MUHAMMAD SALEEM JESSAR, J.---Through this Cr. Misc. Application the applicant Khawaja Muhammad Asghar has challenged the Order dated 14.11.2017 passed by learned. XXII-Judicial Magistrate, Karachi East, whereby he accepted the charge sheet/report under Section 173, Cr.P.C. bearing No.264/2017 wherein the Investigating Officer of the case deleted/changed the Sections of Pakistan Penal Code mentioned in the FIR lodged by the applicant/complainant.
2. Precisely , the relevant facts giving rise to the filing of instant Criminal Misc. Application are that the applicant lodged FIR No.471/2017 under Sections 324/427/109/34, P.P.C. on 25.09.2017 at Police Station Gulistan-e-Jauhar Karachi alleging therein that he is a Civil Consultant Engineer and residing at the address given in the FIR. On 25.09.2017 at 09:00 a.m. he came out from his house and went towards his office in his car bearing No.APE-763, Maker: Mehran being driven by his driver Ali Nawaz. His son namely Masroor Asgher was also sitting in the car with him. It was further alleged that when they reached at Yasir Apartment, Faisal Masjid, KDA Delux View Apartment, one Muhammad Nawaz, who was already sitting in another car, hit their car and suddenly other culprits duly armed with dandas and iron bars emerged at the spot and attacked them. The accused persons had arranged a rickshaw stood in order to block their way. Accused Muhammad Nawaz repeatedly hit their car which was badly damaged and the doors of the car could not be opened. The said armed culprits continuously hit dandas and iron bars at the complainant as well as his son, resultantly the door of the car was badly damaged and could not be opened. It is further alleged that his driver came out from the window of the car and raised lalkara ' which attracted muhallah people, whereupon the culprits fled away . It is further alleged that he and his son Masroor sustained severe injuries while his driver also sustained minor injuries. Thereafter they went to Jinnah Hospital and got medical certificates. Thereafter , threats for dire consequences were being extended by the accused persons on different dates for which he moved applications to the High Court. It is further alleged that, last night all the accused persons had gathered in a party at ST-12 Park where they had planned to kill the complainant. It was also alleged that CP No.D-4282/17 is already pendin g before this Court against the illegal construction raised by accused persons. After registration of FIR investigation was conducted by S.I. Mohammad Safdar Ali Brohi, thereafter investigation was transferred to S.I. Sarfaraz Alyana of P .S. Soldier Bazar .
3. The main grievance of the applicant is that the second IO namely S.I. Sarfaraz Alyana while submitting report/charge sheet under section 173, Cr.P.C. had deleted/changed the Sections of P.P.C. which were mentioned in the FIR at the instance of the accused as they had greased his palm, hence the applicant has moved instant Cr.
Misc. Application with the prayer to pass order for insertion of proper Sections P.P.C. and Anti-T errorism Act, 1997 and for entrusting investigation of the case to some other honest Police Of ficer.
4. I have heard the applicant who is appearing in person as well as learned DPG appearing for the State and have gone through the material available on the record.
5. The applicant contended that the IO of the case for ulterior motives and with mala fide intention has deleted/changed the Sections which were mentioned in the FIR, particularly , he has deliberately omitted Section 324, P.P.C. in order to extend undue favor to the accused and get the case of the applicant weakened. He further contended that while committing the alleged offence the accused persons had used danda and iron bars which have been declared as lethal weapons by the Superior Courts and have held that such cases fall under Sections 307/324, P.P.C. However , despite that the I.O. in the charge sheet has removed Section 324, P.P.C. deliberately at the instance of the accused and learned Judicial Magistrate has also approved such charge sheet without applying his own judicious mind to the factual as well as legal aspects of the case. He, therefore, submitted that application is maintainable which may be entertained and prayed that notices may also be issued to private respondents. In support of his submissions the applicant relied upon case-law reported as Ghulam Hussain v. The State [1982 SCMR 1 113(2)]. He lastly prayed for allowing instant Cr . Misc. Application.
6. On the other hand, leaned DPG while supporting the impugned order contended that under the law the I.O. is authorized to add, change or delete any Section on the basis of investigation carried out by him, as such there was no illegality committed by him as well as by learned Judicial Magistrate who accepted the charge sheet submitted by the I.O. He further contended that in view of the facts of the case ingredients of Section 324, P.P.C. are not available, therefore, the I.O. has rightly omitted the said Section in the charge sheet and so also learned Judicial Magistrate has also rightly accepted the said report/ charge sheet. He prayed for dismissal of instant Criminal Misc.
Application and maintaining the impugned order .
7. I have given due consideration to the arguments by the applicant and learned DPG and perused the record. It appears that the main grievance of the applicant/ complainant is with regard to the omission/ deletion of Section 324, P.P.C. from the FIR in the charg e sheet. In order to properly evaluate such grievance, it would be advantageous to reproduce the contents of Section 324, P .P.C. as under: "324-whoever does any act with such intention or knowledge, and in such circumstances, that if he by that act caused qatl, he would be guilty of qatl-i-amd, shall be punished with imprisonment for either description of a term which may extend to ten years, and shall also be liable to fine, and, hurt is caused to any one by such act, the offender shall be liable to the punishment provided for the hurt caused."
8. From the perusal of above Section it transpires that there are two limbs of the said Section i.e. (i) that if any act is done by anyone with intention or know ledge that by such act he could be held guilty of committing qatl-i-amd of any person, then he would be punished for a term which may extend to ten years and shall also be liable to fine; and (ii) if any hurt is also caused to any person by such act of the offender , he shall also be liable to the punishment provided for such hurt caused by him. Thus, it is crystal clear that for holding such offender to be guilty of offence under Section 324, P.P.C., it is not necessary that the victim should necessarily sustain injuries, on the other hand if any intentional attempt is made to commit qatl, without causing any injury to the victim , even then such of fender would be guilty of committing of fence under Section 324, P .P.C.
9. It is also noteworthy that Hon'ble Supreme Court in certain cases has declared the lathi/danda is a lethal weapon, therefore, if injuries are caused by such weapon the offence, keeping in view the ' circumstances of each case, could fall under Section 307, P.P.C., parallel to the present Section 324, P.P.C. In this connection it would be advantageous to reproduce hereunder the observations made by Hon'ble Supreme Court in the case of Ghulam Hussain v . The State reported in 1982 SCMR 1 113(2):-- "4. Having considered the motive for the incident and the nature of the attack as well as number and location of injuries by lathis which have been held in numerous cases to be lethal weapons, we feel that, in the circumstances the offence is covered BY section 307, P . P.C. "
10. Reference in this regard may also be made to another judgment of Honourable Supreme Court reported as Gul Nawaz alias Gul Mowaz and 2 others v . The State (1970 SCMR 667 ).
11. Needless to emphasize that for establishing the act of making attempt to commit any offence, intention and/or knowledge of the offender is to be seen and it is not necessary that the offender must succeed in his attempt to accomplish his act of committing such of fence.
12. In the case of Abdul Majeed v. The State reported in 1973 SCMR 108 it was held by Hon'ble Supreme Court as under: "According to accepted concept of attempt as an indictable crime, it means an intentional act with a view to attain certain end but which is not achieved because of circumstances independent to the will of the offender who makes an attempt. Weather any given act or series of acts constitute a criminal attempt punishable under the penal law is consequent to fact in each case, depending on the circumstances surrounding the act".
13. Examining the instant case in the light of guidelines provided by the Superior Courts in the afore-cited cases, it seems that although there is no material available in the present case to establish that the complainant or his son got injured due to alleged inflicting of danda or iron bars blows by the accused, as according to the complainant himself the doors of the car could not be opened and the accused inflicted danda blows on the doors of the car, however , from the conduct of the accused persons it is clear that they, in fact, intended to inflict the danda blows on the inmates of the car but could not accomplish their act as they could not succeed in opening the doors of the car, meaning thereby that they made attempt to commit offence but could not succeed in concluding their attempt. In this view of the matter , the ingredients of Section 324, P.P.C. are very much availa ble in the instant case in view of the fact that only attempt to do any act with intention or knowledge that it may result into gall is enough for attracting the provisions of Section 324, P.P.C. and if during the course of such attempt hurt is also caused to the victim, then separate punishment is provided for causing such hurt.
14. It is also of worth-importance that the I.O. in the challan although termed the alleged incident as 'road accident' , however , he has mentioned in the last para of the challan that the accused persons 'in the shape of accident' (i.e. under the garb of road accident) gave beatings to the complainant and his son, therefore, offences under the Sections mentioned in the challan have been made out against them. From this, it is obvious that even the I.O. was also of the opinion that, in fact, the accused had the intention to commit the alleged offence which may also result in the qatl of the complainant and his son because the accused had used lethal weapons for committing such offence which might have caused death. In this view of the matter , it is not unders tandable as to how the I.O. has termed the alleged offence as 'road accident' in column No.4 of the Challan because in rash and negligent driving there is no intention to cause hurt or death but the same is the result of carelessness and negligence on the part of driver of a vehicle. In this connection reference may be made to an Order passed by this Court in the case of Arshad Mehmood v . The State 1986 PCr .LJ 330 (Karachi) wherein following observations were made:-- "While rash or negligent driving does not contemplate mens rea in the sense that the man knew that he was likely to cause death ........ "
15. Further , it also appears that the leaned Judicial Magistrate while accepting the report/ charge sheet under Section 173, Cr.P.C. has not applied his own judicious mind to such report and has accepted the same in a mechanical manner although it is well settled principle of the law that the 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. What he is obliged to do under the law, is to apply his own judicious and independent mind to the material placed before him and form his own opinion about the matter . There are plethora of judgments on this point, however , for the time being reference is made to only one case decided by this Court which is reported as Mohammad Shahid Khattak and another v . The State (PLD 2013 Sindh 220 ) wherein it was held as under: "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 . Nothing was provided in Section 190, Cr.P.C. to prevent a Magistrate 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 form his own opinion about the matter ."
16. The upshot of above discussion is that the removal of Section 324, P.P.C. as mentioned in the FIR and non- mentioning of the said in the Charge Sheet/Challan by the I.O. is illegal and unlawful, so also the impugned order passed by learned XXII-Judicial Magistrate, Karachi East, on the face of it being a non-speaking order , require interference of this Court, consequently instant application is admitted for hearing. Let notices be issued to respondents through SHO Ps Gulsitan-e-Jauhar , Karachi for 15.08.2018 .