' SHAHNAWAZ TARIQ, J.---Through the instant criminal miscellaneous application under section 561-A, Cr.P.C, the applicant seeks setting aside of the order dated: 18-9-2013 passed by the learned Civil Judge and Judicial Magistrate-VII, Hyderabad, whereby he has ordered for issuance of show- cause notice for contempt proceedings under section 175 and 217, P.P.C. Against the applicant regarding non-submission of lists of witnesses in two cases, while declining report of untraced "A"
Class, as recommended by the applicant.
2. Facts constituting the background of present criminal miscellaneous application are that on 19- 8-2013 the applicant S.H.O./SIP Shoukat Ali along with his subordinate staff during checking of vehicles at Moolan Stop., checked the vehicle of accused Muhammad Azeem Bahram and found 2.2 rifle with magazine loaded with 5 bullets and 500 grams Charas from the trunk of his car. Due to recovery of unlicensed rifle and Charas, the applicant shifted the apprehended culprit along with recovered articles at Police Station Pabban and lodged F.I.R No.97/2013, under section 23-A Sindh Arms Act, 2013 and F.I.R. No. 98/2013, under section 9-B Control of Narcotic Substances Act, 1997 against accused Muhammad Azeem Bahram. After registration of F.I.Rs., the copies of F.I.Rs. Were submitted to the concerned Magistrate and accused was also produced before the learned Magistrate and remand was obtained accordingly. During the course of investigations accused Muhammad Azeem Bahram was interrogated by the applicant and statements of police witnesses were recorded under section 161, Cr.P.C. Simultaneously, statements of defence witnesses were also recorded and the applicant concluded accused Muhammad Azeem Bahram to be innocent, as he was neither involved in such type of offences in past nor there was ever any such complaint against him. Ultimately, the applicant submitted report under section 173, Cr.P.0 for disposal of the case under untraced "A" Class against, the accused before the respondent No.1/the learned Magistrate.
3. The learned Magistrate after minutely examination of entire material placed before him, declined the report submitted by the applicant S.H.O. Under untraced "A" Class and issued show-cause notice dated 31-8-2013 to the applicant with further directions to submit lists of witnesses in both cases, and sent a letter to the respondent No.2, SSP Hyderabad to hold departmental inquiry against the applicant being guilty of offence under section 218, P.P.C. The applicant replied show- cause notice through his advocate, but the learned Magistrate considering said reply to be unsatisfactory, passed the impugned order against the applicant S.H.O.
4. Learned counsel for the applicant S.H.O./SIP Shoukat Ali has contended that the applicant S.H.O.
Was legally empowered under the provisions of Cr.P.0 to conduct raids for recovery of contrabands and also to act as complainant to lodge F.I.Rs. For the recovered articles against the owner of the said car, and so also it was legal mandate of the applicant S.H.O. To conduct investigations by himself, and he done so and ultimately concluded said investigations under untraced 'A' Class; therefore, none of the act of the applicant be treated illegal or without legal authority. The applicant submitted such report before the respondent No.1, learned Magistrate, but he has illegally issued show-cause notice to the applicant on 31-8-2013-as well as sent letter to the respondent No.2 SSP, Hyderabad to hold departmental inquiry against the applicant being guilty of offence under section 218, P.P.C. Learned counsel for the applicant has further contended that the issuance of show-cause notice for contempt through the impugned order dated 12-9-2013, clearly shows that the learned respondent No.1 has become inimical towards the applicant and impugned order was passed due to his personal grudge. .Learned counsel further contended that a fair report was submitted under untraced "A" Class, which would have been accepted by the learned Magistrate without taking any cognizance in the matter or to pass order for reinvestigation of the cases through the respondent No.2, SSP, Hyderabad. He further contended that the impugned order is amounting to cause interference in process of investigation, while the concerned Magistrate could not interfere in such process. The impugned order is not speaking one but based on surmises and conjectures, hence same is liable to be set aside. In support of his contentions, he has relied upon 2007 PCr.LJ 1515, PLD 2007 Karachi 243, 2001 PCr.LJ.199, 2000 YLR 2857, 2000 PCr.LJ 43.
5. Learned A.P.G. Has vehemently opposed the submissions made by the learned counsel for the applicant and has contended that the learned Magistrate has not caused any interference in the process of investigations, and said order has been passed on the report submitted by the applicant. He further .Contended that Magistrate was legally empowered to initiate action or issue show-cause notice in case of gross deliberate violation committed by the applicant S.H.O., therefore, no illegality has been committed by the respondent No.1 and instant criminal miscellaneous application is liable to be dismissed.
6. I have heard the learned counsel for the applicant as well as learned A.P.G for the State and have gone through the record and case law. Relied upon carefully.
7. Admittedly, on 19-8-2013, applicant S.H.O./SIP Shoukat All of Police Station Pabban, along with subordinate staff during snap checking of vehicles at MooIan stop, recovered unlicensed 2.2 rifle with five live bullets as well as 500 grams Charas from the trunk of the car of accused Muhammad Azeem Behrani in presence of mashirs; The applicant S.H.O. Being complainant lodged first F.I,R.
Bearing No.97/2013 under section 23-A Sindh Arms Act, 2013 and another F.I.R. No.98 of 2013 under section 9(b) of CNS Act, 1997, at Police Station Pabban against accused Muhammad Azeem Behrani. The applicant S.H.O. Himself conducted investigations of both above . Crimes. During the course of investigation, the applicant recorded statements of official witnesses under section 161, Cr.P.C. As well as statements of defence witnesses namely Nazar Ali son of Rasool Bux, Ghulam Mustafa son of Muhammad Bux and Abdul Ghafoor son of Muhammad Yousif and consequently, on the strength of defence statements, the applicant recommended the accused Muhammad, Azeem to be innocent and has falsely been implicated by unknown persons, and submitted report before learned Magistrate, respondent No.1, under untraced 'A' Class.
8. After hearing the applicant and scanning the available record, the learned Judicial Magistrate declined 'A' Class report and simultaneously issued show-cause notice to the applicant under section 218, P.P.C. On 31-8-2013 for applicants involvement in spoiling the evidence and securing the release of accused Azeem in offences under section 23-A Sindh Arms Act, 2013 and section 9(b) of C.N.S. Act, 1997.
9. For appropriate decision the impugned order dated 18-9-2013 passed by the learned Judicial Magistrate is reproduced as under:- "S.H.O./SIP Shoukat All of Police. Station Pabban was issued show-cause notice under section 218, P.P.C. Dated 31-8-2013 for his involvement in orchestrating and securing the release of accused Azeem in offences under section 23-A, S.A.A.13 and 9(b) of Control of Narcotic Substances Act, 1997. On 12-9-2013 reply of show-cause was submitted through Counsel Ghulamullah Chang. On request of D. Counsel matter was put off till 18-9-2013. Today the' matter was proceeded with.
S.H.O. Pabban wilfully remained absent despite on call information. S.H.O. Was represented by team of counsel. Patient hearing was givem Nonetheless reply of show cause was found most unsatisfactory. Shockingly it portrayed utter ignorance of S.H.O with regard to legal knowledge of law. Among other things in his written reply to show cause SIP Shoukat Ali contended that he had disposed of the case as 'A' Class under section 170, Cr.P.C. A contention supported by his counsel as well. What was most shocking to observe that what to speak of legal knowledge of SIP/S.H.O./ Pabban even the learned D.C. Was oblivion to the fact that final police reports in summary matters is submitted not under P. P. C. Or Cr. P. C. But rather under police rules. Here a question arises in mind that what sort of incompetent officers have been appointed by head of District Police to serve as S.H.Os. For maintenance of law and order who don't even know the A B CD of law. No wonder the law and order situation is so pathetic. Moreover, as held by superior courts.
Under the law report of I.O. Is not binding upon the court. Courts have to base their verdict on the strength of evidence and material placed before them (2002 PCr.LJ 1585 and 2006 MLD 601). As such I, on the basis of available material, have reached a definitive opinion that SIP Shoukat Ali has been involved in breach of his duties-without an scintilla of doubt and has tailored the release of accused in crime mentioned supra. As such, matter as a show of judicial restraint is now left to SSP Hyderabad to initiate departmental action against its black sheep within span of five days with intimation to this court. Last but not the least, in instant case cognizance was taken by court and S.H.O. Was directed to submit list of witness at earliest but till date no compliance has been made. Issue separate show cause notice to I.O. S.H..0./SIP for contempt proceedings under section 175 and 217, P. P. C..
10. For adequate conclusion, the provisions of sections 173 and 190(1) of Code of Criminal Procedure are reproduced as under:-- 'S.
173. Cr.P.C.;---Report of police officer.---(1) Every investigation under this chapter shall be completed without unnecessary delay and as soon as it is completed the officer in charge of the police station shall , (through. Public Prosecutor):
(a) forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the Provincial Government, setting forth the names of the parties, the nature of the information and the names of the persons who appear to be acquainted with the circumstances of the case, and station whether the accused (if arrested) has been forwarded in custody or has been released on his bond, and if so whether or without sureties and; ' S.190 Cr.P.C:---Cognizance of offence by Magistrates:---(1) Any Magistrate of the First Class, or any other Magistrate specially empowered by the Provincial Government on recommendation of the High Court may take cognizance of any offence:-
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a report in writing of such facts made by any police officer;
(c) upon information received from any person other than police officer, or upon his knowledge or suspicion, that such offence has been committed which he may try or send to the Court of Session for trial.
11. In the case of Muhammad Akber v. The State ,1972 SCMR 335, the Hon'ble Supreme Court has held as follows:-- "Even on the first report alleged to have been submitted under section 173, Cr. P. C. , the Magistrate could, irrespective of the opinion of the Investigation Officer to the contrary, take cognizance, if upon the materials before him he found that a prima facie case was made out against the accused persons. After all the police is not the final arbiter of a complaint lodged with it. It is the Court that finally determine upon the police report whether it should take cognizance or not in accordance with the provisions of section 190(1) (b) of the Code of Criminal Procedure."
12. In the case of Falak Sher v. The State, PLD 1967 SC 425, the Hon'ble Supreme Court has held as follows:- "In our opinion, the action of the Magistrate in issuing summons to the appellants despite the fact that the Investigation Officer in his report under section 173, Cr. P. C. Placed their names in column 2, as clearly correct."
13. In the case of Ch. Muhammad Aslam v. C.P.O. Rawalpindi and others, 2011 PCr.LJ 1870, it has held that Investigating Agency has the only duty to collect evidence and place it before Court. Only the Court has prerogative to give finding after recording of evidence and statement of accused regarding guilt or innocence of accused. Deciding a case on the finding of Investigating Agency tantamount to delegate powers of Court to Investigating Agencies.
14. In the case of Zafarullah and another v. The State, PLD 2012 Sindh 406, it has held that Magistrate under Code of Criminal Procedure has been entrusted with diverse duties and in discharging said duties he would not always function as a court. Some of his powers and duties under Code of Criminal Procedure are administrative, executive or ministerial to be discharged not as a Court, but as a persona designata. To constitute a criminal Court it is not sufficient that it is one of the Courts mentioned in S.6, Code of Criminal Procedure, 1898, but it must be acting as a criminal Court.
Magistrate, under Code of Criminal Procedure is empowered to act judicially as well as in the administrative but he has no power to act arbitrarily such an order might not be judicial order but it must be a judicious order and not an arbitrary order without reasons and justification capacity. It is further held that Magistrate is required to consider the report under section 173, Cr.P.C. In light of the material collected during investigation and then pass the order. He is not expected to blindly ditto the report of the police.
15. In case of Manzoor Akber Turk y. Raja Ashique Hussain and 6 others (2008 MLD 728), it has been held that Magistrate under section 190(1) clause (b) Cr.P.C. Takes cognizance of an offence upon report made by police officer under section 173 Cr.P.C. Which may be positive or negative.
Cognizance is application of mind by the. Court on the facts and circumstances of the case. Court taking cognizance of an offence has to consider (i) whether the offence falling within its jurisdiction is made out or not; whether offence is committed in its territorial jurisdiction; who are the persons responsible for the commission of offence and whether in court's opinion sufficient grounds are existing for proceeding with the trial.
16. Under section 190, the Magistrate is competent to take cognizance of any offence committed, brought in his knowledge in writing or orally and such complaint can be initiated against the respective respondent/accused. In the present case, the applicant who is also S.H.O. Of Police Station, during snap checking of vehicles and recovered one unlicensed 2.2 rifle and also recovered 500 grams of Charas from the car of accused Muhammad Azeem, and then he being complainant registered two separate F.I.Rs. Bearing Nos.97/13 and 98/13 against accused Muhammad Azeem.
Thereafter he himself conducted the investigation of both crimes and after recording statements of P.Ws. And three D.Ws. Determined the accused to be innocent and submitted such report under untraced 'A' Class before the concerned Magistrate. It is crystal clear that under section 173, Cr.P.C.
An officer while conducting investigation of a crime shall submit his conclusion of investigation in shape of report i.e. Either a charge sheet regarding the guilt of accused or innocence of accused before the concerned Magistrate, but he cannot exercise his powers to conduct the investigation in manner of judicial proceedings, as it is the exclusive jurisdiction of the concerned trial Court to consider the defence evidence during the trial and decide the fate of accused. The concluding report of Investigating Officer is not binding upon the Magistrate and it is ample authority of the Magistrate to scrutinize the police report from all the four corners judiciously and then pass an appropriate order.
17. Considering the cited law supra and circumstances of instant criminal miscellaneous application, I have no hesitation to conclude that this is a glaring case of neglect and failure to discharge of mandatory provisions of law to produce lists of witnesses in both cases as directed by the concerned Magistrate. The deviation of applicant for non-compliance of subject order is amounting to frustrate the foundation stone of the scheme of administration of criminal justice, which is based upon fair, impartial and transparent investigation of the offence duly registered by the State functionaries and it must be carried out strictly in accordance with the relevant provisions of law.
18. During the course of, hot arguments, the learned counsel for the applicant/S.H.O. Has also failed to point out any kind of inimical attitude and personal grudge of the learned Magistrate against the applicant/S.11.0. And such attitude is highly regrettable.
19. Consequently, the impugned order dated: 18-9-2013, passed by the learned Magistrate, respondent No.1 cannot be termed as non-speaking, perverse, or capricious order. However, the learned Magistrate shall not conduct further proceedings in this context, and he may file 'direct complaint on the strength of entire available record, before the court having competent jurisdiction.
20. For the foregoing reasons and findings instant Criminal Miscellaneous Application being devoid of merits, stands dismissed.