IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

 

Criminal Misc. Application No.S-108 of 2021

 

 

Applicant:                                          Abdul Majeed Malik, through Mr. Ali Raza Kalwar, Advocate.

Respondents No.1 to 09:                   Raza Muhammad & others, through Mr. Nusrat Hussain J. Memon, Advocate.

State:                                                 Through Khalil Ahmed Maitlo, D.P.G.

Date of hearing:                                 22.11.2021

Date of decision:                                21.01.2022 

 

O R D E R

 

Zulfiqar Ali Sangi, J:              Through this application, the applicant has assailed the order dated 23.11.2020, passed by learned Additional Sessions Judge-I (MCTC), Ghotki, in Cr. Revision Application No.30 of 2020 whereby allowing Revision Application order dated 09.09.2020, passed by learned Judicial Magistrate Consumer Protection Court, Ghotki in Cr. Case No. 17 of 2020, was set-aside.

 

2.                Learned Counsel for the Applicant submits that the impugned order passed by learned Revisional Court is illegal and unlawful; that contents of FIR clearly shows that robbery has been committed from two PWs for which Section 382 P.P.C. was applied; however same was deleted in challan; that in the evidence recorded before learned trial Court, the complainant has fully implicated the accused not only regarding causing injuries but robbery too; that learned trial Court in view of evidence of Complainant opined that Section 395 P.P.C. is applicable and sent up the matter to the court of Sessions Judge as same is exclusively triable by the Court of Session; that evidence of Complainant as well as PWs clearly indicates that the Respondents not only caused them injuries but committed robbery too; that finding of learned Revisional Court that section 395 P.P.C. does not apply is misconceived; that learned trial Court has passed the order wherein considerable thought has been given over Section 395 P.P.C. At the end, learned Counsel submits that by allowing instant Cr. Misc. Application, impugned order dated 23.11.2020 passed by learned Revisional Court may be set-aside and to maintain the order passed by learned trial Court.  

 

3.                 Learned counsel representing the Respondents submits that learned Additional Sessions Judge has rightly passed the impugned order 23.11.2020, which does not warrant any interference by this Court as during course of investigation complainant with malafide intentions have made improvements in prosecution case and on the basis of such improvements learned Magistrate opined about the applicability of Section 395 P.P.C, which on the face of it, appears to be illegal and unlawful as the learned Magistrate has exercised the jurisdiction not vested with him; that during evidence of complainant recorded by learned trial Court, not a single word of robbery is mentioned; that learned Magistrate accepted challan vide order dated 02.01.2020, which attained finality as the same was not challenged by Complainant; Learned Counsel further submitted that instant application may be dismissed as the same does not contain any merit for consideration.

 

4.                 Learned DPG appearing for the State submitted that learned Revisional Court has rightly passed the impugned order as no case for alteration of charge is made out; that learned Judicial Magistrate while passing the order has wrongly exercised his jurisdiction; that the order of Additional Session Judge is in accordance with law hence he prayed that application may be dismissed.

 

5.                 I have heard learned Counsel for the Applicant, Respondents and DPG as well and perused the material available on the record with their able assistance.

 

6.                The evidence and other merits of the case are not required to be discussed as the same may prejudice the case of either party before the trial court. However a tentative view is taken. It is observed that an order was passed on the request of complainant party for alteration of charge under section 227 Cr.P.C by the Judicial Magistrate Consumer Protection Court, Ghotki at the stage when evidence of complainant was recorded. Learned Judicial Magistrate provided full opportunity of hearing to both the parties and after considering the facts mentioned in the FIR and the evidence of complainant has opined that section 395 P.P.C. is made out and after such opinion passed order that the case may be sent up to the Court of Session as Section 395 P.P.C. is exclusively triable by the said Court. Learned I-Additional Session Judge (MCTC), Ghotki after discussing the evidence in depth has set-aside the said order of the learned Judicial Magistrate. I have gone through both the orders passed by the courts bellow, the contents of FIR and the deposition of complainant Abdul Majeed and of the tentative view that section 395 P.P.C. is applicable in the case and the order of learned Judicial Magistrate is in accordance with law.  However, the order passed by I-Additional Session Judge (MCTC), Ghotki reflects that while passing the impugned order he has decided fate of the case on the basis of evidence available on record which is not admissible at such a stage.

 

7.                It is further observed that if learned Judicial Magistrate after commencement of trial and before signing the judgment, at any stage of the proceedings, finds that the case is one which ought to be tried by the Court of Session or High Court then he shall send the case to the Court of Session or High Court, as the case may be, for trial as provided under section 347 Cr.P.C. Though the request made on behalf of the complainant before the learned Judicial Magistrate was for alteration of charge under section 227 Cr.P.C for offence under section 395 P.P.C. but after providing the opportunity of hearing to the parties learned Judicial Magistrate has passed the order for sent up of the case to the court of Sessions as said section 395 P.P.C. is triable by the Court of Sessions and not altered the charge, the said view of the learned Judicial Magistrate is a correct view.

 

8.                Thus based upon the above discussion instant application is allowed, the impugned order dated: 23-11-2020 passed by the I-Additional Session Judge (MCTC), Ghotki is set-aside and the order passed by the learned Judicial Magistrate Consumer Protection Court, Ghotki, dated: 09-09-2020 is restored/maintained with direction to the trial court to decide the case in accordance with law without taking any influence from the impugned order dated: 23-11-2020, passed by the I-Additional Session Judge (MCTC), Ghotki.

 

9.                The Cr. Misc. Application is disposed of in the above terms.

 

 

 

JUDGE