Cr

Cr.Misc.Appln.No.316 of 2012.

For Katcha Peshi.

27.08.2012. Mr.Nisar Ahmed Bhambhro advocate for the applicant.

Complainant Nabi Bux present in person.

Mr.Zulifquar Ali Jatoi DPG.

SALAHUDDIN PANHWAR, J- Applicant Sikander Ali Suhag has assailed order dated 25.05.2012, passed by 3rd Additional Sessions judge, Khairpur through this Criminal Miscellaneous Application under Section 561-A, Cr.P.C2 on an application under Section 22-A & B, Cr.P.C .

2. The relevant facts of the subject matter are that cpmlainant lodged F.i.R bearing crime No.45/2012, alleging therein that Zulifquar Ali Suhag and others have old enmity with the complainant party. Nazeer brother of complainant resides with his family in Talpur Colony and the complainant had come to visit his brother, on the date of incident the complainant, his brother Nazeer Ahmed, his sons Naseer and Illahi Bux and wife Nageena were available at the house when at about 0745 hours accused Zulifquar, Sikander, Asad Ali, Bakhat Ali, Mashooq, Aashiq Ali, Khadim, Waqar, Israr alongwith two other unidentified persons armed with TT pistols trespassed in their house and on the instigation of accused Zulifquar other accused made straight firing upon the complainant party, which resulted in injuries to Nazeer, Naseer, Illahi Bux and Mst.Nagina; .

3. Record further reveals that after registration of FIR the police investigated the matter and submitted the challan before the Court having jurisdiction by placing the name of present Applicant Sikander Ali Suhag in Column NO.3 of the Challan sheet, the plea of alibi raised by the applicant was not considered by investigation officer therefore the Applicant being aggrieved moved Application under Section 22-A & B, Cr.P.C regarding re-investigation of the case, which was dismissed.

4. The learned counsel for the applicant has inter-alia contended that the applicant is innocent and has been falsely implicated in this case due to old enmity as admitted in the FIR; at the time of alleged incident co-accused Zulifquar was admitted in Hira Medical Centre, he had undergone operation and he was discharged from the Hospital in the evening of 17.03.2012 whereas on the said date present Applicant Sikander Ali was available in Lahore where he attended the Court of Ist Class Magistrate in a criminal case; hence his presence in Khairpur at a distance of about 1200 Kilometers is impossible; that during investigation, plea of alibi raised by applicant Sikander Ali Suhag was not considered though same was supported by documentary evidence.

5. Learned DPG appearing for the State has argued that the impugned Order is valid in the eye of law; the applicant has not challenged the order dated 10.4.2012 whereby the Magistrate took the cognizance of this case; as such the Applicant is at liberty to agitate the plea of alibi before the trial Court and at this stage, the reinvestigation of the case is not permissible under the law and the same will seriously prejudice to the case of complainant party as the case is pending adjudication before the trial Court.

6. Heard the arguments of the learned counsel for the respective parties and perused the material available on record.

7. candidly the FIR was lodged under Section 324, 148, 149, 114, 337-H2, PPC against the applicant and his other relatives, in which nine were accused are nominated, but during the course of investigation, five accused were let off by the police as they were found innocent, such report under Section 173, Cr.P.C was accepted by the concerned Magistrate; that the applicant has not challenged the order dated 10.4.2012 passed by the Magistrate and now the case is pending adjudication before the trial Court.

8. The learned counsel has emphasized that the plea of alibi and re-investigation of case was not considered by the Investigating Officer, as well as in impugned order in this respect, there is a series of decisions of this court and honourable apex court. Such authoritative view is that during investigation, collection of evidence or recording of statements of defense witnesses in favour of accused is not permissible under the law and such practice is seriously deprecated. If such practice is allowed to continue then there will be a new window for accused persons, every complainant will be at the mercy of investigating agency and there will be an ample opportunity that investigation agency instead of carrying out investigation honestly will collect the evidence in favour of accused persons. No doubt re-investigation can be carried out at any stage but that should be on solid grounds and if earlier investigation is malafide or within colorful exercise, reinvestigation on the ground that plea of alibi taken , when case is pending before competent court for adjudication , and applicant has right to agitate his plea of alibi before the trial court, moreover cognizance has already been taken by the competent Court, trial court has to decide the fate of the case, therefore no useful purpose will be served if reinvestigation is ordered, thus impugned order is not maintainable in the eyes of law

Consequently this criminal miscellaneous application being meritless is dismissed.

JUDGE

Akber.