IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Crl. Misc. Application No.S-483 of 20234

DATE OF HEARING

ORDER WITH SIGNATURE OF JUDGE

1. For orders on O/objection at flag-A.

2. For hearing of bail application.

3. For hearing of M.A No.4054/24

Date of hearing 23.09.2024.

Mr. Muhammad Ali Naper, Advocate for applicant.

Mr. Aftab Ahmed Shar, Addl.P.G for State.

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O R D E R

Mr. Qurban Ali Kalwar, Advocate files power on behalf of private respondent No.5, statements also stands filed on part of the officials.

Record shows that the present applicant has impugned the order dated 22.08.2024 as passed by the Additional Sessions Judge-III/Ex-Officio Justice of Peace in Crl. Misc. Application No.2577/24 whereby the impugned order after a very thoroughly examining of the record available before it was pleased to exclude one of the alleged responsible person being SHO Police Station Kandhra directed that the statement of the applicant’s therein to be incorporating in the book of 154 Cr.P.C. The allegations made was that the alleged persons had forcibly entered into the house of the said applicant after knocking the door and robbed three Tolas Gold, cash amount of Rs.135,000/-, LCD, Battery 100 AGS and Solar pedestal fan alongwith advancing threats for implicating his son Hakim Ali in criminal cases wherein the lodging of the FIR bearing No.86/2024 is also mentioned.

Learned counsel for the applicant contends that the impugned order has been obtained by making false allegation whereas the actuality has already brought-up on part of the present applicant through his FIR bearing No.86/2024 as referred above and the present FIR has been made out only to create a counter-version and balance for protection and as such malafide is present. He further contends that the present applicant has wrongly been roped alongwith the official in order to ensure that a decision of nekmards of the locality as to the payment of liability may not be enforced by lodging of a false FIR.

Learned counsel filing power today however, contends that as the cognizable offence was made out and material was thoroughly considered by the learned Presiding Officer whereby the wrong was found present on part of the accused wherein the present applicant was also available being visible in the Video, it has rightly been ordered by the learned Presiding Officer that the FIR be lodged as the sanctity of house was violated.

Learned Additional Prosecutor General however, referring to para-6 of the impugned order contended that perhaps the learned Presiding Officer has gone a bit to far in examining the material present before the Court. Learned Additional Prosecutor General further contends that though an order for lodging of FIR is required to be based upon the allegations made, to which a very deep examination is not proper as the actual Criminal proceedings are yet to commence. That in case such an order is passed the Investigating Officer naturally founds itself compelled to have the same line of working causing the legal purpose of impartial investigation to be violated as the purpose of investigation is come to a reasonable conclusion based up the collect material.

Having heard the learned counsels and gone through the record. As it is a matter of determination of application under Section 22-A&B Cr.P.C. Despite the obligation validity raised in respect to said para-6 instead of remanding this matter for re-writing/determination again which is found to be resulting in un-required delay it was considered proper to hear the parties and conclude the same. As such learned counsels present were heard as to the matter without consideration of para-6 of the impugned order wherein reference to a Video clipping and its contents has been made. The said exercise is on account of not only the said material exposed to tampering but to avoid the element of a pre-determination. A Justice of Peace under Section 22-A&B Cr.P.C, is though requires to examination all the material brought forward by a party, however, the order coming out should not be such that influenced to an extent that the same may conclusively determine or for that matter specifically a limited direction of further actions required to be taken-up. This does not means in any in a way that a directions of investigation must not be touched upon but simply means that the same should not be dominating. To be more elaborate, watching the video may be available but to accept the same as the reality is not entertainable. The material brought-up alongwith the allegations are to be examined by a judicial mind i.e. reasoning and direction be issued without discussion to provide room for the ultimate conclusion liable to be left open and determined at the proper stage. In this process the difference between an inquiry and investigation is to be kept in mind also.

Accordingly, where the allegations are present (irrespective to their ability of proof and/or their veracity) which is yet to be determined but while ordering the deletion from record of paragraph-6 of the impugned order matter was re-examined wherein the allegations made having found of a nature which may cause a cognizable offence, the conclusion of the impugned order is not found liable to be disturbed. It is however, further ordered that in case cognizable offence is made out and FIR is lodged the I.O, shall not be influenced by any portion of the paragraph No.6 in impugned order. It is further ordered that in order to ensure that no transgression takes place, no arrest shall be caused in the matter without tangible material and availability of the said requirement by the Investigating Officer.

Matter stands disposed of in the above terms.

J U D G E

Ihsan/PS