IN THE HIGH COURT OF SINDH CIRCUIT COURT LARKANA
Cr. Misc. Appln. 17 of 2022 Muzaffar Ali Tallani
vs. The State & Others
For the Applicant : Mr. Ashfaque Hussain Abro
Advocate
Date of hearing : 20.01.2022
Date of announcement : 20.01.2022
ORDER
Agha Faisal, J. (1) Urgency granted. (2) Deferred (3) Granted, subject to all just exceptions (4) Applicant has impugned the order dated 16.12.2021 rendered by the learned Judicial Magistrate-I, Jacobabad in Criminal Case No. Nil of 2021 arising out of Crime No.119/2021 of P.S City, Jacobabad. It is considered illustrative to reproduce relevant content hereinabove.
"After hearing both the parties and perused the material placed in police papers. From which, it transpires that, prior to the lodgment of FIR the trade of sell and purchase of buffaloes took between complainant and accused against the cash amount of Rs.8,00,000/-. On pretext of such trade complainant had paid Rs.3,00,000/ at the spot while for the payment of remaining amount accused issued cheque of MCB bank Karachi Branch vide No.10146455 of dated: 25.05.2021. On representation of such cheque before MCB Bank Jacobabad Branch, due on insufficient balance the same could not encashed and returned with memo. Further, it also appears that, the prior to the trade of buffaloes and lodgment of FIR complainant and accused were unknown to each other. At first instant complainant got ready to move towards the trade and obtaining the cheque. Complainant had not mentioned the date of appearing before concerned Bank. In between 25/05/2021 to 29/10/2021 had not applied any proper strategy for getting his huge amount of Rs.5,00,000/from accused. Complainant reiteratively contended that the cheque was of MCB Bank Karachi Branch. But perusal of 161 Cr.P.C statements of complainant and PWs in which the complainant himself reverted from the contents of FIR and his verbatim by stating therein that, the same cheque is not of MCB Bank Karachi Branch, but the same is of Bank Al-Habib Karachi Branch. Further, the fact the date of trade disclosed by complainant from 10/05/2021 to approaching before concerned Bank, in between of such dates accused remained admit at Kidney Centre Post Graduate Training Institute Karachi. The PS copy of such admit book is available on police papers which reveals that, accused got admission of above centre on 05/05/2021 and got discharged on 20/05/2021. Learned counsel of complainant only argued that, the accused had committed fraud with complainant. But did not disclose even a single about the challenging such admit card by accused in kidney centre. The whole perusal of police papers never reveals that the any cheque of MCB Bank Branch is available, here the only one original cheque of Bank Al-Habib is available. Further, the description of cheque of Bank Al-Habib is given by complainant and PWs in their further statements on 20/11/2021 after delay of about to twenty two or three days. During the investigation I.O has recorded the statement of independent persons which does not corroborated and supported the version of complainant and contents of FIR. 1.0 had also collected the documents from the kidney centre where the accused remained admit. But the same has not been challenged by complainant before any competent Medical Board. The verification of only the cheque of MCB Bank Branch Jacobabad has been done by I.O of the case but with this regards no any verification of cheque of Bank Al-Habib is available on the record. The cheque of one bank authority is being tried to submit before other respective Bank with no any plausible explanation or cogent reason. Whether the complainant had any account in MCB Bank or otherwise. As far as concerned with the CDR collected by the I.O has fully gone opposed to the complainant, which reveals the location of both parties at Karachi.
In continuation of above para- No any single clue of cheque of MCB Bank is available on record, neither the same produced by complainant to I.O nor the complainant took efforts to collect the same. Moreover, the no any single receipt of the such buffaloes has been produced by complainant, from which it can assume that whether the complainant is real owner of such buffaloes. During the trade no any agreement has been made by complainant and accused even the accused being strange whole available record remained silent. Further, it also appeared that, the whole contentions of complainant are fully based upon to get recovery of Rs.5,00,000/-. Complainant and his learned counsel appeared before this court, during hearing the learned counsel of complainant and complainant in person but during hearing both the learned counsel and the complainant remained fully failed produce any documents in shape of agreement, receipt which leads to the Court that the accused had met with a fraudulent offence. But could not get any satisfactory replies to the court. Therefore, I am of the humble view that, in order to get recovered the cash amount of Rs.5,00,000/- and the motive behind the prosecution story complainant and PWs have managed this story. Therefore, I am of the humble view that, the 1.O has properly investigated the case and he has rightly recommended the case under "B Class.
In view of above discussion and perusal of record, I am of the humble opinion that, the complainant by taking the illegal benefits or in order to harass the accused has lodged this false FIR. Therefore, the FIR No.119/2021 of PS City is hereby declared as false and accepted under "B" false class. Further, 1.O/SHO has liberty to proceed against the complainant accordance with Law."
2. Learned counsel submits that the record was not properly appreciated by the learned Court and the order was passed in a perfunctory manner.
3. Heard and perused. Learned counsel for the applicant has impugned the aforesaid findings, however, has remained unable to set forth a case that such findings could not reasonably have been rendered on the underlying record. The learned Magistrate has rendered an exhaustive order detailing as to how the case placed there before was found to be devoid of merit.
4. This court has considered the impugned order and is of the view that the findings arrived at are well reasoned and borne from the record there before, to which no cavil has been articulated by the applicant's counsel. The order prima facie demonstrates appreciation of the record / evidence and also shows that ample opportunity was provided to the concerned to state their case. Learned counsel has remained unable to identify any manifest infirmity in the impugned order, meriting interference.
5. It is trite law[1] that where the fora of subordinate jurisdiction had exercised its discretion in one way and that discretion had been judicially exercised on sound principles the supervisory forum would not interfere with that discretion, unless same was contrary to law or usage having the force of law.
6. In view of herein above, this application is determined to be devoid of merit and is hereby dismissed in limine.
JUDGE
[1] Per Faqir Muhammad Khokhar J. in Naheed Nusrat Hashmi vs. Secretary Education (Elementary) Punjab reported as PLD 2006 Supreme Court 1124; Naseer Ahmed Siddiqui vs. Aftab Alam reported as PLD 2013 Supreme Court 323.