GHULAM ALI alias ALI and another vs The STATE

ORDER

1. AFTAB AHMED GORAR, J.---Through this Criminal Miscellaneous Application filed under section 561-A, the applicants Ghulam Ali alias Ali and Shariq have impugned the order dated 29-4-2011 passed by learned IInd Civil Judge and Judicial Magistrate, Dadu whereby he disagreed with the report submitted by police under section 169, Cr.P.C. For releasing the applicants and rejected the same.

2. Precisely, the facts giving rise to the filing of instant application, are that F.I.R. No,169/2011 was lodged on 10-4-2011 at P.S. Khudadad, District Dadu by one Ghulam Mustafa under sections 302, 365, 147, 149, 324, 458, 148, 504, P.P.C. And sections 6/7, A.T.A. For the alleged murder of his brother Sanwan and nephew Ashraf and causing injuries to his brother Rasid, father-in-law Saindad and cousin Mumtaz and kidnapping his brother's wife Mst. Farzana.

3. Both the applicants were arrested on 17-4-2011 and were remanded to judicial custody. During the course of investigation, according to police report, as no evidence could be collected against the present applicants connecting them with the commission of alleged offence, report under section 169, Cr.P.C. Was submitted before the concerned Judicial Magistrate which was not agreed to by him and was rejected vide impugned order, hence this Criminal Miscellaneous Application for setting aside the impugned order and quashment of the proceedings pending against the applicants.

4. Learned counsel for the applicants contended that the impugned order is a non-speaking order and no reasons have been assigned by the learned Judicial Magistrate for rejecting the report under section 169, Cr.P.C., that the learned Judicial Magistrate has failed to appreciate that neither the names of the applicants appear in the F.I.R. Nor any identification test was held as the complainant failed to produce the witnesses for the said purpose despite opportunity given to him twice; that the applicants are educated persons and applicant No,1 is working as Engineer while applicant No,2 is a student of B.E. Engineering and no evidence was collected against them during the investigation. He prayed for setting aside of impugned order and quashment of proceedings pending against the applicants.

5. Conversely, learned A.P.-G. Supported the impugned order contending that the learned Judicial Magistrate was not bound to accept the report under section 169, Cr.P.C. Submitted by the police and had the powers to take cognizance.

6. There is no doubt that the Magistrate is not bound by the report submitted by police under section 169, Cr.P.C. And he may or may not agree with the conclusions reached by Investigating Officer and he may even take cognizance in the matter, however, at the same time the Magistrate is bound to give full application of mind to the pros and cons of the case and the material collected during the investigation and his decision must be based on sound and cogent reasons for his 'agreement' or 'disagreement' with the I.O. He has to act fairly, justly and judiciously and is supposed, to furnish reasonable grounds for 'agreeing' or 'disagreeing' with the Investigating Officer.

7. In the case reported in 2009 PCr.LJ 864 it was held that ipse dixit of police to decide the fate of case and opinion of I.O. No doubt are not binding upon the Court but it would also be most unfair to drag an innocent person into Court to face hardship of criminal trial though prima facie is made out against him. Police and Magistrate are not prevented and precluded by any provision of law to act fairly and justly.

8. In the instant case the Magistrate has passed the impugned order in a slipshod and hasty manner without assigning any plausible reasons for the conclusions arrived at by him. The superior courts have always discouraged non-speaking orders and have stressed upon giving sound reasons for passing administrative as well as judicial order.

9. In view of above, I have been left with no option but to remand the case to the learned IInd Civil Judge and Judicial Magistrate, Dadu with direction to pass a speaking order after providing opportunity of hearing to both the parties.