ORDER SHEET

THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Cr. Misc. Appln.  No. S-310 of 2023

Date	Order with signature of Judge

01. For orders on office Objection.

02. For the hearing of the main case.

08-07-2024

Mr. Muhammad Ali Memon, advocate for the applicant.

Mr. Safdar Ali Bhutto, Advocate for the private respondents.

Mr. Aitbar Ali Bullo, D.P.G for the State.

.-.-.-.-.-.-.-.-.-.-.-.-.

1.         Over-ruled.

2.         The facts, in brief, necessary for the disposal of instant Crl.Misc.Application are that an FIR Crime No.51/2017 concerning the death of Mst.Sahib Khatoon was lodged by the applicant with P.S Garhi Yasin; it was canceled by the police under “C” class with registration of another FIR Crime No.52/2017 with P.S Garhi Yasin on behalf of the State; the cognizance whereof was taken by the Magistrate having jurisdiction and such case it is said is pending trial; subsequently, the applicant filed a direct complaint of the same incident alleging malafide on the part of the police; by doing so, he also impugned the order of cancellation of his FIR under “C” class before this Court by preferring a Crl.Misc.Application; it was dismissed for non-prosecution. On inquiry, his complaint was dismissed under Section 203 Cr.PC by learned 1^st Additional Sessions Judge/MCTC, Shikarpur, vide order dated 14.06.2021, which is impugned by the applicant before this Court by preferring the instant Crl.Misc.Application.

            It is contended by learned counsel for the applicant that the direct complaint has been dismissed by the learned trial Court discussing the merits of the case, therefore, the impugned order is to be set aside by this Court, with direction to the learned trial Court to take cognizance of the offence.

            It is contended by learned D.P.G for the State and learned counsel for the private respondents that the direct complaint is filed only to defeat the pendency of a criminal case, which is initiated by the police on behalf of the State, and action is delayed considerably. By contending so, they sought the dismissal of the instant Crl.Misc.Application.

            Heard arguments and perused the record.

            It is settled by now that the burden to make out a case for trial is light, which could not be equated with the burden to prove the case at trial which is somewhat heavy. The direct complaint filed by the applicant has been dismissed by the learned trial Court based on the presumption concerning the involvement of actual culprits and discussing the conflict between the medical and ocular evidence in a summary manner; such an exercise legally was to have been taken at the trial, therefore, the impugned order is set aside with a direction to learned trial Court to pass the same afresh with adequate reasoning after providing a chance of hearing to all the concerned.

            The instant Crl.Misc.Application is disposed of accordingly.  

                                                                                        JUDGE