ORDER-SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA  

Crl. Misc. Appln. No. S- 35 of 2023.

Date of hearing

Order with signature of Judge

03.02.2023.

1.         For orders on M.A. No. 623/2023 (Urgency Application).

2.         For orders on office objections.

3.         For orders on M.A. No. 624/2023 (Exemption Application).

4.         For orders on M.A. No. 625/2023 (Stay Application).

5.         For hearing of main case.

            Mr. Habibullah G. Ghouri, Advocate for applicants.

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1.         Urgency application granted.

2.         Deferred for the time being.

3.         Exemption allowed subject to all just exceptions.

4 & 5. Applicants Nazeer Hussain and Sadaqat Ali have assailed order dated  24.01.2023 passed by learned Judicial Magistrate-I, Ratodero, on the report under Section 173 Cr.P.C filed by I.O of the case in Crime No.67/2022 of P.S Naudero (District Larkana), under Sections 302, 337-H (2), 109, 148, 149 P.P.C, whereby learned Magistrate while disagreeing with the opinion of police has joined the applicants in case as accused and issued NBWs against them. 

            Learned counsel mainly contended that during course of investigation the applicants were found innocent and their names were placed in column No.II of the challan but the learned Magistrate failed to consider the material collected during course of investigation and has disagreed with the opinion of police. He further contended that issuance of NBWs agaisnt applicants is very harsh and adverse, hence the same are liable to converted into B.Ws. Learned counsel further contended that it would be wastage of precious time of the Court and abuse of process of law, if the applicants are left to face the consequences of the impugned order and that the impugned order is liable to be set-aside. Learned counsel in support of his contentions, referred the order dated 09.02.2014 passed in Cr. Misc. Appln. No.D-260 of 2013, (ii) Crl. Misc. Appln. No. S- 336/2021 (iii) Crl. Misc. Appln. No. S- 128/2020 and  Crl. Misc. Appln. No. S- 250/2020, in which the N.B.Ws issued against the let-off accused, was converted into the B.Ws.

            The Hon’ble Supreme Court while dealing with such like case vide unreported order passed in Criminal Petition No.105-K of 2002 in case of Shah Murad and others v. The State, has observed “There can be no cavil with the proposition that; the trial Court is not bound by the police report submitted under the provisions of Section 173 and 190 Cr.P.C. In law it has ample powers to agree or disagree with the information laid by the police and to discharge a person or to take cognizance of the crime against any person concerned with the commission of the crime whether sent-up or not. Since the trial Court did not act without jurisdiction by summoning the petitioners, to this extent we are convinced that the order was rightly upheld by the High Court, there is however a grievance of the petitioners that; in the first instance, it would always be proper and fair to issue summons or at-least bailable warrants in order to secure the attendance of the petitioners who were not sent-up.”

            In view of submissions made by learned counsel and the dictum laid down by Hon’ble Apex Court, the NBWs issued against the applicants are converted into B.Ws with direction to the applicants to join the trial within ten days hereof by furnishing surety in the sum of Rs.100,000/- (One hundred thousand rupees) each and P.R bonds in the like amount to the satisfaction of learned trial Court. It is made clear that in case of failure by applicants to surrender and join the trial within stipulated period, this order shall stand recalled automatically.

            This criminal miscellaneous application stands disposed of in above terms.

                                                       Judge

Ansari