ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Cr. Misc. Appln. No.S-48  of  2009.

Date of hearing

ORDER WITH SIGNATURE OF HON’BLE JUDGE

22.5.2009.

1. For orders on office objection.

2. For Katcha Peshi.

Mr. Anwar Ali Shaikh, advocate for the applicant.

Mr. Muhammad Akram Shaikh, State Counsel.

Mr. Ali Hassan Brohi, advocate for respondent No.2, alongwith the respondent.

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                   Mr. Ali Hasan Brohi, advocate, has filed Vakalatnama on behalf of respondent No.2, which is taken on record.

                   There are two versions about the death of Abdul Rasheed alias Imdad, brother of respondent No.2. 

                   According to the F.I.R bearing No.01/2009, lodged by applicant Khadim Hussain Odho with Police Station Garhi Yasin on 3.1.2009, the deceased was a thief, who alongwith his four companions had entered into his house for the purpose of committing theft of his cattle and had been killed by the fire made by his own companions during exchange of fires between the thieves and the villagers, who were attracted on applicant’s cries.

                   According to F.I.R No.14/2009, lodged by respondent Hafeez, brother of the deceased, applicant Khadim Hussain had killed his brother due to a dispute on a money matter.  In his report regarding F.I.R No.14/2009, the investigating officer mentioned that the Superintendent of Police, Investigation, had directed him to dispose of the case in “C” class.  However, the magistrate by his order dated 24.2.2009, passed on the report of the investigating officer, took cognizance of the offence and sent case to the Court of Sessions, saying that evidence was sufficient for taking the cognizance.

                   Learned Counsel for the applicant seeks quashment of the case on the ground that evidence was not sufficient for taking cognizance, but when asked what was the evidence against or in favour of the applicant, he states that he has not seen the material collected by the investigating officer.

                   The material is also not available with the other learned Counsel.  The order of the magistrate taking cognizance of an offence is his judicial act amenable to the revisional jurisdiction of the Sessions Judge.  Besides, Sessions Court is not bound by the order of a magistrate taking cognizance of a case and sending it to the Court of Sessions.  It can take different view on the basis of facts and circumstances of the case.  It can discharge an accused if there be no sufficient ground for the framing of the charge.  It can acquit an accused if there be no probability of convicting him of any offence.  In such circumstances, it will be more appropriate for the applicant to seek his remedy first from the Court of Sessions.  No extraordinary circumstances are shown to exist for the interference of this Court by bypassing the trial Court.  Accordingly, the application, being premature, is dismissed.

                                                                                                JUDGE

Tahir/*