ORDER-SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA  

Crl. Misc. Appln. No. S- 157 of 2019.

Date of hearing

Order with signature of Judge

28.11.2022.

1.         For orders on office objections.

2.         For hearing of M.A. No. 2588/2019 (Stay Application).

3.         For hearing of main case.

            Mr. Habibullah G. Ghouri, Advocate for applicants.

            Mr. Inayatullah G. Morio, Advocate for respondents.  

            Mr. Aitbar Ali Bullo, Deputy Prosecutor General.

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Amjad Ali Sahito, J: Through instant criminal miscellaneous application, the applicants Shah Nawaz and Mir Hassan have impugned an order dated 13.07.2019 passed by learned Judicial Magistrate-VI, Shikarpur, in relation with F.I.R No.67/2018 registered with P.S New Foujdari Shikarpur, whereby the learned Magistrate while disagreeing with the final Report filed by the investigating officer in terms of Section 173 Cr.P.C., has directed disposal of the case under “C” class.   

            Heard learned counsel for the applicants, learned Advocate for private respondent as well as learned Deputy Prosecutor General appearing for the State.

            It appears from the record that on 25.7.2018 SHO of Police Station New Foujdari Inspector Ghulam Murtaza Mirani lodged F.I.R on behalf of the State for offences punishable under Section 324, 148, 149 and 337-H (2) P.P.C., stating therein that on fateful day he was out of station for visiting and looking after the polling stations during Elections of 2018 and at 1800 hours he was conveyed regarding quarrel between Imtiaz Ahmed Shaikh party and Shah Nawaz Brohi party at Polling Station No.41 & 42, as such he alongwith police party reached there and on enquiry from the people he was told that some time ago Imtiaz Shaikh and Faraz Shaikh had exchanged harsh words with the persons of Aga Taimoor Khan, namely, Shah Nawaz Brohi and others, to which the persons accompanying Imtiaz Ahmed Shaikh had made straight fires with intent to murder at Mir Hassan, the son of Shah Nawaz Brohi and had injured him, who was taken to Civil Hospital. It was further alleged by complainant that the persons available on spot refused to record their statements, as such he moved to hospital Shikarpur to record statement of injured Mir Hassan Brohi, but before his arrival the injured was removed to Sukkur Hospital. It is further mentioned in F.I.R that complainant contracted relatives of injured Mir Hassan, who refused to register F.I.R, therefore; the complainant lodged F.I.R on behalf of the State to the above effect.

            It further appears from the record that, the victim party i.e. Shah Nawaz Brohi filed an application in terms of Section 22- and 22-B Cr.P.C before learned Sessions Judge/ Ex-Officio/Justice of Peace seeking directions for registration of F.I.R agaisnt accused Imtiaz Shaikh and others for making murderous assault upon his son, namely, Mir Hassan Brohi. However, such application was disposed of directing the Inspector General of Police Sindh to get the matter investigated through the officer not below the rank of ASP. Ultimately, the matter was investigated by ASP Muhammad Maroof Usman, who recorded version of Shah Nawaz and others.

            The record further reflects that, ultimately the police filed final Report/ challan agaisnt accused Imtiaz Ali, Nisar, Parvez, Zulfiqar Ali, Mir Hassan, Ali Nawaz for offences punishable under Section 337-H (2), 148 and 2149 P.P.C while section 324 P.P.C was deleted.  Prima-facie from contents of F.I.R it appears that ingredients of Section 324 P.P.C are very much there duly supported by the medical certificate, even then the police have deleted section 324 P.P.C. It is well settled law that, once the trigger was pressed and the victim was effectively targeted, “intention or knowledge” as contemplated by section 324 P.P.C, is manifest and apparent. Reliance is placed on the case of SHEOAB Muhammad v. The Ste and others (2020 SCMR 1486).

            However, after hearing the learned counsel appearing for the parties, it is agreed and consented by all of them that, the impugned order be set-aside and matter may be remanded to the learned Sessions Judge, Shikarpur, with directions to assign the same to some Judicial Magistrate other than Judicial Magistrate-VI, Shikarpur (Mr. Aijaz Ali Jarwar) for passing speaking order afresh after calling the record/ papers from police. Order accordingly.

            The criminal miscellaneous application stands disposed in above terms along with pending application.

                                                              Judge

Ansari