P L D 2016 Sindh 3
(a) Criminal Procedure Code (V of 1898)---
----Ss. 173 & 190(1)---Word 'may' occurring in S.190(1), Cr.P.C.---Significance---Investigation report---Agreeing or disagreeing of Magistrate---Scope---Deliberate use of word 'may' is sufficient to show intention of Legislature that discretion has been left with magistrate either to agree or disagree with police report without being influenced with ipse dixit of police---While concurring with report submitted by police under S.173, Cr.P.C., Magistrate can competently agree or disagree with recommendation/conclusion or opinion of investigating officer and such 'inclining' or declining' is to be exercised under S.190, Cr.P.C.
Syed Muhammad Ahmed v. The State and others PLD 2006 SC 316 and Anwar Shamim and another v. The State 2010 SCMR 1791 rel.
(b) Administration of justice--
----Judicial order---Pre-conditions---Requisite of a judicial decision or act are: if (a) competent authority not being court in ordinary sense (b) has power to give binding and authoritative decision (c) after hearing evidence and upon consideration of facts and circumstances and (d) imposing liability to affecting rights of parties, there is a duty to act judicially---To qualify an order or act to be 'judicial' it is required to stand well with the conditions.
Bahadur and another v. The State and another PLD 1985 SC 62 rel.
(c) Criminal Procedure Code (V of 1898)---
----Ss. 193---Cognizance by court---Effect---Taking of cognizance by competent court can never be taken as a verdict of guilt or innocence---Presumption of innocence in favour of accused continues till a competent court determines otherwise after a full and fair trial as provided by Criminal Procedure Code, 1898.
Haq Nawaz v. The State 2000 SCMR 785 rel.
(d) Criminal Procedure Code (V of 1898)---
----Ss. 173, 190 & 561-A---Penal Code (XLV of 1860), Ss.302 & 324---Qatl-i-amd and attempt to commit Qatl-i-amd---Filing of investigation report---Magistrate disagreeing with police report---Direction to file Challan---Investigating officer recommended the case for its disposal under 'B' class but Magistrate disagreed with report submitted by investigating officer and directed him to file Challan before Trial Court---Validity---Magistrate was not required to pass order while discussing and appreciating available material as required while passing a 'judicial order/judgment', he was required to scrutinize all available material judicially but, in the present case, the order of Magistrate was silent with regard to material---Such order of Magistrate could not be legally termed to be a speaking and reasoned order---High Court in exercise of inherent powers under S.561-A, Cr.P.C., set aside the order passed by Magistrate and remanded the case to him to pass appropriate order, considering all available material while forming an independent opinion regarding taking cognizance or otherwise---Application was allowed accordingly.
Hakim Ali v. The State PLD 2006 Kar. 302 and Afshan v. Farukh Ali PLD 2013 Sindh 423 ref.
Faqeer Rehmatullah Hisbani for Applicants.
Syed Meeral Shah, D.P.G.
Ahsan Gul Dahri for Respondent No.2.
P L D 2016 Sindh 3
Before Salahuddin Panhwar,
Sofi MUREED HUSSAIN ALFUQRAH and another---Applicant
Vers
The STATE and another---Respondents.
ORDER
SALAHUDDIN PANHWAR, J.- Through this instant Crl. Misc. application, filed by the applicants under section 561-A Cr.P.C., they have challenged the legality of the order dated 23rd December 2013 passed by Civil Judge and JM-III, Nawabshah whereby, while disagreeing with report of the police for disposal of Case Crime No.71/2013 under sections 302, 324, 114, P.P.C. of Police Station Daur under 'B' class, took cognizance with further direction to the Investigating officer to submit challan in the Court of Sessions Judge in prescribed pro forma.
2. The facts, leading to the instant Misc. application are that the said case was lodged by complainant Zanwar Long Khan @ Khadim Hussain regarding murder of his son Mumtaz Hussain and injuries on persons of his other son Raham Hussain, daughter Shahnaz and grand-daughters. It is noteworthy to mention that prior to this FIR two FIRs were also recorded being Crime No.61/2013 by son of deceased and another FIR No.62/2013 by present complainant. Police, after investigation, recommended the case for its disposal under 'B' class but the learned Magistrate, while disagreeing with police report, took the cognizance with further direction to I.O. to submit challan on prescribed pro forma before Sessions Judge.
3. Learned counsel for the applicant has argued that order of the Magistrate is not legal as the material, collected by the police was not properly appreciated and even it was not appreciated that it was a case of three versions ; all witnesses are related to each other and even reports of such three versions (FIRs) were submitted in Court but the order is silent in that respect. He, therefore, concluded that order is not sustainable under the law.
4. On the other hand , learned counsel for the respondent No.1, at the very outset questioned the maintainability of the petition while insisting order of the Magistrate on the police report is amenable only in revision. In addition to this objection, he added that order is well reasoned, proper hence maintainable.
5. On the other hand learned APG argued that impugned order is amenable under Section 561-A Cr.P.C. and impugned order is not speaking order.
6. Since there is an objection with regard to maintainability of the application, therefore, it would be proper to address this issue first.
The core issue, came to surface, through the arguments of the respective parties is :
'Whether an order passed on police report is an administrative one or judicial one?
Before proceeding with the above proposition, it would be relevant to have a look at the relevant Chapter of the Code wherein the proviso, dealing with 'investigation report' is provided because the principle of interpretation is that a proviso is to be read, taken and interpreted with reference to Chapter.
7. It is the Chapter-XIV of Part-V of the Code which is titled as 'information to police and their powers to investigate'. This Chapter contains the provision (s) which, prima facie, speak about the power(s) which the police officer shall have while conducting an investigation and manner in which the conclusion of investigation (in prescribed form/report) shall be submitted. On examination of all the provisions of Chapter-XIV of the Code ( i.e 154 to 173 (Sec. 174 to 176 of the Chapter not relating to investigation), it is manifest that this Chapter has got two provision(s) which are relevant to properly address the issue. The first one is Section 170 of the Code which reads as under:-
170. Case to be sent to Magistrate when evidence is sufficient.-(1) If, upon an investigation under this Chapter, it appears to the officer-in-charge of the police station that there is sufficient evidence or reasonable ground as aforesaid, such officer shall forward the accused under custody to a Magistrate empowered to take cognizance of the offence upon a police report and to try the accused or (send) him for trial or, if the offence is bailable and the accused is able to give security, shall take security, from him for his appearance before such Magistrate on a day fixed and for his attendance from day to day before such Magistrate until otherwise directed.
This provision is clear and specific that :
i) it directs forwarding of an accused when evidence, per police, is sufficient;
ii) before a Magistrate, competent to take cognizance upon a police report;
8. Since, from the plain reading of above, it becomes quite clear that it is the 'police report' upon which issue of 'taking cognizance' or 'otherwise' is dependant. Thus it would be conducive to refer the relevant proviso of this Chapter which speaks about submission of the report/conclusion of the investigation. Let's have a look at the relevant proviso which is reproduced hereunder:-
173. Report of police officer: (1) Every investigation under this Chapter shall be completed without unnecessary delay, and, as soon as it is completed, the officer incharge of the police-station shall [through the Public Prosecutorl--
(a) forward to a Magistrate empowered to take cognizance of the offence on a police-report, a report in the form prescribed by the Provincial Government, setting forth the names of the parties, the nature of the information and the names of the persons who appear to be acquainted with the circumstances of the case, and stating whether the accused (if arrested) has been forwarded in custody or has been released on his bond, and, if so, whether with or without sureties, and
(b) communicate, in such manner as may be prescribed by the Provincial Government, the action taken by him to the person, if any, by whom the information relating to the commission of the offence was first given :
[provided that, where investigation is not completed within a period of fourteen days from the date of recording of the first information report under Section 154, 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 the investigation made until then and the Court shall commence the trial on the basis of such interim report, unless, for reasons to be recorded, the Court decides that the trial should not so commence],
(2) Where a superior officer of police has been appointed under Section 158, the report shall, in any cases in which the Provincial Government by general or special order so directs, be submitted through that officer, and he may, pending the orders of the Magistrate, direct the officer incharge of the police-station to make further investigation.
(3) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit.
(4) A copy of any report forwarded under this section shall, on application, be furnished to the accused before the commencement of the inquiry or trial:
Provided that the same shall be paid for unless the Magistrate for some special reason thinks fit to furnish it free of cost.
[(5) Where the officer incharge of a police station forwards a report under subsection (1), he shall along with the report produce the witnesses in the case, except the public servants, and the Magistrate shall bind such witnesses for appearance before him or some other Court on the date fixed for trial.]
9. The plain reading of the Section 173(1)(a) of the Code leaves nothing ambiguous that it is directive in nature whereby the police officer is required to:
i) complete every investigation under this Chapter;
ii) forward the report, in a prescribed manner to a Magistrate, empowered to take cognizance.
The phrase 'every investigation under this Chapter', prima facie, makes it clear that it is speaking for investigation in both 'cognizable offence (154 Cr.P.C)' and 'non-cognizable (155 Cr.P.C)' . The proviso further directs the Police Officer to submit report of such investigation. The deliberate use of the word 'report' for 'every investigation' is itself sufficient to show that the police officer shall have to submit the report regardless of his (police officer) opinion/conclusion. It may be advantageous to add here that the Criminal Procedure Code, nowhere, categorizes/classifies the police report and even forwarding of an accused under Section 170 of the Code is requiring submission of the 'report' which is to be submitted under Section 173 of the Code.
10. The joint reading of both the above provision (s) make it quite clear that the work of the investigating officer, per this Chapter, comes to an end on compliance of the provision of Section 173 of the Code and then the duty and function of the Magistrate comes into play but such function and duty are not under this Chapter but in subsequent Chapter. The position, being so, make me endorse that any order, passed on the police report, is not passed under Section 170 or 173 of the Code. Such conclusion is well within line with the title of the Chapter-XIV of the Code which is titled as 'information to police and their powers to investigate'.
11. It is the Section 190 of the Code of the Chapter-XV of the Code through which the Magistrate is competent to take cognizance. The provision, being relevant is reproduced hereunder:-
190. Cognizance of offences by Magistrates: [(1) All Magistrates of the First Class, or any other Magistrate specially empowered by the Provincial Government on the recommendation of the High Court, may take cognizance of any offence
(a) ........
(b) upon a report in writing of such facts made by any police officer;
(c) .......
The deliberate use of the word 'may' is sufficient to show the intention of the legislature that discretion has been left with the Magistrate either to agree or disagree with the police report without being influenced with ipse dixit of police because it is, now, well settled principle of law that while concurring with a report, submitted by police, under Section 173 of the Code, the Magistrate can competently agree or disagree with recommendation/conclusion or opinion of the investigating officer and such 'inclining' or 'declining' is to be exercised under Section 190 of the Code. Reference can be made to the case of 'Syed Muhammad Ahmed v. The State and others (PLD 2006 SC 316), wherein it was held :-
"3. The provisions of section 173 Cr.P.C. provide only that after the available material had been collected by the S.H.O. during the course of an investigation then the result of the same had to be reported to the Magistrate competent to take cognizance under section 190 Cr.P.C, and thereafter, it was for the competent Magistrate /Court to decide whether an accused person did or did not deserve to be tried' (under lining and is mine)
In another case of 'Anwar Shamim and another v. The State (2010 SCMR 1791) is very much relevant hence the relevant portion thereof is reproduced hereunder:--
'It is also a settled that finding of police is not binding on the Court. It is pertinent to mention here that investigating agency has only duty under the law to collect evidence and has no authority whatsoever to give finding of guilt or innocence qua the accused persons under the provisions of Criminal Procedure Code, Police Act or Police Order / Rules framed there-under. It is only prerogative of the Court to give finding after recording evidence and statements of accused qua guilt or innocence of the accused. In case the contention of the learned counsel is accepted, then it tantamounts to delegate powers of the Court to the investigating agency which is not permissible under the law, Constitution and conventions'.
12. Thus, it is patent that per Section 173 of the Chapter-XIV of Part-V of the Code a police officer (investigating officer) is only to complete the investigation by collecting evidence and then to submit the police report before a Magistrate, competent to take cognizance of the offence but it is the absolute and exclusive domain of the Court (Magistrate) to agree or disagree with such report (conclusion or even recommendation of the I.O.) with reference to Section 190(1)(ii) of the Code.
13. Let's proceed further in search of an 'answer' regarding status of the Magistrate in either case of 'inclining' or 'declining' while exercising jurisdiction under section 190 of the Code. I am of the considered view that while acting so, the Magistrate always functions in 'administrative capacity' and any order, passed in result of such exercise will be 'administrative' and not 'judicial' in nature. Accordingly, the 'judicial decision or act', in legal terms is:
The requisite of a judicial decision or act are: if (a) a competent authority not being court in the ordinary sense, (b) has power to give a binding and authoritative decision, (c) after hearing evidence and upon consideration of facts and circumstances, and (d) imposing liability to affecting the rights of the parties, there is a duty to at judicially
The above makes it obvious that to qualify an order or act to be 'judicial' it would require to stand well with said conditions. To make it further clear it would be to refer the land-mark case of Bahadur and another v. The State and another (PLD 1985 SC 62) wherein honourable Supreme Court explained the primary characteristics of 'pure judicial functions' as:
1) The power to hear and determine a controversy;
2) The power to make a binding decision (sometimes subject to appeal) which may affect the person or property or other rights of the parties involved in the dispute.
14. There can be no denial to the legally established position that taking of cognizance by a competent can never be taken as a verdict of guilt or innocence because presumption of innocence, in favour of accused, continues till a competent court determines otherwise after a full and fair 'trial', as provided by the Code. Therefore, the Magistrate, who has taken the cognizance, can still competently acquit the accused or even can hold the charge to be groundless by exercising power under section 249-A, Cr.P.C. which exercise recognizes no limitation. At this juncture it would be germane to refer the case of 'Haq Nawaz v. The State (2000 SCMR 785), wherein it was held that :
S. 190.-Commencement of trial-Taking cognizance of offence by Court is not commencement of trial- Taking of cognizance of a case by a Court is not synonymous with the commencement of its trial which takes place on framing of the charge against the accused.
Thus, taking of cognizance alone never determines any controversy nor it is of any binding effect, therefore, both conditions, referred in case of Bahadur and another v. The State and another, are not fulfilled, hence this cannot be termed to be a 'judicial order'.
15. Now, let's see if Magistrate orders for disposal of the case under any of the following recognized terms i.e.
CLASS 'A'
F.I.R. is true, but accused is / are untraced
CLASS 'B'
The F.I.R is maliciously false;
CLASS 'C'
Where the evidence is insufficient;
It is also not a disputed position that even on disposal of a case either under classes 'A' or 'C', the complainant of such a case is still competent to file a Direct complaint before the same Magistrate, who can competently take cognizance on such complaint regardless of his earlier order for disposal of the case under 'A' to 'C' class. Thus, even by ordering for disposal of case under "A' to 'C' class, it cannot be taken to have determined a controversy or of any binding effect, therefore, both conditions, referred in case of Bahadur and another v. The State and another, are not fulfilled, hence even such order cannot be termed to be a 'judicial order'. Since the order, so passed under Section 190 Cr.P.C. is administrative in nature hence not amenable to revisional jurisdiction. Reliance can be made to the case of Abdul Qahyoum v. The State (2000 SCMR 520) wherein it was held:
10. We now revert to the nature of the order passed by ... and whether such order is revisable by this Court in exercise of revisional jurisdiction in terms of sections 435 and 439, Cr.P.C. This question came up before a Full Bench of the Supreme Court in Bahadur v. State PLD 1985 SC 62 in which it was authoritatively laid down that though a Magistrate in cancelling a registered criminal case is required to act judicially in that he has to act fairly, justly and honestly, a duty common to the exercise of all state powers there is no lis before him, there is no duty to hear the parties , there is no decision given, no finality or irrevocability attaching to the order. It was ruled that the party is left free to institute a complaint on the same facts and the same Magistrate does not even after passing such an order render himself functus officio . On the contrary he is quite competent to entertain and deal with such a complaint on material presented to him. On such assessment Supreme Court concluded that these peculiarities establish beyond that in so concurring with a report submitted under section 173, Cr.P.C. he does not function as a Criminal court. With reference to treaties on justice and Administrative Law by different well-known authors, Supreme Court expressed the view that some of the powers of the Magistrate and administrative, executive or ministerial and he discharges these duties not as a court but a 'persona designata'. This view was following in Arif Ali Khan v. State 1993 SCMR 187 and Muhammad Sharif v. State 1997 SCMR 304 which was also referred in the latest case of Hussain Ahmed v. Irshad Bibi 1997 SCMR 1503. Ratio decidendi in all the case appears to be that since the Magistrate while concurring with a police report under section 173, Cr.P.C., does not act as a Criminal Court inferior to the Court of Sessions and the High Court, his order cannot be revised and modified under the provisions of sections 435, 439 Cr.P.C. but in that case it is amenable to the inherent jurisdiction of the High Court under section 561-A Cr.P.C. provided the order amounts to abuse of process of Court.
16. In case of 'Hakim Ali v. The State (PLD 2006 Karachi 302), it was held that:
'In view of the afore-cited decision of the Honourable Supreme Court, it would be seen that the Magistrate while exercising jurisdiction under section 190 of the Cr.P.C. does so in an administrative capacity and does not function in a judicial one since he is only to apply his mind to the material present before him and thereafter decide whether he should take cognizance or not. If he decides to do so in a case triable by him then he should pass a speaking order after a fair assessment of such materials and then proceed to try the case himself. If he accepts the police report or otherwise discharge the accused where he does not agree with the same. Similarly he should send the case to the Sessions Court if it is a Session case upon acceptance of the police report and again discharge the accused if he does not agree with the same. However, it is to be noted that the exercise to be conducted by the Magistrate under section 190 Cr.P.C. is not a judicial one as held by the Honourable Supreme Court in Hussain Ahmed v. Irshad Bibi (supra), he cannot determine the guilt or innocence of the accused but only has to assess the evidence on the record in a summary fashion and thereafter make up his mind whether or not to discharge the accused'.
17. Learned counsel for respondent has mainly relied upon the case of 'Afshan v. Farukh Ali (PLD 2013 Sindh 423) wherein it was observed that:
6. It is further clarified that disposal of the case under any of the above classes (A, B or C class) is an administrative order while taking cognizance of a case is a judicial act, which cannot be nullified by an administrative act. The administrative order passed by the Magistrate can be challenged under section 561-A Cr.P.C by invoking inherent jurisdiction of this Court while such type of judicial order can be challenged under revisional jurisdiction before the competent forum.
Candidly there are number of decision (s) of Honourable Supreme Court of Pakistan on this issue to the effect that 'any order passed under section 190 Cr.P.C. is administrative in its nature hence not amenable to revisional jurisdiction,' therefore, I would like to sail with the view of the Honourable Supreme Court of Pakistan as the same is of binding in nature within meaning of the Article 189 of the Constitution which reads as under:-
Article-189. Decision of Supreme Court binding on other courts.- Any decision of the Supreme Court shall, to the extent that it decides a question of law, or is based upon, or enunciates a principle of law, be binding on all other Courts in Pakistan
Accordingly, instant Misc. Application under Section 561-A Cr.P.C. is very much competent and maintainable.
18. While reverting towards the merits of the case, suffice to say that although the Magistrate is not required to pass an order while discussing and appreciating the available matter as is required while passing a 'judicial order/judgment' yet the Magistrate was required to scrutinize all the available matter judicially but the order of the learned Magistrate is silent with regard to material, as pointed out by learned counsel for the applicants, during course of arguments, therefore, such an order of the Magistrate cannot be legally termed to be a speaking and reasoned ordered. Accordingly, the impugned order of the learned Magistrate is hereby set-aside and he is directed to pass an appropriate order considering all available material while forming an independent opinion regarding taking cognizance or otherwise.
19. However, while parting it is important to add here that there is no provision in the Code which allows direct submission of the police report/challan before Sessions Court, as ordered by the learned Magistrate at the end of his order else this will frustrate the purpose and object of the Section 193 of the Code.
20. The Misc. application is disposed of, as such.
MH/M-153/Sindh Case remanded
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