IN THE HIGH COURT OF SINDH
AT LARKANA
Cr. M. A. S-307 of 2020 : Khan Bahadur vs.
S.H.O. P.S. Rasheed Wagan&Others
For the Applicant : Mr. Abdul Wajid Khokhar, Advocate
Date of hearing : 10.02.2022.
Date of order : 10.02.2022
ORDER
Agha Faisal, J. (1). Over ruled (2). Granted; subject to all just exceptions. (3). The applicant has impugned the Order dated 11.09.2020, passed by the learned 1st Civil Judge and Judicial Magistrate, Larkana, whereby the case was disposed of under “C” Class. The operative part of the impugned order is reproduced hereinbelow:
“From perusal of police papers it appears that I/O recorded statements of defense witnesses namely Hubdar All @ Habibullah, and Muhammad Bux. They have unanimously stated thatno such Incident has taken place. It is settled law that the investigationreport is not binding upon the court yet the court has to act judiciouslywhile disposing of investigation report. At this stage the court is notsuppose to evaluate the material as done at the time of trial. Reliance is placed on case laws reported as Shah Muhammad Vs SH0/in chargeInvestigation Officer 2019 PCr.L.J 648 Karachi Honorable High court Sindh and NazimuddinVS 2ndCivil Judge 2017 PCr. L.J. 26 Karachi Honourable High Court Sindh.
The FIR transpires that there is matrimonial dispute between theparties. Moreover, the complainant has stated in FIR that he got injuresat the hands of accused, complainant's version is also supported by hisP.W, butI am afraid complainant neither submitted any medical Certificate/evidence nor has he submitted any letter from police formedical treatment. Apart from this there is three months delay inlodging of FIR and no plausible explanation is given by the complainant side regarding such delay. Keeping in view all such circumstance it appears that the accusation against the accused persons will not beproved if the cognizance is taken by this court.
As far as disposal under B-Class is concerned, this court is of the view that I/0 has failed to show any malafide on the part of complainant, Hence I/O’s recommendation of the case under B-Class is declined. This court is of the view that there is insufficient material to connect the accused person with the commission of the offence therefore, final report is converted into C- Class and disposed of accordingly.”
2. Learned counsel submits that the record/evidence was not appreciated in proper perspective; hence, the impugned order ought to be set aside.
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. The learned Magistrate 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.
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.
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.