ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA.

Constt: Pett: No:   12 of 2010.

Date                          Order with signature of judge.

            1.         For orders on office objection as flag A.

            2.         For Katcha Peshi.

24.2.2010.

                        Mr. Iftikhar Ali Arain, advocate for the petitioner.

                        Mr. Ali Raza Pathan, State counsel.

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                        It is case of the petitioner that  on 30.8.2009 he alongwith  his brother Abdul Jabbar and cousins Ghulam Rasool and Manzoor  Ali  was available at his lands,  where accused Mushtaq Ali alongwith co-accused Nadir Ali and Ashiq Ali, both armed with  guns, came there and asked the petitioner to arrange rukhsati of his daughter, who was betrothed  with his son on which  he  sought some time as the girl was minor, which annoyed  accused Mushtaq Ali and on his instigation co-accused Nadir Ali and Ashiq Ali fired straight from their guns at Abdul Jabbar which hit him on his chest and then accused escaped from the scene.  Thereafter, it was seen that Abdul Jabbar having received firearm injuries on his chest was lying dead.   The matter was reported to the police and F.I.R was promptly lodged on the same day against all three accused

                        The investigation followed  and in due course all the accused were arrested, recoveries of crime weapons were recovered out of the record  but then despite various approaches by the petitioner to I.O for producing his P.Ws  in Court for recording their 164 Cr.P.C Statements, same were refused as the I.O/respondent No.4  was allegedly won over by the accused party  and ultimately I.O filed the challan of the case  before the concerned Court  on 19.9.2009 in which name  of accused Mushtaq Ali  is shown in column No. II  of the challan on the basis of statement of D.Ws   in which no recoveries of crime weapons from the two accused were shown.

                        Learned counsel for the applicant submits that since direct role of  instigation was assigned to accused Mushtaq Ali  on whose instigation co-accused Nadir Ali  and Ashiq Ali had fired straight at brother of complainant namely Abdul Jabbar  which resulted into his death  and  the version of the complainant taken in the F.I.R was fully   supported by the  P.Ws in  their statements recorded U/S 161 Cr.P.C  therefore, there  was sufficient material available  on record  with the I.O/respondent No.4 connecting   accused Mushtaq Ali with the commission of  murder of an innocent person but even then    the I.O was won over by the  accused party  who managed the 162 Cr.P.C Statements of D.Ws in favour of accused Mushtaq and placed his name in column No.2 of the challan  and also did not mention the recoveries of crime weapons  from accused Nadir Ali and Ashiq Ali,  where he had spoiled the case of petitioner/complainant  at the instance of accused party.   He further contended that the petitioner repeatedly approached the higher police authorities for re-investigation of the case  but to no avail.   Learned  counsel for the applicant  asserted that  since   the valuable life of  a person was taken away by the accused persons, therefore,  fate of  the prosecution case  can not be decided  on the basis of such a partial /vague investigation conducted by the respondent No.4.  Therefore, he has prayed for reinvestigation of the case through some honest police official.   Besides all these submission, he has pointed out that the Defence Witnesses Mumtaz Ali, Asghar Ali and Abdul Qadir. who allegedly recorded  their statements U/S 162 Cr.P.C in favour of accused Mushtaq Ali, have sworn their affidavits before this honourable Court  to the effect  that they have not recorded their statements in defence of Accused Mushtaq Ali but the same were managed by I.O after one Aijaz Ali  obtained  copies of their NICs  on the pretext that he would get sanctioned loan for them from Bank. In support of  his contentions, he has relied upon the case of  Muhammad Yousaf v. The State (2000 SCMR 453).

                        Learned State counsel, under the peculiar circumstances of the case, concedes to the position and raises no object if the reinvestigation is ordered.

                        I have carefully considered the submissions placed before me and perused the material brought on record.

                        From the record it appears that specific role of instigation was attributed to accused Mushtaq Ali on which two accused  armed with guns  fired straight,  which resulted into death of an innocent person.   Despite the fact that contents of F.I.R were fully  corroborated by the statements recorded U/S 161 Cr.P.C  of the eye witnesses,  the I.O gone with the statements of D.Ws  and placed the name of Mushtaq Ali in column No.2 of the challan.  The said D.Ws have filed their  affidavits before this court  in which they have disowned the above statements recorded U/S 162 Cr.P.C and categorically stated that one Aijaz Ali had obtained their CNICs  to the loan sanctioned for them from Bank and then he misused the same  in collusion with the I.O/respondent No.4.  It is highly unbecoming  on the part of respondent No.4 who has misused his authority  by managing false defence statements in the above fashion. In such a scenario,  the contention of petitioner that firstly the I.O  had arrested  all three accused and recovered the crime weapons from co-accused  Nadir Ali and Ashiq Ali  but then  mixed up with the accused and he did not  shown recoveries of crime weapons and spoiled the case of complainant  by placing name of accused Mushtaq Ali in column No.2 of challan. 

                        it appears that I.O/respondent No.4 with malafide and ulterior motives spoiled the case of complainant and conducted partial investigation while extending undue favour to the accused party and such type of investigation is nothing but nullity  in the eyes of law and not sustainable specially in  a case in which  one  person has lost his valuable life. Since there is no bar existed on re-investigation of a case even after submission of final report under section 173, Cr.P.C  and police could carry out fresh investigation and submit its report to the Court, therefore, S.P Investigation Kamber at Shahdadkot is directed to depute an honest police officer not below the rank of Inspector  to conduct re-investigation of the case impartially into crime No.112/2009 of P.S Nasirabad District Kamber Shahdadkot and  complete the investigation within four weeks.  It is also expected from S.P Investigation Kamber Shahdadkot, that in case the previous I.O is found involved in spoiling the case of  complainant, necessary departmental proceedings shall be initiated against him. Compliance report  should reach this Court through Additional Registrar within four weeks.

                         The petition is allowed in the above terms.

JUDGE