ORDER SHEET
IN
THE HIGH COURT OF SINDH BENCH AT SUKKUR
Criminal Miscellaneous Application No.S-312 of 2022
|
Date |
Order with signature of Judge |
1. For orders on
MA No.2463/2022 (Urgency Application)
2.
For
orders on O/objection at flag `A`
3. For orders on
MA No.2464/2022 (Exemption Application)
4.
For
hearing of main case
5. For orders on
MA No.2465/2022 (Stay Application)
06-06-2022
Mr. Alam Sher Bozdar,
Advocate for Applicant
.-.-.-. -.-.-.-.-.-.-.-.-
1. Granted.
2 to 5. By means of instant
Crl. Misc. Application, applicant Mian Manzoor Ahmed, has prayed for setting-aside
order, dated 07.04.2022, whereby the learned Judicial Magistrate, Daharki took
the cognizance against him, whose name was placed by the Investigating Officer with
blue ink in Column No.2 of the final report, submitted under section 173,
Cr.P.C. in Crime No.28/2021, registered under section 302, 324, 337-H(ii), 114,
148 and 149, P.P.C., at Police Station Khenju,
Heard
the learned counsel for the applicant and perused the material available on
record.
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.
It may further
be observed that the 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.”
In
the light of the above-stated legal position, it appears in the case in hand
that the applicant is nominated in the F.I.R. by name with specific role of
instigating to co-accused and making straight fire with his Kalashnikov at
inured P.W Javed Ahmed, which hit him on his left arm. However, the
Investigating Officer let him off in final charge-sheet on the basis of defence
witnesses and plea of alibi.
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.
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 under section 561-A, Cr.P.C. Consequently, this Cr. Misc.
Application having no substance is dismissed in limine, along with listed applications.
JUDGE
Suleman Khan/PA