ORDER SHEET

IN THE HIGH COURT OF SINDH, KARACHI

C.P. No.D-3034 of 2015
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Date Order with signature(s) of Judge(s)

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1. For orders on Misc. No.34880/2015

2. For orders on Misc. No.31914/2015

3. For hearing of Misc. No.13439/2015

4. For hearing of main case.

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03.10.2017

Mr. Ali Ahmed Tariq, advocate for petitioner

Mr. Muhammad Iqbal Awan, D.P.G.

Mr. Jan Muhammad Khuhro & Ms. Noushaba Haq Solangi, AAGs

Mr. Muhammad Shahid Akhtar, advocate for respondent No.7

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Through instant constitution petition, petitioner Syed Amer Ali called in question the order dated 26.03.2015, passed by learned III^rd Additional Sessions Judge, Karachi Central / Ex-Officio Justice of Peace in Criminal Petition No.217/2015, whereby orders were passed on application under Section 22-A, Cr.PC and directions were issued to the DIGP West Zone, Karachi to call the applicant in person, hear him and to appoint some honest officer from police station other than P.S. Hyderi, with direction to record statement under section 154, Cr.PC of the applicant and if cognizable offence is made out, register the F.I.R. against the proposed accused persons. Upon directions of learned III^rd Additional Sessions Judge, Karachi Central / Ex-Officio Justice of Peace, F.I.R. No.65/2015 was registered at P.S. Hyderi under sections 342, 448, 506, 34, PPC by complainant Musharaf Ali on 03.04.2015. After usual investigation, challan was submitted before the concerned Judicial Magistrate. Learned counsel for the petitioner states that case is presently pending before IX^th Civil Judge & Judicial Magistrate, Karachi Central, where charge against the accused has been framed. Learned advocate for the petitioner mainly contended that orders were passed by learned III^rd Additional Sessions Judge, Karachi Central / Ex-Officio Justice of Peace in a mechanical manner without application of judicial mind. It is further contended that directions were issued to DIG West Zone for investigation by appointing an honest officer of police station other than P.S. Hyderi. It is submitted that investigation was carried out by some other officer and it was dishonest investigation. It is further submitted that proceedings are liable to be quashed. In support of his contentions, counsel for petitioner relied upon the judgments passed by learned single Judges reported as 2014 PCr.LJ 1093 (Jamil Ahmad Butt and another vs. The State through Prosecutor General Sindh and 2 others); 2013 PCr.LJ 1002 (Dr. Babar Hussain versus S.H.O. P.S. City Courts, Karachi and another); and 2013 PCr.LJ 813 (Abdul Latif versus Mst. Hakim Zadi and 2 others).

2. Counsel for complainant states that charge has been framed before the trial court and orders were passed by learned III^rd Additional Sessions Judge, Karachi Central / Ex-Officio Justice of Peace in accordance with law.

3. Learned D.P.G. submits that no irregularity has been committed by learned III^rd Additional Sessions Judge, Karachi Central / Ex-Officio Justice of Peace while passing the orders on application under section 22-A, Cr.PC He submitted that charge has been framed, proper course for the applicant/accused would be to approach the trial Court by moving application under section 249-A, Cr.PC. In support of his contentions, he relied upon the cases of DIRECTOR-GENERAL, ANTI-CORRUPTION ESTABLISHMENT, LAHORE and others versus MUHAMMAD AKRAM KHAN and others (PLD 2013 Supreme Court 401) and MUHAMMAD FAROOQ versus AHMED NAWAZ JAGIRANI and others (2016 PLD Supreme Court 55).

4. After hearing the learned counsel for the parties, we have perused the impugned order passed by learned III^rd Additional Sessions Judge, Karachi Central / Ex-Officio Justice of Peace, no irregularity has been pointed out by the counsel for the petitioner in the said order. Simply, directions have been issued to the DIP West Zone to call the applicant in person, hear him and to appoint some honest officer from police station other than P.S. Hyderi, with direction to record statement under section 154, Cr.PC of the applicant and if cognizable offence is made out, register the F.I.R. against the proposed accused persons. After usual investigation, challan has been submitted. Civil Judge & Judicial Magistrate concerned has already taken cognizance and charge has been framed. Proper course for the applicant/accused would be to approach the trial Court by moving application under section 249-A, Cr.PC for seeking pre-mature acquittal, if it is deemed fit by the accused. Rightly reliance has been placed by learned D.P.G. on the case of DIRECTOR-GENERAL, ANTI-CORRUPTION ESTABLISHMENT, LAHORE and others versus MUHAMMAD AKRAM KHAN and others (PLD 2013 Supreme Court 401), wherein the Honourable Supreme Court has held as under:-

“The law is quite settled by now that after taking of cognizance of a case by a trial court the F.I.R. registered in that case cannot be quashed and the fate of the case and of the accused persons challaned therein is to be determined by the trial court itself. It goes without saying that if after taking of cognizance of a case by the trial court an accused person deems himself to be innocent and falsely implicated and he wishes to avoid the rigours of a trial then the law has provided him a remedy under sections 249-A/265-K, Cr.P.C. to seek his premature acquittal if the charge against him is groundless or there is no probability of his conviction.”

5. For the above stated reasons, no illegality has been found in the impugned order dated 26.03.2015, passed by learned III^rd Additional Sessions Judge, Karachi Central / Ex-Officio Justice of Peace; instant constitution petition is without merits and the same is dismissed.

J U D G E

J U D G E

Gulsher/PS