ORDER SHEET

IN THE HIGH COURT OF SINDH CIRCUIT COURT, LARKANA.

Cr. Misc. Appln.No. S- 209 of 2012.

Dated                                   order with signature of hon’ble Judge.

1. For orders on office objection as flag A.

2. For Katcha Peshi.                                  

22.01.2013.

                        Mr. Imdad Ali Mashori, advocate for the  applicant.

Mr. Athar Abbas Solangi, advocate for the respondent No.2.

Mr. Naimatullah Bhurgri, State Counsel.

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                        Learned counsel for the applicant has challenged the diary dated 26.09.2012 in terms whereof the application U/S 265-K Cr.P.C filed by the respondents was adjourned and the report  was called from the Magistrate to ascertain the date since the accused Hakim Ali  was in possession of such disputed area/property.  Learned counsel submits  that this would be a futile effort as investigation in terms  of section 5 of Illegal Dispossession Act has already been conducted and detailed report which includes  the facts  which were ascertained from Mukhtiarkar and the report alongwith documents were placed before learned Magistrate.

             If there is a lacuna in such investigation then such can be filled up  only by directing SHO concerned to investigate further on this point. However, in terms of the diary dated 26.09.2012 such error can not be filled in as the purpose of section 5(1) of the Illegal Dispossession Act would be frustrated.  The application U/S 265-K Cr.P.C could not be disposed of solely on the statement of the Mukhtiarkar as apparently called vide diary dated 26.09.2012. Needless  to mention that after submission of the report in terms          of  section 5(1)  the  trial  begun  as  the  charge   has   already  been  

framed  on 19.12.2011.   Learned  counsel  reluctantly  agreed  that if in case such report from Mukhtiarkar is available  then further report  from the Mukhtiarkar  can be dispensed with  however, in case such report  does not form part of the record then the officer incharge   in terms of section 5(1) can further be  directed to enquire  on the question of possession in particular the dates  when the applicant is dispossessed if at all he keeps such record under the law and subsequently, the application U/S 265-K Cr.P.C could be heard and decided, as required under the law.

             Needless  to  mention   that application U/S 265-K Cr.P.C could be disposed of on account  of having  sufficient evidence which does not require any trial and sufficient for disposal of application U/S 265-K Cr.P.C.  Accordingly, this criminal miscellaneous application is disposed of with the above observation.

JUDGE