IN THE HIGH COURT OF SINDH BENCH AT SUKKUR
C.P No.S-104 of 2015
Date of hearing : 27.10.2015.
Mr. Mushtaque Ahmed Shahani Advocate for petitioner.
Mr. Khalid Ahmed Buriro Advocate for respondents No.3 to 8.
Mr. Agha Athar Hussain, A.A.G.
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ORDER
SHAHNAWAZ TARIQ,J:- Through captioned Constitution petition, petitioner has impugned order dated 11.06.2014, passed by the Court of II-Civil Judge and Judicial Magistrate, Sukkur, whereby summary report submitted by investigating officer u/s 173 Cr.P.C. was approved in B-Class.
2. The necessary facts spelt out from instant petition are that petitioner lodged F.I.R No.63 of 2014, u/s 382, 506/2, 148, 149 P.P.C. at P.S. Abad on 19.04.2014, at 1400 hours, in connection with the offence allegedly committed on 17.03.2014, at 5:00 p.m. It is averred that on 17.03.2014, complainant, his brother Nazir Ahmed and Uzair Ahmed along with other family members, were present in their house, when accused Ibrahim Pirzado, Ali Hyder Pirzado, Roshan Pirzado, Abdul Aziz Pirzado, Imran Pirzado, Farooque Pirzado and Abdul Rauf Pirzado along with two unknown persons, armed with weapons and lathies entered into their house and issued threats to them that if they will not return the hand of lady Mst. Farah, they will commit their murder, and subsequently, accused persons robbed golden ornaments, cash amount, motorcycles, LCD, air condition and batteries. Accused loaded the robbed articles in a datsun which was parked outside of their house and fled away.
3. Learned counsel for petitioner contended that Investigating Officer has not properly conducted investigation and he was in league with accused persons as such he submitted summary report under B-Class which was accepted by the learned Magistrate who without appreciating material judiciously, has passed the impugned order; that PWs have fully supported the version of FIR, as such case cannot be decided mere on technicalities and without affording opportunity to the complainant to prove his case; that respondents are influential persons and due to their influence police did not arrest any of the accused; that respondent No.2, SHO P.S. Abad, Sukkur, did not lodge F.I.R., consequently, petitioner filed criminal miscellaneous application u/s 22-A and 22-B, Cr.P.C. which was allowed and petitioner lodged the subject F.I.R; that complainant also moved an application to DIG Sukkur for re-investigation of the matter and vide order dated 24.04.2014, matter was re-investigated and SDPO City, Sukkur, submitted his report to DIG vide order dated 05.06.2014, but same was not placed before the learned Magistrate while passing the impugned order; that petitioner has nothing to do with the issue of abduction of Mst. Farah Batool, hence impugned order is liable to be set-aside.
4. While controverting the above submissions, learned counsel for respondents contended that applicants are innocent and have been falsely implicated by the petitioner in instant crime; that on 17.03.2014, allegedly incident occurred in the house of petitioner, while on same day, respondent No.3, Ibrahim Pirzado was available before the High Court of Sindh at Karachi and filed his affidavit in Constitution Petition filed by Salman Shaikh and Mrs. Farah Batool, as such allegations leveled by the petitioner regarding presence of respondent No.3 at the spot are self-contradictory and same could not be believed; that petitioner in his miscellaneous application u/s 22-A Cr.P.C. has leveled different allegations which are contradictory to the averments of the Constitution Petition No.946 of 2014 filed by Abdul Razaque and Nadeem regarding the time of occurrence and items allegedly taken away by the respondents which have created serious doubt regarding occurrence of the same incident but they had narrated the facts in different manners which has created serious doubt about the incident. Learned Counsel relied upon 2005 PLD Karachi 375 and 2005 YLR 1939.
5. Learned A.A.G. supported the impugned order and contended that learned Magistrate has passed proper order after considering entire controversy and discussing the merits of the case in detail.
6. Heard learned Counsel for the parties supported with case law and examined the material available on record minutely.
7. Perusal of record emanates that parties are residing in same vicinity and are well known to each other. Allegedly, the incident occurred in bright day within the city of Sukkur which is a populated area, but no independent person from the locality has come forward to support the allegations leveled by applicant in F.I.R. Bare perusal of F.I.R. reflects that accused have allegedly robbed certain articles from his house including Air- conditioned and washing machine etc. and they taken away said articles by a Datsun, but neither registration number, model and colour of the datsun have been mentioned in F.I.R. nor any other tangible evidence has been placed before the Investigating Officer to strengthen said allegations. In F.I.R, petitioner has mentioned that accused persons entered into his house on 17.03.2015, at 5:00 p.m., while in C.P No.946 of 2015, petitioners Nadeem and Abdul Razzaque had stated that accused persons entered in their house at 4:00 p.m. and taken away the following articles:-
“(1) Five Tola gold (2) One LCD (3) Air Condition (4) One stabilizer (5) Furniture and clothes (6) Camera from second room (1) Seven tola gold (2) One Cot (3) One stabilizer, One Brief case with clothes (4) cash of Rs.500,000/- (5) pots, from third room (1) One LCD full size (2) Exercise Machine (3) One stabilizer (4) One cot (5) One Fan (6) One Air condition along with stabilizer, from fourth room (1) Four tola golden ornaments, (2) one TV (3) one brief case along with clothes (4) Sofa set and from the courtyard one Washing Machine (2) One Sewing Machine (3) One Generator (4) Two Motorcycle China & CD (5) One Iron (6) One Juicer Machine (7) Air cooler (8) Two cycles, eight cots (9) One Fridge and other house article total worth of Rs.16,00,000/- which were lying in the house of petitioner.”
The above referred details of alleged robbed articles demonstrate that accused had taken away almost entire articles from the house of applicant by a dautsun, which definitely consumed hours for loading and shifting above articles of accused, which has controverted the averments of F.I.R. It is significant to mention that during the commission of alleged offence, respondents had not caused a single injury to the complainant, his members of family, and witnesses. The complainant party neither resisted the respondents nor raised cries though incident occurred in bright day within the city of Sukkur and the availability of general public in the surrounding of the place of incident could not be ruled out. Indeed, no person from the vicinity has supported the allegations leveled by the applicant. Thus, the allegations leveled by petitioner do not persuade the prudent mind nor it can be believed that respondents who are already nominated in earlier F.I.R, can commit the alleged offence in bright day.
8. Conversely, respondent No.3, Ibrahim who is also one of the co-accused in the subject crime, was available at Karachi. Perusal of order dated 17.03.2014, passed by High Court of Sindh at Karachi in C.P.No.S-291 of 2014, emanates that Ibrahim along with his counsel Mr. Khalid Ahmed, was present and he also filed his affidavit and said C.P was disposed of with direction to the official respondents not to cause any kind of harassment to the petitioners. The availability of co-accused Ibrahim before High Court of Sindh at Karachi has created serious doubt regarding the truthfulness of the alleged incident. Indeed, parties are disputed with each other over matrimonial affairs which is reflected from the averments of F.I.R. and other available material and they were also indulged in cases on the issue of love marriage of Mst. Fararh Batool with Salman Shiakh, one of companion of the petitioner, and subsequently, complainant party also lodged F.I.R. No.32 of 2014, u/s 324 PPC against respondents. Consequently, Magistrate after affording opportunity of audience to the petitioner, has rightly endorsed the final report submitted by Investigating Officer and cancelled the F.I.R by exercising his powers as envisaged under section 173 Cr.P.C. and Rule 47.7, Vol. III, Police Rules, 1934, and passed well discussed and speaking order by deliberating entire controversy.
9. Adverting to the contention that report of re-investigation was not placed before the Magistrate while passing the impugned order, it is well settled that after submission of final report by the Investigating Officer u/s 173 Cr.P.C., any order for re-investigation by high ups of police department without permission of the Court has no legal value nor maintains any authenticity, as influential persons by using political influence obtain re-investigation report as per their own choice with sole purpose to frustrate the trial and misguide the Court from passing appropriate order and dispensation of justice, hence the report of re-investigation obtained by the petitioner in instant crime by moving application to DIG Sukkur has no legal substance to be considered, while undoubtedly on the fateful day, one of the accused was present in High Court at Karachi and sworn his affidavit in Constitution petition No.S-291/2014 and obtained restraining order against official respondents on the account of causing harassment. Consequently, contradictory stances taken in F.I.R, criminal miscellaneous application u/s 22-A Cr.P.C and Constitution petition No.S-291 of 2014 (referred supra). have created serious doubt in the regarding the occurrence of incident which are also controverting to the averments of C.P No.946 of 2014. In case of Riaz Hussain & other v. The State (1986 SCMR 1934), the honourable Supreme Court has observed as follows:-
“System of re-investigation in criminal cases is a recent innovation which is always taken up as at the instance of influential persons and favourable reports obtained. This in no way assists Courts in coming to a correct conclusion, it rather creates more complications to the Court administrating justice.”
10. While concluding the above discussion, I am of the considered view that Magistrate while approving the report of Investigating Officer for disposal of the case under B-Class, had afforded the right of audience and rebuttal to the complainant/applicant, and he also examined police report supported with relevant material prudently and cancelled the F.I.R. by exercising legal authority as contemplated upon him under Section 173(3) Cr.P.C read with section 190 Cr.P.C, and the procedure provided under Rule 47.7, Vol.III, Police Rules, 1934, and recorded the sounds reasons in impugned order by deliberating upon the entire controversy.
11. For the foregoing facts and reasons, the applicant has failed to point out any illegality or material irregularity committed by the learned trial Magistrate while passing impugned order which does not call for any interference and same stands maintained. However, learned Magistrate had not issued mandatory notice to complainant while approving the summary submitted by Investigating Officer u/s 173 Cr.P.C. under B-Class, which is illegal and without legal authority, hence same is set-aside, consequently, summary report submitted by Investigating Officer is approved in C-Class instead of B-Class.
In the above terms, instant constitution petition stands disposed of.
JUDGE