Mst. ROZEENA RAZZAQ vs Mirza MOSHIN ALI JAH Ss — 2024 YLR 405 KARACHI-HIGH-COURT-SINDH

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Mst. ROZEENA RAZZAQ VS Mirza MOSHIN ALI JAH Ss. 415, 420, 463, 469 & 177---Criminal Procedure Code (V of 1898), S. 195---Cheating and dishonestly inducing delivery of property, forgery for purpose of harming reputation, furnishing false information---Cognizance---Complainant lodged FIR against respondent stating that he contracted marriage with her concealing the fact that he was already married, having three children and further he belonged to Fiq-a-jafaria---Complainant thereafter received divorce through Whatsapp---Report under S. 173, Cr.P.C. was submitted before the Magistrate with the opinion that the respondent had committed offence of cheating and false statement before the Nikahkhwan, but the Magistrate while disagreeing with the opinion of the Investigating Officer, declined to take cognizance on the said report---Validity---From the material collected by the Investigating Officer during investigation, it came on surface that the accused provided false information with regard to his faith as 'Sunni' and his earlier marriage, with an object to commit cheating with the complainant---Perusal of the S. 415, P.P.C. showed that for attracting the offence of cheating, deception was an essential element, which prima facie was available in the case of complainant and was attracted to the respondent---In the charge sheet S. 420, P.P.C., was also applied by the Investigating Officer---During investigation the respondent had not given any explanation that as to why he had wrongly informed about his faith and did not inform about his earlier marriage---In absence of such explanation, at the very initial stage it could be presumed that the intention of the respondent was nothing but to deceive the complainant---Hence prima facie S. 420, P.P.C., was also attracted to the case of the respondent---Bare reading of S. 469, P.P.C. coupled with S. 463, P.P.C., showed that prima facie said section too was attracted to the case of respondent---Perusal of the impugned order showed that the Judicial Magistrate while passing the impugned order had not considered said facts but had announced a pre-trial judgment and thereby the Magistrate had skipped the procedure---Magistrate was not competent to pass a pre-trial judgment and was required to examine material brought on record by the prosecution---No doubt, the opinion of the police was not binding upon the Magistrate but in the instant matter the Magistrate completely ignored the investigation conducted and material collected by the Investigating Officer--- Criminal Application was allowed and accused was sent up for trial, in circumstances.

Mst. ROZEENA RAZZAQ vs Mirza MOSHIN ALI JAH Ss — 2024 YLR 405 KARACHI-HIGH-COURT-SINDH

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