ORDER SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Crl. Misc. Appln. No.S-55 of 2009.
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Date of hearing |
ORDER WITH SIGNATURE OF HON’BLE JUDGE |
17.7.2009.
1. For Katcha Peshi.
2. For hearing of M. A. No.374/2009.
Mr. Riaz Hussain Khoso, advocate for the applicant.
Mr. Nisar Ahmed G. Abro, State Counsel.
Mr. Ali Nawaz Ghanghro, advocate for respondent No.3/complainant.
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This order will dispose of the above criminal miscellaneous application filed by applicant Riaz Ahmed Khoso in F.I.R No.31/2007, under Sections 302, 279, P.P.C, PS Dilmurad, assailing the impugned order passed by the learned Civil Judge & Judicial Magistrate, Thul, dated 11.3.2009, whereby the learned Magistrate directed the SIO of PS Dilmurad to submit challan against the applicant within 14 days for trial.
2. Brief facts as mentioned in the application are that on 2.5.2007 under the order of learned Sessions Judge, Jacobabad dated 16.4.2007 the report of complainant Nazar Muhammad son of Pandhi Khan Jakhrani was registered at PS Dilmurad vide crime No.31/2007, for the offence under Section 320, 279, P.P.C against SIP Riaz Ahmed Khoso (present applicat), HC Rajab Ali and PC Shahzado. After registration of F.I.R investigation was conducted by the police and police file kept in the office record without disposal and when the learned Judicial Magistrate called report from police on application of complainant, the SIO of PS Dilmurad produced final report, as disposed of under ‘B’ class. Thereafter, the learned Civil Judge & Judicial Magistrate, Thul, after hearing the learned Counsel for the parties and perused the record passed the impugned order as stated hereinabove.
3. I have heard Mr. Riaz Hussain Khoso, learned Counsel for the applicant, Mr. Ali Nawaz Ghanghro, learned Counsel for respondent No.3/complainant and Mr. Nisar Ahmed G. Abro, learned State Counsel.
4. Mr. Riaz Hussain Khoso, learned Counsel appearing for the applicant, states that this is a case wherein the complainant has filed two firs in crime No.31/2007, PS Dilmurad. The SIO/respondent No.2 got opinion from S. P. Investigation and submitted report under Section 173, Cr.P.C for summary order under ‘B’ class on 10.7.2008, but the learned Judicial Magistrate instead of accepting the report passed the impugned order and directed the investigation officer to sent up the case for trial, which is against the mandatory provisions of law. He further added that the impugned order has been passed without considering the facts of the case and is contrary to law. So much so during course of investigation complainant moved an application against applicant for fair and transparent enquiry whereby D.S.P. Headquarter, Jacobabad conducted enquiry and submitted its report to the District Police Officer, Jacobabad and declared the applicant as innocent. Thereafter, respondent No.3 again moved application to DPO, Investigation, Jacobabad, who directed the DSP City to conduct enquiry and submit the report. The DSP City conducted the fair and transparent enquiry and declared the applicant as innocent. He further added that thereafter respondent No.3 moved an application to the learned District Judge, Jacobabad for enquiry, who assigned the enquiry to SIP/S.H.O Qurban Ali Khokhar of PS Thull, who after thorough investigation also submitted the report to the learned District Judge, Jacobabad, whereby he declared the applicant as innocent. He further added that investigation of the case was conducted by SIP Niaz Ahmed Mazari, SIP Roshandin Mazari and ASI Ghulam Sarwar Sarki, and declared case as “B” class, upon which opinion of S.P. Investigation who also approved the matter as “B” class. He further added that the real fact is that the applicant was informed through District Wireless Control on wireless message that incident has taken place at Bhangar Wah and applicant went to pointed place and saw one injured person and he took the same and went to hospital, but during this the injured died in hospital. He further submitted that the learned Civil Judge and Judicial Magistrate was not empowered to direct the police to submit the challan and the learned Magistrate was only supposed to look into the material collected during investigation and or was required to pass any order on the basis of such material, therefore, the impugned order is liable to be quashed in the interest of justice. The learned Counsel for the applicant in support of his arguments relied upon the case of Muhammad Ashraf versus The State (2006 P.Cr.L.J. 518).
5. Conversely, Mr. Nisar Ahmed G. Abro, learned State Counsel and Mr. Ali Nawaz Ghanghro, learned Counsel for the respondent No.3/complainant vehemently opposes the contentions and pray made by the applicant. They states that the sufficient material was available on the record before the Magistrate including the medical evidence and 161 Cr.P.C statements of two witnesses Ghulam Nabi and Gul Bahar, who have sufficiently connected the applicant with the commission of the said alleged crime. They further added that the complainant under the law is entitled to lodge the F.I.R and if his version is not fully recorded in first F.I.R then he has every right to lodge second F.I.R. Mr. Ghanghro further added that in present case three police officers are involved in the murder and the police officer/applicant was released on the same day without taking any remand from the competent Court of law. He further added that three police officers have been acquitted by the investigation officers of the case without recording of evidence in accordance with law. Under the circumstances, they have fully supported the impugned order passed by the learned Magistrate. They have relied upon the case of Safdar Ali versus Zafar Iqbal (2002 SCMR 63), wherein it has been 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.
6. I have considered the arguments advanced by learned Counsel for the parties and perused the material available on record. The relevant portion of the impugned order passed by the learned Magistrate is reproduced as under :-
“I have perused whole police file and find that the police officers who conducted investigation of this case have not followed the procedure as provided in criminal procedure code for investigation of the case, but they depends over the findings of enquiry officers of enquiries conducted by different police officers. After registration of F.I.R, when there is no provision of enquiry in Criminal Procedure Code for registered F.I.R U/S 154 Cr.P.C. The complainant had produced his witnesses before investigation officer and in 161 Cr.P.C statements the witnesses of the complainant have supported the allegation of complainant and involved the accused with the offence. So also the post mortem report is also in support of the allegation of complainant, but I surprised when seen the mashirnama of arrest of accused SIP Riaz Ahmed Khoso and of his release on bail on same date by the I.O without mentioning reasons of releasing the accused on bail. So far the contention of accused about registration of earlier F.I.R of crime No.19/2007, I am of the view that there is no restriction in law for the complainant to lodge second F.I.R of same offence when he disagreed with the contents of first F.I.R.
Under such circumstances of the case, I am of the view that there is sufficient evidence available in police file against the accused, which prima facie connected the accused as involved in the alleged offence of F.I.R, therefore, I am not agreed with opinion of police for disposal of case under (B) Class and SIO of PS Dilmurad is directed to send the case for trial within (14) days without fail”.
7. On perusal of material available on the record and the impugned order passed by the learned Magistrate I am in agreement with the observations made by the learned Magistrate in view of the dictum laid down by the Hon’ble Supreme Court of Pakistan in Safdar Ali’s case (supra). No interference by this Court is required at this stage. Under the peculiar facts and circumstances of the case, the learned advocate for the applicant failed to make out a prima facie case in his favour. Under the above circumstances, listed criminal miscellaneous application is dismissed alongwith pending applications, if any.
JUDGE