ORDER SHEET
IN
THE HIGH COURT OF SINDH BENCH AT SUKKUR
Crl. Misc. Application No.S-348 of 2022
(Dileep Kumar Vs. The State &
others)
|
Date |
Order with signature of Judge |
1. For Orders on office objection.
2.
For hearing of main case.
08-03-2023.
Mr. Sarfaraz Mailto, advocate for the applicant.
Mr. Shabbir Ali Bozdar, advocate respondents No. 4 to 7.
Mr. Shamsuddin Kobhar, advocate for respondents 8 & 9.
Mr. Zulfiquar Ali Jatoi, Additional P.G
for the State.
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1. The
facts in brief necessary for disposal of instant Crl.
Misc. Application u/s 561-A Cr.P.C are that an FIR Crime
No. 41/2022 u/s 30-2, 324, 337H(ii), 147, 149 PPC was
lodged by the applicant with PS Dahakri for murder of
his uncle Satam Kumar and injuries to PW Harsh with
intention to commit his murder. On investigation, an interim charge sheet was
submitted, whereby accused Muhammad Bachal and Sudheer were let off by the investigating officer, it was
followed by filing of final charge sheet whereby accused Mir Muhammad, Shahmeer, Bashir and Baroach were
also let off by the investigating officer. Learned trial Magistrate took the
cognizance of the offence against accused Hazaro
only; ignoring the opinion of DDPP who insisted for cognizance of the offence
against all the accused involved in the incident, vide order dated 14-06-2022,
which is impugned by the applicant before this Court by way of instant Crl. Misc. Application u/s 561-A Cr.P.C.
2. It is contended by learned counsel for the
applicant that the private respondents were fully implicated in commission of
incident either by the complainant in his FIR or by PWs Kanaya
Lal, Prithivi Raj and
others in their 161 Cr.P.C statements, therefore they
ought not to have been let off by the investigating officer by declaring them
to be innocent, on the basis of their plea of alibi or otherwise, as such, the impugned order being factually and
legally incorrect is liable to be set aside to their extent with direction to
learned trial Court to join them in trial as
accused, in accordance with law.
3. Learned APG for the State and learned
counsels for the private respondents by supporting the impugned order have
sought for dismissal of the instant Crl. Misc.
Application u/s 561-A Cr.P.C by contending that the applicant
being complainant of the case has made further statement, which is different to
his FIR and he has an alternate remedy to exhaust before learned trial Court by
filing an application u/s 193 Cr.P.C for joining of the
private respondents as accused in trial.
4. Heard arguments and perused the record.
5. It is settled by now that in-order to
make out a case for cognizance, the burden on the complainant is light. In the
instant matter, the private respondents were either named by the applicant in
his FIR or by his witnesses as are named above in their 161 Cr.P.C
statements; therefore, it was not within competence of the investigating
officer to have declared them innocent by disbelieving the version of the
complainant and his witnesses by believing the version of the private
respondents. By such act, the investigation officer obviously has exercised the
powers of the Courts, which alone is competent to declare the person under
accusation to be innocent or otherwise on the basis of evaluation of evidence.
In these circumstances, learned trial Magistrate by way of impugned order by
concurring with the opinion of investigating officer has committed wrong,
therefore, it is set aside to the extent of the private respondents. It is
pointed out by learned counsel for the parties that the very case now has been
sent up for trial to the Court of Sessions, in terms of section 190 (2) Cr.P.C. It is therefore, left over to the Court of Sessions
to examine the possibility of joining the private respondents in trial as
accused in accordance with law, on filing of such application by the applicant.
6. The instant Crl.
Misc. Application is disposed of accordingly.
JUDGE
Nasim /PA