1. MUHAMMAD ROSHAN ESSANI, J.---By this Constitutional petition, the petitioners have sought following relief:-- "(i) That this Honourable High Court may be pleased to declare that the Order No,68 of 2003, dated 29-1-2003 passed by the learned Civil Judge and F.C.M., Sanghar in final report of case Crime No,13 of 2002 under sections 324, 337-F(i), 504, P.P.C. Of Police Station Mangli is null and void ab initio, ultra vires, without lawful authority and without jurisdiction and same is inoperative and not binding on the petitioners and stands quashed.
(ii) That this Honourable Court may be pleased to declare that the F.I.R. Of Crime No,13 of 2002 of Police Station Mangli under sections 324, 337-F(i), 504, P.P.C. Has been field malafidely without reasonable and probable cause by the respondents against the petitioners stands quashed.
(iii) That the cost may be borne by the respondents Nos. 1 and 2.
(iv) That any other relief which this Honourable Court deems fit and proper may be awarded to the petitioners in the circumstances of the case." The brief facts of the case are that on 20-2-2002, the respondent No,1/complainant lodged F.I.R.
2. Wherein it is stated that after taking meals at his house he proceeded towards the shop of Ashraf for buying cigarettes and when he reached near Boys Primary School Chowk, he found petitioner Abdul Sattar aemed with gun, petitioner Muhammad Asim armed with revolver, petitioners Muhammad Farooq and Tariq armed with Lathis. They abused him and directed him to forbid his father from giving evidence against them in the case of Mst. Raftaj Bibi but the respondent/complainant declined to do so. Whereupon petitioner Muhammad Asim fired upon respondent/complainant with pistol and petitioner Abdul Sattar fired upon him with gun whereas petitioners Tariq Farooq and Muhammad Farooq caused Lathi blows to him with the result he sustained gunshot injury on left leg and Lathi injuries on back and other parts of body. On his cries P.Ws Muhammad Saddik Jat and Pervez Akhtar Rajput came running. They intervened and rescued him. The petitioners went away issuing threats. On the same day F.I.R. Was lodged by the respondent/complainant. After usual investigation the police submitted the report before concerned Magistrate for disposal of case under "cancel" class. After hearing the parties the concerned Magistrate dissented with the report of Investigating Officer and by order impugned herein directed him to submit challan under section 173, Cr.P.C. We have heard Mr.Nisar Ahmed Rana learned counsel appearing on behalf of the petitioner. It is contended by him that the Magistrate is not competent to dissent with the report of Investigating Officer and he is bound to accept it. Since the Magistrate has failed to do so, it is therefore, contended that the F.I.R. May be quashed. We have also heard Mr. Talib Hussain Arain learned counsel appearing on behalf of the respondent No, I/complainant and Mr.Masood A. Noorani learned A.A.-G. On behalf of respondents Nos.3 to 6. They have opposed the prayer of the petitioner. The first point which needs consideration would be whether F.I.R. Could be quashed during the investigation of a case.
3. The section 154, Cr.P.C. Lays down that Incharge of a Police Station upon receipt of information relating to commission of a cognizable offence orally or in writing is required to incorporate the same in a prescribed book and section 156, Cr.P.C. Postulates that the officer incharge of police station may without the order of the Magistrate investigate any cognizable offence. Thus it is crystal clear that the investigation can commence after the registration of F.I.R. The object of investigation is collection of evidence. In the cases of Shehnaz Begum v. Hon'ble Judges of the High Court of Sindh and Balochistan reported in PLD 1971 SC 677; Shoukat Ali Dogar and others v. Ghulam Qassim Khan Khakwani and others reported in PLD 1994 SC 281; Brig. (Retd.) Imtiaz Ahmed v. Government of Pakistan and others reported in 1994 SCM R 2142 and Ahmed Saleem v. Muhammad Amin 1998 PCr.LJ 170, it has been held that the High Court has no power to interfere with police investigation and assume the role of investigator. It is further held in the case of Shahnaz Begum (supra) as well as in Ahmed Salim (supra) that the High Court has no power of supervision or control over Investigating Agencies, which power is vested in it in respect of Courts subordinate to it. The conduct and manner of investigation normally is not to be scrutinized under Constitutional jurisdiction which might amount to interference in police investigation as the same could not be substituted by IC the Court. Consequently we are of the considered view that the quashment of F.I.R. Tantamounts to throttling the investigation, which is not permissible in law. The next contention of the learned counsel appearing on behalf of the petitioner that the Magistrate was not competent to dissent with the report of Investigating Officer and that he was bound to accept it and order for the cancellation of case is also not tenable in law.
4. There is no cavil about the proposition that if Investigating Officer, after investigation of a case comes to a conclusion that the evidence against the accused is deficient and the Magistrate who is competent to take the cognizance can order for the release of accused upon such report submitted by Investigating Officer. But if report of Investigating Officer is mala fide and contrary to evidence collected during the course of investigation which makes out a prima facie case the Magistrate is competent to disagree with the report of Investigating Officer. The Magistrate is not supposed to act on police report in a mechanical manner and rubber stamp every action of the Investigating Officer. He is required to act judicially. Although the order is administrative one but it is duty of the Magistrate to examine the correctness of the report submitted by Investigating Officer before him. In the case of Muhammad Sharif and others v. The State reported in 1997 SCM R 304 and Arif Ali Khan and another v. The State and others reported in 1993 SCM R 187 it was observed by the apex Court that although the order of the Magistrate is not amenable to Revisional Jurisdiction (Bahadur and another v. The State reported in. PLD 1985. SC 62) but due to lack of moral values and growing tendency of the abuse of power and lack of accountability High Court is competent to rectify the wrong in order to impart justice. Admittedly the case was registered under sections 324, 337-F(i), 504, P.P.C. Read with section 34, P.P.C. Section 324, P.P.C. Is ordinarily triable by Sessions Court. Thus the Magistrate rightly refused to cancel the case registered against the petitioners as he was not supposed to take recognizance of the matter. In this context reference can be made to the case of Soofi Abdul Qadir v. The State reported in 2000 PCr.LJ 520. The upshot of the above discussion is that the petition is misconceived and it stands dismissed in limine.