' MUHAMMAD IQBAL KALHORO, J.---By this common order I intend to dispose of Cr. Misc. Appin.
No,741/2013 under section 561-A, Cr.P.C., Cr. Misc. Appin. No, 861/2013 under section 561-A, Cr.P.C., Cr.
Misc. Appin. No, 862/2013, Cr. Misc. Appin No, 863/13 and Cr. Misc. Appin. No, 864/13 filed by the applicant Amanat Ali against the impugned order dated 26-9-2013 passed by the learned Civil Judge and Judicial Magistrate, Daharki in Crime No, 130/2013 under sections 420, 406, 506/2, P.P.C., Crime No, 131/2013 under sections 420 and 406 and Crime No, 142/2013 under sections 420, 406 and 506(2), P.P.C. Registered with Police Station Daharki, whereby he has directed the SSP Ghotki at Mirpur Mathelo to place the cases pertaining to above crimes and offences before the Director General NAB Sindh for appropriate action in accordance with law and the FIRs so registered at Police Station Daharki shall be disposed of accordingly.
2. The brief facts germane to the instant applications are that applicant was booked in above stated crimes and offences on the complaint of different persons whom the applicant is alleged to have deprived of their cash on the pretext of making it double.
3. The above stated FIRs were duly investigated by the Investigating Officers concerned and in Crime No, 142/2013 final challan was submitted before the learned trial court which accepted the same. Whereas in Crime Nos. 130/2013 and 131/2013 interim challans under section 173, Cr.P.C. Were filed before the court as there were as many as six absconders who were to be arrested by the police concerned.
4. It appears that the learned Magistrate after accepting the above stated reports under section 173, Cr.P.C. Issued a notice to the prosecution as well as to the defence counsel during hearing of the bail applications moved on behalf of the applicant in above crime and offences to the effect that as to why the aforementioned cases be not referred to the NAB authorities.
5. After hearing the parties, the learned Magistrate passed the impugned order wherein he has observed as under:-- "Therefore S.S.P Ghotki at Mirpur Mathelo is required to get the matter placed before the N.A.B.
Authorities through Director General N.A.B. Sindh, Karachi for appropriate action in accordance with law and the FIRs so registered at Police Station Daharki shall be disposed of accordingly. In case, after examination and enquiry as per provisions of The National Accountability Ordinance, 1999, the Chairman N.A.B. Finds the case fell in the category of cases which are left to be proceeded with under the ordinary and normal laws of the land, the same shall be restored to the original position.
A copy of this order be placed in the above cited F.I.Rs,"
6. Learned counsel has .Contended that the learned Magistrate after accepting the challan against the accused was not competent to pass the impugned order. Per learned counsel the learned Magistrate could either agree or disagree with the report submitted under section 173, Cr.P.C. But cannot refer the matter on his own to the NAB authorities for the purpose of trial. He in the last submitted that the report of the learned Civil Judge regarding current stage of the cases has been received by this court which shows that the challans in all the above stated crimes and offences have been submitted by the I.O. Therefore necessary directions be issued to him for expeditious disposal of the trials.
7. Learned counsel for the complainant has stated that on 23-8-2014 the investigating officer has submitted the final challans in Crime Nos. 127, 129, 131, 155 and 158 of 2013 registered at Police Station Daharki against the applicants, therefore the trial court may be directed to proceed with the matter expeditiously.
8. Learned D.P.G. For the State has conceded to the arguments made by the learned counsel for the applicants and in addition has stated that the learned Magistrate was not competent under any provisions of law to dispose of the FIRs and refer the matters to the NAB authorities for trial purpose.
He has also stated that though the police officials as directed by the learned Magistrate submitted the cases against the accused before the NAB authorities but they refused to take cognizance thereon.
9. I have heard the counsel for respective parties and gone through the material available on the record.
10. Admittedly the final challan in Crime No,142/13 was accepted by the learned Magistrate on 21-9- 2013 whereas in Crime Nos. 130/2013 and 131/2013 registered at Police Station Daharki the interim reports under section 173, Cr.P.C. Were filed against the applicant.
11. The scheme of law under the Code whereby the Magistrate is empowered to sendup the case after he has taken cognizance whereof in terms of section 173, Cr.P.C. Is provided under sections 346, 347 and 349, Cr.P.C. In order to appreciate the provisions of sections 346, 347 and 349 the same are reproduced herewith for ready reference:-- [346 Procedure of Magistrate in cases, which he cannot dispose of.---(1) If, in the course of an inquiry or trial before a Magistrate in any district, the evidence appears to him to warrant a presumption that the case is one which should be tried, or sent for trial to the Court of Session or the High Court, by some other Magistrate in such district, he shall stay proceedings and submit the case, with a brief report explaining its nature, to the Sessions Judge or to such other Magistrate, having jurisdiction, as the Sessions Judge directs.
(2) The Magistrate to whom the case is submitted may, if so empowered, either try the case himself or send the case for trial to the Court of Session or the High Court.] [347 Procedure when, after commencement of trial, Magistrate finds case should be tried by Court of Session or High Court. If in any trial before a Magistrate, before signing judgment, it appears to him at any stage of the proceedings that the case is one which ought to be tried by the Court of Session or High Court, he shall send the case to the Court of Session or High Court, for trial.]
349. Procedure when Magistrate cannot pass sentence sufficiently severe.---(1) When a Magistrate of the second or third class, having jurisdiction, is of opinion after hearing the evidence for the prosecution and the accused, that the accused is guilty, and that he ought to receive a punishment different in kind from, or more severe than, that which such Magistrate is empowered to inflict, or that he ought to be required to execute a bond under section 106, he may record the opinion and submit his proceedings, and forward the accused, to [a Magistrate of the first 'class specially empowered in this behalf by the Provincial Government].
(1-A)...............
(2) ..................
12. Barring the above provisions of law, the Magistrate is not competent to wash off his hands from the trial of which he has already taken cognizance on the report submitted by the investigating officer under section 173, Cr.P.C. If however the report of the investigating officer placed before the Magistrate for his approval is in negative, whereby he has disposed of the prosecution case either under (a), (b) or (c) A class, the Magistrate in such case under the law is competent after evaluating the material placed before him to either agree with the conclusion drawn therein or to make his own independent opinion by disagreeing with the inference arrived at by the investigating officer. However if the report of the investigating officer is in positive, thereby he has referred the accused to the Magistrate for the purpose of trial along with the material collected against him or them, the Magistrate is not empowered in such situation to disagree with the conclusion of the investigating officer. For the purpose of reliance the following cases can be cited, 2010 YLR 470, 1972 SCM R 516.
13. The Criminal Procedure Code however empowers the Magistrate under section 249 to stop the proceedings against the accused and release him in a case instituted otherwise than upon complaint without pronouncing any judgment either of acquittal or conviction and under section 249-A, Cr.P.C. When he is of the opinion at any stage of the case that the charge against the accused is groundless or that there is no probability of accused being convicted of any offence, he can acquit the accused. Excepting the above provisions of law, the Magistrate is not competent under the Code after accepting the case against the accused on a report under section 173, Cr.P.C.
To dispose of the same without adopting the procedure provided in terms of Chapter XIX of the Code.
14. During hearing of the instant application, the report, was called from the learned Magistrate regarding the current stage of the cases. Learned Magistrate has submitted the report dated 23-8- 2014 wherein he has stated that in Crime Nos. 127, 129, 130, 131, 155 and 158 of 2013 the final challans have been submitted by the investigating officer upon which he however, could not pass any order in view of the order dated 11-11-2013 passed by this court in instant application whereby he was directed not to pass any further order in the subject case.
15. In view of such factual position, and what has been discussed above, the learned Magistrate is directed to pass fresh orders on the reports submitted before him under section 173, Cr.P.C. By the investigating officer in above crimes and offences without being influenced by his earlier order dated 26-9-2013 and keeping in view his own observation in the bottom of said order reproduced hereinabove in para No,5.
16. In above terms instant criminal misc. Applications are disposed of along with listed applications.