ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

     Crl.Misc.Appln.No.S-152 of 2023.

DATE OF HEARING

ORDER WITH SIGNATURE OF HON’BLE JUDGE

1. For orders on M.A.No.2226/2023.

2. For orders on office objections ‘A’.

3. For orders on M.A.No.2124/2023.

4. For hearing of main case.

18.05.2023

                        Mr. Ali Bux Mugheri, Advocate for the applicants.

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The facts in brief necessary for disposal of instant Crl.Misc.Application are that an FIR was lodged by Aftab Ahmed with P.S Naudero, alleging therein that the applicants and others in furtherance of their common intention by causing lathi injuries to PW Yawar Abbas went away by insulting him and his witnesses. On investigation, such FIR was recommended by the police to be cancelled under “C” class; it was not accepted by learned 1^st Judicial Magistrate, Ratodero, who took the cognizance of the offence vide order dated 16.03.2023, which is impugned by the applicants before this Court by way of instant Crl.Misc.Application.

                        It is contended by learned counsel for the applicants that the FIR of the incident was lodged with delay of about two days and on the basis of very honest  investigation, it was recommended by the police to be cancelled under “C” class; such recommendation has not been accepted by learned trial Magistrate without lawful justification. By contending so, he sought for setting aside of the impugned order.

                        Heard arguments and perused the record.

                        The delay of two days in lodgment of FIR has been explained plausibly in FIR itself; the same even otherwise could not be treated to be fatal to the case of the complainant in summary manner. The investigating officer of the case has recommended the cancellation of subject FIR on the basis of statements of so called independent witnesses and opinion of medical board which is vague in nature by disbelieving the version of the complainant in his FIR and his witnesses in their 161 Cr.PC statements. By doing so, he in fact has exercised the powers of the Court which alone is competent to make declaration of accused under accusation to be innocent or otherwise at trial. In these circumstances, learned trial Magistrate was right to take cognizance of the offence on the basis of material brought before him, by way of impugned order which is not calling for interference by this Court by way of instant Crl.Misc.Application; it is dismissed in limine together with listed applications, directing the applicants to prove their innocence by joining the trial, if so is advised to them. JUDGE