MUHAMMAD ABID and 9 others vs The STATE and 2 others

ORDER

1. ' MUHAMMAD TASNIM, J.---Through this Criminal Miscellaneous application, the applicants have challenged the order dated 30-7-2012, passed by Judge, Anti-Terrorism Court, Mirpurkhas on report under section 173, Cr.P.C. Of the Investigating Officer for disposal under 'B' class in Crime No.76/2012, Police Station Satellite Town, Mirpurkhas under sections 365, 386, 34, P.P.C.

2. ' The case of prosecution as set out in the F.I.R. Is that on 24-5-2012 when complainant was present at home in the meanwhile, Aftab, Farooque, Asif and Waseem came and disclosed that they were present at Pathan Hotel at 2100 hours and were talking to each other in the meanwhile, one Car and police Mobile so also a motorcycle came in which Abid Qaimkhani, SIP/S.H.O. Amir Mari, SIP Amir Azam Shah, SIP Ghulam Mustafa Thebo, Constables Zulfiquar Kala, Sabir Zaman, Saeed Constable CIA, Rehmatullah, Vikki and Imamuddin came down from the vehicle; Zulfiquar and Sabir Zaman caught hold Aftab from his collar and pushed him in the Car and while going they also extended threats to the persons present there. It is alleged that complainant after knowing the above fact, searched for the alleged abductee and on the next day complainant and Malik Farooque were called by DSP Abid Qaimkhani, Constable Zulfiquar Kala and Sabir Zaman where they admitted the arrest of Aftab and asked for Rs.300,000 (Rupees three lacs only) by DSP for release of Aftab. Accordingly, this F.I.R. Was lodged.

3. ' In support of this criminal miscellaneous application, the learned counsel for applicants has submitted that impugned order is bid in law and the learned trial Court has wrongly directed the Investigating Officer for submission of challan. Learned counsel for the applicants has further submitted that under the law either Judge, Anti-Terrorism Court should have agreed with the findings of the Investigating Officer or ordered for fresh investigation but he had no jurisdiction to direct the Investigating Officer for submission of challan. In support of his contention, the learned counsel has placed reliance on the cases of Peer Ghulam Dastagir and 2 others v. The State (2007 YLR 930) and Muhammad Farooq Qureshi v. Judicial Magistrate. Section 30 and 2 others reported in (2010 PCr.LJ 261).

4. ' Conversely, learned D.P.-G. Has submitted that impugned order is perfect in accordance with law.

5. He also submitted that there was ample material available on record on the basis of which learned trial Court has rightly ordered the Investigating Officer for submission of challan under section 190.

6. Cr.P.C. He says that all the ingredients of offence charged are met from the contents of F.I.R. And the statement of prosecution witnesses under section 161, Cr.P.C. And the learned trial Court has rightly taken cognizance of the matter.

7. ' We have heard, the learned counsel for the parties and have perused the record.

8. ' From the reading of the material available on record, it is apparent that learned trial Court did not agree with the report of the Investigating Officer to dispose of the case under 'B' class as the learned trial Judge found that there is material on record which connects the accused persons with the crime. Accordingly, he had directed the Investigating Officer to submit challan. Under the law when a police report under section 173, Cr.P.C. Is submitted to the Magistrate, the Magistrate is required either to agree with the report of the police for cancelling the case or when he does not agree with such report of the police; he can order further investigation of the case by the police and in case, no further investigation is required to be conducted, the Magistrate should take cognizance of the offence in terms of section 190, Cr.P.C.

9. ' In the case of Farooq Sumar and others v. The State and others (2004 PCr.LJ 1023) a Single Judge of this Court while dealing with provision of section 173, Cr.P.C. Has observed as under:-- "It is evident from the plain reading of the provision that on the report submitted by the Investigating Officer the Magistrate can pass an order as he thinks fit. Obviously, he may agree or not with Investigating Officer. He may refuse to cancel the case and order further investigation or to take cognizance on the basis of that police report under section 190(1)(b), Cr.P.C. It is also settled position of law that the order which the Magistrate passes on the report submitted by the Investigating Officer under section 173, Cr. P. C. Is an administrative order. However, while passing such an order he is required to examine the report judicially and as such he has to act fairly, justly and honestly."

10. ' The above findings of the learned Single Judge of this Court are based upon the case decided by honourable Supreme Court of Pakistan in the case of Muhammad Akbar v. The State (1972 SCM R 335), wherein the honourable Supreme Court has held as under:-- "Even on the first report alleged to have been submitted under section 173, Cr.P.C., the Magistrate could, irrespective of the opinion of the Investigating Officer to the contrary, take cognizance, if upon the materials before him he found that a prima facie case was made out against the accused persons. After all the police is not the final arbiter of a complaint lodged with it. It is the Court that finally determine upon the police report whether it should take cognizance or not in accordance with the provisions of section 190(I)(b) of the Code of Criminal Procedure."

11. ' In view of settled legal position, we are of the considered view that the learned Judge, Anti- Terrorism Court has acted rightly and has taken cognizance of the matter as according to him there was ample material available with the prosecution to substantiate the charge. The judgments cited by the learned counsel for the applicants are distinguishable on facts and are not applicable to the facts and circumstances of the present case. Apart from the above, learned counsel for the applicants could not point out any illegality in the impugned order. Consequently, this criminal miscellaneous application fails, which is accordingly dismissed.