IN THE HIGH COURT OF SINDH AT KARACHI
Criminal Misc. Application No. 486
of 2024
(Muhammad Altaf Khan vs. The State)
|
DATE |
ORDER
WITH SIGNATURE OF JUDGE |
Through this Criminal Misc. Application,
applicant/accused Muhammad Altaf Khan has called in question order dated
23.04.2024 passed by Judicial Magistrate Sobhodero @ Ranipur, on the report of
I.O submitted under Section 173 Cr.P.C in FIR No. 196 of 2023 for offence under
Section 9(c) of the CNS Act 1997 registered at P.S Ranipur, whereby name of the
applicant was placed in column No.2 of the challan. However, concerned
Magistrate disagreed with the opinion of the Investigating Officer and joined
the applicant as accused and issued NBWs against remaining two accused namely
Sabit Ali @ Sabo and Khaliqur-Rehman, who were shown absconders in the final
challan.
2. Succinctly, the facts as mentioned in
the FIR are that ASI Riaz Ali of PS Ranipur along with his subordinate staff
left police station and started snap checking at link road Nangrija Railway
Phattak and during snap checking at about 1930 hours signaled a motorcycle on
which two persons were sitting, who on seeing police party, threw their
motorcycle and while taking benefit of darkness ran away from the spot. Police
party checked motorcycle and found one black plastic shopper containing 2050
grams of Charas, which was sealed at spot in presence of mashirs PCs Ghulam
Asghar and Fayyaz Hussain and motorcycle was also seized. Thereafter case
property was brought at P.S where FIR bearing Crime No.
196/2023 for offence under Section 9(c) of CNS Act 1997 on behalf of state.
3. Learned advocate for the applicant
mainly contended that Judicial Magistrate while passing the impugned order has
failed to consider the plea of alibi raised by the applicant during
investigation and statements of D.Ws recorded during investigation. It is
further argued that opportunity of hearing was not provided to the applicant and
he was joined as accused without assigning sound reasons. Lastly, submitted
that impugned order is arbitrary, against the principles of natural justice and
in violation of Audi alteram partem (no one should be condemned unheard), hence,
prayed that such order may be set aside.
4. Addl. P.G argued that opinion of I.O is
not binding upon the Magistrate, he may disagree with
his opinion. Addl. P.G further argued that impugned order does not suffer from
any infirmity or illegality and prayed for dismissal of the application.
5. In order to appreciate contentions
raised by learned counsel for the parties, we have perused the impugned order.
Relevant portion is reproduced as under:
“7. In view of above discussed facts and
circumstances, the evidence collected by investigation officer is not
sufficient, therefore, I am of the considered opinion for taking cognizance of
offence against accused persons in the instant case. In framing my opinion I am
supported by guide lines of Honorable Superior Courts provided in reported
judgments as Fed. Pakistan versus Malik Mumtaz Hussain 1997 SCMR 299, MANSHA
and 7 others vs. ILLAQA MAGISTRATE POLICE STATION BAHLAK, DISTRICT FAISALABAD
AND 7 OTHERS (PLD 1997 Supreme Court 339), BAHADUR AND ANOTHER v. THE STATE AND
ANOTHER (PLD 1985 Supreme Court 62), GHULAM HUSSAIN and others v. THE STATE
(1985 P.Cr.L.J 2334), HUSSAIN AHMED versus IRSHAD BIBI (1997 SCMR 1503) and
(2022 YLR Note-33). In light of above discussion I am of opinion that from the
material placed before me a prima facie case is made out for taking cognizance.
At this stage this court is not in position to decide the guilt or innocence of
the present accused. As for deciding the guilt or innocence of the accused
evidence is to be recorded. Therefore, I hereby take cognizance of offence
under section 9-C CNS Act against all accused persons named above including
accused Muhammad Altaf. Since the accused namely Sabit Ali @ Sabo S/O Gul Bahar
Jamro and Khaliq-ur-Rehman S/O Shafiq-ur-Rehman Pathan are shown absconders,
therefore, office is directed to issue NBWs against them and issue BWs in sum
of Rs.10,0000/- (one lac) against accused Muhammad Altaf Khan S/O Niaz Muhammad
Pathan. Moreover section mentioned in the case is exclusively triable by the
court of Honorable Sessions Judge, therefore, R&Ps of this case be sent to the Court of Honorable Sessions Judge Khairpur
for further proceedings after completing all legal formalities. Order
accordingly.”
6. From careful perusal of the impugned
order dated 23.04.2024, passed by Judicial Magistrate concerned and the report
submitted by the Investigation Officer under Section 173 Cr.P.C, it appears
that Judicial Magistrate concerned while passing the impugned order had not
issued notice to the applicant Muhammad Altaf Khan whose name was placed in
Column No.2 of the challan. It is also clear from the impugned order that defence
plea/ statements of D.Ws were also not considered by the Magistrate. Article
10-A of the Constitution reads as under:
“10-A. For the
determination of his civil rights and obligations or in any criminal charge
against him a person shall be entitled to a fair trial and due process.”
7. Therefore, by not
hearing the applicant before passing the impugned order, the appellant has been
denied right of fair trial, which is guaranteed by Article 10-A of the
Constitution of Islamic Republic of Pakistan, 1973.
8. For the reasons discussed hereinabove,
instant Criminal Misc. Application is partly allowed. Consequently, impugned
order is set aside to the extent of applicant, matter
is remanded to the concerned Magistrate with direction to pass speaking
JUDGE
JUDGE
Wasim
ps
name of applicant was
placed in Column No.2 of the challan by the I.O but learned Judicial Magistrate
joined him as accused without providing opportunity of hearing. No finding was
recorded on the plea of alibi raised by the applicant during investigation.
Section 4(l) Cr.P.C provides the definition of investigation which includes all
the proceedings under this Code for the collection of evidence conducted by a
police officer or by any person (other than a Magistrate) who is authorized by
a Magistrate in this behalf, but when during investigation plea of alibi is
raised by the applicant, the same shall also be considered by the I.O then he
has to form his opinion. In the present case, I.O formed his opinion while
relying upon the plea of applicant and placed his name in column No.2.
Concerned Magistrate should have considered the material collected by the I.O
during investigation as well as plea of alibi raised by the applicant, but
perusal of the impugned order reflects that defence plea raised by the
applicant during investigation was not considered, even applicant was not
heard. Article 10-A of the Constitution…..
7. After perusal of
the report under section 173, Cr.P.C. and the impugned order, dated 23.04.2024
passed by the concerned Magistrate, We are of the view