IN THE HIGH COURT OF SINDH

AT LARKANA

 

 

 

Cr. M. A. S-403of 2021        :           Nisar Ahmed Jagirani vs.

Gulmeer &Others

 

For the Applicant                 :           Mr. Ghulam Mohiuddin, 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. (3-5). The applicant has impugned the Order dated 17.06.2021, passed by the Ist Civil Judge and Judicial Magistrate, Larkana, whereby the case was disposed of under “C” Class.  The operative part of the impugned order is reproduced here-in-below:

 

“It is pertinent to mention here that on first occasion IO forwarded the case to be disposed of under C class but in light of circumstances of the case the case was referred to SSP Larkana for deputing any officer not below the rank of DSP to conduct further investigation.  Again after further investigation the IO submitted that the case should be disposed off under C Class.

It is matter of record that number or FIRS has been lodged by the complainant party against the accused persons. Such cases was marriage of Mst. Shumaila with Gul Meer (accused in this case as well as in No.14/2021 PS Taluka, FIR No.16/2021 PS Rasheed Waggan). In FIR No.14/2021 PS Taluka complainant Mahi Khan (witness in instant FIR) alleged that her wife Mst. Shumaila is abducted by accused Gul Meer and other co-accused (who are also nominated in this FIR). Later on Mst. Shumaila filed constitutional petition No.D-2250/2021 before Honourable High Court of Sindh Karachi against Mahi Khan, complainant of this case and others.  In Petition No.D-2250/2021 Mt. Shumaila stated that she has married Gul Meer with her own freewill and further stated that she has not been kidnapped or abducted by any person.  During petition No.D-2250/2021 the IOs of above mentioned FIRs submitted before the Honourable High Court that they shall file “C” Class repots in above mentioned FIRs.

Though the statement of independent witnesses recorded by police during investigation has not that much credibility yet it transpires the picture that the instant as well as other cases are outcome of the marriage of Mst. Shumaila and accused Gul Meer.

As far as opinion of investigation officer/DS/inquiry 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. Page 1187.

At this stage the court is not suppose to go deeper in the case and cannot evaluate the material as done at the time of trial.  The investigation report is not binding upon the court yet the court has to act judiciously while disposing of investigation report.  It is settled principle of law that the Magistrate is not bound to agree with the report submitted by police under section 173 Cr.P.C. and he is at liberty under the law, either to agree or disagree with the conclusions reached by the investigation officers. Reliance is placed on casesof Nazimuddin VS 2nd Civil Judge 2017 PCr. L.J. 26 and Sayeda Afshan vs. Syed Farukh Ali and three others reported as PLD 2013 Sindh 423.

Twice the investigation is conducted in the instant case and nothing credible is brought on record by the police to take cognizance against the accused persons and according to investigation there is lack of evidence to connect the present accused with the commission of crime.

In view of above discussion this court is of view that the instant FIR seems to be birth of matrimoinial dispute between the parties hence IO’s recommendation of the case under “C” class is accepted and disposed off 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.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.