ORDER SHEET
IN THE HIGH COURT OF SINDH BENCH AT SUKKUR
Cr. Misc. Application No.S-134 of 2021
|
Date |
Order with signature of Judge |
Disposed
of matter
For orders on MA
No.5765/2021
26-11-2021
Mr. Shamsuddin Kobhar,
Advocate for the applicant
Mr. Khalil Ahmed Maitlo, Deputy Prosecutor
General
.-.-.-. -.-.-.-.-.-.-.-.-
Through instant
application the applicant has prayed for recalling of
order dated 16.09.2021, whereby the main application was dismissed for
non-prosecution. Learned counsel for applicant has relied upon the case of Ghulam Hussain v. The State (2001
P.Cr.L.J 611) and submitted that in view
of the case law criminal miscellaneous application dismissed for non-prosecution can be restored.
Heard
learned counsel for the applicant and learned DPG, who was present in court in
other matters, waived notice of the application and has raised no objection for
restoration of the main application. Resultantly, MA No.5765/2021 is allowed
and main criminal miscellaneous application is restored to its original
position.
Heard
learned counsel for the applicant on merits of the application, as well as
learned DPG and perused the record. It appears that the learned Magistrate has
passed the impugned order while going through the entire material collected
during investigation. Relevant para of the impugned order is reproduced
hereunder:-
“It is worth considering facts that
investigation of the instant crime was conducted twice by two different police
officials of different police stations and they both reached at the same
conclusion, hence there appears no malafide on the part of police for
conducting un-impartial investigation.
I take guidance
from case reported in PLD 2013 Sindh 423 in case of Syeda AFSHAN versus Syed
Farukh Ali and others. The operational part is reproduced as under:
“Magistrate was
not bound to agree with the report submitted by police under S.173, Cr.P.C and
was at liberty to either agree or disagree with the conclusions reached by the
investigating officer, subject to giving cogent reasons for the conclusion
arrived at by him-Magistrate under S.173, Cr.P.C was not expected to blindly
follow investigation undertaken by the police, as ipse dixit of the police was
never binding upon the Magistrate or court-Magistrate was bound to apply his
independent mind to the material placed before him and then form his opinion
about the matter-after applying his judicial mind if the Magistrate was of the
view that the opinion expressed by the investigating officer in the report
under S.173, Cr.P.C was just and appropriate, he was fully competent to accept
the report and dispose of the case as proposed (by the investigating officer)”.
It is held in
case of Anwer Alam Siddiqui Vs the State and another reported in 2016 YLR 417
that if the complainant was not satisfied by the Police investigation, he
could resort to the remedy of filing direct complaint, but no case, provisions
of S.173 Cr.P.C, would entitle him to get the person of his choice implicated
in the case. Such view was
also taken in the case reported as Inayatullah and 4 others v. The State and
another (1999 PCr.LJ 731) & Bahadur and another V The
State and another PLD 1985 SC 62.
Under the above
circumstances of the case and considering the case law of Honourable Superior
Courts and detailed investigation report of second IO Ghulam Ali Jumani, I am
of the humble view that no primafacie case of abduction is made out for taking
cognizance and there are no compelling reasons to decline the instant report,
as such, the case in hand is fit to be disposed of under “C” class, therefore,
the case is disposed of under “C” class. In the light of last diary of Investigation Officer of DSP Ghulam
Ali Jumani and the above case laws, the complainant is at liberty to file
direct complaint, if he desires so. Let the police papers be returned to
concerned IO alongwith copy of this order, for information and compliance.”
No illegality has been pointed in the impugned order, resultantly this application is meritless and is
hereby dismissed.
JUDGE
Suleman Khan/PA