Ubaid Nasir and others (Applicant) VS Farooq Ali and others (Respondent)

Cr

Cr.Misc.Application No.100 of 2008.

Ubed Nasir and others v/s Farooq Ali.

For Katcha peshi.

01.04.2009. Mr.Ghulam Shabir Shar, advocate for the applicants.

Mr.Ali Haider State counsel

ARSHAD NOOR KHAN, J.- By this application under section 561-A, Cr.P.C, the applicant has challenged the order dated 09.06.2008 passed by the learned Ist.Judicial Magistrate, Mirpur Mathelo, whereby he declined to accept the report for disposal of Crime No.22/2008 of Police Station, Yaro Lund in ‘C’ Class and directed the Investigating Officer to submit the charge-sheet in Court.

The facts leading rise to the present application in brief are that on the fateful day of the incident, the complainant was going on his motorcycle where he was intercepted by the applicant and others on the force of weapons, who snatched cash of Rs.58360/- from him and also on the force of weapons attempted to commit sodomy with him and on his hue and cry, other people were attracted and the assailants decamped from there. The complainant, therefore, immediately approached to the Police Station and lodged the FIR.

The investigation was conducted and the report was submitted before the Magistrate to dispose off the FIR in ‘C’ Class, which has been declined by the Magistrate as stated above.

I have heard Mr.Ghulam Shabir Shar learned counsel for the applicant and Mr.Ali Haider learned State counsel.

The learned counsel for the applicant vehemently contended that there was similar FIR lodged by the applicant side on 5.5.2008 against the complainant Farooq and the contents of the FIR lodged by the applicant side against the complainant Farooq and others, are similar and akin to that of FIR, which has already been registered by applicant side, as such the Investigating Officer rightly submitted the report for disposal of the Crime No.22/08 in ‘C’ Class, but the learned Magistrate committed an error in not accepting the report and directing the Investigating Officer to submit the challan, as such the order passed by Magistrate may be set aside.

Learned State counsel vehemently controverted the arguments advanced on behalf of the applicant and has contended that complainant Farooq and PWs Muneer and Farman Ali have fully supported the case of the prosecution and the Magistrate rightly declined to accept the report submitted by the Investigating Officer for disposal of the crime, as such the order passed by Magistrate does not suffer from any illegality.

I have considered the arguments advanced on behalf of the parties and have gone through the material available before me with the assistance of the learned counsel for the parties.

It is not disputed that applicant side has lodged the FIR against the complainant Farooq and others on similar facts and grounds on which the complainant Farooq lodged the FIR against the applicant side. It is also an admitted position that the challan in the case, which has been lodged by the applicant side, has been submitted to the Sessions Court for disposal in accordance with the law by the Magistrate and since on the same ground, the earlier challan in the case of the applicant, has been submitted in Court, it does not appeal to the mind of the prudent man that why on similar ground, the case of either party could not be sent to the Court for trial. Admittedly, both the parties are rival to each other and have registered the cases and since the case of the applicant side has been sent in Court to stand trial by the present applicant, there is no illegality in case, therefore the case of the applicant, is also challaned and both the cases are tried by the trial Court so as to avoid the conflicting evidence and judgment.

It is the duty of the Magistrate to examine the evidence at the time report under Section 170 or 173, Cr.P.C is submitted so as to find out as to whether any case cognizable under the law, has been challaned for taking cognizance by Court or not and no clog or restriction could be imposed on the powers of the magistrate provided under Section 190, Cr.P.C not to examine the case submitted before him to adjudge as to whether a cognizable case has been made out or not and if the magistrate is not satisfied with the report of the Investigating Officer, the magistrate may pass an appropriate order and directions to the Investigating Officer, which, in any way, could not be termed fanciful, arbitrary or illegal. In the present case, the learned Magistrate after examination of material placed before him, did not concur with the opinion of the Investigating Officer to dispose off the crime in ‘C’ Class and on the basis of material available on record, he rightly directed the Investigating Officer to submit the challan in Court.

The order passed by Magistrate, does not suffer from any illegality or infirmity so as to interfere under Section 561-A, Cr.P.C. However, the applicant has all the opportunities to apply before the trial Court for his acquittal either under Section 249-A, Cr.P.C or under Section 265-K, Cr.P.C. in view of the case of Muhammad Khalid Mukhtar v The State reported in PLD 1997 SC 279, wherein the Hon’ble Supreme Court was pleased to observe that High Court must be reluctant in quashment of the proceedings and the parties concerned may resort to under Section 249-A or 265-K, Cr.P.C before the trial Court. The observations made by the Hon’ble Supreme Court in the aforesaid case are also fully attracted to the present case. In such view of the matter I do not find any merit in the present application, which is hereby dismissed in limine.

JUDGE

Akber.

Approved for reporting.