Cr.Misc.Application No.09 of 2006.
Shamsuddin and others v/s The State and ors.
1.For Katcha peshi.
2.For Hearing of MA 131/06.
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31.3.2009. Mr.Ghulam Sarwar Korai, advocate for the
applicants.
Mr.Zulafiqar Ali Naich, advocate for respondent
No.2.
Mr.Ali Haider State counsel.
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ARSHAD NOOR KHAN, J.- By this application, the applicants have
challenged the order dated 09.1.2006 passed by the learned Judicial
Magistrate-III, Sukkur whereby the report submitted by the Investigating
Officer for its disposal in ‘C’ Class in Crime No.91/2005 under Section 420,
406, 5-6/2, 34, 489-F, PPC of Police Station
‘A’ Section, Sukkur, has not been accepted thereby directing him to submit the challan in Court on
14.1.2006.
The applicants have challenged this order
on the ground that no material was collected by the Investigating Officer
during the course of investigation and the Investigating Officer rightly
submitted his report to dispose off the matter in ‘C’ Class but the learned
Judicial Magistrate without any evidence available on record, has not accepted
the report and has directed to the Investigating Officer to submit challan,
which is much against the evidence available on record.
I have heard Mr.Ghulam Sarwar Korai,
learned counsel for the applicants, Mr.Zulifquar Ali Naich, learned counsel for
the respondent No.2 and Mr.Ali Haider learned State counsel.
The learned counsel for the applicants
vehemently contended that from the face of FIR no offence against the
applicants, has been made out and in fact the dispute was between the
complainant and one Farooq for which the present applicants have nothing to do
and that the civil suit filed by complainant against that Farooq has been
decreed and execution application is pending and the present FIR has been
lodged malafidely by the complainant and that during the course of
investigation no material has been brought on record by the complainant side to
implicate the present applicants and the Investigating Officer rightly
submitted the report before the Magistrate for its disposal under ‘C’ Class but
the Magistrate in excess of his powers did not accept the report and illegally
directed the Investigating Officer to submit the challan. As such the order
passed by the learned Magistrate be set aside and the proceedings against the
applicants may be quashed.
The learned State counsel while refuting
the arguments advanced on behalf of the applicants has vehemently contended
that the Investigating Officer during the course of investigation had also
recorded the statements of the defence witnesses and keeping in view the
version of the defence witnesses, report was submitted by the Investigating
Officer for disposal of the FIR in ‘C’ Class whereas the eye witnesses namely
Karim Bux and Muhammad Hanif who are independent eye witnesses have also fully
supported the contents of the FIR. Besides the statement of the complainant,
the Investigation Officer did not consider the said material, which is fully
implicating the applicants. As such the Magistrate rightly refused to accept
the report of the Investigating Officer
for disposal of the FIR in ‘C’ Class.
The learned counsel for the respondent
No.2 has supported the arguments advanced by the learned State counsel and has
further contended that the applicant No.3 is Sub-Inspector in Police
department, who was at the relevant time of the registration of the FIR, was
posted in ‘A’ Section Police Station, Sukkur, therefore due to his influence, a
vague report was submitted before the Magistrate and the Magistrate rightly
refused to accept the said report. As such the application for quashment merits
no consideration and is liable to be dismissed.
I have considered the arguments advanced
on behalf of the parties and have gone through the material available before
me.
Admittedly there was some dispute between
the parties over the certain payment in between one Farooq and the complainant
and there was some exchange of the cheque by the said Farooq to the
complainant, which subsequently was dishonored because of the said dispute on
the day of incident while the complainant was returning from the mosque the
applicants alongwith said Farooq extended threats for dire consequences, in
case, if he demands money from them. The said occurrence has been admittedly witnessed by PWs Karim
Bux and Muhammad Hanif. Their statements as well as the statement of
complainant fully supported and corroborated the contents of FIR and when the
report under ‘C’ Class was submitted before the learned Magistrate, he was not
satisfied for the reason that the evidence collected by the Investigating
Officer for the prosecution of the applicants, was not taken into consideration
by the Investigating Officer while submitting report.
In such state of affairs the Magistrate is
not duty bound to accept the report submitted by the Investigating Officer,
which is not borne out from the record or from the statements of the witnesses.
The order passed by the Magistrate, therefore could not be said to be illegal
or arbitrary.
The material available on record requires
judicial enquiry by the Magistrate and that could only be done when the challan
is submitted before the Court and the evidence of the at-least complainant and
eye witnesses namely Karim Bux and Muhammad Hanif is recorded.
For all these reasons and circumstances, I
do not find any merit in the present application, which is hereby dismissed
alongwith listed application.
JUDGE
Akber.
Approved for reporting.