ORDER-SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA  

Crl. Misc. Appln. No. S- 38 of 2020.

Date of hearing

Order with signature of Judge

25.11.2022.

            Mr. Nisar Ahmed G. Abro, Advocate for the applicant.

             Mr. Mumtaz Ali Brohi, Advocate for respondent No.2.

                        Mr. Aitbar Ali Bullo, Deputy Prosecutor General.

ORDER

Amjad Ali Sahito, J: Through instant application under Section 561-A, Cr.P.C, applicant Abdul Karim has assailed Order dated 17.02.2020, passed by learned Civil Judge and Judicial Magistrate, Thull (District Jacobabad), in F.I.R No.02/2020, registered at Police Station RD-44, under Sections 395, 506 (2), 504  P.P.C, whereby the learned Judicial Magistrate accepted the report under Section 173, Cr.P.C submitted by SHO concerned and disposed of the said case/ FIR under “C” class.

            Precisely, facts of the case are that complainant Abdul Karim lodged F.I.R at Police Station RD-44, to the effect that, accused Jaffer and others have looted away 300 bags of paddy grain and extended threats of murder, hence this F.I.R. 

            During investigation, the investigating officer examined witnesses of complainant as well as independent persons and recommended disposal of the subject FIR under “B” class.  The learned Judicial Magistrate did concur his opinion with the report of Investigation officer, approved disposal of the case/ FIR under “C” class instead of “B” class.

            Learned counsel for the applicant has, inter alia, contended that the impugned order is illegal, which has resulted in miscarriage of justice; that the impugned order has been passed in violation of the law laid down by this Court; that learned Magistrate has not considered the fact that I.O recommended the final report under “B” class on the basis of statements of extraneous persons/ defence witnesses, which has no value in the eyes of law; that no fair, impartial and transparent investigation has been carried out by the Investigation Officer; that the concerned police with a view to save the respondent/ accused got recorded the statements of interested persons produced by the respondents/ accused. Lastly, the learned counsel for the applicant submitted that the learned Magistrate has not passed reasonable and speaking order, which is liable to be set-aside. 

            Learned Advocate for respondent No.2, as well as learned D.P.G supported the impugned order and submitted that the same is legal and has been passed after giving due consideration to the material available on record and impugned order does not suffer from any illegality or infirmity.

            I have given due attention to the submissions made by the learned counsel for respective parties and carefully perused the record.

            It is well established law that the police opinion is not binding upon the Court and Magistrate is not bound to agree with the police report and he is at liberty under the law, either to agree or disagree with the conclusion drawn by the Investigation Officer. The Magistrate is not expected to blindly follow the investigation conducted by the police, as ipse dixit of police is not binding on Magistrate. Of course, the Magistrate is legally bound to apply his mind to the material brought before him and then form his opinion about the matter. However, after applying his judicious mind to the material placed before him, if he is of the view that opinion formed by the I.O in the report under Section 173 Cr.P.C is just and appropriate, he is fully competent to accept the report and dispose of the case as proposed by the Investigating officer.

            The requirement to take cognizance or otherwise on a police report is subject to satisfaction of the Magistrate to the effect that such ‘offence’ has been committed, which opinion should also not result of detailed appraisal of inquiry because taking cognizance, at the most, does not necessarily result in declaring one as ‘culprit’ but he continues with status of ‘accused’ which too with presumption of innocence.

            Perusal of impugned Order reflects that, during course of investigation the I.O of the case also recorded statements of prosecution witnesses shown in F.I.R, in terms of Section 161 Cr.P.C. Besides, the I.O also recorded statements of independent persons, who falsified version of the complainant. While passing the impugned order the learned Magistrate has dilated upon merits of the case and has observed as under:

· F.I.R is delayed for more than one month, which creates serious doubts in the prosecution story.

· During course of investigation the I.O prepared memo of place of incident which transpired that there is non-agricultural land of the complainant where from nothing was recovered or secured which can be used as proof of the incident.

· Investigation revealed that old pitched enmity existed between the parties since long.

· The I.O visited the village and interrogated the nekmards, who also disclosed that no such incident took place.

· Both the parties live near to Police station, and if the alleged offence had taken place the co-villagers would have given evidence.

· The record reflected that the land of complainant is non-agricultural and the same is near to Police station, if the accused persons had committed the offence and have shifted 300 plastic sacks of the rice to the tractor trolley it take huge time to do so and the complainant did not rescue the same by calling the police from nearby police station.

            Keeping in view the above factual position, the learned Magistrate has passed the impugned order concurring his opinion with the police report; which appears to be legal and proper and does not call for interference by this Court.

            In the light of above position and discussion, this criminal miscellaneous application being without merit is hereby dismissed. However, the applicant/ complainant is at liberty to file a direct complaint of the matter before the Court having jurisdiction, if so advised.

                                                              Judge

Ansari