IN THE HIGH COURT OF SINDH
CIRCUIT COURT, LARKANA.
Cr. Misc. App S- 188 of 2021. : Muhammad Hassan vs. The
State and others.
For the Applicant : Mr.AbdullahKehar, Advocate
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 was nominated in an FIR, which was cancelled under ‘C’ class, vide order dated 09.6.2021 passed by learned Civil Judge and Judicial Magistrate, Shikarpur. Even though the FIR has been cancelled, learned counsel submits that the applicant is aggrieved as the FIR was not cancelled in ‘B’ class, as was expected by the applicant. It is considered appropriate to reproduce the relevant portion of impugned order herein below:
“07. As for as opinion of Investigation Officer is concerned, no doubt opinion of police/investigation officer is not binding upon the court but the same has its own value and importance, particularly when it is supported by sufficient and unbiased material. In this regard I am fortified with the case law reported in 2005 P.Cr.L.J (Lah) where in it was held that:
“There is no doubt that opinion of investigation Officer or the police is not binding on the Court, the Court decides on the basis of evidence produced before him. However, the opinion of a police Officer/Investigation Officer has its own value and importance particularly, when it is supported by sufficient and unbiased material. The police Officer/ Investigation Officer forms opinion after visiting place of occurrence. He inspects scene of occurrence after the registration of FIR and records statements of those persons who has no concerned with the either party. He gets opportunity to examine other circumstantial evidence. Therefore, if a police Officer/Investigating Officer performs his functions honestly and efficiently, he forms his opinion on basis of material which is not available to any other person. Therefore, despite the fact that his opinion is not binding still it has a lot of relevancy and becomes a basis for important decision. Similarly, when a police Officer /Investigating Officer recommends cancellation of an FIR, he reaches to this conclusion after a thorough and complete investigation. Cancellation report in the absence of any mala fide, bias etc should therefore, be given due consideration. It should only be rejected when there are reasons to believe that the cancellation report has been prepared under any extraneous influence or on the basis of bias, prejudice, etc.
08. Thus in view of the above discussion, I hereby approve the police report submitted by the I/O under ‘C’ cancelled class instead of ‘B’ class, due to the reason of insufficient as well as meager evidence against the accused in respect of commission of offence. Order passed accordingly and original police papers be returned to the concerned investigation officer.”
2. 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.
3. The case against the applicant has been canceled and it is the discretion of the Magistrate to determine the appropriate provision of law under which such cancellation was warranted. Such discretion appears to have been exercised judiciously. It is settled law that when jurisdiction has been exercised in accordance with law then no interference merited therein simply upon assertion that another conclusion could also be drawn from the same facts / evidence.
4. 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.
5. 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.
6. 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 NaheedNusrat 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.