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Criminal Miscellaneous Application No. S-591 of 2012, decided on 12th March, 2014.

----S. 561-A---Penal Code (XLV of 1860), Ss.302, 201 & 149---Qatl-i-amd, causing disappearance of evidence of offence, or giving false information, common object---Application for quashing of order---Order, whereby Judicial Magistrate, not agreeing with the Police report, submitted by Investigating Officer under S.173, Cr.P.C. to dispose of FIR as cancelled "C" class, had ordered said Investigating Officer to submit the challan against accused persons, had been sought to be set aside with a further prayer that the case could be remanded to concerned Magistrate to pass fresh order on the summary "C" class, and to quash the proceedings against applicant/accused arising out of FIR---Record had shown that statements of different persons, medical and circumstantial evidence, had not been discussed or considered by passing impugned order---Impugned order was set aside with the direction to the Magistrate to pass speaking and elaborate order strictly on merits after affording fair opportunity of hearing to both the parties. Muhammad Nasir Cheema v. Mazhar Javed PLD 2007 SC 31; Syed Pariyal Shah v. Behram Ali 2012 PCr.LJ 189; Muhammad Farooq Qureshi v. Judicial Magistrate 2010 PCr.LJ 261; Syeda Afshan v. Syed Farukh Ali and 3 others PLD 2013 Sindh 423; Faisal Jaffery, ASI v. The State 2012 YLR 1089; Bakhsha Ali v. The State and 7 others 2013 YLR 1948; Saifal v. State 2012 YLR 287; Aurangzeb v. The State 2011 YLR 60; Zafar Gulzar v. SSP Special Branch and 3 others 2010 MLD 1012 and Abdul Hafeez Junejo v. The State 2010 YLR 470 ref. Syed Madad Ali Shah for Applicant. Mir Ahmed Mangrio for Respondents. Shahid Shaikh, A.P.-G. for the State. Date of hearing: 12th March, 2014.

Through the captioned application under section 561-A, Cr.P.C., the applicants have prayed to set aside the impugned order dated 19-10-2012, whereby learned 1st Civil Judge and Judicial Magistrate Sehwan not agreeing with police report, submitted by I.O. under section 173, Cr.P.C. to dispose of FIR No. 84 of 2012, as cancelled "C" class, ordered the said Investigating Officer, SHO PS Bhan, to submit the challan against accused persons in the case, on the prescribed pro forma within 15 days. It has further been prayed that the case may be remanded to the concerned Magistrate to pass fresh order on the summary "C" class after hearing the applicants and all concerned parties or to quash the proceedings against the applicant arising out of FIR No. 84 of 2012, lodged at Police Station Bhan, under sections 302, 201, 149, P.P.C. 2. Precisely, facts of the prosecution case as narrated in the FIR lodged by SIP Aijaz Ahmed Soomro on 20-7-2012 reveals that on the same date when he was present in his house and his gunman was watching Sindhi Channel on TV, when at about 2200 hours there were different slides on Sindhi Channel, where he saw that Ex-SHO Muhammad Ali Lashari along with the police party saw a person namely Taj Muhammad alias Tajoo Machi to whom they were maltreating and according to media news the death of Taj Muhammad was caused due to police maltreatment/torture, as such, he lodged the FIR on behalf of the State. It appears that on 4-8-2012 interim challan was submitted, which was accepted by the Magistrate concerned and since the offence under section 302, P.P.C. is exclusively triable by the Court of Session hence R&Ps was sent to the court of Sessions Judge, Jamshoro. In the meanwhile, respondent No. 2 Mst. Lal Khatoon, mother of the deceased Taj Muhammad, on 21-7-2012 submitted an application under section 22-A, B, Cr.P.C. in the court of Sessions Judge /Justice of Peace Jamshoro at Kotri being application No. 408 of 2012 against SSP Jamshoro, ASP Sehwan, SHO PS Sehwan, SHO PS Bhan and SHO PS Mahi Otho, wherein she has made a prayer that duty officer of PS Bhan be directed to register the FIR and thereafter the statement of applicant"s son Umed Ali, son in law Yaseen and relative Deedar may be recorded under section 164, Cr.P.C. She has also prayed that the police officials may not cause harassment to applicant and her family members. Said application was forwarded to the Additional Sessions Judge, Sehwan, who declined to order for registration of second FIR but directed the Investigation Officer of FIR No. 84 of 2012/respondent No.1 to record 161, Cr.P.C. statement of respondent No.2 Mst. Lal Khatoon and her witness. Statements of respondent No.1 and her witnesses were recorded by the Judicial Magistrate Sehwan, under section 164, Cr.P.C., on 11-8-2012. Final post mortem report shows the cause of death of Taj Muhammad was due to cardiac arrest during physical exertion and stress and the mark on his chest and neck were of low intensity and were unlikely to cause death in ordinary course of nature. The mother of deceased Mst. Lal Khatoon/respondent No.2 has filed an application before the Sessions Court, wherein she has shown her unsatisfaction on post mortem report and requested for constituting Board and for exhumation proceedings in presence of a Magistrate. The request of lady was allowed and the dead body of deceased Taj Muhammad exhumed on 20-9-2012, in presence of Magistrate and thereafter the medical board of four government doctors conducted post mortem of deceased Taj Muhammad and submitted the final medical report and due to decomposed body, the death of deceased Taj Muhammad remained undetermined. Hence the report submitted under section 173, Cr.P.C. for disposal of FIR No. 84 of 2012 was submitted in "C" class but the learned Judicial Magistrate Sehwan by the impugned order did not agree with the said report and ordered the I.O./respondent No.1 to submit the challan against accused persons in that case. 3. Arguments advanced by learned counsel for the parties and APG are considered and record has also been perused. 4. The only point which requires determination is that as to whether the impugned order, whereby the concerned police was directed to submit the challan on prescribed pro forma, instead of accepting the report under section 173, Cr.P.C., in "C" class, the learned Magistrate declined it, which is tenable in law or otherwise, in view of the case law of superior courts. 5. Learned counsel for the applicant submits that the trial Court cannot direct the Investigating Officer to submit the challan as no power vested with any court including High Court to override the legal command and direct the Station House Officer either not to submit Investigation Report or to submit the report in a particular manner. Reliance in this respect is being placed on the case of Muhammad Nasir Cheema v. Mazhar Javed (PLD 2007 SC 31) and Syed Pariyal Shah v. Behram Ali (2012 PCr.LJ 189) and Muhammad Farooq Qureshi v. Judicial Magistrate (2010 PCr.LJ 261). Learned counsel has also produced copy of order passed by me in Criminal Miscellaneous Application No.S-559 of 2013. 6. Syed Madad Ali Shah states that Mst. Lal Khatoon/respondent No.2 has already filed Criminal Miscellaneous Application No. 408 of 2012 which was disposed of by Additional Sessions Judge, Sehwan by order dated 3-8-2012 whereby the Investigating Officer of FIR No. 84 of 2012 was directed to record the statement of applicant lady and her witnesses in order to incorporate their version of previous events in same case so also produce them before learned 1st Judicial Magistrate Sehwan for their 164, Cr.P.C. statements and to dispose of the investigation of said FIR in view of statement of applicant lady and her witnesses, with caution that if the applicant lady at any stage of the investigation is not satisfied over the investigation then she is at liberty to seek for transfer of the investigation. 7. Conversely, learned counsel for respondent No.2 placed reliance on the case law of High Court Benches reported as Syeda Afshan v. Syed Farukh Ali and 3 others (PLD 2013 Sindh 423), Faisal Jaffery, ASI v. The State (2012 YLR 1089), Bakhsha Ali v. The State and 7 others (2013 YLR 1948), Saifal v. State (2012 YLR 287), Aurangzeb v. The State (2011 YLR 60), Zafar Gulzar v. SSP Special Branch and 3 others (2010 MLD 1012) and Abdul Hafeez Junejo v. The State (2010 YLR 470). 8. Under subsection (1) of section 173, Cr.P.C, when investigation is completed the police officer is required to forward a report to the Magistrate concerned in the prescribed form. Under subsection (3) of section 173, Cr.P.C. when it appears from the report forwarded under subsection (1) that the accused has been released on the bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit. It is clear that under subsection (3) a Magistrate may agree or may not agree with the police report. If the Magistrate wants to start the proceedings against the accused, he must act under section 190 of the Code of Criminal Procedure, which provides that a Magistrate may take cognizance of any offence upon a complaint, upon a police report, or upon information received by him. If he disagrees with the report under clause C, the Magistrate is not bound by the report submitted by the police under section 173, Cr.P.C., when the said report is received by the Magistrate, he may not agree with the conclusion by passing speaking order. 9. A perusal of record shows that thorough examination of material including statements of different persons, medical and circumstantial evidence have not been discussed or considered by passing the impugned order. In such view of the matter, the impugned order is set aside with the direction to the learned trial Magistrate to pass speaking and elaborate order strictly on merits after affording fair opportunity of hearing to both the parties. 10. The instant Criminal Miscellaneous Application is disposed of in the manner indicated above. HBT/Q-3/Sindh Order accordingly.

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