ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Crl.Misc.Appln.No.S-146 of 2022.

DATE OF HEARING

ORDER WITH SIGNATURE OF HON’BLE JUDGE

1. For orders on office objection ‘A’.

2. For hearing of main case.

06.02.2023.

                   Mr. Muhammad Afzal Jagirani, advocate for the applicant.

                   Mr. Riaz Hussain Khoso, Advocate for private respondents.

                   Mr. Aitbar Ali Bullo, Deputy Prosecutor General.

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ZULFIQAR ALI SANGI, J;- The concise facts leading to passing of the instant order are to the effect that the private respondents, after having formed an unlawful assembly and in prosecution of their common object, fired at the applicant/complainant party with intention to commit their murder but the said fires hit to their Car, for that an FIR was lodged by the applicant with P.S, Qubo Saeed Khan,  it was then cancelled by learned 1^st Judicial Magistrate, Shahdadkot, under “C” class, vide order dated 20.05.2022, which has been assailed by the applicant before this Court by way of instant Crl.Misc.Application U/S.561-A Cr.PC.

                   Per applicant’s counsel argued on previous date that the learned Magistrate has disposed of FIR of the applicant under “C” class by way of impugned order on the basis of dishonest investigation, therefore, such order being illegal is liable to be set aside with direction to learned Magistrate to take cognizance of the incident. He relied upon case of Mst. Bano v. Civil Judge & Judicial Magistrate No.XII, Hyderabad & others (2019 YLR-2178).

                   Conversely, learned counsel for private respondents contended that no such incident has taken place but the parties are inimical with each other over the landed property and such civil litigation is also pending adjudication before the various Courts; that the investigation officer finding private respondents innocent, recommended the disposal of FIR under “C” class which has rightly been accepted by learned Magistrate in accordance with law by way of impugned order, therefore, the instant Crl.Misc.Application filed by the applicant is liable to be dismissed. 

                   Learned D.P.G for the State by supporting the impugned order has sought for dismissal of the instant Crl.Misc.Application contending that no illegality has been committed by the learned Magistrate while passing the impugned order which is well reasoned and it does not call for any interference by this Court.         

                   Heard learned counsel for the parties and perused the material made available on record with their able assistance.

                   It is borne out from the record that the parties admittedly are disputed over landed property and FIR of the incident has been lodged with delay of one day for which no plausible explanation has been furnished which obviously is reflecting consultation. Moreover, the identification of accused at night time is always presumed to be weak piece of evidence as has been held by the Honourable Apex Court. In addition to this, further statements of the complainant and his witnesses recorded with inordinate delay of 12 days with regard to identification of one of the unknown culprit, cannot be equated with the FIR and it obviously reflected adversely upon version of the complainant and that there was no mention of mode of information regarding identification of the said unknown culprit. Further, the CDR reports of the accused collected during course of investigation did not reveal their availability on the same day, time and place of incident but such piece of evidence indeed was not rebutted by the complainant before learned Magistrate. No doubt the ipse dixit (opinion of I.O) is not binding on the Court(s), however, the same is to be looked into tentatively alongwith the material collected by I.O during the investigation including the surrounding circumstance to believe or to disbelieve his report, therefore, learned Magistrate was right to record cancellation of FIR of the applicant under “C” class on the basis of police report by giving cogent reasons. No illegality even otherwise, is pointed out, which may justify making interference with the impugned order by this Court. Consequently, the instant Crl.Misc.Application is dismissed accordingly.

JUDGE  

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