IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Crl. Misc. Appln. No. D- 02 of 2018 (New).

Crl. Misc. Appln. No. S- 159 of 2015 (Old).

Present: Mr. Justice Khadim Hussain M. Shaikh.

Mr. Justice Amjad Ali Sahito.

Applicants: Mukhtiar Ali & 4 others, through Mr. Safdar Ali Ghouri, Advocate.

Respondent: 1. The State, through Mr. Khadim Hussain Khooharo, Addl. P.G.

2. Khadim Hussain Massan (complainant), through Mr. Habibullah G. Ghouri, Advocate.

Date of hearing: 29.05.2018.

Date of decision: 29.05.2018.

JUDGMENT

AMJAD ALI SAHITO, J-. This application is preferred by the applicants/ accused Mukhtiar Ali, Abdul Ghafoor, Ali Dino, Irshad Ali and Zulfiqar Ali against the order dated 01.10.2015 passed by the learned Civil Judge and Judicial Magistrate-V, Larkana, in the matter of Report under Section 173 Cr.P.C submitted before him by the Investigating Officer, in Crime No.80 of 2014, registered with Police Station Dokri (District Larkana), for the offences punishable under Section 302, 395, 148 & 149 P.P.C. The impugned Order is reproduced hereunder:

“Heard arguments, heard complainant, I.O and P.Ws. Material on record reveals that, it is alleged in the instant F.I.R that police officials had murder his brohter by causing firearm on 30.09.2014, while on the other hand police has lodged F.I.R on 30.09.2014 for the said incident against complainant party under Section 324, 353, 34 P.P.C. This on the face of it shows that happening or occurring of incident. Now the question as how such incident took place is to be decided by the competent court after conducting trial. Only then it can be concluded that, which among those 02 versions of F.I.R is true. Therefore in view of attending facts and circumstances and availability of medical certificate supporting the happening of death due to firearm. I do not agree with the opinion of I.O. Hence he is directed submit challan on prescribed form within 12 days”.

2. The background of the case is that, on 01.10.2014 applicant No.1/ SIP Mukhtiar Ali (while posted as SHO at Police Station SMBBMU @ Arija) registered F.I.R being Crime No.77/2014 with Police Station Dokri, alleging therein that on 30.09.2014 when he alongwith other police personnel was patrolling and checking the vehicles on road leading from Wehni towards Dokri, they noticed that a white color Suzuki vehicle coming with high speed, they signaled it to stop but the driver intended to hit them with vehicle, but they avoided, as such the complainant conveyed such information to other police and all of them chased the vehicle and reached it at diversion of village “Wadi Wehni”, to which the persons boarding in the vehicle started firing upon police party and did not stop the vehicle; however covering some distance their vehicle jumped due to breaker and two persons fell down from the vehicle, while its driver driven away the vehicle. The police party gone ahead and found one person having injury on his back of neck, while other person having kalashnikov escaped from the scene. The injured person, on enquiry disclosed himself to be Mir Khan son of Muhammad Saleh Massan and further disclosed that he has sustained injury at the hands of his companions, as such he was taken to hospital and an F.I.R to above effect was registered on behalf of the State under Sections 324, 353 and 34 P.P.C. The injured during medical treatment succumbed to his injuries in the hospital. The police ultimately filed challan of the case before Court of law having jurisdiction.

3. On other hand case of respondent No.2/ the complainant of F.I.R No.80/2014 of P.S Dokri, namely, Khadim Hussain, who happens to be brother of above-named deceased) is that on the same date when he alongwith his brother (deceased Mir Khan) and others were on the way towards their village by same vehicle, they were confronted by police party and since driver of their vehicle due to odd hours and high speed of vehicle caused some delay to stop, to which SHO Mukhtiar Ali Chandio fired upon, which hit his brohter on his head and meantime other police personnel arrived there; they taken the injured to hospital, who succumbed to injuries.

4. Record reveals that on completing the investigation, report for disposal of the case for its disposal under “B” class was filed by the investigating officer in the Court of learned Civil Judge and Judicial Magistrate-V, Larkana, but learned Magistrate disagreed with the summary report and case was ordered to be challaned against the applicants/ accused within 12-days vide impugned order. Though this order was not suspended by this Court, but inspite of this, it was not complied with by the concerned police.

5. Prima-facie, the applicants and the complainant are accusing each other for causing murder of deceased Mir Khan Massan. The case/ F.I.R registered by the police/ applicants side already stand challaned. The learned Magistrate while passing the impugned Order has rightly observed that, “this on the face of it shows that happening or occurring of incident. Now the question as how such incident took place is to be decided by the competent court after conducting trial. Only then it can be concluded that, which among those 02 versions of F.I.R is true”.

6. The impugned order carries directions to the investigating officer by the learned Magistrate to file the charge sheet on the basis of material produced before him. Definitely, there is no bar on powers of the investigating officer in law, but similarly, the Magistrate is not bound by his opinion and he can have his own view of the case on the basis of material brought to light through the charge sheet or otherwise, and the course of accepting the charge sheet for its onwards forwarding to the Court of Sessions where the offence is triable by Sessions Court or to proceed with the case, if he is competent to try the offence, with or without inclusion of the let off or un-charge sheeted persons, if any, in the matter, is very much open to be adopted as a matter of Magisterial functions in terms of section 173 Cr.P.C, read with section 190 Cr.P.C.

7. In the case of Safdar Ali v. Zahoor Iqbal and others (2002 SCMR 63), it was held that, magistrate can take cognizance of an offence even in case of negative report submitted by police that accusation is baseless and no case is made out against the delinquents. As such, in view of the law laid down by the Hon’ble Supreme Court, we are of the view that under Section 173 Cr.P.C. the Magistrate has been empowered to agree or disagree with the findings/ recommendations of the investigating officer, even in case of negative report.

8. The upshot of above discussion is that, the impugned order is well founded and well-reasoned, based on proper appraisal of the material, thus it calls for no interference by this Court. Consequently, there appeared no substance in the instant criminal miscellaneous application, which was dismissed accordingly

9. These are the detailed reasons of short order dated 29.05.2018, announced by us.

JUDGE