Ali Raza(Petitioner No 1), Anwar Ali Mari(Petitionar No 2), Amanat Cheema( Petitionar No. 3), Muhammad Bux Detho(Petitionar No. 4). (Petitioner) VS Khadim Hussain( respondent No 1), Rasool Bux(Respondent No.2), The State(Respondent No 3). (Respondent)

ORDER SHEET

ORDER SHEET

IN THE HIGH COURT OF SINDH, HYDERABAD CIRCUIT.

C.P. No.S- 101 of

Date. Order with signature of Judge

Mr. Ishrat Ali Lohar. Advocate for Petitioner.

Mr. Muhammad Qasim Rustamani holding brief for Mr. Muhammad Ali Rind, learned counsel for respondents No.1 Mr. Mumtaz Alam Leghari, Assistant A.G for State.

MUNIB

AHMED KHAN,J:- This consitutional petition has been filed agianst the order passed by learned Judicial Magistrate-I Badin on the police report submitted to him U/s 173 Cr.P.C. The police has submitted its report and termed the F.I.R. No.8/07 registered U/s 343 PPC R/W Section 156 a,c,d Police Order 2002 as false “B” Class. Learned Magistrate in his detailed order has disagreed with the finding and after taking the cognizance has referred the matter to the Sessions Judge Badin for trial.

Brief facts of the case are that complainant of the F.I.R. reported high handedness of the police and wrongful confinement of his family members for five days from 26.10.2006 to 30.10.2006 and demand of the police of Rs.2,00,000/- (Rupees two lac) for their release. He only succeeded to get them released after he approached District Nazim Badin, who conducted a raid on the lockup of Police Station Tando Bago on 30.10.2006 at 1500 hours along with Mukhtiarkar and Special Judicial Magistrate Tando Bago, DDO Revenue Tando Bago, DDO Nazir Qureshi and District Officer Revenue Badin. After the raid, two family members of the complainant were recovered, therefore, case was registered.

Learned counsel for petitioner submits that after detailed inquiry conducted by the police, challan has been submitted, which could have been accepted by the learned Magistrate, but instead of giving his findings towards his agreement or disagreement, he started trial by recording evidence of the accused persons and complainant/ witnesses and thereafter has issued N.B.Ws for wanted persons. He further submits that action on the part of the Magistrate is illegal.

On the other hand, learned Assistant Advocate General has supported the Magistrate’s order by stating that the Magistrate, after proper inquiry, to which he is empowered, has taken cognizance of the case. He has submitted that the Magistrate has all powers U/s 190 Cr.P.C to give his thoughts to the police report and should not accept the same with closed eyes and that he has all powers to agree or disagree, and in case of disagreement, he should record his finding to the extent to justify action on his part.

I have examined the Magistrates’s order wherein some detail of the factual position is given, which is as follows:-

“The further careful perusal record reveals that District Nazim Badin paid surprise visit of Police lockup Tando Bago on 30.10.2006 at about 1500 hours on the application along with Mukhtiarkar and Special Magistrate Tando Bago, DDO Revenue Tando Bago, DDO Nazir Qureshi Badin and DO Revenue Badin. During raid both the detainees were recovered and released by District Nazim vide daily diary No.5 of P.S Tando Bago on above date. The above act of police officials/accused reveals that they being police officials which can give a legal authority to confine or to keep person in confinement but they corruptly and maliciously commits both the detainees in wrongful confinement by exercising of that authority, knowing that by so doing they are acting contrary to the law.”

The finding of learned Magistrate on the basis of above factual position towards acceptance or non-acceptance of the report is as follows:-

“Hence I am satisfied with the report of I.O 173 for disposal of FIR under “B” Class inasmuch as the accused are nominated in FIR and P.Ws implicated them. No doubt the S.P Investigation accused Anwer Ali Mari was not present at the time of raid but when he was informed by District Nazim through his letter No.ZN/BDM Badin.1456/2006 dated 1.11.2006 for illegal detention of detainees, but he paid no heed to the information/orders of District Nazim, which act of accused S.P Anwer Mari itself reveals that he also was incollusion with co-accused had shared common intention towards the commission of offence. The function of police is to collect evidence but not destroy evidence.”

Perusal of above order shows that Magistrate has applied his mind and keeping in view the past history, has taken action. It is pertinent to mention here that FIR was only registered after intenvention of the Sessions Judge, but since the police officials are involved, therefore, no proceeding could be taken and even that was taken half heartedly with the finding that they termed the case as false “B” Class. The Magistrate’s finding as well as material available on record show that the grievance of the complainant is to be scrutinized in a judicial way and police should not be permitted to take the matter in its own hands. As far as the objection of learned counsel in respect of section 190 Cr.P.C is concerned, it has to be pointed out that there are two words used in that section, one is cognizance and the other is trial. The Magistrate for the purpose of taking cognizance can examine the material and even can call question from the witnesses to verify the contents of the material before him. The recording of statements and taking evidence are two different things. The Magistrate while taking cognizance has to record some statements, and to scrutinize the allegation which is permitted, keeping in view the gist and requirement of section 190 Cr.P.C, otherwise, the very purpose of Magistrate to have a check on the police report will fail. As far as the trial is concerned, the matter, after satisfaction of the Magistrate is sent to the Sessions Judge, who records evidence with an opportunity to the parties to cross-examine the witnesses in detail, and to place certain documents as exhibits and to challenge them in accordance with law.

In such situation there is no force in the objection of learned counsel for petitioner, therefore, this petition is dismissed.

JUDGE

Haider