ASLAM PERVAIZ and another vs TAMEER ALI and 7 others

ORDER

1. IRSHAD ALI SHAH, J.---The facts in brief leading to passing of instant order are that the respondent No,1 by way of an application under section 22-A(6)(iii), Cr.P.C. mainly sought for protection for his family and direction against the police to recover the abductee of FIR Crime No,16/2018, under sections 365-B, 364, 506/2, 337-H(2), P.P.C. of Police Station Hyderi, and to submit challan whereof before the Court having jurisdiction. On 25.05.2018, the learned 4th Additional Sessions Judge/Ex- Officio Justice of Peace, Larkana, while making disposal of the above said application directed Senior Superintendent of Police, Larkana, for taking action against the applicants. The operative part of her order reads as under: "In view of above, the report be sent to S.S.P Larkana for taking action against the respondents Nos,1 and 2 with further directions to lodge FIR against them, as they have failed to perform their duties and their act shows that they are supporting accused person".

2. The applicant being aggrieved of the above said order of learned 4th Additional Sessions Judge/ Ex-Officio Justice of Peace, Larkana, has impugned the same before this Court by way of instant Crl. Misc. Application under section 561-A, Cr.P.C.

3. It is contended by learned counsel for the applicants that the very case hag already been disposed of by learned Magistrate having jurisdiction by way of order dated 13.06.2018; there was no fault on the part of applicants as they furnished the interim report of the case before District Public Prosecutor Larkana within prescribed time and learned 4th Additional Sessions Judge/Ex- Officio Justice of Peace, Larkana, has passed the impugned order against the applicants without any lawful justification. By contending so, he sought for setting aside of the impugned order.

4. The learned A.P.G and learned counsel for the private respondents have not supported the impugned order.

5. I have considered the above arguments and perused the record. Proviso (1) to Section 173, Cr.P.C, provides that; if the investigation of the case is not completed within fourteen days from the date of recording of first information report under section 154, Cr.P.C., the officer incharge of the police station shall within three days of the expiration of such period forward to the Magistrate through the Public Prosecutor an interim report in the form prescribed by the Provincial Government stating therein the result of investigation made until then. In the instant case, the interim report as per the applicants was furnished by them before learned District Public Prosecutor Larkana which is failed to forward the same to. the Magistrate having jurisdiction within prescribed time. If it is believed to be so, then omission, if any, in forwarding the interim report before the Magistrate having jurisdiction was on the part of District Public Prosecutor Larkana, and for his omission, the applicants could not be held responsible. If for the sake of arguments, it is believed that the applicants have failed to submit interim report before the Magistrate having jurisdiction within prescribed time, even then they could not be booked in FIR for such omission, simply for the reason that such omission on their part, if any, apparently constitutes offence punishable under section 166 and/or section 166(2), P.P.C. which as per Column No,3 to Chapter-IX of Schedule-II to Criminal Procedure Code is non-cognizable offence. The FIR under section 154, Cr.P.C. could only be recorded for cognizable offence and not otherwise. In these circumstances, the order of learned 4th Additional Sessions Judge/ Ex-Officio Justice of Peace, Larkana, could not be sustained, it is set aside.

6. The instant Criminal Miscellaneous IB Application is disposed of accordingly.