ORDER SHEET
IN THE HIGH
COURT OF SINDH,
Crl. Misc. Application No.142
of 2013
________________________________________________________
Date
Order with signature
of Judge
________________________________________________________
Date of hearing : 09.01.2014
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Mr. Muhammad
Shafqat Tanoli Advocate for the Applicant alongwith Applicant.
Mr. Ayaz Ali
Gopang Advocate for the Complainant.
Mr. Abdullah
Rajput APG.
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Syed Hasan Azhar Rizvi: By this order I intend to dispose of Crl.
Misc. Application filed by the Applicant/accused Abdul Momin son of Abdul
Sattar under section 561-A Cr.P.C. for quashment of impugned order dated
02.05.2013 passed by the learned IIIrd Judicial Magistrate, Nawabshah on the
report under section 173 Cr.P.C.
After registration of the FIR Applicant approached to
this Court by filing Criminal Bail Application No.322/2013 and by order dated
02.04.2013 protective bail was granted to the Applicant with the direction to
surrender him before the Trial Court. After obtaining protective bail from this
Court Applicant appeared before Investigating Officer, who submitted report
under section 173 Cr.P.C and placed the name of the present Applicant in Column
No.2 of the charge-sheet. Learned Judicial Magistrate was not satisfied with
the report and passed order on 02.05.2013 and directed the Applicant to join
and face the trial, hence present Criminal Misc. Application has been filed.
Learned Counsel for the Applicant contended that the
Applicant/accused was falsely implicated due to ulterior motives on the part of
the complainant and after obtaining protective bail from this Court on
02.04.2013 for in Criminal Bail Application No.322/2013, the Investigating
Officer of the case found the present Applicant/accused innocent as according
to the learned Counsel for the Applicant, the Applicant was falsely implicated
in this Court and mentioned his name in Column No.4 of the Charge-sheet on the
ground that no proof against the Applicant was available. As per learned
Counsel for the Applicant the learned Judicial Magistrate was not competent to
pass impugned Administrative order passed on 02.05.2013 and to send report
under section 173 Cr.P.C. to the learned Sessions Judge for appropriate order.
As per learned Counsel order is corum non-judice and liable to be quashed. He
has placed reliance on 1985 SCMR 1314 the case of Raja Khushbakhtur Rehman
versus the State.
On the other hand learned Counsel for the complainant
and learned APG have supported the order of learned Judicial Magistrate and
submitted that no illegality and irregularity has been committed by the learned
J.M. while passed the impugned order and further submitted that the instant
Application is liable to be dismissed.
I have heard Mr. Muhammad Shafqat Tanoli Advocate for
the Applicant, Mr. Ayaz Ali Gopang Advocate for the Complainant, Mr. Abdullah
Rajput learned APG and carefully perused the material available on record and
the case law cited by the learned Counsel for the respective parties, with
their assistance.
In
the case of Muhammad Ahmed (Mahmood Ahmed) versus the state reported in 2010
SCMR 660, the Hon’ble Supreme Court has provided guidance of all concerns
whereby the guilt or innocence of accused persons is exclusive domain of only
the Courts of law and such powers could never be permitted to be exercised by
the employees of the police department or by anyone else. It has been held in
that case:-
“It may be mentioned here, for the
benefit and guidance of all concerned, that determination of guilt or innocence
of the accused persons was the exclusive domain of only the Courts of law
established for the purpose and the said sovereign power of the Courts could
never be permitted to be exercised by the employees of the police department or
by any one else for that matter. If the tendency of allowing such-like
impressions of the Investigating Officers to creep into the evidence was not
curbed then the same could lead to disastrous consequences. If an accused
person could be let off or acquitted only because the Investigating Officer was
of the opinion that such an accused person was innocent then why could not, on
the same principle, another accused person be handed to death only because the
investigating Officer had opined about his guilt”.
In
view of the above guidance of the Apex Court, I do not find any merit in the
present application and the impugned order does not require any interference as
no illegality and irregularity is apparent in the said order.
Above
are the reasons of my short order dated 09.01.2014 whereby the instant Criminal
Misc. Application was dismissed.
JUDGE
Karachi
Dated:______________