ORDER SHEET
IN THE HIGH
COURT OF SINDH BENCH AT SUKKUR
Cr. Misc. Application No.S-323 of 2022
|
Date |
Order with signature of Judge |
1.
For
orders on MA No.2541/2022
2.
For
orders on MA No.2542/2022
3.
For
hearing of main case
4.
For
orders on MA No.2543/2022
06-06-2022
Mr. Qurban Ali Malano, Advocate for Applicants
.-.-.-. -.-.-.-.-.-.-.-.-
O R D E R
ZAFAR
AHMED RAJPUT, J.-
Through
instant Criminal Misc. Application filed under section 561-A, Cr.P.C.,
applicants Shamsuddin @ Shaman and Ali Muhammad @ Ali seek setting-aside the
order, dated 01.06.2022, whereby the learned 1st Judicial Magistrate
(MTMC), Mirpur Mathelo took the cognizance against them by directing to issue
notice to them, who were let off by the Investigating Officer by placing their
names in Column No.2 of the Challan/report submitted under section 173, Cr.P.C
in Crime No.07/2022, registered at P.S. Jarwar, District Ghotki, under section
302, 114, 504, 34, P.P.C.
2. Heard the learned counsel for the
applicants and perused the material available on record.
3. It may be observed that two types of
accused are placed in Column No. 2 of the Challan, firstly those who are not
sent up for trial either for lack of sufficient evidence on record to connect
them with the commission of alleged offence or being found to be innocent by
the I.O. and shown in ‘blue ink’, leaving to Court to see whether they are to
be summoned for trial or not or those who could not be apprehended by the police
during investigation and are shown as absconders in ‘red ink.
4. Judicial Magistrates have been conferred
with powers under section 190, Cr.P.C. to take cognizance of offence upon
receiving the complaint of facts which constitute offence {under
section 190 (1) (a) ibid}; upon report in writing of such
facts made by any police officer {under section 190 (1) (b)
ibid}; and upon information received from any person
other than a police officer or upon his own knowledge or suspicion {under
section 190 (1) (c) ibid} that such offence has been
committed. It is well- settled law that a report submitted by the I.O. under
section 173, Cr.P.C. is not binding on the Judicial Magistrate who, therefore,
notwithstanding the recommendation of the I.O. regarding not sending up the
accused for trial, cancellation of case and discharge of the accused from the
case, may proceed to take cognizance as provided in section 193, Cr.P.C. and
summon the accused person to join the trial. In this regard, reference may be
made to the case of Falak Sher v. The
State (PLD 1967 SC 425)
wherein the scope of section 173, Cr.P.C. came up for consideration before
Honourable Supreme Court of Pakistan and following observations were made:-
“Under subsection (1), when the
investigation is completed the police officer is required to forward to the
Magistrate a report in the prescribed form. Under sub-section (3) when it
appears from the report forwarded under section (I), that the accused has been
released on the bond `the Magistrate shall made such order for the discharge of
such bond or otherwise as he thinks fit`. It is clear that under sub-section
(3) a Magistrate may agree or may not agree with the police report. It,
however, does not say what step the Magistrate should take if he disagrees with
the police report. If the Magistrate wants to start a proceeding against the
accused, he must act under section 190 of the Code of Criminal Procedure.
Section 190 provide that a
Magistrate ‘may take cognizance of any offence (a) upon a complaint, (b) upon a
police report, or (c) upon information received by him.
Now, the question is, if he
disagrees with the report, can he take action under clause (b) against those
whose names have been placed under column 2 of the Challan. As already pointed
out, the Magistrate is not bound by the report submitted by the Police under
section 173. When the said report is received by the Magistrate, the Magistrate
on the report itself may not agree with the conclusions reached by the
Investigating Officer. There is nothing in section 190 to prevent a Magistrate
from taking cognizance of the case under clause (b) in spite of the police
report.”
5. In the light of the
above-stated legal position, it appears in the case in hand that both the
applicants are not only nominated in the F.I.R. with specific role but the
witnesses of the complainant have also implicated them in their statements
recorded under section 161, Cr.P.C. As per FIR, applicant Shamsuddin @ Shaman
instigated his son, co-accused/ applicant Ali Muhammad @ Ali, not to spare
Muneer Ahmed, the son of the complainant Ghulam Yaseen, to which applicant Ali
Muhammad made straight fire with pistol at Muneer Ahmed, which hit him on his
head, then applicant Shamsuddin @ Shaman also made straight fire with pistol at
Muneer Ahmed, which hit him on his right shoulder, who succumbed to injuries on
the way to hospital. However, the Investigating Officer let both the applicants
off in final Challan on the basis of defence witnesses and plea of alibi.
6. Plea of absence of accused from the place
of occurrence at the time of commission of offence is “plea of alibi”; it is in fact plea of defence. Plea of alibi is the weakest type of plea and
cannot be given any weight unless same is proved at trial from very cogent,
convincing and plausible evidence. Burden to prove plea of alibi is on the accused which is to be proved in accordance with
law at trial; however, the statements of defense witnesses recorded under
section 161, Cr.P.C. in support of plea of alibi
are not relevant and admissible for inferring innocence of the accused at
investigation stage, as deciding plea of alibi
at investigation stage would amount to pre-trial verdict, which jurisdiction is
not vested with the investigation officer/agency.
7. In view of above facts and discussion, the
impugned order does not suffer from any illegality or infirmity, so as to call
for any interference by this Court under its inherent jurisdiction.
Consequently, this Criminal Misc. Application having no substance is dismissed
in limine, along with listed
applications.
JUDGE
Suleman Khan/PA