ORDER SHEET
IN THE HIGH COURT OF SINDH BENCH AT SUKKUR.
Cr. Misc. App No. 499 of 2016
For katchapeshi.
02.01.2017. =
Mr.
Muhammad AslamShahani advocate for the
applicant.
Mr. A.R. Kolachi A.P.G.
ORDER
=
2. Briefly, the facts of the case are that the complainant namely
Talib
Hussain approached at aforesaid police
station and reported about an incident in which his brother received serious
injuries allegedly caused by some of the officials of SEPCO. It is narrated=
in
the FIR that the brother of complainant namely Muhammad AkramGurgejwas work=
ing as
private servant with SEPCO. On 29-7-2016 at about 12 noon, Iqbal Ahmad Bhut=
to
SDO, SEPCO at Ubauro and Muhammad HashemChanna in charge of Grid Station,
Ubauro called the said brother of complainant and intimated that all the
employees were working at 11,000 KV line situated Sonan Bridge and directed=
him
to go there for taking part in its repair. The SEPCO officials (nominated
accused) assured him that the power in the damaged line is disconnected but
when he went there and tried to take task of repair, he received electric s=
hock
and became seriously injured. Subsequently, he was taken to hospital where =
he
had gone under major surgery in which his spleen was removed. The case was
reported to police but police avoided to lodge FIR which was later on lodged
after intervention of the learned Sessions Judge.
3. =
&nb=
sp;
In support of the instant application, the learned counsel for the
applicant has submitted that although the incident was reported to police a=
nd
on the verbal direction of police, the injured was sent to hospital for
treatment but police had shaken hand with the accused persons and did not i=
ssue
a referral letter to medico-legal officer. According to him, the referral
letter was obtained from thelearned Ex-officioJustice of Peace and subseque=
ntly
the FIR was also lodged on his direction. The learned counsel, by referring
different memos, submitted that side inspection, injuries and statement of
witnesses corroborated the version taken by complainant in his FIR. Accordi=
ng
to him, the report of investigating officer based on defence witnesses is
apparently false and during investigation he is not authorized to examine
defence witnesses especially when the prosecution witnesses are fully
supporting the case of complainant. He submitted that some of the defence
witnesses contradicted each other on the vital points as such their stateme=
nts
under section 161 of the Code of Criminal Procedure 1898 (hereinafter refer=
red
as ‘the Code’) are not reliable. According to him, although some of the def=
ence
witnesses are not in consonant to each other but the happening of incident =
is
admitted even by them. He further submitted that the SHO and DSP are by cas=
te
Bhutto and they are relative of accused IqbalHussain Bhutto and on his inst=
ance
they managed a false report under C-class. According to him, the order of
learned Magistrate is not properand learned Magistrate has to pass a detail=
ed
and speaking order after discussing every aspect of case in the light of
available evidence. He further submitted that the order of learned Magistra=
te
is improper as such the same is to be set aside. He took reliance from 2013=
YLR
1297.
4. &nbs=
p; &=
nbsp;
Conversely, the learned APG supported the impugned order by submitti=
ng
that there is an unexplained delay in lodging the FIR. According to him,
although the FIR is lodged on an application to learned Sessions Judge but =
the
application under section 22-A and 22-B was moved with a considerable delay
without any plausible explanation. According to him, it is the case of the
applicant/complainant that the injured was working as private employee with
SEPCO but no proof has been produced by theapplicant about such employment.=
He
further submitted that it was an unbelievable story and how it could be
possible that a private and unauthorized person would be allowed or asked to
work on 11,000 KV line.
5. =
&nb=
sp;
I have heard the arguments advanced and gone through the relevant re=
cord
especially the impugned order. The disposal of cases under a report of poli=
ce
in ‘A’, ‘B’ and ‘C’ classes is an old practice, which in Sindh has now
crystalized as legal norms under the principle of usage. Perhaps, this prac=
tice
is continued from the time when Sindh was the part of Bombay Presidency.Acc=
ording
to the Bombay Presidency Police Guide, report of investigation under section
173 of the Code, is to be filed before the magistrate either in the form of=
a
charge-sheet, if the accused is sent for trial, or in the form of a Final
Report, in other cases. Final Reports are classified into `A' – true but not
traceable cases, `B' maliciously false cases, `C' --neither true nor
maliciously false cases and non-cognizable cases.It is settled law that any
such report, submitted before the Court, is not binding and the learned
Magistrate may concur with such report or may form a contrary view after sc=
rutiny
of the entire material available before him. In this respect reliance may be
taken from the cases reported asFalakSher and Another v. the State (PLD =
1967
SC 425), Muhammad Sharif and 8 others v. the State and another (1997 SCMR 3=
04)
and Safdar Ali v. ZafarIqbal and Others (2002 SCMR 63).
6. =
&nb=
sp;
It is contended by the learned Counsel for the applicant that the
learned Magistrate has not passed a speaking order. I have gone through the
impugned order. From the said orde=
r it
appears that the learned Magistrate has passed the order after proper scrut=
iny
of the available material. It is not necessary for a Magistrate to dispose =
of
every report produced before him under section 173 of theCode with a detail=
ed
order after discussing every aspect of the case. In this respect the Hon’ble
Supreme Court in the case of Safdar Ali (supra) has observed as under:
“A bare perusal of the said order would
reveal that entire record has been examined including the statements of
complainant; prosecution witnesses and F.I.R. and thus, it can be inferred
safely that the same has not been passed in a mechanical manner or arbitrar=
ily.
It may not be out of place to 'mention here that learned Ilaqa Magistrate w=
as
not supposed to pass an exhaustive order for the simple reason that he was =
not
deciding the case at all and, therefore, it was not obligatory for him to
dilate upon each and every aspect of the matter which falls within the
jurisdictional domain of learned trial Court.”
7. =
In the present case, the police suggested the disposal of case under
‘C-class’, that is neither the case was true nor it was maliciously false. =
The
happening of the incident is not denied but it is revealed from the police
report that it was not happened as narrated by the complainant in FIR. It is
worth noting that the injured himself has put his hand on the electricity l=
ine
in which 11,000 KV current was passing.It is also n=
ot
conceivable that the proposed accused persuaded a layman to work on a high
powered line. It is a fact that working on high-powered electricity lines
requires some special safety measures and techniques and the same is actual=
ly a
job of skilled persons having requisite qualification and training. The
complainant could not produce any instrument necessary for working on high
powered electricity lines or any such certification of his competency to do
soduring investigation. It appears that he himself has tried to interfere w=
ith
the high-powered electricity lines with some ulterior motives. As such I am=
of
the view that the impugned order is properly passed and the same does not
require any interference. Application dismissed.
=
=
=
JUDGE.
|
|
|
1<=
/span> |