IN THE HIGH COURT OF SINDH CIRCUIT COURT LARKANA
Cr. Misc. Appln. 298 of 2021 Mukhtiar Ali vs.
S.H.O P.S. Karampur & Others
For the Applicant : Mr. Saeed Ahmed Bijarani
Date of hearing : 31.01.2022
Date of announcement : 31.01.2022
ORDER
Agha Faisal, J. (1) Deferred (2) Granted subject to all just exceptions (3) Applicant has impugned the order dated 03.09.2021 delivered by the learned Civil Judge and Judicial Magistrate Tangwani, whereby an F.I.R was examined and the report of the I.O was accepted in "C" Class and the matter was brought to an end. It is considered illustrative to reproduce the pertinent observations herein above:
"5. Discussing legal aspects, and perusing the R & Ps of the case, and not taking cognizance 190, Cr.PC. are as under:
6. According to FIR which lodged by complainant Mukhtiar Ali. On 22-06-2021 at 2000 hours alleging therein that on 31-05-2021 at 08 AM complainant along with his cousins Hazar Khan, Raham Ali went for grazing of cattles in forest. At that time accused Muhammad Siddique s/o Qasim Khaskheli having TT Pistol, Gul Hassan having lathi and Ali Hassan s/o Gul Hassan having K.K originally residing in Karachi, presently Taluka Tangwani and two unknown accused came there, stolen four black color buffalos of complainant. after incident complainant went to the accused who demanded ransom of Rs. 1,50,000/- but accused did not handover cattles to the complainant. Thereafter complainant went to PS lodged FIR.
7. According to Investigation officer that no incident has taken place Investigation officer ASI 7. Manzoor Ahmed visited place of incident on 23-06-2021, prepared memo of place of incident in presence of mashirs and mentioned in memo that there are no foot prints of cattles or peoples. Investigation officer recorded statements of witness Hazar and Raham Ali who are cousins of Complainant. Investigation officer also recorded statements of independent persons Muhammad Azeem and Hafeezullah Jakhrani who disclosed to the 1.0 that complainant has lodged false FIR and there is dispute over transaction of cattles between complainant and accused. Furthermore perusal of FIR shows that incident taken place on 31-05-2021 but complainant lodged FIR on 22-06-2021. Complainant has not explained delay in registration of FIR. Accused Ali Hassan is son of accused Gul Hassan, both accused are father and son. None received any injury from the hands of accused. though accused were armed with weapons. Reliance placed from Matahir Shah Versus State 2009 MLD 156 Karachi Honorable High Court, Sindh:
"Prima facie it appeared that entire material collected by the Investigating Officer, was considered by the Magistrate and then passed the order on merits and discussed all merits and demands of the case--- Validity---. Powers of High Court under S.561-A, Cr.PC. were to be used not in each and every case, but rarely in appropriate cases and there must be a material on the basis of which orders passed by the courts below be set aside--- When two courts below came to the conclusion that no fruitful result would be achieved, if matter proceeded, no interference was required---Magistrate was not to fill the lacuna left by the Investigating officer and to act as investigating officer of the case or to be a party, but he had only to scrutinize the matter on available material and it would depend upon him to agree or disagree with police report--Counsel for applicant had failed to show any illegality was committed by the courts below.
8. In the light of above facts and circumstance, R & Ps of case FR in hand has been examined, Looking into material, the report of 10 is accepted in "C" class, instead of "B" Class, bonds of accused discharged…"
2. The entire case on behalf of the applicant was rested on his counsel's argument that since the accused were never arrested the impugned order could not have been rendered.
3. Heard and perused. Learned counsel for the applicant has impugned the aforesaid findings, however, has remained unable to set forth a case that such findings could not reasonably have been rendered on the underlying record. The learned Magistrate has rendered an exhaustive order detailing as to how the case placed there before was found to be devoid of merit.
4. The learned Civil Judge has clearly recorded the controversy and taken a decision there upon based on the record placed there before. No exception in such regard has identified to this court by the applicant's counsel and no patent illegality/irregularity has been identified. The custody of the accused persons or lack thereof has not been substantiated to cause any doubt with respect to the record available before the learned Judge based upon which the impugned order is predicated.
5. This court has considered the impugned order and is of the view that the findings 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.