ORDER SHEET
IN THE HIGH COURT OF SINDH CIRCUIT COURT LARKANA
Crl. Misc. Application No. S- 44 of 2015
|
DATE |
ORDER WITH SIGNATURE OF JUDGE |
1.For orders on office objection ‘A’
2.For Hearing of Case.
3.For Hearing of MA No. 1458/2015 (561-A)
23.04.2018
Mr. Ali Nawaz Ghanghro, Advocate for the applicant.
Mr. Sharafuddin Kanhar, APG for the State.
--------
Applicant SIP Noor Muhammad has called in question the order dated 31.03.2015 passed by learned Civil Judge \Judicial Magistrate-IV, Shikarpur on final report under section 173, Cr.P.C directing disposal of the F.I.R No.15/2015 under section 23 (1)(a) of Sindh Arms Act, 2013 under ‘B’ class.
2. The facts of the prosecution case are that, complainant SIP Noor Muhammad Jakhro, lodged the report with Police Station Madeji stating therein that arrested accused of Crime No.14/2015 under section 337-H2, 353, 401, 34, PPC and 17/1 Offences Against Property (Enforcement of Hadood) Ordinance, 1979 namely Papo alias Sarang Morio son of Saifal Morio, while keeping an unlicensed TT pistol in possession has committed an offence punishable under section 23 (i)(a) of Sindh Arms Act, 2013, thus F.I.R was lodged against him to the above effect.
3. After usual investigation, the police submitted the final challan while recommending the disposal of the case as untraceable under “A” class, but the learned Judicial Magistrate did not agree with opinion of police and vide his order dated 31.3.2015 accepted the said report in “B” class with copy of the order to SSP Shikarpur to initiate proceedings under Section 182, 211, PPC against the applicant i.e. complainant and author of the F.I.R.
4. Mr. Ali Nawaz Ghanghro, learned counsel for the applicant argued that the impugned order passed by the learned Magistrate is patently illegal, erroneous and misreading of the investigating report. He submitted that in fact it was an off-shoot of main case, wherein in fact three unknown accused persons fired upon the police party and during the encounter they left their motorcycles and their pistols who were mistakenly named in the F.I.R. Learned counsel for the applicant has lastly prayed that the impugned order passed by the learned Magistrate may be set aside, the summary submitted by police for disposal of the case under ‘A’ class may be allowed.
5. Learned APG has recorded no objection.
6. I have heard learned counsel for the applicant as well as learned APG for the State. The record reveals that after registration of the case the investigation was carried out by IO SIP Maqsood Ahmed who prepared the memo of place of wardat and collected empty shells fired by police and the accused persons. Record further reveals that during investigation the I.O also recorded statements of independent witnesses and in view of their statements submitted report under section 173 Cr.P.C recommending disposal of the F.I.R under ‘A’ class on the ground that sufficient evidence could not be collected against the accused. Perusal of the impugned order shows that the eyewitnesses cited in the F.I.R had supported the prosecution case, as such, interim police report was accepted with directions to police to submit final report. The investigating officer then submitted final report under section 173,Cr.P.C on the basis of statements of persons of locality showing them as independent witnesses, wherein the subject F.I.R was recommended to be disposed of as untraceable under ‘A’ class. The learned Magistrate accepted the police report, however disposed of the F.I.R as false under ‘B’ class, directing the SSP concerned to initiate proceedings under section 182, 211, PPC against the present applicant and other staff shown in the above case. From the observations of learned Magistrate, it is clear that he has based the same without any material placed before him, for the simple reason that without conducting full-fledged trial and recording evidence of P.Ws, it could not be concluded that the subject F.I.R was false needing to be disposed of under ‘B’ class. At the same time, it may be observed that the opinion of investigating officer was no doubt not binding upon the learned Magistrate, however, it would have been proper to initiate proceedings against the complainant/applicant of the subject FIR only in case when the extraneous persons (so-called independent witnesses) had been examined at trial as D.Ws.
7. In view of the above, the order passed by the learned Magistrate does not seem to be proper and valid. Consequently, the instant criminal miscellaneous application is allowed, the impugned order is set aside and the police report under section 173, Cr.P.C. for disposal of the subject FIR as untraceable under ‘A’ class is accepted.
Judge
Abid
H. Qazi/**
ORDER SHEET
IN THE HIGH COURT OF SINDH CIRCUIT COURT LARKANA
Crl. Misc. Application No. S- 43 of 2015
|
DATE |
ORDER WITH SIGNATURE OF JUDGE |
1.For orders on office objection ‘A’
2.For Hearing of Case.
3.For Hearing of MA No. 1455/2015 (561-A)
23.04.2018
Mr. Ali Nawaz Ghanghro, Advocate for the applicant.
Mr. Sharafuddin Kanhar, APG for the State.
--------
Applicant SIP Noor Muhammad has called in question the order dated 31.03.2015 passed by learned Civil Judge \Judicial Magistrate-IV, Shikarpur on final report under section 173, Cr.P.C directing disposal of the F.I.R No.16/2015 under section 23 (1)(a) of Sindh Arms Act, 2013 under ‘B’ class.
2. The facts of the prosecution case are that, complainant SIP Noor Muhammad Jakhro, lodged the report with Police Station Madeji stating therein that arrested accused of Crime No.14/2015 under section 337-H2, 353, 401, 34, PPC and 17/1 Offences Against Property (Enforcement of Hadood) Ordinance, 1979 namely Bablo alias Akbar son of Ali Khan Kalhoro, while keeping an unlicensed TT pistol in possession has committed an offence punishable under section 23 (i)(a) of Sindh Arms Act, 2013, thus F.I.R was lodged against him to the above effect.
3. After usual investigation, the police submitted the final challan while recommending the disposal of the case as untraceable under “A” class, but the learned Judicial Magistrate did not agree with opinion of police and vide his order dated 31.3.2015 accepted the said report in “B” class with copy of the order to SSP Shikarpur to initiate proceedings under Section 182, 211, PPC against the applicant i.e. complainant and author of the F.I.R.
4. Mr. Ali Nawaz Ghanghro, learned counsel for the applicant argued that the impugned order passed by the learned Magistrate is patently illegal, erroneous and misreading of the investigating report. He submitted that in fact it was an off-shoot of main case, wherein in fact three unknown accused persons fired upon the police party and during the encounter they left their motorcycles and their pistols who were mistakenly named in the F.I.R. Learned counsel for the applicant has lastly prayed that the impugned order passed by the learned Magistrate may be set aside, the summary submitted by police for disposal of the case under ‘A’ class may be allowed.
5. Learned APG has recorded no objection.
6. I have heard learned counsel for the applicant as well as learned APG for the State. The record reveals that after registration of the case the investigation was carried out by IO SIP Maqsood Ahmed who prepared the memo of place of wardat and collected empty shells fired by police and the accused persons. Record further reveals that during investigation the I.O also recorded statements of independent witnesses and in view of their statements submitted report under section 173 Cr.P.C recommending disposal of the F.I.R under ‘A’ class on the ground that sufficient evidence could not be collected against the accused. Perusal of the impugned order shows that the eyewitnesses cited in the F.I.R had supported the prosecution case, as such, interim police report was accepted with directions to police to submit final report. The investigating officer then submitted final report under section 173,Cr.P.C on the basis of statements of persons of locality showing them as independent witnesses, wherein the subject F.I.R was recommended to be disposed of as untraceable under ‘A’ class. The learned Magistrate accepted the police report, however disposed of the F.I.R as false under ‘B’ class, directing the SSP concerned to initiate proceedings under section 182, 211, PPC against the present applicant and other staff shown in the above case. From the observations of learned Magistrate, it is clear that he has based the same without any material placed before him, for the simple reason that without conducting full-fledged trial and recording evidence of P.Ws, it could not be concluded that the subject F.I.R was false needing to be disposed of under ‘B’ class. At the same time, it may be observed that the opinion of investigating officer was no doubt not binding upon the learned Magistrate, however, it would have been proper to initiate proceedings against the complainant/applicant of the subject FIR only in case when the extraneous persons (so-called independent witnesses) had been examined at trial as D.Ws.
7. In view of the above, the order passed by the learned Magistrate does not seem to be proper and valid. Consequently, the instant criminal miscellaneous application is allowed, the impugned order is set aside and the police report under section 173, Cr.P.C. for disposal of the subject FIR as untraceable under ‘A’ class is accepted.
Judge
Abid H. Qazi/**