THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANO

Cr. Misc. Appln. No. S-72 of 2023

 

 

Applicant

 

Mst. Aisha Khatoon

 

 

Through Mr. Muhammad Afzal Jagirani, advocate

 

 

 

Proposed accused

 

Bakshal & others

Through Mr. Suhail Ahmed Vessar, advocate

 

 

 

State

 

Mr. Aitbar Ali Bullo, D.P.G for the State

 

Date of hearing

 

25-05-2023

Date of order

 

25-05-2023

 

 -.-.-.-.-.-.

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 16.02.2023, passed by the learned Additional Sessions Judge, Ratodero, whereby he has dismissed the application filed by the applicant U/S 22-A & 22-B Cr.P.C for lodging of F.I.R against proposed accused.

2.                          Learned counsel for applicant has argued that on 18.12.2022, applicant along with her brothers Shoukat Ali, Mashooque and sister-in-law Ashraf Khatoon went together Bakhshal’s house, situated at Nadir Shah Mohalla and were present in the house, meanwhile they identified proposed accused came there and proposed accused Imamuddin made straight fire from his repeater upon Shoukat Ali with intention to commit his murder, who succumbed the injuries, while proposed accused Fareed made straight fire from his pistol upon Mashooque Ali, who saved himself, such fire hit to Fayaz Sunani. It is further added that all proposed accused persons went out from the house by making an aerial firing, then applicant party went to P.S for lodgment of FIR and met with respondent No.1 i.e. SHO P.S Ratodero and narrated such facts of the incident, who advised to get postmortem of deceased, then FIR will be lodged against the proposed accused persons. He has further argued that after conducting the postmortem of deceased and funeral ceremony, applicant party again approached to S.H.O P.S Ratodero and requested to register the FIR, but he finally refused to register the same. He lastly submits that since the proposed accused persons have committed a cognizable offence and the S.H.O P.S. concerned is duty bound to register the F.I.R U/S 154 Cr.P.C, therefore, the application be allowed.

3.                          Learned counsel for proposed accused has submitted that proposed accused persons are innocent and they have not committed the murder of deceased Shoukat Ali; that on the day of alleged incident Mst. Ganhwar Khatoon wife of proposed accused No.1 (Bakhshal) and her daughter Mst. Arbeli were present in their house, meanwhile accused Himath Ali, Akbar, Ashique, Ali Muhammad, Luqman, Ghulam Sarwar, Shoukat Ali, Mashooque Ali entered into the house of Mst. Ganhwar Khatoon, situated at Nadir Shah Mohalla, then accused Himath Ali dragged her daughter Mst. Arbeli from her arms and accused Akbar Ali Sunani made straight fire from his pistol upon Fyaz Hussain, who succumbed the injuries, then accused Ghulam Sarwar Sunani made straight fire from his repeater upon Mst. Ganhwar Khatoon, said fire was not hit to Mst. Ganhwar Khatoon but hit to his companion Shoukat Ali, then all accused persons kidnapped Mst Arebli. He further submits that Mst. Ganhwar Khatoon, being complainant got register FIR bearing Crime No.153/2022 for offence under section 302 PPC with P.S Ratodero against the accused persons of the alleged incident. He lastly submits that applicant party filed this false application against the proposed accused persons in order to save the accused persons of case/crime No.153/2022, hence prayed for dismissal of instant application.

4.                          The learned D.P.G has opposed the present application and supported the impugned order.

5.                          Heard learned counsel for the applicant, learned counsel for the proposed accused, learned D.P.G and perused the record with their able assistance.

6.                          The applicant firstly approached the S.H.O P.S. Ratodero, who refused to lodge the F.I.R, thereafter, he approached the Justice of Peace, who called the reports from S.H.O P.S. Ratodero and I/c District Complaint & Redressal Cell Larkana, who have submitted their reports that actually due to matrimonial dispute brothers of applicant namely Himath Ali, deceased Shoukat Ali and others attacked upon the house of proposed accused and committed the murder of Fayaz Hussain aged about 10 years and injured Mst. Gul Bakhat and abducted Mst. Arbeli and in retaliation of firing while committing crime the brother of applicant Shoukat Ali received bullet injury by the hands of his accomplice. Thereafter the learned Ex-Officio Justice of Peace turned down his application vide impugned order dated 16.02.2023, hence this application.

7.                          The allegations against the proposed accused are that they being armed with deadly weapons and dandas entered into the house of the applicant at day time and committed murder of Shoukat Ali, the brother of applicant. The averments made in Misc. application, prima facie, disclose a cognizable offence, hence respondent No.1/S.H.O P.S. Ratodero was bound to register the FIR of the applicant but he failed to perform his statutory duty. In this respect reference can be made to case of Muhammad Bashir v. SHO Okara Cantt (PLD 2007 SC 539), wherein it has been held by the Honourable Apex Court that no authority vested with an Officer  Incharge of a Police Station or with anyone else to refuse to record an FIR where the information conveyed, disclosed the commission of a cognizable offence. Learned Additional Sessions Judge, Ratodero has also dismissed the Misc. application  without assigning  sound reasons. Perusal of material available on record reflects that admittedly in a fight Shoukat Ali, (the brother of the applicant) has been murdered and there is no denial from the proposed accused. However, there plea is some different.

8.                          In view of such, instant application is allowed, impugned order dated 16.02.2023, passed by the Additional Sessions Judge, Ratodero is hereby set-aside. S.H.O P.S. Ratodero is directed to record the statement of applicant in verbatim and if cognizable offence is made out, he should corporate the same in the register U/S 154 Cr.P.C and investigation of the case be conducted by the officer not below the rank of D.S.P.

9.                          In view of above, application in hand is disposed of.

                                                                                             JUDGE

Abdul Salam/P.A