IN THE HIGH COURT OF SINDH, KARACHI

Cr. Revision Application No. 104 of 2017

Applicant             :         Ghulam Mustafa through M/s. Muhammad         Ashraf Kazi & Irshad Jatoi, Advocates.

Respondent No.1 :         Ghulam Ahmed through Mr. Ashfaq Ahmed Almani, Advocate.

Respondents. 2&3:                  None present.

Respondent No.4.                   The State through Mr. Ali Haider Saleem, D.P.G.

Date of hearing     :         23.05.2019

Date of Order       :         28.05.2019

ORDER

Abdul Maalik Gaddi, J.        Through this Criminal Revision application, the applicant has assailed the legality and propriety of the order dated 27.04.2017 passed by the learned 1^st Additional District & Sessions Judge, Thatta in Direct Complaint No.01/2016 filed by the Applicant Ghulam Mustafa against Ghulam Ali and others, whereby, the learned trial Court, after holding preliminary enquiry and recording evidence of applicant Ghulam Mustafa and his witnesses namely Gul Mohammad, Rajjab, Aroo, Mohammad Ahsan and Soomro Rafique Ahmed, dismissed the said application after hearing the counsel for the applicant. Hence this criminal revision application.

2.       The brief facts of the case, as gathered from the case file, are that the brother of applicant namely Juman was killed in an incident of firing which took place on 25.01.2014, regarding which the applicant tried to lodge an FIR. However, FIR No. 02/2014 dated 27.01.2014 under Sections 302, 324, 147, 148 & 149 PPC, PS Bannu, Mirpur Bathoro, District Sujawal, had already been registered regarding the incident at the instance of respondent No.5 (the first FIR) who was also involved in the firing incident and took the opposite instance to the applicant namely, he blamed the applicant for causing the firing and loss of the life and injuries which followed.

3.       In presence of first FIR No. 02.2014, the police declined to lodge second FIR arising out of the same incident. This leads to the applicant moving an application under section 22-A Cr.P.C seeking direction for the registration of another FIR from the Court of District & Sessions Judge, Thatta. On 07.03.2014, the Court of District & Sessions Judge, Thatta was pleased to pass such directions and in pursuance thereto, the second FIR bearing No. 06/2014 dated 10.03.2014 arising out of the same incident, as the first FIR was registered against the person nominated in the said FIR under section 302, 147, 148, 149 & 324 PPC of P.S Bannu.

4.       In essence, each party blamed other for the firing incident which led to the deaths and injuries to the persons on both sides. The police carried out the investigation and being unable to collect any incriminating evidence, I/O namely Gul Muhammad Kathyar filed a final report before the concerned Magistrate, Mirpur Bathoro for the disposal of second FIR (06/2014) as lodged by applicant in ‘C’ class which was approved by the concerned Magistrate on 01.04.2014. The applicant was dissatisfied with the investigation and report filed by the said I/O and aforesaid order of the Magistrate was challenged in Criminal Miscellaneous Application No. 141/2014 before this Court and by consent the said application was disposed of on 30.01.2015 with direction to DIGP Hyderabad to depute any honest officer not below the rank of Inspector for re-investigation of the case with direction to submit the report before the concerned Court within two weeks. In compliance of the said order, said DIGP Hyderabad deputed two I/Os namely Inspector Munir Baloch and Gul Munir Qadri, who after re-investigation of the matter, again submitted report in ‘C’ class which was again approved by concerned Magistrate on 01.06.2015. The petitioner being again dissatisfied with the orders of the Magistrate concerned dated 01.04.2014 & 01.06.2015 respectively has filed Constitutional Petition No. D-6974/2015 under Article 199 of Islamic Republic of Pakistan, 1973 to set-aside the impugned orders and has prayed in it to give the direction to the Magistrate concerned to take cognizance over the matter under section 190 Cr.P.C but the said petition was too dismissed vide order dated 07.03.2016. However, the applicant was left open that if he is dissatisfied, may choose to file Direct Complaint. As observed above, a Direct Complaint was filed by the applicant which was too dismissed under section 203 Cr.P.C, hence this revision application.

5.       It is argued by the learned counsel for the applicant that the impugned order dated 27.04.2017 passed by the learned 1^st Additional District & Sessions Judge, Thatta, is patently illegal, erroneous, factually incorrect and has resulted in miscarriage of justice; that the delay in filing Direct Complaint has been explained even otherwise in the case reported in 2010 SCMR 105 relating to delay in presenting complaint and the provisions of Section 439(2) Cr.P.C are not applicable to the facts and circumstances of the petitioner’s case, as no process was issued by the concerned Magistrate under section 204 Cr.P.C against the respondents No. 1 to 3 in this case; that this is a case of counter version with the following facts:-

a) Place of incident in both FIRs No. 2/2014 & 6/2014 is same i.e. Mawali Mori, near Sector Deewan Sugar Mill, at the distance of 8/9 KMs from P.S towards South Deh Shahpur.

b) Date and time of incident in both FIRs is same i.e. 25.01.2014 at 1215 hours.

c) Whether the power of Sessions Judge under section 202 & 203 Cr.P.C are not designed to clothe him powers of such deep appreciation of evidence as required at the time of final hearing.

d) That both FIRs under section 302, 147, 148, 149, 324, 506/2 PPC, PS Bannu relates to one incident/criminal trial/procedure of counter case arising out of same occurrence and to try both the cases side by side.

          He has also argued that the evidence of witnesses in the Direct Complaint have supported the case and claim of the complainant but the learned trial Court while dismissing the complaint did not properly consider the said evidence and passed the impugned order in hasty manner and also did not consider the post mortem report of deceased Juman which in fact has been murdered by the accused nominated in the complaint. Learned counsel for the applicant while reiterating the same facts and grounds, has prayed for allowing this revision application with direction to trial Court take cognizance of the offence. In support of his arguments, he has relied upon following case laws:-

1. Noor Illahi Versus the State reported in PLD 1966 SC 708.

2. Ms. C.M Samual Versus Mr. C. Samuel and others reported in PLD 1967 SC 334.

3. Shah Muhammad Versus Muhammad Younus and others reported in 1968 SCMR 72.

4. Anwar Ali Khan Versus Wahid Bux and others reported in 1991 SCMR 1608.

5. Muhammad Faiz Khan Versus Amjair Khan and others reported in 2010 SCMR 105. 

6. Lt. Col. (Retd) G.M Nizamuddin Versus Irshad Hussain Khan and others reported in PLD 1976 Karachi 653.

6.       On the other hand, learned Deputy Prosecutor General assisted by the learned counsel for respondent No.1 has supported the impugned order as well as investigation carried by two different I/Os and by two times, whereby the case and claim of the applicant was not proved and the case and claim of applicant was also not accepted by a Division Bench of this Court, therefore, under these circumstances and particularly in a scenario when a Direct Complaint, after recording the evidence of complainant and his witnesses, has been dismissed, therefore, it would not be appropriate under the law for this Court to direct the Magistrate concerned to take cognizance over the matter as the learned trial Court as well as I/O of the case extensively by recording evidence as well as holding investigation, rejected the case and claim of the applicant and the applicant has filed this revision just to save his skin from the FIR No. 02/2014 and the case of the said crime is being proceeded before the trial Court bearing Sessions Case No. 47/2014, therefore, this Criminal Revision may be dismissed being meritless. He also submits that there was only one incident which has been mentioned in FIR No.02/2014 and no incident has taken place as mentioned in FIR No.06/2014, as the story as mentioned in crime No.06/2014 has already been rejected by I.Os., this Court in C.P. No.D-6974/2015 as well as by the learned Additional Sessions Judge.

7.       I have heard the learned counsel for parties’ at a considerable length and have also gone through the case paper so made available before me.

8.       It appears from the record that an FIR being crime No. 02/2014 under section 302, 324, 147, 148 & 149 PPC at PS Bannu lodged by one Ghulam Ali against Aroo, Ahsan and Juman, who were carrying K.K, repeater and lathi in their hands respectively and committed murder of deceased Nawaz Ali alias Babu and Mian Bux. It is alleged in the said FIR that accused Juman has also been murdered by receiving fire arm injury by his brother Aroo, when accused and complainant party in the said FIR were quarrelling with each other. However, it is the case of the applicant that Juman and two others were killed at the hands of accused nominated in FIR No. 06/2014 at P.S Bannu. It is noted that the case and claim as mentioned in FIR No. 06/2014 has been twicely investigated by two different I/Os, who submitted their reports in ‘C’ class which was accepted by the concerned Magistrate. Constitutional Petition filed by present applicant for redressal of his grievances before this Court has also been dismissed, as such applicant has filed Direct Complaint in which the complainant alongwith other witnesses have been examined. Record shows that the witnesses of this complaint namely Aroo and Ahsan are already facing trial for the charges of triple murder of deceased Mian Bux, Ali Nawaz and so also of his own brother Juman. It appears that perhaps the Direct Complaint has been filed as a counterblast to crime No. 02/2014, which is pending before the trial Court. It also appears that Constitutional Petition of the applicant was dismissed on 07.03.2016 but the Direct Complaint was filed before the trial Court on 28.03.2016, after the delay of twenty days for which no satisfactory explanation has been furnished, therefore, it could not be ruled out that this complaint has been purportedly filed as a counter-blast to the FIR No. 02/2014. As observed above in this matter, two times matter was investigated in crime No. 06/2014 and the concerned Magistrate approved the report in ‘C’ class, Direct Complaint has also been dismissed while giving detailed finding under these circumstances, I would not wish to usurp the role of the police or the Magistrate, after such investigation and the finding in the Direct Complaint, ordering yet remand the case to the concerned Magistrate to take cognizance would not serve the purpose in the scenario when other party is seriously disputing the facts as mentioned in FIR No.06/2014. This is revision application, learned Additional Sessions Judge has already discussed the facts and the evidence in detail in its order. Learned counsel for applicant has failed to point out any ground for reappraisal of evidence. No exceptional circumstances appear in this case for interfering in the order of the trial Court. Therefore, in view of what I have observed above, this Criminal Revision Application merits no consideration and the same is dismissed alongwith listed application, if any. The case law cited by the learned counsel for the applicant has been perused and considered by me but did not find applicable to the facts of the present case. Even otherwise, in criminal administration of justice, each case has to be decided on its own facts and circumstances and Courts are required to exercise jurisdiction independently as held by Honorable Supreme of Pakistan in case of State Versus Haji Kabeer Khan reported as PLD 2005 SC 364 and Mohammad Faiz alias Bhoora Versus the State and others reported in 2015 SCMR 655.

9.       Before parting with the order, I would like to make it clear that observation, if any, in this order shall not effect the merits of the case in Crime No.02/2014 of PS Bannu.

          JUDGE

zulfiqar/pa