ORDER SHEET
IN THE HIGH COURT OF
SINDH, BENCH AT SUKKUR
Cr. Misc. Appln. No.S- 689 of 2013
Date Oder with Signature of Hon’ble Judge
Priority
case
1.
For hearing of main case
2.
For hearing of MA No.3937/2013 (S/A)
01.04.2019
Haji Shamusuddin
Rajper Advocate for the Applicant
Mr. Shahid
Hussain Gopang Advocate for
private respondent
Mr. Shafi
Muhammad Mahar, DPG for the State
>>>>>>>…<<<<<<<<
Irshad Ali Shah, J;- The facts in brief necessary for disposal of
instant Criminal Miscellaneous Application are that an FIR Crime No.53/2012 u/s
324, 147, 149 PPC was lodged by the private respondents against the applicant
and others for having caused fire shot injuries to Ghous
Bux with intention to commit his murder. On
investigation, a police report was furnished before learned trial Magistrate in
terms of Section 173 Cr.P.C for prosecution of the
applicant and others for offence punishable u/s 324, 147, 149 PPC.
Subsequently, the said injured, it is said died of injuries and on arrest of
one of the accused a supplementary report was also submitted by the police
before learned trial Magistrate, it was accepted by learned trial Magistrate vide
his order dated 11.09.2013 and then case was sent up by him M to the Court of
Sessions for its trial according to law, such order of learned trial Magistrate
is impugned by the applicant before this Court by way of instant Criminal
Miscellaneous Application u/s 561-A, Cr.P.C.
2. It
is contended by learned counsel for the applicant that the impugned order is
non-speaking and it has been passed by learned trial Magistrate without
providing chance of hearing to the applicant and others. By contending so, he
sought for setting aside of the same.
3. Learned DPG for the State and
learned counsel for the private respondent have sought for dismissal of the
instant Criminal Miscellaneous Application by contending that the case is at
the verge of its disposal.
4. I have considered the above
arguments and perused the record.
5. There is no denial to the
fact that after taking cognizance, learned trial Magistrate sent up the case to
the Court of Sessions for its trial and same at present is pending trial. The
trial could only commence after framing of charge, which is judicial order, it
is not challenged. In that situation, the order of Judicial Magistrate could
not be examined by this Court simply for the reason that same being
administrative in nature could not be given preference over a judicial order.
6. In case of Naseem Akhtar and others vs. Learned Civil Judge and Judicial
Magistrate and others, it has been held by High Court of Sindh that;
“---Ss.173, 190 & 561-A--- Penal Code
(XLV of 1860), S.302---Qatl-i-amd---Taking of
cognizance and forwarding the case to Court of Session by the
Magistrate---Inherent powers of High Court---Magistrate took cognizance as per
sections mentioned in the police report as well as under S.302, P.P.C and sent
the case to Court of Sessions--- Charge against the accused persons had already
been framed---Sticking to legality or otherwise of order passed by the
Magistrate became infructuous, any comment on merits
or demerits of order of the Magistrate might prejudice the case of either side---
Accused could claim innocence by resorting to course provided by S.265-K, Cr.P.C---petition under S.561-A, Cr.P.C.
was dismissed in circumstances.[pp.1175, 1176]D&E”
7. In view of the facts and
reasons discussed above, the instant Criminal Miscellaneous Application fails
and is dismissed accordingly.
Judge
ARBROHI