IN THE HIGH COURT OF SINDH BENCH AT SUKKUR
Crl. Misc. Application No.S-313 of 2024
|
DATE
OF HEARING |
ORDER WITH
SIGNATURE OF JUDGE. |
1.
For hearing of main case.
2.
For hearing of M.A.No.2691/24
30.09.2024
Mr. Achar Khan
Gabole, Advocate for applicants.
Syed Sardar
Ali Shah, Addl.P.G, for State.
***************
Report submitted by the present police according to which
respondent No.5 was informed on mobile the earlier notice was also served on
the said respondents however, he has failed to effect appearance in response to
the said notices although on the earlier date he was present. On 13.09.2024
this matter was heard wherein following order being the contentions of learned
counsel for applicant as well as learned Additional Prosecutor General were
recorded as follows;
“Learned counsel for the applicant contends that applicant
No.1 is PASCO Inspector whereas applicant Nos.2 and 3 are private guards who
were engaged and made working with the applicant No.1. He further contends that
the respondent required supply of bardana which was duly provided to him and
thereafter the wheat was also procured from the joint khata of the private
respondent and his family members which was supported with the documentation
present before this Court. Learned counsel further contends that applicant is
aggrieved of the impugned order both in respect of the order for recording of
statement for lodging of the FIR as well as directions of inquiry by the FIA.
He further contends that no offence has taken place in the matter as the
private respondent was supplied bardana and grain was also procured from him.
He further contends that Section 22-A-B Cr.P.C, does not empower recommendation
of enquiry by the learned Sessions Judge/Ex-Officio Justice of Peace, Naushehro
Feroze with FIA and that where the record shows that the complainant was
provided the bardana and purchase of grain was made, there was never a cause
for such a complaint and the impugned order passed thereon is not sustainable”.
The matter could have been concluded however, in the
interest of justice same was adjourned for today to provide an opportunity for
the respondents to effect appearance if so desired, it seems that the said
respondent is not present as such matter is liable to be considered on the
basis of record present before this Court.
Prima
facie two allegations are present in the matter being that the respondent No.5 has
not made the required payment of wheat procured (although such specific
statement has not been made however, such element may be implied and contributed
to bad drafting) and the other is he was physically and verbally abused. In
this regard it is observed that no medical certificate of any abuse has been
brought-up whereas to the allegations to the amount not having been paid for
the wheat procured irrespective to the denial made by the applicant and learned
counsel for the applicant showing the documents whereby such payment was
effected the same apparently without so specifying cannot come in terms of
misappropriation and at least civil liability can be considered. It is further
observed that the recommendation by way of the impugned order for investigation
carried out by the FIA was/is not warranted in the circumstances where the departmental
response was available by impleading the respondents only in the matter. In the
said circumstances the impugned order is found to be untenable as not based
upon proper appreciation of facts and law as such same is set-aside and the
respondent No.5 is left to avail any legal remedy as may be available to him in
accordance with law.
This Crl. Misc. Application is disposed of in the above
terms.
J U D G E
Ihsan/PS