ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA.

Cr. Misc. Appln. No.S- 387 of 2023.  

Date of hearing                                Order with signature of Judge.

                        1.For orders on M.A. No.5014/2023.

2.For orders on office objections as flag A.

                        3.For orders on M.A No. 5015/2023.

                        4.For hearing of main case.

                        5.For orders on M.A No.5016/2023.

16.11.2023.

                        Mr. Ahsan Ahmed Qureshi, advocate for the applicants.  

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1. Granted.

2. Overruled.

3. Granted subject to all just exceptions.

            4&5. Learned counsel submits that the applicants after thorough investigation conducted by J.I.T the FIR in question was disposed of by the police under cancelled ‘C’ class  and such report in terms of Section 173 Cr.P.C was submitted by the police before Judicial Magistrate Khanpur. The Judicial Magistrate after hearing the parties, on perusal of record produced before him has taken cognizance, thereby issued direct N.B.Ws against them. He, therefore, submits that such practice on the part of Judicial Magistrate is harsh one and has been deprecated by the Superior Courts. In support of his contention, he places his reliance upon  an unreported  case law  vide order dated 08.11.2010 passed by this Court in Cr. Misc.Appln. No.S-165 of 2010 re: Loung Khan and others v. The State, and submits that he will not press instant application if by converting  N.B.Ws into B.Ws, surety amount may be fixed so that applicants may appear/ surrender before the trial Court/the Magistrate.

Learned A.A.G present in Court in some other matters waives notice and extended no objection.

                        It is settled law that if an accused, after thorough investigation, has been let off  and his name  has been kept in column II of the challan or I.O dispose of case/FIR under ‘C’ class or any other category of disposal in terms of Police Rules, the Magistrate is required to issue summons to such accused instead of issuing warrants. Reliance is placed on an unreported case law vide Criminal Petition No.105-K of 2002 re: Shah Murad and others v. The Sate in which vide order dated 11.12.2002, honourable Apex Court observed as under:

“4.        There can be no cavil with the proposition that the trial Court is not bound by the police report submitted under the provisions of Sections 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 person or to take cognizance of the crime against any person concerned with the commission of the crime whether sent up or not.  Since he 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.  It would only be expedient to issue coercive process if the petitioners had disobeyed the summons or avoided to appear despite the execution of bailable warrants. The course adopted by the trial Court to say the least in the circumstances appear to be harsh. Mr.Abdul Rahim Kazi, learned counsel for the complainant concedes that the process of non-bailable warrant may be converted into the summons to which proposition, learned Additional Advocate General, who is present in Court in connection with other cases, has also no objection. On his part, learned counsel for the petitioners undertakes that process order being modified by this Court, petitioners  shall surrender before the trial Court and execute their bonds for their appearance before the Court during the pendency of the trial.  Needful shall be done within two weeks from today.

            Accordingly the application in hand is hereby disposed of.  However, the impugned order is hereby modified to the extent that N.B.Ws  as has been ordered by trial Court are converted into B.Ws  and the applicants are directed to furnish their surety in the sum of Rs.100,00/= (Rupees One Lac only) each and P.R bond in the like amount to the satisfaction of learned Magistrate/trial Court.          

JUDGE 

Shabir