THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANO

Criminal Misc. Application No. S-262 of 2022

Applicant	Manzoor Ahmed, Through Mr. Saeed Ahmed B. Bijarani,  advocate.
Respondent No.4	Allah Dino Through Mr. Muhammad Afzal Jagirani, advocate
State	Through Mr. Aitbar Ali Bullo, D.P.G for the State
Date of hearing:	20-02-2023
Date of order:	20-02-2023

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O R D E R

ZULFIQAR ALI SANGI, J.- Through this Criminal Miscellaneous Application, filed under Section 561-A Cr.P.C, the applicant has assailed the impugned order dated  02.03.2022, passed by the learned Family/Civil Judge & J.M, Kashmore @ Kandhkot on final report U/S 173 Cr.P.C, whereby learned Magistrate while disagreeing the police report took the cognizance of the case U/S 190 Cr.P.C on a police report and joined the present applicant as accused and straight away issued N.B.Ws against him.

2. Learned counsel mainly contended that during course of investigation the applicant was found innocent and his name was placed in column No.II of the challan but the learned Magistrate failed to consider the material collected during course of investigation and has disagreed with the opinion of police. He further contended that issuance of NBWs against applicant is very harsh and adverse, hence the same are liable to converted into B.Ws. Learned counsel further contended that it would be wastage of precious time of the Court and abuse of process of law, if the applicant is left to face the consequences of the impugned order and that the impugned order is liable to be set-aside. Learned counsel in support of his contentions, referred the order dated 09.02.2014 passed in Cr. Misc. Appln. No.D-260 of 2013, (ii) Crl. Misc. Appln. No. S- 336/2021 (iii) Crl. Misc. Appln. No. S- 128/2020 and  Crl. Misc. Appln. No. S-250/2020, in which the N.B.Ws issued against the let-off accused, were converted into the B.Ws.

3. The Hon’ble Supreme Court of Pakistan while dealing with such like case vide unreported order passed in Criminal Petition No. 105-K of 2002 in case of Shah Murad and others v. The State, has observed as under:-

“There can be no cavil with the proposition that; the trial Court is not bound by the police report submitted under the provisions of Section 173 and 190 Cr.P.C. In law it has ample powers to agree or disagree with the information laid by the police and to discharge a person or to take cognizance of the crime against any person concerned with the commission of the crime whether sent-up or not. Since the trial Court did not act without jurisdiction by summoning the petitioners, to this extent we are convinced that the order was rightly upheld by the High Court, there is however a grievance of the petitioners that; in the first instance, it would always be proper and fair to issue summons or at-least bailable warrants in order to secure the attendance of the petitioners who were not sent-up.”

4. In view of submissions made by learned counsel and the dictum laid down by Hon’ble Apex Court, the NBWs issued against the applicant are converted into B.Ws with directions to the applicant to join the trial within ten days hereof by furnishing surety in the sum of Rs.100,000/- (One hundred thousand rupees) and P.R bond in the like amount to the satisfaction of learned trial Court. It is made clear that in case of failure by applicant to surrender and join the trial within stipulated period, this order shall stand recalled automatically.

5. This criminal miscellaneous application stands disposed of in above terms.

                                                                                   JUDGE

Abdul Salam/P.A