IN THE HIGH COURT OF SINDH AT KARACHI
Criminal Miscellaneous Application No.701 of 2024
Present:
Shamsuddin Abbasi, J.
Applicant : Mst. Erum Suleman
Ali through Mr. Amir Mansoob Qureshi,
advocate
Respondents 1 to 3 : through
Mr. Neel Parkash, D.P.G.
Respondents 4 & 5 : through M/s Muhammad Jibran Nasir, Rana
Daniyal Akram, Daniyal Muhammad Hussain and
Abdul Ghaffar Memon,
advocates
Date of Hearing : 11.03.2025
Date of Announcement : 25.03.2025
O R D E R
SHAMSUDDIN
ABBASI, J.--- In this Criminal Miscellaneous Application under
section 561-A, Cr.PC order dated 05.06.2024 passed by
learned Additional Sessions Judge-I Karachi East has been sought for to be set
aside whereby, in order to effect appearance of applicant before trial Court/Court
of Sessions, NBW has been issued against her, who was neither named in FIR nor
in report under section 173, Cr.PC but she was
arraigned as accused in supplementary challan and
learned Magistrate concerned sent up the case
to the Court of Sessions for trial.
2. The brief facts of the case are that on
16.08.2020 there was valima ceremony of his son,
which was ended at 12:30 a.m. and they reached home on 17.08.2020 at 02:15
a.m., 5/6 friends of his son also accompanied them to home. Wife of complainant
went to second floor of the house and started shouting that someone has
committed theft as articles are lying outside Almirah.
Complainant went to rooftop and fired 3/4 shots, however, no one was on the
rooftop. One of his neighbors called on 15, three police personnel came, Zeeshan Ali friend of his son, was coming down from first
floor, police personnel presumed him to be a thief and fired on him to which he
sustained injury, who was taken to hospital for treatment. Checking the house
revealed that prize bonds of Rs.1,100,000/-, two normal jewellery
sets, two bangle, earing were missing, hence he came to police station and
lodged such FIR No.254/2021 was registered under sections 380, 34, PPC was
registered at P.S. Al-Falah, Korangi
Karachi. During treatment inured Zeeshan Ali expired,
therefore, on behalf of State FIR No.255/2020 was also registered under
sections 324, 502, 302, PPC against PC Zulfiqar for
causing firearm injury to Zeeshan Ali.
3. Perusal of record reveals that upon
conclusion of investigation, IO submitted report under “A” Class in FIR
No.254/2020 while charge sheet was submitted against accused Syed Suleman ALi, Syed Kamran ALi and PI Saadat Butt in FIR
No.255/2020. However, learned Magistrate concerned disposed of the said FIR in
view of the dictum laid down in Sugran Bibi case and after taking cognizance in FIR No.255/2020,
sent the R and P of case to the Court of Sessions for trial vide order dated
03.03.2021.
4. Thereafter Investigating Officer
submitted supplementary challan in FIR No.255/2020,
mentioning the name of present applicant in Column 2 of charge sheet, however,
learned Magistrate forwarded to the same to the Court of Sessions, empowered to
take cognizance, vide order dated 26.06.2023. Later on, upon application filed
by legal heirs of deceased, learned trial Court took cognizance against
applicant and issued NBWs against the present applicant.
5. Learned counsel for the applicant mainly
contended that applicant was neither nominated in the FIR no IO placed her name
in the list of accused in final challan; that learned
concerned Magistrate after accepting final challan sent
the case for disposal in accordance with law to learned Sessions Judge on the
ground that Section 302, PPC is exclusively triable
by learned Sessions Court; that learned Sessions Judge sent this case to
learned Additional Sessions Judge-I, Karachi East for disposal in accordance
with law; that learned trial Court proceeded with the case and charge was
framed and case was fixed for recording the evidence of prosecution witnesses,
till then no cognizance has been taken by learned trial Court against the
applicant but later on, on the basis of application moved by the legal heirs of
deceased, cognizance has been taken against the applicant on the basis of
supplementary challan; that the impugned order passed
by learned trial Court is improper, illegal and incorrect and is liable to be
set aside; that learned concerned Magistrate has already taken cognizance on
the report under section 173, Cr.PC wherein applicant
has not been implicated by the IO; that even learned trial Court after
receiving supplementary challan has not passed any
order or taken the cognizance against the applicant and charge was framed; that
trial Court cannot exercise the powers in terms of Section 265-D, Cr.PC, therefore, impugned order is void in the eyes of
law; that learned trial Court can issue summons against the proposed accused
but in the present case, without hearing the applicant, learned trial Court
issued NBWs against the applicant; that learned trial Court has failed to pass
any speaking order; that after framing the charge, cognizance taken by the
learned trial Court is illegal, null and void. He finally prayed that impugned
order may be set aside.
6. On the other hand, learned D.P.G.,
assisted by counsel for respondents 4 and 5, supported the impugned order on
the ground that IO collected sufficient evidence against the applicant/accused,
therefore, he filed supplementary challan before
learned concerned Magistrate, which was sent to the learned trial Court; that
learned trial Court in terms of Section 193, Cr.PC is
competent to take cognizance against the accused persons at any stage; that no
any illegality has been committed by learned trial Court, hence instant
application may be dismissed.
7. Heard learned counsel for applicant,
learned D.P.G., learned counsel for respondents 4 and 5 and perused the
material available on record.
8. In the present case, two FIRs bearing
Nos.254/2020 and 255/2020 of the same police station were registered for the
same incident and in view of Sugran Bibi ccase, FIR No.254/2020 was
disposed of in “A” Class whereas report under section 173, Cr.PC
was submitted in FIR No.255/2020. Learned concerned Magistrate has taken the
cognizance on the final report submitted by the IO under section 173, Cr.PC and sent the case to learned Sessions Judge concerned
as Section 302, PPC was exclusively triable by the
Court of Sessions, learned Sessions Judge transferred the case to learned
Additional Sessions Judge-I, Karachi East on administrative grounds for
disposal in accordance with law. Learned trial Court after formal proceedings,
framed the charge against the accused. It is a matter of record that neither
applicant is nominated in the FIR not her name came on surface in the final
report/challan. After submission of final report
under Section 173, Cr.PC IO furnished supplementary challan before learned concerned Magistrate, who sent the
supplementary challan to learned trial Court on the
ground that he has already taken the cognizance on the report under Section
173, Cr.PC and now he has become functus
officio. It is a matter of record that learned trial Court after receiving
supplementary challan has not passed any order and
after compliance under Section 265-C, Cr.PC framed
the charge against the accused who were placed on the list of column of accused
in the final report forwarded by the Magistrate concerned under section 173, Cr.PC. Case was fixed for recording evidence when counsel
for legal heirs of deceased has pointed out that before proceedings further
learned trial Court has to pass order on the supplementary challan
and learned trial Court after hearing the parties has passed the impugned order
by issuing NBW against the applicant. Applicant has been implicated by the IO
after collecting evidence against her as she has played role for disappearing
evidence in connivance with accused Syed Suleman Ali,
who is husband of the applicant, which requires adjudication. So far as the
points raised by learned counsel for the applicant that neither the applicant
is nominated in the FIR nor her name is mentioned in the report under Section 173,
Cr.PC as accused; charge was framed against
co-accused and trial Court was not competent to take cognizance at belated
stage are concerned, I am of the considered view that learned trial Court can
take cognizance in view of the provisions of Section 193(1) Cr.PC
on receiving the supplementary report from learned Magistrate concerned. I do
not see any illegality while taking cognizance of offence by learned trial
Court against the applicant. However, instant criminal miscellaneous
application is converted to protective bail and applicant Erum
Suleman Ali wife of Syed Suleman
Ali is admitted to protective bail for a period of Seven (7) days, subject to
furnishing solvent surety in the sum of Rs.25,000/- and P.R. Bond in the like
amount to the satisfaction of the Nazir of this Court. Operation of NBW issued
against the applicant is suspended for a period of seven (7) days.
9. The instant criminal miscellaneous
application is disposed of in the above terms.
J U D G E
Gulsher/PS