1. AFTAB AHMED GORAR, J.---Through this Cr. Misc. Application filed under section 561-A, Cr.P.C. The applicant/ complainant namely, Anwar Alam Siddiqui has impugned the order dated 27.02.2013 passed by learned VIth Judicial Magistrate, Karachi South whereby he disposed of FIR No.232/2012 registered against respondent No.2 at P.S. Clifton under sections 420/ 406, P.P.C. In "C" Class.
2. ' Brief facts, as disclosed in the Application, are that the applicant purchased vehicle No.ANX-739 Make Toyota Corolla Model 2007. The younger brother of the applicant namely Najm-eAlam had visiting terms with respondent No.2, Ghulam Arif Khan. On the request of his brother, the applicant to handover the said car for few months. Respondent No.2 promised to return the car within few months, as such believing his words, the applicant delivered the car to respondent No.2. However, despite lapse of a period of 3 months respondent No.2 did not return the car. Then in the 1st week of October, 2012 the applicant was in hard need of the car, as such he tried to contract respondent No.2 on phone but despite repeated calls, he could not succeed in contacting respondent No.2 and received message that the phone was off/closed. On 08.10.2012 the applicant along with his brother visited the house of respondent No.2 but found the same locked. On enquiry, they came to know that respondent No.2 had gone abroad and they also could not find the car there, with the result the applicant tried to lodge FIR against respondent No.2 at P.S. Clifton but the police avoided to do so, hence he filed Cr.Misc. Application and ultimately on the orders of learned lInd Additional Sessions Judge, Karachi South, police registered the abovesaid FIR against respondent No.2 on 11.10.2012.
3. ' Subsequently, the applicant came to know that the police had submitted report under section 173, Cr.P.C. Before the learned Judicial Magistrate for disposal of the case in 'A" Class. However the Judicial Magistrate, without issuing any notice to the complainant, approved the disposal of the case in 'C' Class instead of "A" Class vide impugned order. The applicant has challenged the said order through instant Cr. Misc. Application.
4. ' Learned counsel for the applicant/complainant contended that the applicant is the exclusive owner of the vehicle in question and he never sold out the same to respondent No.2 but he became dishonest and tried to usurp the car. He further contended that the learned Judicial Magistrate has travelled beyond its jurisdiction by passing the impugned order thereby approving the disposal of the case in 'C' Class. According to him, it was a case of misunderstanding and non- appreciation of the facts and evidence brought on the record. He further contended that neither the police had informed the applicant about the submission of final report, nor the learned Judicial Magistrate issued any notice to the applicant and without hearing him has passed the impugned order which has adversely affected him and the same has resulted in grave miscarriage of justice.
5. He further contended that impugned order has been passed without applying judicious mind as the learned Magistrate himself had granted application of the applicant under section 523, Cr.P.C.
6. And passed order for handing over the custody of the car to him. He prayed for setting aside of the impugned order.
7. ' Conversely, learned counsel for respondent No.2 opposed the Cr.Misc. Application contending that the same is not maintainable. He submitted that while considering the report under section 173, Cr.P.C. By the Judicial Magistrate, the complainant is not entitled to be issued notice or afforded opportunity of hearing. He contended that the impugned order is just and proper and the applicant has failed to point out any material irregularity or illegality in the order which justifies the interference by this Court in exercise of its powers under section 561-A, Cr.P.C. Heprayed for dismissal of the Cr. Misc. Application.
8. ' Learned A.P.G. Appearing for the State, while adopting the arguments advanced by the learned counsel for the respondent, opposed the Cr. Misc. Application and prayed for its dismissal.
9. It is now well settled that Magistrate is not bound by the report submitted by police under section 173, Cr.P.C. And he may or may not agree with the conclusions reached by Investigating Officer.
10. Nothing was provided inSection 190, Cr.P.C. To prevent aMagistrate from taking cognizance of case under clause (b) of Section 190, Cr.P.C, in spite of police report. The Magistrate was only required by law to apply his independent mind to the material placed before him and from his own opinion about the matter and if he is of the opinion that the case is fit to be disposed of summarily and the accused is entitled to be discharged, he may pass such order. If any case-law is needed reference may be made to 2005 PCr.LJ 560 and 2004 PCr.LJ 1023. At the same time, while doing so, the learned Magistrate is not required to issue notice to the complainant or to hear his view point. If the complainant is not satisfied by the police investigation, he could resort the remedy of filing direct complaint but in no case, the provisions of section 173, Cr.P.C. Entitle him to get the person of his choice implicated in the case. Such view was taken in the case reported as Inayatullah and 4 others v. The State and another (1999 PCr.LJ 731). However, despite such legal position, as is evident from the impugned order, the learned Judicial Magistrate even issued notices to the complainant but he did not appear before the court. In the instant case, although the Investigating Officer submitted report under section 173, Cr.P.C. For disposal of the case under 'A' Class but the learned Judicial Magistrate did not accept the same and ordered for disposal of the case' in 'C' Class holding that the element of mens rea appeared to be missing in the case and the matter was of civil nature. In this view of the matter, it cannot be said that the learned Judicial Magistrate has acted blindly on the basis of the report submitted by I.O. But, it seems that after having applied his judicious mind, he came to the conclusion as stated, above.
11. ' For the foregoing reasons, I do not find any irregularity or illegality in the order passed by the learned Judicial Magistrate which is accordingly upheld and Cr.Misc. Application, being devoid of