ORDER-SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA  

Crl. Misc. Appln. No. S- 270 of 2022.

Date of hearing

Order with signature of Judge

31.10.2022.

1.         For orders on M.A. No. 4475/2022 (Urgency Application).

2.         For orders on office objections.

3.         For orders on M.A. No. 4476/2022 (Exemption Application).

4.         For hearing of main case.

Mr. Ahsan Ahmad Quraishi, Advocate for applicant.

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Amjad Ali Sahito, J-.   1. Urgency application granted. 2. Office objection is deferred. 3. Exemption application allowed subject to all just exceptions. 4. This criminal miscellaneous application is preferred by the applicant Gulzar Ahmed Qureshi against the Order dated 10.10.2022 passed by the learned Civil Judge and Judicial Magistrate-III, Larkana, in the matter of Report under Section 173 Cr.P.C submitted before him by the Investigating Officer, in Crime No.41/2022, registered with Police Station Sachal,  Larkana, for the offences punishable under Sections 506 (2), 504 and 34 P.P.C., whereby learned Magistrate ordered disposal of the case/ cancelled the F.I.R.

            The background of the case is that, the applicant/ complainant Gulzar Ahmed Qureshi lodged aforesaid F.I.R with P.S Sachal Larkana, against accused/ respondents No.3 and two unknown persons, with regard to issuance of murderous threats; maltreating and tearing his clothes and abusing him and the Investigating Agency on completion of usual investigation prepared and filed Report under section 173 Cr.P.C to learned concerned Magistrate for disposal of case under “B” class, who vide impugned order has approved the summary and has cancelled the F.I.R, which has been challenged before this Hon’ble Court through present proceedings.

            Learned counsel for the applicant contended that, the impugned order passed by learned Magistrate, is contrary to both law and facts, hence not maintainable and liable to be set-aside; that from bare reading of the F.I.R, a cognizance offence is made out even then the learned Magistrate has ordered cancellation of the F.I.R; that the accused/ respondent No.3 was nominated in the F.I.R, with specific role and version of the complainant is also supported by the prosecution witnesses, who are independent, neutral and impartial; that the mashirnama of the place of incident prepared by the I.O on the spot also supports the version of the complainant and it shows availability of the constructions material on the spot, which supports the version of complainant and negates the version of defence witnesses; that the case has been cancelled by the learned Magistrate by relying upon only one main ground i.e. statements of the D.Ws and perusal of such statements reflects that they have admitted the happening of the incident on the spot; they have also admitted the presence of the accused on the spot; they have admitted the exchange of hot words between the parties. Learned counsel further added that the I.O of the case in collusion with accused manipulated such persons and managed these statements, as such these statements if placed in juxta position, will not appeal to a prudent mind and will not be reliable than the version of the complainant which is duly supported by independent and neutral eyewitnesses. He further contended that the learned Magistrate while passing impugned order has not considered the contents of the F.I.R, and contents of 161 Cr.P.C. statements of the prosecution witnesses, so also other material placed before him including statements of D.Ws in proper way and that the report under Section 173 Cr.P.C does not mention any cogent and valid reason and ground for disposal of the case under false class, except only statements of D.Ws. Per learned counsel, all these circumstances, support the version of the complainant, therefore, the case merits to be challaned against accused nominated in F.I.R. Lastly, he prayed for setting aside the impugned order and directing submission of challan of the case.

           Record reveals that on completing the investigation, report for disposal of the case for its disposal under “B” class was filed by the investigating officer in the Court of learned Civil Judge and Judicial Magistrate-III, Larkana, and the learned Magistrate agreeing with the summary report ordered cancellation of the F.I.R vide impugned order.

            The learned Magistrate while passing the impugned Order has observed that:        

             “it is seen from the record that purported witnesses of the F.I.R have supported the version f the F.I.R in their statements recorded by police under Section 161 Cr.P.C but investigation officer has relied the version of three independent persons, who have negated commission of the crime as spelt in the F.I.R and they have further stated in their statements that hot words between the complainant and accused were exchanged due to flashing of rainwater. According to F.I.R, the accused had beaten the complainant. With regard to that alleged beating also, no proof like medical certificate is there on the record, which shows that the injuries were either not there at all or were of non-cognizable offence. Besides that, the witnesses of complainant as shown in the F.I.R belong to another district namely Qamber, however, various neutral persons of locality have stated before the investigating officer in favor of the accused by negating commission of the offence and have stated that hot words were exchanged between the parties over lashing of rainwater. Furthermore, bone of contention, as admitted in the F.I.R, is a dispute over selling of plot on low price. In view of particular situation, evidence, thus, is lacking herein. Because of these observations the F.I.R is cancelled”.

            The impugned order carries directions for cancellation of the F.I.R on the basis of material produced before him. Definitely, the Magistrate is not bound by opinion of police and he can have his own view of the case on the basis of material brought to light through the report/ charge sheet or otherwise, and the course of accepting the report/ charge sheet for its onwards forwarding to the Court of Sessions where the offence is triable by Sessions Court or to proceed with the case, if he is competent to try the offence, with or without inclusion of the let off or un-charge sheeted persons, if any, in the matter, is very much open to be adopted as a matter of Magisterial functions in terms of section 173 Cr.P.C, read with section 190 Cr.P.C.  

            In the case of Safdar Ali v. Zahoor Iqbal and others (2002 SCMR 63), it was held that, magistrate can take cognizance of an offence even in case of negative report submitted by police that accusation is baseless and no case is made out against the delinquents. As such, in view of the law laid down by the Hon’ble Supreme Court, we are of the view that under Section 173 Cr.P.C. the Magistrate has been empowered to agree or disagree with the findings/ recommendations of the investigating officer, even in case of negative report.

            The upshot of above discussion is that, the impugned order is well founded and well-reasoned, based on proper appraisal of the material, thus it calls for no interference by this Court. Consequently, there appears no substance in the instant criminal miscellaneous application, which is hereby accordingly dismissed in limine.

                                                              Judge

Ansari