ORDER SHEET
IN THE HIGH COURT OF
SINDH, BENCH AT SUKKUR
Cr. Misc. Appln. No.S- 574 of 2016
1.
For hearing
of main case
2.
For hearing
of MA No.12888/2015
14.01.2019
M/s Anwer Ali Lohar and Yasir Arafat Mahar Advocates for
the Applicants.
M/s Ubedullah Ghoto and Achar Khan Gabole Advocates for
the private respondent
Syed
Sardar Ali Shah Rizvi, DPG for the State
>>>>>>>…<<<<<<<<
Irshad Ali Shah, J;- The applicants by way of instant criminal
miscellaneous application under Section 561-A, Cr.P.C
have impugned the order dated 07.12.2015 passed by learned Ex-Officio Justice
of Peace/ 1st Additional Sessions Judge Ghotki
on application under Section 22-A(6)(i) Cr.P.C,
whereby he has directed SHO Police Station Daharki to record statement of the private respondent under
Section 154 Cr.P.C
2.
The operative part of the impugned order reads as under:-
“It appears that there are serious
allegations against the proposed accused, so in these circumstances, the SHO concerned is directed to record the statements of
petitioner u/s 514 Cr.P.C and take further action in
the matter. The complainant is directed to appear before the concerned SHO at Daharki along with his
witnesses for the purpose of recording their statements.”
3. It is alleged by the private respondent
that the applicants after having formed an unlawful assembly and in prosecution
of their common object committed murder of Mashooque
Ali alias Shanti Tanweri and his brother Mir Hassan Kobhar under the pretext of police encounter for that
according to him his FIR was not recorded by the police. He therefore by way of
an application under Section 22-A (6)(i) Cr.P.C
sought for direction against police to record his FIR in respect of above said
incident which was issued by learned Ex-Officio Justice of Peace/ 1st
Additional Sessions Judge Ghotki by way of order
which the applicants have impugned before this Court as stated above.
4. It is contended by learned counsel for
the applicants that the deceased were having criminal record and they were died
of police encounter for that an FIR was registered by the police. By contending
so, he sought for setting aside of the impugned order as same according to him
has been passed by learned Ex-Officio Justice of Peace/ 1st
Additional Sessions Judge Ghotki without lawful
justification.
5. It is contended by learned counsel for
the private respondent that the deceased were not hardened criminals, they were
involved by the police in false cases at the instance of influential person of
the locality, in all such cases they were acquitted by the competent courts of
law, they were killed by the police without any lawful justification, which
constitutes a cognizable offence. By contending so, by supporting the impugned
order sought for dismissal of the instant criminal miscellaneous application.
6. Learned DPG
for the State supported the impugned order.
7. I have considered the above arguments
and perused the record.
8. The allegation leveled against the
applicants with regard to the death of deceased is serious in nature same as
such could not be lost sight of simply for the reason that they have died of
the police encounter, same obviously constitutes a cognizable offence. In these
circumstances, learned Ex-Officio Justice of Peace/ 1st Additional
Sessions Judge Ghotki was right to order for
recording statement of private respondent under Section 154 Cr.P.C
by way of impugned order which is not calling for any interference by this
Court by way of instant criminal miscellaneous application. If the applicants
are having a feeling that they being innocent are being involved by the private
respondent falsely then they could prove their innocence by joining the
investigation.
9. In view of above, the instant Criminal
Miscellaneous Application is dismissed along with listed application.
Judge
ARBROHI