SHAMSUDDIN and 2 others vs THE STATE and 3 others

ORDER

1. ARSHAD NOOR KHAN, J.--- By this application, the applicants have challenged the order, dated 9-1- 2006 passed by the learned Judicial Magistrate-III, Sukkur where by the report submitted by the Investigating Officer for its disposal in "C" Class in Crime No,91 of 2005 under sections 420, 406, 5- 6/2, 34, 489-F, P.P.C. Of Police Station "A" Section Sukkur, has not been accepted thereby directing him to submit the challan in Court on 14-1-2006.

2. ' The applicants have challenged this order on the ground that no material was collected by the Investigating Officer during the course of investigation and the Investigating Officer rightly submitted his report to dispose of the matter in "C" Class but the learned. Judicial Magistrate without any evidence available on record, has not accepted the report and has directed to the Investigating Officer to submit challan which is much against the evidence available on record.

3. ' I have heard Mr. Ghulam Sarwar Korai, learned counsel for the applicants, Mr. Zulfiqar Ali Naich, learned counsel for the respondent No,2 and Mr. Ali Haider learned State Counsel.

4. The learned counsel for the applicants vehemently contended that from the face of F.I.R. No offence against the applicants, has been made out and in fact the dispute was between the complainant and one Farooq for which the present applicants have nothing to do and that the civil suit filed by complainant against that Farooq has been decreed and execution application is pending and the present F.I.R. has been lodged malafidely by the complainant and that during the course of investigation no material has been brought on record by the complainant 'side to implicate the present applicants and the Investigating Officer rightly submitted the report before the Magistrate for its disposal under "C" Class but the Magistrate in excess of his powers did not accept the report and illegally directed the Investigating Officer to submit the challan. As such the order passed by the learned Magistrate be set aside and the proceeding against the applicants may be quashed.

5. ' The learned State Counsel while refuting the arguments advanced' on behalf of the applicants has vehemently contended that the Investigating Officer during the course of investigation had also recorded the statements of the defence witnesses and keeping in view the version of the defence witnesses, report was submitted by the Investigating Officer for disposal of the F.I.R. In "C"

6. Class whereas the eye-witnesses namely Karim Bux and Muhammad Hanif who are independent eyewitnesses have also fully supported the contents of the F.I.R. Besides the statement of the complainant, the Investigation Officer did not consider the said material, which is fully implicating the applicants, as such the Magistrate rightly refused to accept the report of the Investigating Officer for disposal of the F.I.R. In "C" Class.

7. ' The learned counsel for the respondent No,2 has supported the arguments advanced by the learned State Counsel and has further contended that the applicant No,3 is Sub-Inspector in Police Department, who was at the relevant time of the registration of the F.I.R., posted in "A" Section Police station, Sukkur, therefore due to his influence, a vague report was submitted before the Magistrate and the Magistrate rightly refused to accept the said report, as such the application for quashment merits no consideration and is liable to be dismissed.

8. ' I have considered the arguments advanced on behalf of the parties and have gone through the material available before me.

9. Admittedly there was some dispute between the parties over the certain payment in between one Farooq and the complainant and there was some exchange of cheque by the said Farooq to the complainant, which subsequently, was dishonored because of the said dispute on the day of incident while the complainant was returning from the mosque the applicants along with said Farooq extended threats for dire consequences, in case, if he demands money from them. The said occurrence has been admittedly witnessed by P.Ws. Karim Bux and Muhammad Hanif. Their statements as well as the statement of complainant fully supported and corroborated the contents of F.I.R. And when the report under "C" Class was submitted before the learned Magistrate, he was not satisfied for the reason that the evidence collected by the Investigating Officer for the prosecution of the applicants, was not taken into consideration by the Investigating Officer while submitting report.

10. ' In such state of affairs the Magistrate is not duty bound to accept the report submitted by the Investigating Officer, which is not borne out from the record or from the statements of the witnesses. The order passed by the Magistrate, therefore, could not be said to be illegal or arbitrary.

11. ' The material available on record requires judicial enquiry by the Magistrate and that could only be done when the challan is submitted before the Court and the evidence of the at least complainant and eyewitnesses namely Karim Bux and Muhammad Hanif is recorded.

12. ' For all these reasons and circumstances, I do not find any merit in the present application, which is hereby dismissed along with listed application.