IN THE HIGH COURT OF SINDH
CIRCUIT COURT LARKANA
Criminal Misc. Application No. S-14 of 2022
Muhammad Bux Brohi
vs.
Civil Judge & JM-I, Shahdadkot & others
For the Applicant : Mr. Khadim Hussain Khoso
Advocate
Mr. Muhammad Bux Brohi
Applicant
Date of hearing : 14.01.2022
Date of announcement : 14.01.2022
ORDER
Agha Faisal, J. (1) Urgency granted. (2) Deferred (3) Granted subject to all just exceptions (4) & (5) The applicant has impugned the order dated 28.10.2022, rendered by the learned Civil Judge and Judicial Magistrate-I, Shahdadkot ("Impugned Order"), whereby the court has concluded that the case of the prosecution was not fit for trial due to lack of evidence, hence charge sheet was cancelled under "C" Class as provided in Chapter 24, Rule 7 of the Police Rules, 1934.
2. Learned counsel submits that the evidence was not properly appreciated by the learned Magistrate and the order was passed in violation of the principles of natural justice.
3. Heard perused.
4. It is an essential duty of the Magistrate to consider whether the charge placed there before is viable, in order to merit further proceedings. The Magistrate is required to appraise the documentation/evidence placed there before and exercise his discretion in due conformity with the settled principles of law. In the present case, the learned Magistrate has rendered in exhaustive order detailing as to how the case placed there before was devoid of merit. It is illustrative to reproduce the operative observations herein above.
"5.Minute appraisal of material available on record shows that, evidence collected by Investigation Officer is not sufficient for trial against accused as it is lacking in many aspects. At very outset, it is not narrated in FIR that, how accused came to know that, Complainant side is present on land& distributing the crop? If paddy grains were present at land, why only 75 plastic sacks were taken by Accused side and Complainant did not make any resistance? Who was farmer and laborer working with Complainant side as it is not possible that paddy crop distributed by three persons only? Question also arises for how long paddy grains were lying on the land? When land was harvested and tractor thrasher was called there? There were 75 sacks of paddy and it must have taken enough time and hard labor to load those sack in trolley but no fact narrated in FIR how six accused have done that and controlled Complainant side simultaneously. In that duration, where Complainant was standing, what were they doing? Were they overpowered by any armed person? What was colour and size of plastic sacks and from whom those were purchased? All these queries were required to be answered by the Investigation officer but he could not collect any incriminating which suggest that, any theft was committed.
6.The next allegation against accused persons was that they tried to illegally trespass the lands of Complainant side and pressed their claims with threat to Complainant side for leaving the land but at the same time accused themselves left the place after loading the sacks as per Story of FIR. Whether accused came to commit theft of paddy or occupy the lands of Complainant? The meme of place of incident does not depict what is status of occupation of land, whether it is in possession of Complainant or accused persons What is sowed in said survey number? FIR is silent why Complainant did not made call to 15 or immediate resorted to Police station rather lodged F1R after 16 days? To whom he made consulted for 16 days? Al these shortfalls in story of FIR caste heavy burden upon investigation officer/ASIP Lal Dino to clarify the intricacies of case but went failed. Mere utterance of words to leave the land amounts illegal occupation or it attracts the ingredients of offence criminal tress pass?
7.Lastly, the offence of deadly threats attributed to all accused persons, at this stage it would be advantageous to reproduce the definition of criminal intimidation is given in section 503, PPC which is reproduced as under-
"Whoever threatens another with an injury to his person, reputation or Property, Or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is, not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation."
The definition of criminal intimidation in section 503, P.P.C. made it clear that threats simpliciter are not sufficient to constitute a crìminal intimidation within the definition of section 505, PPC, unless it is caused that person to do any act who is not legally bound to do or to omit to do any action which that person was legally bound to da It was not surfaced during investigation, whether Complainant is cultivating the land or his possession was threatened by any overt act? Whether Complainant was legally entitled to do the same act or not under any legal objection to perform it Whether any specific words by any of accused said or otherwise which amounts Threat. It was held in case law Re. Gohar Javed v. State and another reported at 2007 YLR 441, F.I.R under sections 508/148/149, PP.C was quashed with following observation:-
"There was a simple threat which could not be considered to have caused any alarm to informant because no such words depicting such consequences were found in F.I.R. Not a single word or sentence shows that any threat was hurled or informant was directed to do any unlawful act, or to omit to do an act which the informant was entitled to do legally-third condition provided for applicability of section 506, P.P.C. is missing."
8. SIP Lal Dino /Investigation officer did not verify the fact, what was the survey number of land, who remained cultivating the land. ASIP Lal Dino did not conduct spot inquiry nor recorded statement of any independent Person from vicinity who appeared at place of incident during or after incident! investigation officer/ASIP Lal Dino did not visit the adjacent village situated there as per memo of place of incident whether any incident took place as alleged or not? As per memo of place of incident, different roads and lands are surrounded to place of incident but no one from locality or passer by cited as witness in present case even any effort was made by Investigation officer to verify the contents of FIR as claimed by Complainant.
9. It is also puzzling that, as per story of FIR there were two unknown persons but eye witnesses have stated name of one unknown person as Illahi Bux in their statement U/S 161 Cr.P.C recorded on same day of lodging FIR? How is it possible that, Complainant lodged FIR with consultation but did not include the name IlIahi Bux being unknown accused but later on acknowledged by eyewitnesses not Complainant! Investigation officer/ASIP Lal Dino did not inquire from eyewitnesses how they known Illahi Bux and why Complainant does not! Statement of eye witness 161 Cr.P.C contradicts the version of Complainant regarding material facts as he has improved the version of Complainant by adding the fact that thrasher was used on day of incident while Abdul Sattar did not state that any threats were issued by Accused while leaving the place of incident.
10. It may be rightly concluded that, ASIP/Lal Dino did not take pain to conduct fair and meaningful investigation rather than carried out pigeon-hole investigation, without any solid incriminating material forwarded the final report for trial of the accused persons. No independent corroboration is attached with final report from any corner to sanctify the allegation mentioned in FIR. In backdrop of whole facts discussed, even if the final report accepted and registered then what will be the future of such case where there is no incriminating and independent evidence. It has been laid down by the Hon'ble High Court of Sindh into the case of (Bashir Ahmed & Others ..Abdul Aziz & Others), reported at PLD 2007 Karachi 489, wherein it was stated that:
"From the language of section 190, Cr.P.C, it is clear that there is no restriction on the part of Magistrate to take cognizance/notice of any case. There is no procedure defined under the said section as to what mode of scrutiny is to be adopted by the Magistrate towards sorting out the yersion of the Police, hence the Magistrate has to act according to his wisdóm and judicial acumen which can differ in each case. However, towards the assessment and scrutiny of the Police version the Magistrate can interrogate the witnesses for the purpose of authentication of their version which Police claim that it has been given by them and can also be taken an account of other documents submitted by Police e.g., pendency of civil litigation or counter cases etc...
11. In my considerate view, at the time of presentation of Final Report, the Magistrate has to go through the investigation/evidence cautiously. If in his opinion, the evidence is of such nature, if come on record, goes un-rebutted and unchallenged, then, there is a probability of conviction; then of course, Magistrate should take cognizance and order for the trial. In case, the Magistrate considers that though some evidence has been collected by the Police during the course of investigation, but there is no probability of conviction of any persons, then the Magistrate may either refuse to take cognizance or order the Police for further investigation. However, in such cases, wherein investigation was carried out, prima facie seems that all the available evidence has already come on record and there is no chance surfacing further evidence into the case, then in such situation, further investigation shall also bring no fruitful result and amount to the wastage of precious time of the Court. As the Court has to look into every nook and corner of the case and form its own opinion on the basis of material available on the record instead of following the Police Report. In this regard reliance is placed on 2004 PCrLJ 1023 wherein it was held as under:
".Magistrate can pass order as he thinks fit. He can agree or disagree with report of I.O and can refuse to cancel the case and order further investigation or to take cognizance on the basis of police report u/s 190 (1) (b) Cr. P. C. though such an order would be an administrative order but while passing such order, Magistrate is required to examine the report Judicially and he has to act fairly, justly and honestly.....
12.The upshot of foregoing discussions renders the Court to the safe conclusion that the case of the prosecution is not fit for the trial of any accused persons due to lack of evidence. There is no likelihood that, any other evidence will be surfaced if order for further investigation be made. Therefore, Charge Sheet is not acceptable and FIR cancelled under "C-Class" as provided under Chapter 94 Rule 7 of Police Rules, 1934. Abduulah S/o Shafi Muhammad is discharged from the case, he is present on bail and his bail bond stand cancelled and surety is discharged."
5. This court has considered the Impugned Order and is of considered opinion that the finding arrived at are well reasoned and borne from the record there before, to which no cavil has been articulated by the applicant's counsel. The order prima facie demonstrates appreciation of the record / evidence and also shows that ample opportunity was provided to the concerned to state their case. Learned counsel has remained unable to identify any manifest infirmity in the impugned order, meriting interference.
6. It is trite law[1] that where the fora of subordinate jurisdiction had exercised its discretion in one way and that discretion had been judicially exercised on sound principles the supervisory forum would not interfere with that discretion, unless same was contrary to law or usage having the force of law.
7. In view of herein above, this application is determined to be devoid of merit and is hereby dismissed in limine.
JUDGE
[1] Per Faqir Muhammad Khokhar J. in Naheed Nusrat Hashmi vs. Secretary Education (Elementary) Punjab reported as PLD 2006 Supreme Court 1124; Naseer Ahmed Siddiqui vs. Aftab Alam reported as PLD 2013 Supreme Court 323.