AMJAD ALI SAHIT O, J.---Through this application, the applicant has impugned the order dated 21-03-20 19. passed by the learned 2nd Civil Judge and Judicial Magistrate, Badin, on the report under section 173, Cr.P.C. submitted by the Investigating Officer after completion of investigation, in Crime No.30/2019, registered at Police Station Talhar , for offence under sections 302, 201, 120-B, P.P.C. suggesting the case for approval for the offence under sections 320, 279, P.P.C. Howeve r, the learned Magistrate did not concur with such report and took the cognizance against all accused persons for the of fence under sections 302, 201, 120-B, P .P.C.
2. Brief story of the prosecution case narrated by respondent No.3 Bilawal in his FIR registered at P.S. Talhar is that on 09.04.2018 his brother Warryam left his house for duty boarding on his Honda CD-70 motorcycle along-with maternal cousins Ghulam Hussain and Naveed Ahmed when they all reached near Rip Bus Stop meanwhile one white colour corolla Car hit the motorcycle of Warryam from his back and came in front of Car and it again tried with intention to kill him, during this, PWs Ghulam Hussain and Naveed Ahmed who were coming back forcibly stopped said Car and shifted his brother in it for treatment so also they identified the person in the Car as Abdul Hameed ADC-2, Badin while remaining two perso ns could not be identified; deceased Warryam being injured admitted in Indus Civil Hospital subsequently , PW Ghulam Hussain informed the complainant regarding such incident, who reached there and PWs Ghulam Hussain and Naveed Ahmed disclosed to him that ADC-2 Badin Abdul Hameed Mughal and two unknown persons left his brother in serious condition fled away; the Indus Hospital Authorities referred his brother for Karachi and police was informed accordingly but on 10.04.2018, brother of complainant succumbed to injuries; on 02-01-2019 when the complainant along-with PW Naveed Ahmed were available at Shahnawaz Chowk Badin where said PW Naveed identified a person, who was accompanied with accused Abdul Hameed Mughal ADC-2 Badin in his vehicle on which complainant also identified him to be Tapedar Muhammad Ismail Memon, hence, above case was registered against the accused.
3. Mr. Muhammad Hashim Laghari, learned counsel for the applicant has main ly contended that report under section 173, Cr.P.C. was filed before the learned 2nd Civil Judge and Judicial Magistrate, Badin on 10.03.2019 for the offence under sections 320, 279, P.P.C. and vide order dated 21.03.2019, the learned Magistrate declined the approval and took the cognizance for the offence under sections 302, 201, 120-B, P.P.C. which is against the law and without hearing the parties. He further contended that the learned Magistrate has no power to add or delete any section but if, he was of the view that the investigation has not been properly conducted then, at the most the learned Magistrate can order for further investigation, but he himself inserted the sections 302, 201, 120-B, P.P.C. by deleting sections 320, 279, P.P.C.; that the case was exclusively trial by the Court of Sessions Judge, his duty was only to took the cognizance of the offence and forwarded to Court of Session for its trial; that after receipt of the case the learned Sessions Judge, Badin transferred the same to the learned 1st Additional Sessions Judge (MCTC), Badin Court for its trial and thereafter learned Model Criminal Trial Court after going through the police papers vide order dated 18.08.2019 made reference to the learned Sessions Judge, Badin on the ground that the learned Magistrate has wrongly taken cognizance. He lastly prays for setting-aside the order .
4. On the other hand, learned counsel for the respondent No.3 submits that applicant/accused being influential person has misused his authority and police initially did not register the FIR against him, however , the same was registered on the order of learned Sessions Judge, Badin, which was also to the extent that this is road accident, hence, he/complainant impugned the same order before this Court and vide Order dated 18.02.2018, instant FIR was lodged under sections 302, 201, P.P.C. He emphasizes that learned Magistrat e after going through the FIR as well as documents available on record passed the appropriate and speaking order , which does not require for any interference by this Court.
5. Ms. Safa Hisbani. Assistant Prosecutor General, Sindh appearing for the State submits that though learned Magistrate has no power to add or delete any section but the police has misused the power and altered section 320, P .P.C. instead of section 302, P .P.C.
6. I have heard learned counsel for the applicant, learned counsel for the respondent No.3, learned Assistant Prosecutor General, Sindh and have perused the material available on record. From perusal of record it reflects that the deceased Waryam was employee in Live Stock Animal Department; on 09.04.2018, he left his house along with his cousin Ghulam Hussain and Naveed Ahmed on his Honda City-70 motorcycle when they reached near Rip Bus Stop meanwhile one Corolla Car driven by applicant Abdul Hameed hit the motorcycle from backside resultantly Waryam become injured and subsequently he died. During course of investigation, it has come on the record that due to road accident the deceased was died and it was not a murder case and such report under section 173, Cr.P.C. was filed by the Investigating Officer for an offence under sections 320, 270, P.P.C. before the learned Magistrate. After going through the report under section 173, Cr.P.C. vide order dated 21.03.2019, the learned Magistrate has passed the order and the relevant portion of the order reads as under: "I am of opinion that the final report under section 173, Cr.P.C. for approval under sections 320/279, P.P.C. is hereby declined, in considering the evide nce of eye-witnesses, cognizance is taken under sections 302, 201, 120- B, P.P.C. against the accused persons namely Abdul Hameed Mughal, Tapedar Muhammad Ismail Memon and one unknown person. Pleas took by the accused persons and admissibility of evidence of witnesses produced by them can be decided at trial stage after proper appreciation of their evidence. Let the Notices be issued against all accused persons."
7. In such a situation, the question is that as to whether the learned Magistrate has power to add or delete sections on the report submitted before him after investigation by the Investigating Officer under section 173, Cr.P.C. In this regard, it is appropriate to reproduce section 173(2), Cr .P.C. wherein procedure has been provided as under: "173. 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 incharge of the police-sta tion shall, [through the 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 stating whether the accused (if arrested) has been forwarded in custody or has been released on his bond, and, if so, whether with or without sureties, and
(b) Communicate, in such manner as may be prescribed by the Provincial Government, the action taken by him to the person, if any , by whom the information relating to the commission of the of fence was first given.
[Provided that, where investigation is not completed within a period of fourteen days from the date of recording of the first information report under section 154, the officer incahrge of the police station shall, within three days of the expiration of such period, forward to the Magistrate through the Public Prosecuto r, an interim report in the form prescribed by the Provincial Government stating therein the result of the investigation made until then and the Court shall commence the trial on the basis interim report, unless, for reasons to be recorded, the Court decides that the trial should not so commence.]
(2) Where a superior officer of police has been appointed under section 158, the report shall, in any cases in which the Provincial Government by general or special order so directs, be submitted through that officer, and he may pending the orders of the Magistrate, direct the of ficer incharge of the police-station to make further investigation.
(3)
(4)
(5)
8. Section 173, Cr.P.C. provides that after completion of investigation, the incharge of Police Station shall submit report through Public Prosecutor before the Magistrate empowered to take cognizance of the offence on it and if he finds that there is sufficient evidence against the accused then he has power to take the cognizance of the offence, furthermore if, the Magistrate is of the view that the proper investigation, has not been conducted and required further investigation then he can direct the officer incharge of the police station to make further investigation. In view of section 190, Cr.P.C. if, a Magistra te after taking cognizance of offence if an offence is triable exclusively by a Court of Session, without recording any evidence sent the case to Court of Sessions for trial. In case of "Muhammad Nasir Cheema v. Mazhar Javaid and others" [PLD 2007 Supreme Court 311, wherein the Honble Supreme Court of Pakistan has held: "The only provision relating to the subject which is available in the Code of Criminal Procedure is section 173 which commands expeditious conclusion of the investigations and further ordains that on conclusion of every investigation, the concerned SHO shall submit a report of the result thereof in the prescribed manner to the Magistrate competent to take cognizance under section 190, Cr.P.C. No powers vest with any Court including a High Court to override the said legal command and to direct the SHO either not to submit the said report (mentioned as challan in the Police Rules and also in the impugned order) or to submit the said report in a particular manner i.e. against only such persons as the Court desires or only with respect to such offences as the Court wishes. The impugned order can also not be sustained because, as has been mentioned above, the challan in question stood already submitted in Court and was thus beyond to reach of the concerned SHO."
9. From the above it appears that the concerned SHO shall submit a report of the result thereof in the prescribed manner to the Magistrate competent to take cognizance under section 190, Cr.P.C. In this case after completing the investigation the report (challan) under section 173, Cr.P.C. was filed before the learned Magistrate but the learned Magistrate deleted both the sections viz. 320, 279, P.P.C., took the cognizance and inserted new sections 302, 201, 120-B, P.P.C.. In the case [supra] the Hon'ble Supreme Court of Pakistan has held that no power is vested with any Court including the High Court to override the said command and to direct the SHO either not to submit a said report [mentioned as challan in police rules and also impugned order] or to submit a said report in particular manner i.e. against only such person as the Court desires or only with respect to such offence (s) as the Court wishes. In the impugn order the learned Magistrate by deleting the sections 320, 279, P.P.C. and inserted sections 302, 201, 120-B, P.P.C., on his own wishes without hearing the parties, as surprisingly . an accidental case [per investigation] was converted into a murder case if he would have to pass order he must have provided an opportunity of hearing to the parties, but the learned Magistrate passed the impugned order without providing opportunity of hearing to the parties, which is also violation of the Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973. No doubt that the Magistrate is not bound by the report submitted by police under section 173, Cr.P.C. but he may or may not agree with the conclusions reached by Investigating Officer. For the purpose of examination of 173, Cr.P.C. report, office of Judicial Magistrate be looked in two different categories, one as judicial and other as administrative. While functioning on administrative side he discharges his duties as a persona designa and not as a Court, and while discharging his duties as a persona designa although he is required to examine the material placed before him, but is not bound to explain each and every aspect of case and give its reason for acceptance and rejection. In such point of view, the learned Magistrate has to either agree or disagree but not otherwise as is in the instant case. Furthermore, the investigation conducted by the Investigating Officer as submitted through the report under section 173, Cr.P.C. before the learned Magis trate, has been strengthened by the learned Additional Sessions Judge (MCTC). Badin when the present case was transferred to him from the Court of Sessions Judge for its trial at the time of framing charge as who after going the material passed the following observations: "It is humbly submitted that the supra titled case received by way of transfer to this court and matter is fixed on 22.7.2019, for framing of charge and I have gone through the FIR in this matter , learned Judicial Magistrate has wrongly taken cognizance under sections 302/201, 120-B, P. P. C. and as per record this is case of accidental death which is clear from FIR."
10. In view of above discussion the order dated 21.03.2019 is set-aside with directions to the learned Magistrate to pass an appropriate order in accordance with law after for hearing all the concerned by issuing notice and going through the material available on record.
Criminal Miscellaneous Application stands allowed.