ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, HYDERABAD

   Cr. Misc.A. No.S-214 of 2011.

DATE                            ORDER WITH SIGNATURE OF JUDGE

For Katcha Peshi.

16.05.2011

Mr. Ameer Ali Mahesar Advocate for the applicant

Mr. Amjad Ali Sahto Advocate for Respondents No.1 & 2.

Mr. Shahzado Nahyoon Asstt. P.G a/w ASI Muhammad Juman Khaskheli of P.S. Taluka Nawabshah.

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          In this Cr. Misc. Application, the applicant has challenged the order dated 05.06.2011 passed by the learned Civil Judge and J.M. II Sakrand whereby final report submitted by the police in Crime No.293/2008 of P.S. Sakrand lodged u/s 436, 506(2), 504 and 34 PPC was accepted in B Class.

The brief facts of the case are that the complainant lodged an F.I.R. in which it was stated that he has agricultural land and his wife Shahnaz Keerio is Doctor and has a clinic at Station Road Sakrand. On 20.10.2008, accused Israr Ahmed and his brother Siraj Ahmed alongwith two unknown persons came at her clinic, damaged and burnt the Ultrasound machine, ECG machine alongwith furniture. They have also given threats on gun point for the dire consequences and said that they will kill the complainant. Thereafter the complainant moved an application in the court, whereby the order was passed for lodging F.I.R. against the above named accused persons.

The main reason for accepting the report in “B” class shown in the order is that Dr. Shahnaz Keerio was called in the court alongwith her father, where incident took place but she stated before the Magistrate that her statement u/s 161 Cr.P.C was not recorded nor she produced the burnt and broken articles/things before the court or police officials. The Magistrate further observed that as per F.I.R. incident took place in day time and there are shops and residential houses at the place of incident but no witness came forward to support the case of the complainant and finally the Magistrate in his order observed that there is no evidence from which it appears that case has been made out except version of the complainant, therefore, the case was disposed of in “C” class instead of “B” class.

Learned counsel for the applicant mainly argued that inspite of all efforts, the I.O. had not recorded the statement of Dr. Shahnaz Keerio nor her father and it was the responsibility of the I.O. to comply with all requisite procedure. He further argued that the complainant always acted vigilantly but due to I.O.’s recklessness, he failed to record the statement of aforesaid persons and on the basis of that, learned Magistrate has disposed of the case in “C” class.

Learned counsel for the Respondents No.1 & 2 argued that F.I.R. was lodged with malafide intention and no such incident was taken place. He also argued that applicant is the tenant of Respondent No.2 and the Respondent No.2 filed a rent case being Rent Application No.09/2008 in the court of Rent Controller which was allowed and thereafter  applicant moved Ist Rent Appeal which was also dismissed and against concurrent findings, the applicant has filed constitutional petition in this court which is pending adjudication, therefore, learned counsel argued that just because of these rent proceedings, the applicant had lodged F.I.R. out of vengeance and in fact no incident was taken place.

Learned Asstt. P.G has also called the I.O. namely ASI Muhammad Juman Khaskheli. Learned Asstt. P.G argued that though two notices are available in the file but they were never served upon the persons for recording statements u/s 161 Cr.P.C and he is also of the view that the I.O. has not performed his duties properly and statements of material witnesses were not recorded before submitting the report in “B” class which was finally converted into “C” class by the Magistrate.

After hearing the arguments of learned counsel, I have reached the conclusion that sole reason for accepting the report in “B” class and its conversion in “C” class by the court is nothing but to non recording statements of material witnesses u/s 161 Cr.P.C. Learned trial court has not taken any pain to ascertain who was responsible for not recording the statements u/s 161 Cr.P.C. He has also not observed whether the I.O. has performed his duties properly or efficiently or he has committed some negligence on his part in performance of his duties in accordance with law. The plea taken by the learned counsel for the Respondents No.1 & 2 that entire case has been lodged just to avoid the rent proceedings and its ultimate result and he further argued that the rent application has been allowed, Ist Rent Appeal has also been dismissed and in order to avoid eviction, the applicant is trying to involve the Respondents in false case. Since the main allegation in the F.I.R. and plea taken by the learned counsel for the Respondents No.1 & 2 can only be threshed out after recording proper statement and proper investigation made by the I.O, therefore, I set-aside the order dated 05.06.2009 with the directions to the I.O. to record the statements of material witnesses u/s 161 Cr.P.C. Learned counsel for the applicant undertakes to produce all the witnesses before the I.O. on 20.05.2011 at P.S. Sakrand at 12.00 noon and submit report in court in accordance with law.

The Cr. Misc. Application stands disposed of in the above terms.

                                                                                       JUDGE

A.K