ORDER SHEET

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Cr. Misc. App. No. S – 402 of 2018

Date of hearing

Order with signature of Judge

Hearing of case (priority)

1. For orders on office objection at Flag-A

2. For hearing of main case

3. For hearing of MA No.2840/2018 (Stay)

24.06.2019

Mr. Alam Sher Bozdar, Advocate for the applicant.

Mr. Sikandar Ali Junejo, Advocate for respondent No.2.

Syed Sardar Ali Shah, Deputy Prosecutor General for the State.

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Through this Criminal Miscellaneous Application, the applicant has impugned order dated 08.05.2018 passed by the Sessions Judge / Justice of Peace, whereby he has directed the official respondents to record statement of complainant / private respondent and proceed further in accordance with law.

2. Learned Counsel for the applicant submits that the said order is illegal and based on non-appreciation of the true facts of the case as on the day of incident, the son of the complainant / respondent No.2 was arrested by the police in some narcotics case and instead the present applicant has been falsely implicated; that the applicant failed to approach the concerned SHO as well as higher authorities before filing of the application before Justice of Peace; that the applicant came before the Court with unclean hands, and therefore, the impugned order is bad in law and must be set aside. In support, he has relied upon cases of Imtiaz Ahmed Cheema, S.H.O. v. S.H.O., Police Station Daharki, Ghotki 2 others reported as 2010 YLR 189 and Asif Ali Jatoi v. Station House Officer, Police Station Qasimabad, Hyderabad and 2 others reported as 2018 YLR 318.

3. Counsel for private respondent submits that the incident, as reported by the complainant, occurred on 25.4.2018 around 0600 hours, whereas, the case of narcotics, as relied upon by the complainant, was registered on the same date at 09:15 p.m.; hence, no reliance can be placed on the same; that the son of the complainant was kept in illegal custody and on an application, a Raid Commissioner was appointed who conducted the raid and thereafter the complainant approached the concerned SHO for registration of the FIR, and after having failed to get any response, approached the learned Session Judge / Justice of Peace; hence, the objection is not well-founded; that even otherwise the learned Justice of Peace has only given directions to record the statement of the complainant and proceed in accordance with law; hence no case is made out.

4. Learned Deputy Prosecutor General has supported the impugned order and submits that only investigation has been ordered, whereas, the learned Justice of Peace has even given directions not arrest the applicant and other accused persons, therefore, the impugned order is correct in law.

5. I have heard all the learned Counsel as well as the Deputy Prosecutor General.

6. It would be advantageous to refer to the relevant portion of the impugned order, which reads as under:

“ I have heard learned Counsels for the parties, learned DDPP for the State, and also perused the record carefully.

As per law SHO concerned is bound to record the statement of complainant and act according to law, if cognizable offence is made out, therefore, SHO concerned is hereby directed to record the statement of complainant, if from her statement cognizable offence is made out, her FIR be registered OR to act in accordance with law. SHO concerned is further directed not to arrest proposed accused till sufficient evidence against them has come on record. If FIR of applicant, during investigation declared as false, then proceedings U/s 182 PPC be initiated against applicant. ”

7. Perusal of the aforesaid order reflects that the learned Justice of Peace has only given directions to record the statement of the complainant and if a cognizable offence is made out then proceed in accordance with law and register the FIR, if so needed. He has further directed not to arrest the proposed accused till sufficient evidence against them has come on record, whereas, if the FIR of the applicant during investigation is declared as false, then the proceedings may also be initiated against the applicant under Section 182 PPC.

8. The above order appears to be correct and reasonable as it is not affecting the applicant adversely, whereas, if the case of the applicant is that at the time of the alleged incident, the arrest was made by some other police officials in connection with some narcotics case, and he was not present there, then the said record can be produced by him as sufficient evidence to justify his stance. These documents do not require any further investigation as it must be a matter of police record. It is also noteworthy that the FIR on which the applicant relies upon is subsequent in time to the incident which has been complained by respondent No.2, and therefore, this also belies his contention.

9. In view of hereinabove facts and circumstances of this case, I am of the view that no case for indulgence is made out, whereas, the order as above appears to be correct and in accordance with law, and therefore, by means of a short order in the earlier part of the day, this Criminal Miscellaneous Application was dismissed and these are the reasons thereof.

J U D G E

Abdul Basit