ORDER-SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA  

Crl. Misc. Appln. No. S- 07 of 2023.

Date of hearing

Order with signature of Judge

09.02.2023.

            Mr. Rafique Ahmed K. Abro, Advocate for the applicant.

            Mr. Muhammad Imran Abbasi, Advocate for respondent No.1.

                        Mr. Aitbar Ali Bullo, Deputy Prosecutor General.

ORDER

Zulfiqar Ali Sangi, J: Through instant application under Section 561-A, Cr.P.C, applicant Ghulam Hussain Shah alias Raja Shah has assailed Order dated 05.01.2023, passed by 1^st Civil Judge and Judicial Magistrate, Shikarpur, in Crime No.117/2022, registered at Police Station Staurt Ganj, Shikarpur, under Sections  324, 337-J, 506 (2) and 34 P.P.C, whereby the learned Judicial Magistrate while disagreeing with police report has taken cognizance of the offence and has issued notice to applicant and NBWs against co-accused Syed Zulfiqar alias Sajan Shah and others.

            2.         Precisely, facts of the case are that complainant/ respondent No.1 Syed Muhammad Fazal Shah lodged F.I.R at Police Station Staurt Ganj Shikarpur to the effect that, accused Zulfiqar Ali Shah and others have committed murder of his daughter Mst. Rabel Bibi by administering something poisonous.  

            3.         On completion of investigation, the concerned police filed Report under Section 173 Cr.P.C before concerned Magistrate, recommending disposal of the case under false “B” class. However, the learned Judicial Magistrate dis-agreeing with police report has taken cognizance of the offence and issued notice to applicant Ghulam Hussain Shah alias Raja Shah and NBWs against co-accused Syed Zulfiqar alias Sajan Shah and others.

            4.         Learned counsel for the applicant has, inter alia, contended that the impugned order is illegal, which has resulted in miscarriage of justice; that the impugned order has been passed in violation of the law laid down by this Court; that learned Magistrate has not considered the fact that I.O recommended the final report under “B” class on the basis of material collected by him during course of investigation, but learned Magistrate without assigning any reason has passed impugned order, which is contrary to law and against principles of natural justice. Lastly, the learned counsel for the applicant submitted that the learned Magistrate has not passed reasonable and speaking order, which is liable to be set-aside. 

            5.         Conversely, learned Advocate for complainant/ respondent No.1 as well as learned D.P.G appearing for the State supported the impugned order and submitted that the same is legal and has been passed after giving due consideration to the material available on record.

            6.         I have given due attention to the submissions made by the learned counsel for respective parties and carefully perused the record.

            7.         It is well established law that the police opinion is not binding upon the Court and Magistrate is not bound to agree with the police report and he is at liberty under the law, either to agree or disagree with the conclusion drawn by the Investigation Officer. The Magistrate is not expected to blindly follow the investigation conducted by the police, as ipse dixit of police is not binding on Magistrate. Of course, the Magistrate is legally bound to apply his mind to the material brought before him and then form his opinion about the matter. However, after applying his judicious mind to the material placed before him, if he is of the view that opinion formed by the I.O in the report under Section 173 Cr.P.C is just and appropriate, he is fully competent to accept the report and dispose of the case as proposed by the Investigating officer.

            8.         Perusal of impugned Order reflects that, learned Magistrate has passed the same after assessing the entire material placed before him, i.e. the version of complainant/ prosecution which include ocular and medical version, as well as the defence version including plea of alibi etc. It further reflects that the learned Magistrate while passing the impugned order has dilated mostly upon all aspects of the case. The impugned order appears to be legal, proper and speaking one, and does not call for interference by this Court.

            9.         In light of above position and discussion, this criminal miscellaneous application being without merits is hereby dismissed.

                                                              Judge