ORDER   SHEET

IN  THE  HIGH  COURT  OF SINDH, CIRCUIT  COURT,  LARKANA

Crl.Misc.Appln.No.S-139 of 2021.

_______________________________________________________________________

DATE                                       ORDER WITH SIGNATURE OF HON’BLE JUDGE

_______________________________________________________________________

For hearing of main case.

22.11.2021

                        Mr. Altaf Hussain Surhio, Advocate for the applicant.

                        Mr. Abdu Ghaffar, A.P.G for the State

                        =  *  = * = * = * = * =

IRSHAD ALI SHAH, J;- It is alleged that the applicant has committed murder of his wife Mst.Fukhraj by way of maltreatment and administering some poisonous substance to her, for that he was booked accordingly. On successive investigation, such FIR was recommended by the police to be cancelled under “C” class, but such recommendation was not agreed upon by learned 2^nd Civil Judge and J.M, Kashmore, who took cognizance of the incident/offence vide order dated 21.04.2021, which is impugned by the applicant before this Court by way of instant Crl.Misc.Application under section 561-A Cr.PC. 

                        It is contended by learned counsel for the applicant that on the basis of very honest investigation, the subject FIR was recommended by the police to be cancelled under “C” class and such cancellation was not opposed even by complainant Shah Nawaz, yet learned trial Magistrate has taken cognizance of the incident/offence, without lawful justification, such order being illegal is liable to be set aside by this Court.

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

                        I have considered the above arguments and perused the record.

                        The applicant is specifically named in promptly lodged FIR by complainant Shah Nawaz for committing murder of Mst.Fukhraj, by way of maltreatment and administering some poisonous substance to her. Whatever, is stated in FIR takes support from ancillary evidence, collected by the police during course of investigation. In that situation, the investigating officer was not justified to have recommended cancellation of FIR by accepting the plea of “Alibi” which was raised before him by the applicant. By undertaking such exercise, the investigating officer of the case has obviously encroached upon the powers of the Court, which alone is competent to declare the accused under accusation to be innocent or otherwise that too after full dress trial.       No murder case could be given an end without trial on the basis of favourable statement of the complainant before Magistrate even prior to its cognizance.     In these circumstances, the learned trial Magistrate was right to have taken the cognizance of incident/offence by disagreeing with opinion of the investigating officer, by way of impugned order, which is not found to be illegal or cursory to be interfered with by this Court u/s.561-A Cr.PC.

                        In view of above, the instant Crl.Misc.Application is dismissed, leaving the applicant to prove his innocence at trial in accordance with law, if so is advised to him.

  J U D G E