ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Cr. Misc. Appln. No.S-19   of  2010.

DATE OF HEARING

ORDER WITH SIGNATURE OF HON’BLE JUDGE

26.3.2010.

For Katcha Peshi.

Mr. Habibullah G. Ghori, advocate for the applicant.

Miss Rubina Dhamrah, State Counsel.

                             ---------------------

                   The case of the applicant is that an F.I.R. was registered under Sections 506(2), 337-H(2), 148, 149, 504, PPC at Police Station Khabar, being crime No.30/2009.

                   The facts of the case, in brief, as per F.I.R. lodged by complainant Khadim Hussain Magsi are that on 12.9.2009 he alongwith his brother Niaz Hussain and Kamdar Himath Ali Janwari went to their land to look after the standing paddy crop and in the land they found Mehrban Dahalkani Magsi grazing the buffalo in their paddy crop, whom they asked to push out the buffaloe from the crop, but he did not, hence the complainant party themselves drove out the buffaloe, upon which he got annoyed and abused  and there was exchange of harsh words.  Thereafter, accused Mashooque armed with gun, Hameed with gun, Zulfiqar with hatchet, Khan Muhammad alias Dado, all sons of Muhammad Mithal Magsi and two unidentified, armed with clubs (dandas) came and fired over complainant party, so also made aerial firing and threatened. 

                   The investigation officer investigated the case and recorded the statements of witnesses.  During investigation the investigation officer with the help of accused/applicants and others got recorded the statements of persons whose names are not appearing in the F.I.R.  On the basis of those statements the investigation officer submitted his report under Section 173, Cr.P.C and recommended the case for cancellation under “C” class.  After submitting the report, the learned Magistrate has gone through the material collected during the investigation and did not agree with the recommendation of the investigation officer and directed the I.O. to submit challan before the Court.

                   The learned Counsel contended that the order is bad in law and the Magistrate has no power to call the complainant and his witnesses during the proceedings of 173, Cr.P.C.

                   I do not agree with the contention of the learned Counsel.  Under Section 173, Cr.P.C the Magistrate has ample powers to agree with the investigation officer or not.  The Magistrate cannot be compelled to act according to the wishes of investigation officer.  Time and again Hon'ble Supreme Court has held that the Court is not bound to accept the ipsi dixit of police.  Miss Rubina Dhamrah, learned State Counsel, also supports the order of the learned Magistrate.  In these circumstances, I do not find any merit in this criminal miscellaneous application and dismiss the same.

                                                                                                JUDGE