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

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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