ORDER SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Crl.Misc.Appln.No.S-440 of 2021.
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DATE ORDER WITH SIGNATURE OF HON’BLE JUDGE
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For hearing of main case.
13.01.2022
Mr. Altaf Hussain Surhayo, Advocate for the applicants.
Mr. Muhammad Afzal Jagirani, Advocate for the complainant.
Mr. Abdul Ghaffar, A.P.G for the State.
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IRSHAD ALI SHAH - J;- Facts in brief leading to passing of the instant order are that as per FIR lodged by the private respondent, the applicants and others, allegedly after having formed an unlawful assembly and in prosecution of their common object, committed murder of Ali Khan and Muhammad Yousif, by causing them fire shot injuries, for that they were booked accordingly. On investigation, they were let off by the police finding them to be innocent by placing their names in Column No.2 of the charge sheet and were joined in trial at instance of the complainant by learned Judicial Magistrate, Consumer Protection Court, Kashmore @ Kandhkot, and to procure their attendance were issued non bailable warrants for their arrest vide order dated 15.11.2021, which is impugned by the applicants before this Court by making the instant Crl.Misc.Application under section 561-A Cr.PC.
It is contended by learned counsel for the applicants that they have been joined in trial by learned trial Magistrate, without jurisdiction; therefore, the impugned order being illegal is liable to be set aside or alternatively non bailable warrants for arrest of the applicants to be converted into bailable warrants, enabling them to join trial. In support of his contention, he relied upon order dated 11.12.2002, passed by Honourable Supreme Court of Pakistan in Criminal Petition No.105-K of 2002 (Re.Shahmurad and others Vs. The State).
Learned A.P.G for the State was fair enough to say that he would be having no objection, if non bailable warrants for arrest of the applicants are converted into bailable warrants for their arrest enabling them to join the trial. However, learned counsel for the complainant by supporting the impugned order has sought for dismissal of the instant Crl.Misc.Application by contending that the applicants are vicariously liable for commission of the incident and were let off by the police on the basis of dishonest investigation.
I have considered the above arguments and perused the record.
Apparently, the applicants are named in FIR of the incident but there could be made no denial to the fact that they on due investigation were found to be innocent and were let off by the police by placing their names in Column No.2 of the charge sheet. There can be no cavil to the proposition that the trial Magistrate(s) are not bound by the police report and they have got ample powers to agree or disagree with opinion of the police to discharge or to take cognizance of the crime against any person, if he is found to be connected with commission of the incident in any manner, whether sent up or not and impugned order to extent of taking cognizance of the crime against the applicants by learned trial Magistrate could not be said to be without jurisdiction. However, adopting the coercive process to procure attendance of the applicants by issuing non bailable warrants for their arrest in first instance being harsh act could hardly be justified.
In view of above, the non bailable warrants are converted into bailable warrants for arrest of the applicants with direction to them to join the trial by furnishing surety in sum of Rs.200,000/- each and P.R bonds in the like amount to the satisfaction of learned trial Court.
The instant Crl.Misc.Application is disposed of accordingly.
JUDGE