, Cr.P.C. Submitted for disposal of the case under cancelled clause, taking cognizance of the case for offences under sections 419, 427, 411, P.P.C. And issued NBWs against the accused and on the other hand he issued directions to EDO Health Mithi to register F.I.R. Against the accused persons and simultaneously the I.O. Was directed to submit fresh charge sheet. It clearly indicates that the Magistrate in order to get justified his action has issued directions for registration of fresh F.I.R. By the concerned police official and submission of final report, which was outside the scope of subsection (3) of section 173, Cr.P.C. It is evident from a plain reading of section 173(3), Cr.P.C. That on the report submitted by the Investigating Officer the Magistrate can pass an order as he thinks fit. Obviously, he may agree or not with the Investigating Officer, he may refuse to cancel the case and order further investigation or take cognizance on the basis of that police report under section 190(1)(b), Cr.P.C. But under the above provisions of the law the Magistrate after rejecting final report of Investigation Officer cannot pass order for registration of F.I.R. And submission of fresh report of his own choice. The 'Magistrate has, therefore, clearly erred in putting the cart before the horse and thus the order of learned Magistrate dated 24-7-2012 'is not sustainable on this ground alone. If any case-law is needed reliance could be made on the cases of Haq Nawaz and Naseer quoted supra.
8. Now I advert to the merits of the case. It is an admitted fact on record that neither the jeep in question had been stolen nor the F.I.R. Regarding its theft was registered by the concerned government department, mere possession of it is not sufficient to attract the provisions of section 411, P.P.C. But the essential ingredients that the property in question should be stolen property is missing in this case. So far section 419, P.P.C. Is concerned there are no allegations of cheating or personation for it against the accused but on the contrary it has come during the course of investigation that jeep in question had been allotted to one Health Lady Supervisor National Health Program Mst. Sakeena wife of Noor Mohammad LHS at BHU Mubarak Rind and she gave it to accused Madad Ali for one hour but it was retained by him for more than the period he was allowed. It indicates that by consent of original allottee the jeep was given to accused, thus, no offence under section 419, P.P.C. Is constituted from the facts and the allegations. There are no allegations of even destruction of property/jeep in question or its change by the accused in any manner, therefore the provisions of section 427, P.P.C. Are also not attracted.
9. For the aforesaid reasons, I am of the view that even if the entire evidence is brought on record the applicant accused would not be convicted for the offences, the Magistrate has taken cognizance thereon. In such a situation continuance of criminal trial of the applicant accused would be abuse of process of the Court. I, therefore, allow this Criminal Miscellaneous Application and quash the proceedings pending before the trial Court in pursuance to the F.I.R. No,54 of 2012 of Police Station Mithi.
10. Above are the reasons in support of my short order dated 25-10-2013 passed in Court whereby I had allowed this Criminal Miscellaneous Application.