ORDER-SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA  

Crl. Misc. Appln. No. S- 285 of 2022.

Date of hearing

Order with signature of Judge

10.02.2023.

            Mr. Gulsher Junejo, Advocate for the applicant.

            Mr. Aitbar Ali Bullo, Deputy Prosecutor General.

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Zulfiqar Ali Sangi, J: Through instant application under Section 561-A, Cr.P.C, applicant Shahid has assailed Order dated 08.10.2022, passed by learned Civil Judge and Judicial Magistrate-II, Shahdadkot, in case/ F.I.R      No.08 of 2022 registered at Police Station A-Section Shahdadkot on report filed under Sections 170/ 173 Cr.P.C, whereby the learned Magistrate has declined to delete Section 377 P.P.C and add Section 376 (3) P.P.C.

            Precisely, facts of the case are that applicant/ complainant Shahid lodged aforesaid F.I.R, for offence under Section 377 & 34 P.P.C, for the alleged rape with his nephew Hasnain by the accused persons. 

            On completion of usual investigation, the police filed Report under Section 170/ 173 Cr.P.C before learned Magistrate praying therein for deletion of Section 377 P.P.C and adding Section 376 (3) P.P.C in the case; however such request of the police was turned down by the learned Magistrate vide impugned order. It would be conducive to reproduce impugned order hereunder:

            “Heard and perused the record. I.O of this case submitted the charge sheet under section 377 P.P.C and added section 376 (iii) P.P.C. I have gone through the record available. The victim with whom offence is committed is made out, according to Section 375 P.P.C the rape can be committed with woman not man. The contents of F.I.R and material shows that it is un natural offence. The prima facie of case is made out of un natural offence under Section 377 P.P.C. The P.Ws also supported the complainant to the extent of un natural offence. Therefore, I take cognizance under Section 377 P.P.C and 34 P.P.C and delete section 376 (iii) P.P.C. The offence is triable by this Court.”

            Learned counsel for the applicant has, inter alia, contended that the impugned order is illegal, which has resulted in miscarriage of justice, as it has been passed in violation of the relevant law. He further contended that learned Magistrate has not considered the fact that I.O recommended the final report in view of the material collected by him during course of investigation, which constitute an offence punishable under Section 376 (3) P.P.C. Per learned counsel the victim is of minor age, therefore, ingredients of Section 376 (3) P.P.C are fully applicable in the case, but the learned Magistrate without appreciating this fact has passed the impugned order in slipshod manner. Lastly, learned counsel submitted that the impugned order is not speaking and justified, which is liable to be set-aside and prayed for its setting aside. 

            Learned D.P.G has 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. He further submitted that the impugned order passed by learned Magistrate 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.

            It appears that, through the impugned order the learned Magistrate has declined to delete Section 377 P.P.C and add Section 376 (3) P.P.C. in the case. This appears to be not a final order, which would be binding upon the trial Court to frame the charge against accused persons for that offence, but the charge of the case would be framed only on the basis of material collected by the prosecution. The Section 221 Cr.P.C. requires that the “charge” shall state the offence; it shall also describe specific name of the offence and that the law and section of the law against which the offence is said to have been committed shall also be mentioned in the charge. As such, it would be open for prosecution to frame the “charge” against accused on the basis of material collected by the prosecution.

            In view of above position, instant criminal miscellaneous application being merit-less is hereby dismissed.

                                                              Judge

Ansari