' RIAZAT ALI SAHAR, J.---By means of this application under section 561-A, Cr.P.C., order dated 30-1- 2009, passed by Additional Sessions Judge, Kandiaro with regard to registration of F.I.R. Against the applicants, has been questioned.
2. Brief background of the controversy is that Mst. Zuhran, daughter of complainant in F.I.R. No. 12/2008, Police Station, Pipri District Naushehro Feroze (present applicants' party) had entered into spontaneous marriage with Shahnawaz (accused in F.I.R. No. 12/2008 of Police Station Pipri) and had been residing with him at Karachi. F.I.R. No.11/2007 under sections 364, 382, P.P.C. At Police Station Pipri, was lodged against Shahnawaz and other alleging therein abduction of Mst. Zuhran.
Said F.I.R. Was cancelled by learned Magistrate on the basis of statement under section 164, Cr.P.C.
Of the said girl in which she had stated to have married Shahnawaz on account of her freewill. F.I.R.
No.467/2008 was lodged by Shahnawaz on 7-8-2008 at Police Station, Sachal alleging therein abduction of his wife was committed by present applicants' party. Such F.I.R. Was cancelled by a learned Magistrate based on statement of Mst. Zuhran, recorded under section 164, Cr.P.C. Wherein she had denied to have been abducted. Thereafter, numerous applications under section 491, Cr.P.C. Were filed. Ultimately, F.I.R. No.2/2009, was registered at Police Station, Pipri by father of the girl alleging that the girl, residing at Karachi with her husband, had phoned him and had asked him to take her for the reason that she was not happy with her husband and, thus, the father had gone thereto and the girl had appeared at Principal Seat of this Court and was permitted by the Court to go with her father, as per her will. It has been alleged in the F.I.R. That the girl was then residing at her father's house, which was barged into by her husband Shahnawaz, his brother Fida Hussain and three others on 25-9-2008 and the girl was murdered by them within sight of Rustam Ali and Fida Hussain. Therefore, F.I.R. No.12/2008 was registered at Police Station Pipri District Naushehro Feroze.
3. Shahnawaz and Fida Hussain were arrested and, in the meanwhile, Shahnawaz had submitted an application to learned Sessions Judge, Naushahro Feroze during his visit to jail, who had assigned the application to an Additional Sessions Judge, who had allowed such application and had directed registration of the F.I.R. And, therefore, F.I.R. No.2/2009, Police Station Pipri was registered by Shahnawaz (accused in F.I.R. No.12/2008, Police Station Pipri) against present applicants' party alleging murder of his wife Mst. Zuhran.
4. This order has been assailed in this application. It is pertinent to state here that both the F.I.Rs., namely, Crime No. 12/2008 and Crime No.2/2009, Police Station Pipri were investigated and on submission of result of such investigation, learned Magistrate, by his order dated 5-6-2009, had ordered cancellation of F.I.R. No. 12/2008 and had taken cognizance of the other F.I.R., i.e. Crime No.2/2009, Police Station Pipri. Said order dated 5-6-2009 was challenged before this Court in Criminal Miscellaneous Application No. 181/2009 by present applicants' party because it was aggrieved of release of Shahnawaz and his brother consequent upon cancellation of the F.I.R. And this Court, by order dated 18-4-2013, had dismissed the said application, which order was never challenged.
5. F.I.R. No.2/2009, Police Station Pipri district Naushehro Feroze contains reproduction of the application, submitted to the Sessions Judge. Brief narration thereof is that his in-laws (present applicants' party) were annoyed with his marriage with Mst. Zuhran and had been threatening him and his wife to kill them as Karo and Kari. Mst. Zuhran was purportedly abducted and, as stated above, was residing at her father's house where, on 25-9-2008, she was murdered by present applicants' party by fire shots on the pretext of honour killing.
6. Syed Mushtaque Hussain Shah, learned counsel for the applicants, has submitted that version of F.I.R. No.2/2009 Police Station Pipri, which is hearsay word and cannot be relied upon in view of Wajid Ali Khan Durrani and others v. Government of Sindh and others, 2001 SCMR 1556, could not be registered as earlier, an F.I.R. With respect to same incident had been registered. He submitted that the Magistrate was not supposed to dispose of a case, exclusively triable by the Court of Sessions but he was required to simply take cognizance under section 190, Cr.P.C. And send the case thereto, as required by subsection (3) to section 173, Cr.P.C. And, in the present case, the Magistrate has exceeded his jurisdiction by cancelling a sessions case. It was contended that Magistrate could not enquire from witnesses when he was seized with the report under section 173, Cr.P.C. He relied upon Malik Shaukat All Dollar and 12 others v. Ghulam Qasim Khan Khakwani and others, PLD 1994 SC 281, Muhammad Abbas v. District Magistrate, Bahawalnagar and 5 others, 1996 MLD 16, Shehnaz Begum v. Honourable Judges of the High Courts Sindh and Balochistan, PLD 1971 SC 677, Mian Munir Ahmed v. The State, 1985 SCMR 257, Bahadur and another v. The State, PLD 1985 SC 62, Mehar Khan v.
Yakoob Khan and another, 1981 SCMR 267 and Syed Muhammad Awais Shibli v. The State, 1995 MLD 601.
7. Learned counsel for the private respcndent has supported the impugned order.
8. Syed Sardar Ali Rizvi, learned APG, has submitted that impugned order was legal and that there was no bar on registration of second F.I.R. He submitted that the Magistrate was not supposed to act as a post office but he was required to apply judicial mind though his order, passed on report under section 173, Cr.P.C., is administrative in nature.
9. I have considered the submissions, made before me and have gone through the record and cited precedents.
10. Counsel for the applicants has submitted that version of F.I.R. No.2/2009 Police Station Pipri, which is hearsay word and cannot be relied upon in view of Wajid Ali Khan Durrani and others v.
Government of Sindh and others, 2001 SCMR 1556, could not be registered as earlier, an F.I.R. With respect to same incident had been registered. It may be observed that registration of second F.I.R.
Of the same incident has been ordered by the impugned order and this has been challenged; however, nothing has been submitting to show illegality thereof save submitting that second F.I.R.
Could not be registered. In Mst. Ghanwa Bhutto and another v. Government of Sindh and another, PLD 1997 Karachi 119, it was observed by a Division Bench of this Court as under:-- "9. Reference to the case-law, therefore, indicates that there is no hard and fast rule that a second cannot be registered in respect of a different version given by an aggrieved party of the same occurrence. If information is subsequently given to a police officer, which discloses a different offence, also cognizable by the police, then unless it is a mere amplification of the first version, it must be recorded by the police. Therefore, direction to the police to record a second F.I.R. Would depend upon the circumstances of each case. If true facts in respect of an occurrence are not reflected by the first F.I.R. Then refusal to record a genuine version of the same occurrence would not be justified. The question has, therefore, to be examined in the light of the circumstances of a particular case."
11. After so observing, directives for registration of third F.I.R. Were issued by the Bench. This order was called in question before the honourable Supreme Court and the Supreme Court has maintained that order in Wajid Ali Khan Durrani's case (supra) which learned counsel for the applicants has himself relied upon. It may be advantageous to reproduce relevant observations of the honourable Court. Those are as under:-- "6. We see no force in the contentions raised by the learned counsel. Perusal of the impugned judgment passed by the learned High Court would show that the first contention of the learned counsel was precisely raised before the learned High Court, who dealt with it elaborately and repelled it for the reasons shown in the judgment, to which no exception can be legitimately taken and the learned High Court in the circumstances of the case, was within its jurisdiction in giving the- direction to the police for registering another F.I.R. At the instance of the aggrieved widows of the deceased. Moreover, admittedly, since lodging of the third F.I.R., regular challan has been submitted in the Court in which the petitioners have been named as accused persons, and the trial is yet to take place. The only question before the learned High Court, therefore, being whether on the fact and circumstances of the case direction be given for lodging their F.I.R. At the instance of aggrieved parties. The learned High Court was justified in not impleading the petitioners in the petition for the reason of avoiding causing prejudice to the case of either party on merits. Indeed, F.I.R. Merely sets in motion the criminal law and it cannot be used as a substantive piece of evidence against any accused person and even observations made in respect of the F.I.R.
Pertaining to the merits of the case which is yet to be tried, cannot be used against any accused persons at the trial. As to the contention of the learned counsel that the petitioners having been named as accused in the third F.I.R. They were placed in disadvantageous position carrying the attending liability as accused persons, since the case has now been challenged in the Court of law, they will have full opportunity to defend themselves at the trial and the prosecution will have to ensure that they are not handicapped in their defence."
12. Second F.I.R. Could, it becomes quite clear, be registered and learned Additional Sessions Judge cannot, therefore, be said to have passed illegitimate order by directing registration of second F.I.R.
Of the same version.
13. Next contention was with regard to power of Magistrate in a case, exclusively triable by the Court of Session. According to the learned counsel, Magistrate could merely send the case after finding it to be triable by the Court of Session and he could not go into details and cancel the F.I.R. In such case. To support such contention, learned counsel firstly relied upon Malik Shaukat Ali Dogar's case (ibid). In the said case, order of High Court calling for periodical reports as to progress of investigation was set aside holding that Courts could not interfere into investigation. Second case of Muhammad Abbas (ibid). Facts thereof were that dying declaration of deceased was recorded by a Magistrate and District Magistrate had appointed a Magistrate as Enquiry Officer, thereafter it was in this perspective that Single Judge of Lahore High Court has observed that as no authority had power to intermeddle with power of Police to investigate the cognizable case. Third case was of Shehnaz Begum. It was held by honourable Supreme Court of Pakistan in that case that no authority could interfere into investigation. It may be observed that interference into investigation of Police is not the issue in the present case and investigation of second or third F.I.R. Can never be construed to be interference in investigation; particularly in view of the fact that subsequent investigation has been, and is to be, conducted by Police itself. The cases, therefore, have no relevance to the issue.
14. Fourth case, cited by the learned counsel was of Mian Munir Ahmed (ibid). In the reported case, it was held that High Court can exercise its revisional jurisdiction only with respect to the proceedings pending before Criminal Courts, inferior to it, whereas section 561-A, Cr.P.C. Makes no mention of inferior or subordinate Courts and empowers the High Court to exercise its jurisdiction thereunder with respect to proceedings in any Court. Again this is not the issue.
15. Fifth case was Bahadur's case (ibid). It was observed by the august Supreme Court in the said case as follows:-- "Though a Magistrate in cancelling a registered criminal case is required to act judicially in that he has to act fairly, justly and honestly, a duty common to the exercise of all State power, there is no lis before him, there is no duty to hear the parties, there is no decision given, no finality or irrevocability attaching to the order. The party is left free to institute a complaint on the same facts, and the same Magistrate does not even after passing such an order render himself functus officio. On the contrary he is quite competent to entertain and deal with such a complaint on material presented to him. These peculiarities establish beyond any doubt that in so concurring with a report submitted under section 173, Cr.P.C. He does not function as a criminal Court."
16. It is quite clear from the foregoing observations of the honourable Supreme Court that contention of the learned counsel does not find support from Bahadur's case as well. Mehar Khan's case (supra) was next relied upon. Following observations were made by the Supreme Court:-- "9. A reading of subsection (3) of section 190, Cr.P.C., in the light of above-noted facts would, however, show that--
(i) before he can 'send' a case for trial to the Court of Session, a Magistrate must, first, have taken cognizance of a case, under any one of the three clauses to subsection (1) of section 190, Cr.P.C. In other words, he must either have received a private complaint under clause (a), or a Police report under section 173, Cr.P.C., as envisaged in clause (b), or he should be acting on any information received by him, as mentioned in clause (c). It is, therefore, evident that he cannot act under subsection (3) without having received a private complaint or a Police report (i.e. a challan either complete or incomplete) or some information from any other source, and
(ii) that although now a Magistrate is not required to hold an inquiry under Chapter XVIII, but that does not mean that he is to act merely as a post office and automatically 'send' the case for trial to a Court of Session simply because a section relating to an offence exclusive triable by a Court of Session has been mentioned by the Police or the complainant (as the case may be) in the challan or the private complaint. He is, in fact, required on having taken cognizance of such a matter to enquire into the case and to apply his mind to whatever material is placed before him, by the Police or the complainant, if in order to determine whether the allegations made in the Police report, private complaint or information received by him, make out a prima facie case triable exclusively by a Court of Session.
10. In the changed circumstances, after the commitment proceedings have been dispensed with by the Law Reforms Ordinance, this inquiring that the relevant material and application of mind thereto by a Magistrate, to determine the nature of offence i.e. To determine as to whether or not the case is one triable, exclusively by the Court of Session, would now constitute an 'inquiry' within, the meaning of the word as defined in clause (k) of section 4, Cr. P. C. And used in section 344(1), Cr.P.C."
' Thereafter, it was observed as under:-- "14. The cause for this apparent conflict or confusion is, however, not difficult to spot. It has resulted simply from the fact that it has been generally overlooked that, as explained in paragraph No. 9, above, even under the recently substituted subsection (3) of section 190, Cr.P.C., a Magistrate who takes cognizance of any offence under any of the clauses of subsection (1) of that section, is required to apply his mind in order to ascertain as to whether the case in question is one which he is required to 'send' for trial to the Court of Session or whether it is one which he can proceed to try himself. In other words, under the law, as it stands at present, this application of mind by the Magistrates now constitutes the 'inquiry' which he is empowered to postpone or adjourn under section 344(1), Cr.P.C. It follows, therefore, that a Magistrate who has taken cognizance of a case under section 190(1), Cr.P.C. And is applying his mind for the before mentioned purpose, is also empowered under the said section, to postpone the commencement of or adjourn the said 'inquiry' and naturally therefore, he would have the power to remand the accused to judicial custody from time to time till he finally 'sends' the case for trial to the Court of Session."
17. What appears from the above observations of the honourable Supreme Court is that Magistrate has to send case, exclusively triable by the Court of Session, after making enquiry to such effect, that is to say, he has to arrive at the conclusion that the case is exclusively triable by the Court of Session and that too, after taking cognizance. If, therefore, a case is one in which Magistrate finds that cognizance should not be taken but the same should be disposed of in any of the three classes, i.e. "A", "B" and "C" as has been defined in a Judgment of a Division Bench of this Court in Mst. Syeda Afshan v. Syed Farukh Ali and 3 others, 2013 PLD Karachi 423, which, incidentally, has been handed down by me, the Magistrate instead of sending the case to the Court of Sessions is required to dispose of it because ipse dixit of Police is not binding on Magistrate or Court and Magistrate is required to apply his judicial mind while deciding report under section 173, Cr.P.C., i.e., whether or not to take cognizance. Reproduction of relevant portion of Syeda Afshan's case (supra) is necessary. Paragraph 4 thereof is as under in extenso: "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 mind to the material placed before him, if he is that the opinion expressed by the 1.0. In the section 173, Cr. P. C. Is just and appropriate, to accept the report and dispose of bound by They have facts and cognizance cognizance judicious of the view report under he is fully competent the case as proposed. The Courts are not arbitrary opinions of the Investigating Officers. To apply their independent mind to the circumstances of a case. A Court can take even on negative report and can refuse to take on a positive report, depending upon facts and circumstances of each case."
18. In Syed Muhammad Awais Shibli's case (ibid), next relied upon by the learned counsel, matter in issue was quashment of proceedings and in this regard, it was observed by a Single Judge of this Court as under:- "Necessity to move the trial Court under section 249A, Cr. P. C. Arises in the cases where the F.I.R.
Does not give complete idea, as to what evidence would be adduced against the accused at his trial. If the F.I.R. Gives an idea, as to what evidence can come against an accused and if the Court considers that even if such evidence is brought on record, the person seeking quashment cannot be convicted the proceedings against, him are abuse of the process of Court and quashment can be ordered without the person seeking quashment having moved the trial Court under section 249A of Cr.P.C. However, where the F.I.R. Does not give an idea as to what evidence would ultimately be led against the accused seeking quashment, then it would be proper for the person seeking quashment to move the trial Court first under section 249A, Cr.P.C. Because in such a situation the trial Court can discuss the evidence that has come on record against the accused or that has yet to come on record and on that basis it can be determined if the case in question requires to be quashed in light of the case-law on the point."
19. The reported case is squarely distinguishable because quashment of the F.I.R. Is not germane hereto not being the subject of the present case.
20. As far as result of investigation of the second F.I.R. Is concerned, it may be observed that by one order , i.e. Order dated 5-6-2009, learned Magistrate has taken cognizance of F.I.R. No.2/2009, Police Station Pipri and has cancelled earlier F.I.R. Such order, when challenged before this Court, has been upheld by an order, dated 18-4-2013, incidentally handed down by me. Relevant observations are as under- ., "From the contents of F.I.R., lodged by applicant Ali Gohar, it reveals that prior to this, the applicant had lodged F.I.R. Bearing Crime No.11/2007 under sections 364, 382, P.P.C. At same P.S against accused Shahnawaz and others in respect of abduction of his said daughter Mst. Zuhran.
The said F.I.R. Was disposed of in "C" class as Mst. Zuhran contracted marriage with Shahnawaz on account of her own freewill. The applicant in his F.I.R. Has admitted that his daughter talked to him on telephone, requesting him to come to Karachi as Shahnawaz and others had confined her illegally, then the applicant went to Karachi and his daughter appeared in Court and the Court handed over Mst. Zuhran to him, whereas the accused Shah Nawaz Kalhoro and Fida Hussain Kalhoro had shifted to Karachi and had been residing there at various places, while Mst. Zuhran was killed in the house of applicant. The applicant was antagonized with his daughter Mst. Zuhran upon Contracting marriage with Shahnawaz Kalhoro on account of her own freewill, therefore, it can be presumed that the applicant, by adopting the matter of prestige either killed Mst. Zuhraan himself or got her killed through some accused person and involved Shahnawaz Kalhoro and his brother Fida Hussain Kalhoro in F.I.R. No. 12/2008. It will not be out of place to mention here that the applicant intentionally and deliberately did not implead accused Shah Nawaz Kalhoro and Fida Hussain Kalhoro as party in the present Criminal Miscellaneous Application, though he is impugning the order whereby then were released by the learned Magistrate, therefore, the instant Criminal Miscellaneous Application can be treated as not maintainable, any if my adverse order is passed against them, who are not party in the present application, it would amount to infraction of the principle of Audi Alteram Partem, that is to say no one should be condemned unheard.
' The record further reveals that accused Shahnawaz filed Criminal Miscellaneous Application No. 148 of 2008 under section 491, Cr.P.C. Before this Court against applicant Ali Gohar and others for illegal confinement of his wife Mst. Zuhran and this Court passed order on 18-9-2008 directing the DPO to execute rule nisi as the said Ali Gohar and other did not produce Mst. Zuhran and lower Police official could not conduct the raid in proper manner. This Court also directed said Ali Gohar and from custody."
21. In this view of the matter, I do not feel it apt to go into the validity or otherwise of the order of the Magistrate, which has already been held to be legal vide order dated 18-4-2013 in Criminal Miscellaneous Application No. S-181 of 2009, and the same was never challenged.
22. I do not find any illegality, irregularity or error in the impugned order dated 30-1-2009, passed by learned Ex-Officio Justice of Peace/Additional Sessions Judge, Kandiaro, which requires no interference of this Court. Accordingly, the instant criminal miscellaneous application being without any substance is dismissed.