THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Criminal Misc. Application No.S-74 of 2023
Applicants: Zulfiqar Ali Channa and Kartar Lal, through Mr. Athar Abbas Solangi, Advocate.
Respondents: The State Through Mr. Aitbar Ali Bullo, Deputy Prosecutor General, Sindh.
Respondent No.2/Complainant Rano son of Gulu Mal present in person.
Date of hearing: 07.04.2023
Date of Order: 07.04.2023
O R D E R
ZULFIQUAR ALI SANGI, J.- Through this Criminal Miscellaneous Application, applicants have impugned the Order dated 06.03.2023, passed by Family/Civil Judge & Judicial Magistrate, Kashmore at Kandhkot in Summary No.13/2023, (Re-Rano v/s. Kartar Lal and another), emanating from F.I.R. No.161 of 2022, registered at Police Station A-Section Kandkhot for offence under sections 316 & 34 P.P.C. wherein the learned Magistrate did not agree with the recommendation of the Investigating Officer for disposal of case in “C” Class and took cognizance of the offence and the applicants being aggrieved and dissatisfied with the said order have impugned it before this Court.
2. The allegations as per F.I.R. lodged by complainant Rano on 02.10.2022 are that his nephew Satesh Kumar aged about 14/15 years went to Beacon Light Grammar School, near Dakhan Bazzar for study as usual on 30.09.2022 but did not return home and at about 02.00 P.M Principal of the said school Kartar Lal called the brother of complainant namely Dharampal to come to school as his son Satesh Kumar was badly suffering due to maltreatment of a teacher, hence Dharampal went to school and found Satesh Kumar in horrific condition lying in office of Principal, on enquiry Satesh Kumar informed his father Dharampal that Teacher Zulfiqar Channa caught hold his arms and severely tortured him, resulting he fell down on the ground and raised cries, on which Principal Kartar Lal came there and brought him to office, where both the accused threatened him to remain silent and even did not take him to the hospital for first aid. Thereafter, complainant brought Satesh Kumar to home and then moved to hospital, but the injured after some treatment succumbed to injuries and died. The complainant party brought dead body to Taluka Hospital Kandhkot, informed police, got conducted postmortem and lodged instant F.I.R.
3. It is contended by learned counsel for the applicants that after registration of F.I.R. the matter was investigated by the Investigating Officer, the applicants were arrested and filed criminal bail application before the Sessions Judge, Kashmore at Kandkot and during pendency of bail application the complainant and his witnesses sworn their affidavits, contending that they have made private faisla and that they have no objection for grant of bail to the applicants and the applicants were admitted to bail; that the Investigating Officer conducted investigation and submitted his report under section 173 Cr.P.C. before the concerned court for disposing of the case in “C” Class but the learned Magistrate did not agree with the said report of the I.O and took cognizance and directed I.O to produce list of witnesses; that as per postmortem report no cause of death has been specified, therefore, the impugned order badly suffers from illegality and irregularity, hence the same may be set aside.
4. Learned Deputy Prosecutor General as well as complainant supported the impugned order and submitted that one child aged about 14/15 years has lost his life due to severe torture of a teacher, which fact is admitted by the Principal of the School (Kartar Lal), therefore, there is no illegality in the impugned order and the trial should be commenced. The complainant further stated that they had given no objection in private faisla for grant of bail to the accused, but the trial is supposed to be commenced in accordance with law as their child has lost his life due to torture of a teacher, which act is not warranted under the law, hence instant criminal miscellaneous application may be dismissed.
5. Heard learned counsel for the applicants, complainant and the learned Deputy Prosecutor General and perused the material available on record with their able assistance.
6. Admittedly, one child has lost his life in result of torture in school by a teacher and while perusing the postmortem report and medical evidence it transpires that the death of child was unnatural, therefore, this fact cannot be left unattended as this kind of crimes are prevailing in our society. The learned Magistrate while disagreeing the police report has given following reasons:
“5. Record reveals that that accused Kartar Lal and Zulfiqar Chana are specifically nominated in the contents of FIR with specific role, further PWs namely Dharampal and Vinesh Kumar fully supports to the version of complainant in their 161 Cr.P.C statements and no malafide intention or ulterior motives are shown on the part of complainant in order to implicate the present accused in this crime. Therefore, I do not agree with the report of I.O because I.O has failed to produce any solid evidence from which it may appear that such offence was not committed. The investigating officer has only relied upon statements of independent witnesses namely Nisar Ahmed, Rafique Ahmed, Muhammad Nawaz, Riaz Ahmed and Irfan Ali. In above circumstances, I am satisfying that from the material placed before me a prima facie case is made out for commencement of trial. At this stage the guilt or innocence of accused is not required to be decided, the court has only to see that whether sufficient evidence is available on record or not for commencement of trial. Therefore, I do not agree with the recommendation of I.O for disposal of case under “C” class. Therefore, SHO/IO PS A-Section Kandhkot is hereby directed to submit list of witnesses on prescribed Performa on or before 13-03-2023 at 08:30 A.M without fail.”
7. Result thereof, no illegality or infirmity has been found in the impugned order, same is accordingly maintained and this Criminal Miscellaneous Application is dismissed having no merits.
J U D G E
Manzoor