ORDER SHEET

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Cr. Misc. Application No.S-122 of 2022

Date	Order with signature of Judge

1. For orders on MA No.1064/2022

2. For orders on office objection at flag `A`

3. For orders on MA No.1065/2022

4. For hearing of main case

14-03-2022

Mr. Manzoor Hussain Narejo, Advocate for the applicant

.-.-.-. -.-.-.-.-.-.-.-.-

1. Granted.

2 to 4. This application is filed against the order dated 23.02.2022, passed by learned Civil Judge & Judicial Magistrate-I, Gambat wherein learned Magistrate has approved the summary submitted by I.O to be disposed of under ‘B’ class.

I have heard learned counsel for the applicant and perused the impugned order. In paragraph-4 of the impugned order the learned Magistrate has observed as under:-

“04. The perusal of record transpires that FIRSTLY; P.W Mithal did not lend support to the case of prosecution. P.W Muhammad Mithal neither stated the date, time & place of incident nor nominated any of the accused persons by their names nor described the role of any accused persons in commission of the offence. He only stated that 06 persons barged into his house and caused firearm injury to his son Shaman on his calf. They raised cries and on cries, accused persons departed from their housed. P.W Shaman in his statement under section 161 Cr.P.C did not state the locale of injury, which he suffered at the time of incident. He only stated that accused Muhammad Yousif made straight fire from his Kilashankov over him and he fell down. Secondly; although the prosecution claims sufferance of injury of injured Shaman by the Kilashankov bullet; however, no empty of Kilashankov was ever recovered during investigation. THIRDLY; according to FIR, accused Muhammad Yousif made fire upon injured Shaman Ali; however, I.O placed on record Call-Data-Report (CDR) of accused Muhammad Yousif’s cell phone number, which shows that the location of accused Muhammad Yousif at the relevant date and time of incident was within SobhoDero city near High School and not in village Sadiq Kalhoro. FOURTHLY; according to FIR and PW Shaman accused Muhammad Yousif made “straight fire” upon injured while the location of injury is mentioned in FIR at the calf (lower-leg) of injured. Further the Medical Officer also certified that fire-arm wound entry was on medial-side of left lower leg and exit entry was on lateral side of lower leg- through & through- The perusal of FIR, statement u/s 161 Cr.P.C of P.W Shaman in juxtaposition with MLC of Medical Officer transpires a sizeable conflict with each other inasmuch as no straight fire could hit at the medial side (inner side) of lower leg of a person. In normal course of life, it is not possible that a persons with a sophisticated weapon could cause injury specifically to a lower-leg that too from medial side without causing any damage or fracture to the bone unless in extraordinary circumstances or, I am constrained to observe, in premeditated arrangement, however, insofar as the extraordinary circumstances are concerned the prosecution did not spill the beans to infer any extraordinary circumstance; thus, the only option left for me is to believe that it was a premeditated arrangement by complainant party in order to create a smart defence s according to I.O a FIR No.01/2022 was already lodged by accused Muhammad Yousif against the present complainant & P.Ws Gulshan and Shaman.”

Learned counsel for the applicant has admitted these facts and submits that the same observations are correct, however he submits that statement of the witnesses were recorded when they were in custody. He next contended that evidence is required to be recorded therefore Magistrate ought to take cognizance. There is no force in this contention in view of the observations of learned Magistrate. No illegality or infirmity has been found in the impugned order which requires any interference by this court, therefore this application is dismissed in limine along with listed applications.

JUDGE

Suleman Khan/PA