This be considered as admitted case.
2. Brief facts in the instant writ petition are that respondent No,3/complainant lodged F.I.R. No,140 of 1993 dated 25-8-1993 under section 452, P.P.C. at Police Station Sabzpir against the writ petitioner and others. Civil litigation was also pending against the complainant through a civil suit filed by the relatives of accused in the aforesaid F.I.R. During the investigation of F.I.R. No,140 of 1993 due to the intervention of respectables the matter was settled, through a decision of the Arbitrators, a compromise was effected on 17-9-1993 duly thumb-marked and signed by the complainant/respondent No,3. In lieu of that compromise civil suit was withdrawn and compromise-deed was offered to the Investigating Officer on 24-9-1993. It is worth mentioning that in the compromise deed it was recorded by the parties that all matters criminal as well as civil stand settled through this decision and F.I.R. No,140 of 1993 will be withdrawn by the complainant and civil suit will be withdrawn by the plaintiff of suit. The Investigating Officer found the criminal case liable to be discharged vide his report dated 8-11-1993, which was followed by the DSP/SDPO, Pasrur vide report, dated 194-1994 and finally discharge report was prepared on 8-11-1993. The Senior Superintendent of Police, Silakot required legal opinion of the Inspector Legal and D.S.P.
Legal, who reported on 14-12-1994 that during investigation no in-crimainting evidence was available against the accused on the record and in consonance with the report of the Investigating Officer the F.I.R. was recommended for cancellation. The Illaqa Magistrate, Pasrur disagreed with the cancellation report vide order dated 3-1-1995. Consequently civil suit was withdrawn by the relative of-accused party but the complainant party backed out from his commitment in the compromise-deed and submitted application to the S.S.P. for submission of challan in the learned trial Court. The re-investigation of the case was directed and D.S.P./S.D.P.O., Pasrur Circle after a detailed inquiry found the prosecution story is baseless and declared the accused innocent and the case is liable to be cancelled vide report dated 13-3-1995. A cancellation report was submitted and the complainant filed another application, dated 18-6-1996 before the learned Ilaqa Magistrate, Pasrur with a request that the police may be directed to put up the challan in the case.
On this application the learned Ilaqa Magistrate summoned the accused vide order dated 24-6- 1996. This order was impugned in Criminal Miscellaneous No,366-Q of 1996, which was converted into Writ Petition No,3435 of 1997 and the order, dated 24-4-1996 passed by the learned Magistrate was set aside being passed without lawful authority and jurisdiction vide judgment of this Court, dated 21-3-1997. This judgment attained finality as it was not challenged before the superior forum.
3. The complainant filed an application dated 30-4-1997 and requested for submission of challan.
The learned trial Magistrate vide order, dated 30-4-1997 directed that instead of cancellation report S.H.O. Police Station Sabazpir shall submit the challan in the case under the observation that High Court has directed to present the challan in the Court. This order was challenged through Writ Petition No,16121 of 1997, which was disposed of by my learned brother Mr. Justice Mian Saeed-ur- Rhman Farrukh with the observation:-- "After arguing the matter at some length it is agreed that the impugned order, dated 30-4-1997 be set aside and the report of the Police for cancellation of the case be- deemed to be pending to be dealt with and disposed of in accordance with law."
The unfortunate matter is that earlier a full-fledged judgment was passed by this Court whereby the impugned order passed by the learned Magistrate was set aside by this Court. The aforesaid judgment achieve finality while another writ petition was filed by the petitioner and aforesaid direction of this Court came in field. In compliance of the subsequent direction of the Court in the aforesaid judgment dated 11-11-1997 the learned Magistrate vide order, dated 10-5-1999 disagreed with the contention of parties that compromise has been effected between the parties, therefore, the case be cancelled and also did not agree with the investigation report that occurrence did not take place holding that offence under sections 452/354, P.P.C. are not compoundable and in the light of compromise case cannot be cancelled and directed that challan be submitted in the Court at the earliest not later than 14 days. This impugned order is now challenged in the present writ petition.
4. The argument advanced by the learned counsel for the petitioner are that in a full-fledge judgment passed by this Court dated 21-3-1997 the impugned order, dated 24-6-1996 for submission of challan was set aside being without lawful authority and jurisdiction. This judgment was not challenged before any superior forum thus become final and it was binding upon the learned Magistrate who erroneously observed that High Court has also directed to present the challan in the Court. He further argued that there is no provision in the Code of Criminal Procedure to force the police to put up challan in- all circumstances especially when there is no incriminating evidence available against the accused and that the compromise between the parties was made with open mind from both the sides and the complainant/respondent No,3 opted not to pursue the case out of his own free-will. On the application of the complainant the matter was investigated, re-investigated and again investigated by the D.S.P. Pasrur, who also came to the conclusion that case is totally false. The Ihata where offence under section 452, P.P.C. is said to be committed has got no wall, therefore, no tress-pass is committed by the accused. Even otherwise this is settled law that submission of challan after six years would be abuse of process of law and it is only that after thorough investigation by two senior Investigating Officers the accused has been found innocent and the occurrence has been found false, therefore, question of an offence under section 452, P.P.C. does not arrive. The learned Magistrate could not assume the role of Investigating Officer and without any cogent and reliable incriminating evidence against the accused cannot order for submission of challan. He finally argued that no one can be indicted on the basis of mere presumption and surmises in the absence of strong incriminating evidence, therefore, the impugned order dated 10-5-1999 passed by the learned Magistrate be declared illegal and without jurisdiction and F.I.R. be quashed.
5. Learned counsel for the respondents did not answer to all these points. He submitted that there are two judgments of this Court available on the point of jurisdiction of the learned Magistrate and this is a Division Bench matter, it be placed before the Division Bench.
6. After hearing both sides on important question of law has arisen whether provision in sections 173 and 190, Cr.P.C. open to a Magistrate to take cognizance of a case where the police was of the opinion that there was no case against the accused and in the absence of incriminating evidence against the accused whether Magistrate is empowered to order the police to submit charge-sheet against the accused? In "Inayatullah and others v. The State and another" (1999 PCr.IJ 731) sections 190 and 193(1) "Material bore the Court' it was held that trial Court is competent to call/summon any person and to join him as co-accused during the trial but such exercise empowers the Magistrate when there is sufficient material before the Court connecting the person in the alleged offence---Court has to rely on the record of the proceedings of the trial or the material collected by the Investigating Agency and not extraneous material which does not form part of the record or of the investigation.
7. It is always safe and logical to extend a ratio to be reduced from a particular case decided by a particular tribunal. A decision is good with regard to the facts found in a particular case and the principle that emerges on a consideration of those facts. Different facts may lead to a different decision and it is not proper to apply a principle based on the fact of one case to the facts of another case merely because relentless logic may so require, AIR 1950 Born. 360 (FB).
8. The provision of sections 190 and 173, Cr.P.C. are in juxtaposition. In the present case time and in again all the Investigating Agencies are preferring report for cancellation of case as offence is found to be not committed and false as no incriminating evidence was available during the investigation by Investigating Agency to connect the accused with the offence. Under section 190, Cr.P.C. it is undoubtedly open to a Magistrate to take a cognizance of a case even if the police is of the opinion that there is no case against the accused.
There is nothing in the section which empowers the Magistrate to order the police to submit a charge-sheet against the accused even though it is contrary to the conclusion reached by the police. therefore, in an suspected case a Magistrate may direct the police to investigate and arrive at the conclusion one way or the other. But in the present case ' the police has already investigated more than once into the alleged crime. came to the definite conclusion that no incriminating evidence was available to connect the accused and the provisions of Code of Criminal Procedure gives the Magistrate power that if he suspected that offence has been committed, then in the interest of justice, he could take cognizance himself but there is no provision how the Court will proceed in a matter like this without any incriminating evidence available on record as it is the duty of prosecution to help the Court in the interest of justice, peace and order to bring to task a person alleged to have committed an offence. Amar Premanand v. The State, AIR 1960 Madhya Pradesh 12 (V 47 C 7) Gwalior Bench)
10.Therefore, in the present case learned Magistrate has not directed the police to further investigate into the matter. He has straightaway directed the prosecution to submit the charge- sheet/challan against the accused in disregard of the material facts that after investigation of said offence more than once each time Investigating Agencies found out no case made out against the accused and under such occasion a person in authority should not be directed to file a report in a particular manner against the conclusion reached by him.
11. The upshot of above discussion is that this writ petition is partly accepted, the order of the Magistrate for ordering submission of challan is set aside.