ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Crl.Misc.Appln.No.S-246 of 2019

Date of hearing

Order with signature of Judge

For hearing of main case.

06.08.2020.

Mr. Habibullah Ghouri, Advocate for the applicants

                        None for the private respondent

Mr. Aitbar Ali Bullo, Deputy Prosecutor General

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IRSHAD ALI SHAH, J.- The facts in brief necessary for disposal of instant Crl.Misc.Application are that an FIR was lodged against the applicants by the private respondent with P.S Civil Line Larkana, alleging therein that the applicants, in furtherance of their common intention, have fired at PW Sajid Hussain with intention to commit his murder and then have gone away by insulting him and his witnesses. Such FIR on investigation was recommended by the police to be cancelled under false “B” class. Such recommendation was not accepted by learned Magistrate, who took the cognizance of the offence vide his order dated 06.11.2019, which is impugned before this Court by the applicants by way of instant Crl.Misc.Application.

2.                    It is contended by learned counsel for the applicants that the FIR has been lodged with delay of about four days and the applicants being innocent have been involved in this case falsely by the private respondent on the basis of ineffective firing only to satisfy his matrimonial dispute with them and learned trial Magistrate has taken cognizance of the offence against the applicants, without lawful justification. By contending so, he sought for setting aside of the impugned order.

3.                    Learned D.P.G for the State by supporting the impugned order has sought for dismissal of the instant Crl.Misc.Application. 

4.                    I have considered the above arguments and perused the record.

5.                    The Investigating officer of the case was always required to investigate the case from all angle of defence plea but his conclusion must always be based on facts, discovered during course of investigation and not mere words of informant or defence. Since the claimed witnesses of incident prima facie have supported version of informant, as such the investigating officer was not justified to declare the case to be false on the basis of statements of so called independent witnesses. Since taking of cognizance is nothing more than proceeding with the case further, without any harm to obligation of prosecution to prove its case beyond reasonable doubt and that of right of accused to enjoy fair-trial which includes a fair opportunity to prove their innocence.

6.                    In case of Muhammad Akbar v. State (1972 SCMR 335), it has been held by the Honourable Court that; 

"Even on the first report alleged to have been submitted under section 173, Cr.PC, the Magistrate could, irrespective of the opinion of the Investigating Officer to the contrary, take cognizance, if upon the materials before him he found that a prima facie case was made out against the accused persons. After all the police is not the final arbiter of a complaint lodged with it. It is the Court that finally determine upon the police report whether it should take cognizance or not in accordance with the provisions of section 190(i)(b) of the Code of Criminal Procedure. This view finds support from a decision of this Court in the case of Falak Sher v. State (PLD 1967 SC-425). "

7.                    For what is discussed above, it is concluded safely that no illegality is committed by the learned Magistrate which may justify making interference with the impugned order, by this Court, by way of instant Crl.Misc.Application, it is dismissed accordingly. 

                                                    J U D G E