ORDER SHEET

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Cr. Misc. Application No.S-134 of 2021

 

Date

               Order with signature of Judge

           

                          

                     Disposed of matter

                     For orders on MA No.5765/2021

 

26-11-2021

                

                     Mr. Shamsuddin Kobhar, Advocate for the applicant

                     Mr.  Khalil Ahmed Maitlo, Deputy Prosecutor General

                                    12-09-2014

                                     .-.-.-. -.-.-.-.-.-.-.-.-

                        Through instant application the applicant has prayed for recalling of order dated 16.09.2021, whereby the main application was dismissed for non-prosecution. Learned counsel for applicant has relied upon the case        of Ghulam Hussain v. The State (2001 P.Cr.L.J 611) and submitted that in     view of the case law criminal miscellaneous application dismissed for          non-prosecution can be restored.

                     Heard learned counsel for the applicant and learned DPG, who was present in court in other matters, waived notice of the application and has raised no objection for restoration of the main application. Resultantly, MA No.5765/2021 is allowed and main criminal miscellaneous application is restored to its original position. 

                     Heard learned counsel for the applicant on merits of the application, as well as learned DPG and perused the record. It appears that the learned Magistrate has passed the impugned order while going through the entire material collected during investigation. Relevant para of the impugned order is reproduced hereunder:-

                                 “It is worth considering facts that investigation of the instant crime was conducted twice by two different police officials of different police stations and they both reached at the same conclusion, hence there appears no malafide on the part of police for conducting un-impartial investigation.

                                 I take guidance from case reported in PLD 2013 Sindh 423 in case of Syeda AFSHAN versus Syed Farukh Ali and others. The operational part is reproduced as under:

                                 “Magistrate was not bound to agree with the report submitted by police under S.173, Cr.P.C and was at liberty to either agree or disagree with the conclusions reached by the investigating officer, subject to giving cogent reasons for the conclusion arrived at by him-Magistrate under S.173, Cr.P.C was not expected to blindly follow investigation undertaken by the police, as ipse dixit of the police was never binding upon the Magistrate or court-Magistrate was bound to apply his independent mind to the material placed before him and then form his opinion about the matter-after applying his judicial mind if the Magistrate was of the view that the opinion expressed by the investigating officer in the report under S.173, Cr.P.C was just and appropriate, he was fully competent to accept the report and dispose of the case as proposed (by the investigating officer)”.

                                 It is held in case of Anwer Alam Siddiqui Vs the State and another reported in 2016 YLR 417 that if the complainant was not satisfied by the Police investigation, he could resort to the remedy of filing direct complaint, but no case, provisions of S.173 Cr.P.C, would entitle him to get the person of his choice implicated in the case.          Such view was also taken in the case reported as Inayatullah and 4 others v. The State and another (1999 PCr.LJ 731) & Bahadur and another V The State and another PLD 1985 SC 62.

                                 Under the above circumstances of the case and considering the case law of Honourable Superior Courts and detailed investigation report of second IO Ghulam Ali Jumani, I am of the humble view that no primafacie case of abduction is made out for taking cognizance and there are no compelling reasons to decline the instant report, as such, the case in hand is fit to be disposed of under “C” class, therefore, the case is disposed of under “C” class. In the light of last diary of Investigation Officer of DSP Ghulam Ali Jumani and the above case laws, the complainant is at liberty to file direct complaint, if he desires so. Let the police papers be returned to concerned IO alongwith copy of this order, for information and compliance.”                       

                     No illegality has been pointed in the impugned order, resultantly this application is meritless and is hereby dismissed.

 

                                                                                                 JUDGE

Suleman Khan/PA