' ABDUL MAALIK GADDI, J.---By this application under section 561-A, Cr.P.C. The applicant/complainant, Mst. Razia wife of Liaqat Ali has assailed the order dated 04.6.2013 passed by learned Civil Judge and Judicial Magistrate-I, Warah on summary report under Section 173, Cr.P.C. Whereby the learned Magistrate disposed of the summary in cancelled class.
2. The relevant bids of the case are that on 18.11.2012 complainant Mst. Razia has lodged report being Crime No,106/2012 under sections 354, 351, 498-A, 342, 506/2, 420, 148, 149, 34, PPC at Police Station Waggan District. Kamber Shahadadkot against the respondents Nos,3 and 4 and others alleging therein that on the said date on the call of her brother she along with her husband Liaqat Ali and son Ali Raza went his house for settlement of her share in respect of property of their father where respondents Nos,3 and 4 with other accused persons duly armed with pistols maltreated, disgraced and torn her clothes and confined them in a room for two hours with threats not to demand her share.
3. It appears from the record that after registration of FIR, the investigating agency started investigation of the case and on completion' of usual investigation the I.O. Of the case filed report under Section 173, Cr.P.C. Before concerned Magistrate for disposal of the case under "cancelled" class. However, when complainant appealed before the Magistrate for redressal or her grievances the Magistrate then directed reinvestigation of the case and on the orders of the learned Magistrate the case was reinvestigated by DSP Ferozuddin Siddiqui and on the basis of report of DSP dated 28.2.2013 the learned Magistrate has ordered for cancellation of FIR of complainant and passed the impugned order.
4. Learned counsel for the applicant has inter alia argued that accused are nominated in FIR with specific allegations that on the day of incident on the call of her brother the applicant went to his house along with her husband Liaqat Ali and son Ali Raza for settlement of her share in the property left by their deceased father where the accused nominated in the FIR have maltreated, disgraced and torn clothes of the applicant in presence of her husband Liaquat Ali and her son Ali Raza.
According to him the prosecution witnesses have supported the case and claim of the applicant in their statements recorded under section 161, Cr.P.C. But during the course of investigation DSP recorded statements of defence witnesses who supported the version of accused and accused being influential persons have managed to get favourable inquiry report and on the basis of their statements the DSP based his report. He further argued that the statements of the defence witnesses do not overrule the statement of the eye-witnesses who are the natural witnesses. He also argued that the learned Magistrate while passing the impugned order has not considered the version of the complainant party and passed the impugned order in a haste manner without applying his judicial mind and order passed by Magistrate is not speaking and the same is based on the report of police and no independent findings have been recorded, therefore, he was of the view that the impugned order is liable to be set aside and concerned Magistrate be directed to take the cognizance of the case proceed and decide the case on merits as per law. In support of his arguments he has relied upon case of Syeda Afshan v. Syed Farrukh Ali and 03 others reported as PLD 2013 Sindh 423 and Bakhsh All v. The State and 7 others reported in 2013 YLR 1948.
5. Learned DPG assisted by learned counsel for respondents Nos,3 and 4 has supported the impugned order by arguing that the impugned order has been passed by the learned Magistrate on the basis of material collected by I.O. And there is also litigation going on between the parties, therefore, false implication of accused in this case cannot be ruled out. According to him, the learned Magistrate while passing the impugned order has not committed any illegality as no such incident has taken place in a fashion as alleged in the FIR.
6. Record reveals that complainant Mst. Razia registered the FIR against the accused and thereafter prosecution witnesses have fully supported the version of complainant in their statements recorded under section 161, Cr.P.C. But I.O. Of the case recommended the case for disposal under cancelled class on the basis of defence witnesses. In the present case there are prosecution witnesses who have supported the case of complainant and then there are defence witnesses who have stated otherwise. Obviously, as to which witnesses can be more reliable than the other can be sorted out only after trial and recording of evidence. So far as pendency of litigation in between the parties is concerned, it is a double edged sword which cuts both the ways; whereas it can be argued that the complainant lodged false FIR because there was litigation in between the parties. It can also be argued with equal vehemence that accused committed the offence because of such litigation, therefore, the fact that litigation is pending, at this stage at least, neither support the accused nor to complainant.
7. Under the law, the Magistrate was not bound to agree or disagree with the report submitted by police under section 173, Cr.P.C. And was at liberty to apply his judicial mind under the facts and circumstances of the case and pass appropriate order. The Magistrate under section 173, Cr.P.C.
Was not expected to blindly follow the investigation undertaken by police as ipse dixit of the police was never binding upon the Magistrate or Court. The Magistrate was bound to apply his judicial mind to the material placed before him and after applying his judicial mind if Magistrate was of the view that opinion expressed by the Investigating Officer in report under section 173, Cr.P.C. Was just and appropriate, he was fully competent to accept the report and dispose of the case as proposed by the Investigating Officer. But here, in this case the complainant has nominated the accused persons in her FIR, specific role has also been assigned against the accused. The version of the complainant has also been found supported by the prosecution witnesses. The offence appears to be serious and heinous in nature but the learned Magistrate has not considered the point of view of complainant in his order.
8. I have gone through the case of Anwar Shanzim and others v. The State reported in 2010 SCMR 1791. In this case it has been observed as under:-- "Finding of police is not binding on court and investigating agency has the only duty under law to collect evidence. Investigating agency has no authority whatsoever to give finding of guilt or innocence regarding accused persons under the provisions of Criminal Procedure Code, 1898, Police Act, 1861, or Police Order, 2002/Rules framed thereunder. It is only the prerogative of court to give finding, after recording evidence and statements of accused regarding guilt or innocence of accused. Deciding cases on finding of police tantamounts to delegate powers of court to investigating agency which is not permissible under the law, Constitution and conventions.
9. As observed above, since sufficient material was available before Magistrate but he without applying his judicial mind endorse the view of I.O. And no independent findings has been recorded.
10. In view of the above discussion and reasons, I am of the opinion that sufficient evidence to take the cognizance of the offence is on record and at this stage guilt or innocence of the accused cannot be decided. As far as deciding the guilt or innocence of the accused, the evidence is to be recorded. Consequently, this Criminal Misc. Application is allowed, impugned order dated 04.6.2013 passed by learned Civil Judge and Judicial Magistrate-I, Warah is set aside and the accused/respondents Nos,3 and 4 nominated in FIR are arraigned as an accused and trial Court is directed to issue process against the accused.
11. Before parting with this order I would like to make it clear that any observations in this order are tentative in nature and shall not affect the merits of the case.
12. This criminal misc. Application was allowed by me by short order in Court in early part of the day and these are the reasons for the same.