ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, HYDERABAD

Cr. Misc. Appl. No.S-79 of 2011

DATE                                     ORDER WITH SIGNATURE OF JUDGE

1.       For Katcha Peshi.

2.       For hearing of MA 600/2011.

18.04.2011.

Mr. Farhad Ali Abro Advocate for the applicant.

Mr. Shahid Ahmed Shaikh Assistant Prosecutor General Sindh

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          The present Cr. Misc. Application has been moved by the applicant against summary order dated 22.01.2011 passed by the learned Civil Judge and J.M.VIII Hyderabad in Summary Case No.34/2011.

The brief facts of the case are that the Respondent No.3 lodged F.I.R. No.159/2010 u/s 20 of Offence against Property (Enforcement of Hadood) Ordinance, 1979 in which the allegations were leveled against the applicant who is allegedly neighbour of the complainant. The main crux of the arguments of the learned counsel for the applicant is that after lodging this F.I.R., SPO Qasimabad Hyderabad already conducted a detailed inquiry and after holding inquiry, he reached to the conclusion that no case is made out against the applicant Abdul Rasheed and similarly Rana Shoib ASP Hyderabad also recommended that the case against the applicant be dropped.

I have carefully gone through the impugned order in which the learned Magistrate directed the I.O. to submit report u/s 173 Cr.P.C against Abdul Rasheed and he rejected the report in which the name of applicant was proposed to be dropped from the prosecution case.  In the impugned order, learned Magistrate has also referred to two eye-witnesses of the incident namely Mst. Ambreen and Mst. Moomal and their statements are also same in the inquiry report submitted by the SPO Qasimabad Hyderabad in which both had identified applicant Abdul Rasheed.

Keeping in view the allegations leveled in the F.I.R., learned ADPP who was appearing before the Magistrate also disagreed with the report of the I.O. and he strongly argued that the accused Abdul Rasheed should be tried and his name may not be dropped as proposed by the Inquiry Officer and the I.O.

In the concluding paragraph, learned Magistrate further observed that the prosecution witnesses had supported the version of the complainant and case is fit for trial and he took cognizance of the offence and I.O. was directed to submit report u/s 173 Cr.P.C alongwith list of witnesses.

Learned counsel for the applicant argued that after an inquiry conducted by the SPO Qasimabad Hyderabad, there was no justification to call upon the I.O. to submit fresh report and the case should have been cancelled on the recommendation of the Inquiry Officer.

Learned Assistant P.G. for the State opposed the prayer of the applicant and supported the impugned order passed by the learned Magistrate.

It is well settled principle of law that the report of the I.O. is not binding upon the court and if the court reaches to the conclusion that the case is triable then directions are to be issued to the I.O. to submit challan against the accused proposed to be dropped. Today Mr. Dilijan SIO P.S. Phuleli is present in court and he submits that the challan, in view of the directions of the learned Magistrate, has been submitted in the court against Abdul Rasheed. Since the challan has already been submitted, I find no reason to upset the impugned order. The Cr. Misc. Application has no merits, which is hereby dismissed alongwith listed application. However, the applicant may move proper application before the trial court first and feels dissatisfied with any findings, he may approach this court in accordance with law.

The Cr. Misc. Application stands dismissed accordingly.

                                                                                      JUDGE

A.K