2015 P Cr. L J 1329
[Sindh]
Before Zafar Ahmed Rajput, J
GUL MUHAMMAD---Applicant
versus
The STATE---Respondent
Criminal Miscellaneous Application No. 368 and M.A. No. 10340 of 2014, decided on 8th April, 2015.
(a) Criminal Procedure Code (V of 1898)---
----Ss. 561-A & 190(c)----Penal Code (XLV of 1860), Ss. 302, 324, 337-A(i), 337-F(i) & 34---Qatl-i-amd, attempt to commit qatl-i-amd---hurt and common intention---Cognizance of offence---Nature of proceedings---Application for quashment of order---Inherent powers of High Court---Scope---Police finding accused innocent during investigation, released him under S. 169, Cr.P.C., but Magistrate taking cognizance of offence against all the accused persons, refused to release the accused (applicant)---Complainant, daughter of deceased, supported statement of accused (applicant) that he had been mistakenly implicated in the case, due to which she had lodged second FIR against real culprits---Validity---No eye-witness had implicated the accused (applicant)---Magistrate had not looked into record before him and passed impugned order without deliberating on statement of complainant---Judicial Magistrate was not bound to agree with report submitted by police under S. 173, Cr.P.C., and he was at liberty either to agree or disagree with conclusions reached by investigating officer subject to giving cogent reason for conclusion arrived at by him and his conclusion must have been laced with evidence showing application of judicial mind---Statements of eye-witnesses were sufficient to establish that prima facie prosecution had no evidence against the applicant to connect him with the case---Trial of applicant, in circumstances, would amount unnecessary harassment to him and proceedings before trial court would be abuse of process of law---High Court setting aside order of Magistrate quashed proceedings of trial to the extent of accused-applicant---Application was accepted accordingly.
(b) Criminal Procedure Code (V of 1898)---
----Ss. 173 & 190(c)--- Police report under S. 173, Cr.P.C.---Cognizance of offence---Nature of proceedings---Duty of Magistrate---Taking cognizance of offence is a judicial act---Judicial Magistrate is not bound to agree with report submitted by police under S. 173, Cr.P.C., and he is at liberty either to agree or disagree with conclusions reached by investigating officer subject to giving cogent reason for conclusion arrived at by him and his conclusion must be laced with evidence showing application of judicial mind.
(c) Criminal Procedure Code (V of 1898)---
----S. 561-A----Inherent powers of High Court---Scope---Court cannot sit as investigator but matter can be looked into to find out as to whether prima facie case exists against accused on facts disclosed in FIR and from statements of prosecution witnesses, and proceedings is truly intended to secure ends of justice or otherwise factually abuse of process of law.
(d) Criminal Procedure Code (V of 1898)---
----S. 561-A----Inherent powers of High Court---Scope---Grounds for exercise of inherent powers---Provision of S. 561-A, Cr.P.C. contemplates inherent powers of High Court to make such orders as deem appropriate to give effect to any order passed under Criminal Procedure Code, 1898 or to prevent abuse of process of any court or otherwise to secure ends of justice on the grounds: (i) when case is of no evidence; (ii) when registration of case is proved to be mala fide on face of record; (iii) when case is of purely civil nature, and criminal proceedings are not warranted in law; (iv) when there is serious jurisdictional defect; and (v) when trial of accused would amount to unnecessary harassment.
Muhammad Ramzan v. M. Ashraf Bhatti and others 1992 PCr.LJ 276; Inayatullah and 4 others v. The State 1999 PCr.LJ 731; The State v. Asif Ali and another 1994 SCMR 798 and Muhammad Younus and 3 others v. Sardar Baqir Ali and another 1977 SCMR 4 rel.
Muhammad Ashraf Kazi for Applicant.
Nisar Ahmed Dogar for the Complainant and L.Rs. of deceased Muhammad Hasan.
Shahzado Salim, A.P.-G. for the State.
Date of hearing: 8th April, 2015.
ORDER
ZAFAR AHMED RAJPUT, J.---Through this Criminal Miscellaneous Application, under section 561-A, Cr.P.C., the applicant has assailed the order dated 4-10-2014, whereby the learned 2nd Judicial Magistrate, Thatta has taken the cognizance of the offence under section 190 of Cr.P.C. against the applicant upon the report submitted by the Investigating Officer under section 173, Cr.P.C., by releasing the applicant under section 169, Cr.P.C. for want of evidence in FIR No.225 of 2014, registered at P.S. Thatta, under sections 302, 324, 337-A(i), 337-F(i)/34, P.P.C.
2. Briefly stated, the facts of the case are that on 20-9-2014 one Gul Hasan lodged the aforementioned FIR nominating the applicant for committing murder of the deceased Muhammad Hasan with fire-arm. After registration of the case, SIP Nazir Ahmed Chandio conducted the investigation and arrested one of the co-accused, namely, Muhammad Juman alias Jummo Sammo and recovered Repeater gun from his possession. Thereafter, on 2-10-2014, the complainant and three injured/eye-witnesses recorded their statements that the name of applicant was mistakenly given by them as neither he was present at the spot nor was he involved in the case. They also submitted their affidavits, requesting therein for the deletion of the name of the applicant. Besides, the injured/eye-witnesses also recorded their statements under section 164, Cr.P.C. and since it was transpired in investigation that the applicant was innocent, he was released by the police under section 169, Cr.P.C. and such interim report/challan vide Charge Sheet No. 205/2014 was submitted by the I.O. of the case on 4-10-2014 before the learned Judicial Magistrate, alleging therein that as per his investigation, the accused namely, Muhammad Juman @ Juman Sammo and Ghulam Qadir are the real accused in the case but the learned Judicial Magistrate, declining the release of applicant under section 169, Cr.P.C. took the cognizance of the offence against all the accused persons, including the applicant, vide order dated 4-10-2014. This order has been impugned by the applicant in this Criminal Misc. Application under section 561-A, Cr.P.C.
3. Heard the learned counsel for the applicant, complainant and the learned A.P.G. for State and perused the material available on record.
4. The learned counsel for the applicant has contended that the applicant is innocent and his false implication is motivated one. He has further stated that due to influence of Shirazis, the Thatta Police lodged the afore-mentioned FIR against the applicant, nominating him as principal accused for committing murder of deceased Muhammad Hasan. The learned counsel has also contended that there is no cavil to the proposition that the Judicial Magistrate is competent to call any person and join him as an accused in the trial, but such power is to be exercised by him when there is sufficient material before him connecting the accused in the alleged commission of offence for taking cognizance under section 190, Cr.P.C. He has also maintained that the FIR in the case in hand was lodged by one Gul Hasan on 20-9-2014 and since it was politically motivated FIR against the applicant based on false allegations, the daughter of the deceased Muhammad Hasan, namely, Naseema Sammo lodged the second FIR of the same incident wherein she has implicated Muhammad Juman @ Juman Sammo and Ghulam Qadir and others as accused of murder of her deceased father; therefore, the impugned order passed by the learned Judicial Magistrate, being illegal and in excess of power, is liable to be set aside and the criminal proceedings arising out of afore-mentioned FIR should be quashed against the applicant to secure the ends of justice and to prevent the abuse of process of Court. In support of his contention, the learned counsel for the applicant has relied upon the case of Muhammad Ramzan v. M. Ashraf Bhatti and others reported as 1992 PCr.LJ 276 and Inayatullah and 4 others v. The State reported as 1999 PCr.LJ 731.
5. The learned counsel for the complainant and L.Rs. of the deceased has supported the learned counsel for the applicant. He has contended that the applicant was mistakenly implicated in this case and when such fact came into the knowledge of family members of the deceased, the daughter of the deceased lodged second FIR of the incident against the real culprits of her father's murder.
6. Learned A.P.G. for the State has frankly conceded the submission made by the learned counsel for the applicant and stated that only on the basis of contents of first FIR the cognizance has been taken by the learned Judicial Magistrate against the applicant, however, there is no evidence on record against the applicant to bring home guilt against him. He has also stated that keeping the case of the present applicant on record shall amount to abuse of process of law.
7. Provision of section 561-A, Cr.P.C. contemplates inherent powers of High Court to make such orders as deem appropriate to give effect to any order passed under the Criminal Procedure Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice, on the following grounds:
(i) when the case is of no evidence;
(ii) when the registration of the case is proved to be mala fide on the face of record;
(iii) when the case is of purely civil nature, criminal proceedings are not warranted in law;
(iv) when there is serious jurisdictional defect; and
(v) when the trial of an accused would amount to unnecessary harassment.
8. Certainly, the Court cannot sit as an investigator but the matter can be looked into to find out as to whether a prima facie case exists against the accused on the facts disclosed in FIR and from the statements of the prosecution witnesses; and the proceeding is truly intended to secure the ends of justice or otherwise factually an abuse of the process of law. In the case of The State v. Asif Ali and another (1994 SCMR 798) the apex Court has held that;
"Section 561-A, Cr. P.C. confers upon High Court inherent powers to make such orders as may be necessary to give effect to any order under the Code or to prevent abuse of process of any Court or otherwise to secure, the ends of justice. These powers are very wide and can be exercised by the High Court at any time. Ordinarily High Court does not quash proceedings under section 561-A, Cr.P.C. unless trial Court exercises its power under section 249-A or 265-K, Cr.P.C., which are incidentally of the same nature and in a way akin to and co-related with quashment of proceedings as envisaged under section 561-A, Cr.P.C. In exceptional cases High Court can exercise its jurisdiction under section 561-A, Cr.P.C. without waiting for trial Court to pass orders under section 249-A or 265-K, Cr.P.C. if the facts of the case so warranted to prevent abuse of the process of any Court or otherwise to secure the ends of justice."
In the case of Muhammad Younus and 3 others v. Sardar Baqir Ali and another (1977 SCMR 4) the apex Court holding that the complaint did not lie against three accused persons out of four, quashed the proceedings to the extent of three accused persons.
9. In the instant case, it appears from the perusal of the material on record that the first FIR of the incident was lodged by one Gul Hasan, being FIR No.225/2014 on 20-9-2014, wherein the applicant was directly nominated in murder of the deceased; thereafter, on 4-10-2014, learned Judicial Magistrate recorded the statement of three injured/eye -witnesses, namely, Nabi Bux, Nazeer Ahmed and Abdul Majeed under section 164, Cr.P.C. who stated in their statements that accused Muhammad Juman made fire from Repeater gun which hit to Muhammad Hasan and after that he made 2/3 fires and then he took iron road and hit on the left leg of Nazeer, while accused Ghulam Qadir caused hatchet blow on back side of the head of Nabi Bux. As such, not a single eye-witness, out of three, has implicated the applicant in his statement. Therefore, on 4-10-2014, S.I.P/I.O Abdul Sattar submitted the interim report under section 173, Cr.P.C. before the Court of learned Judicial Magistrate against the accused Muhammad Juman alias Jummo and Ghulam Qadir, whereas the present applicant was released under section 169, Cr.P.C. on being proved innocent on the basis of statements of above-mentioned eye-witnesses. Thereafter, the case further developed in favour of applicant on 2-4-2015 when the daughter of the deceased Muhammad Hasan lodged the second FIR of the same incident, being Crime No. 60/2015, wherein she has not nominated the applicant as accused of her father's murder.
10. Taking cognizance of an offence is a judicial act. No doubt, the Judicial Magistrate is not bound to agree with report submitted by the police under section 173, Cr.P.C. and he is at liberty either to agree or disagree with the conclusions reached by investigating officer, subject to giving cogent reason for the conclusion arrived by him and his conclusion must be laced with evidence showing application of judicial mind. It is evident that in this case the learned Judicial Magistrate did not look into the record before him and he passed the impugned order without deliberating on the further statement of complainant and the statements of three injured/eye-witnesses recorded under section 164, Cr.P.C., which is sufficient to establish that prima facie prosecution has no evidence against the applicant to connect him in this case and; therefore, the trial of applicant would amount to unnecessary harassment to him and the proceedings of the case against him before the trial Court will be abuse of process of law.
11. For the foregoing facts and reasons, I allow this application to secure the ends of justice and set aside the impugned order dated 4-10-2014 passed by the learned 2nd Judicial Magistrate, Thatta. As a result, the proceedings to the extent of applicant, namely; Gul Muhammad, arising out from Crime No. 225 of 2014, registered at P.S. Thatta, under sections 302, 324, 337-A(i), 337-F(i)/34, P.P.C., pending in the trial Court/ Court of Sessions Judge, Thatta shall stand quashed, while the case against the other accused persons shall proceed in the trial Court in accordance with law.
12. Since the instant Criminal Miscellaneous Application has been allowed, the listed application has become infructuous, which is hereby dismissed accordingly.
SL/G-14/Sindh Application accepted
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