ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Crl. Misc. Appln. No.S-210  of 2012. 

DATE OF HEARING

ORDER WITH SIGNATURE OF HON’BLE JUDGE

For Katcha Peshi.

21.01.2013.

Mr. Abdul Ghani Bijarani, advocate for applicant.

                   Mr. Naimtullah Bhurgari, State Counsel.

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                   This is an application under section 561-A, Cr.P.C filed by the applicant, whereby order dated10.10.2012, passed by the learned Ist. Civil Judge & Judicial Magistrate, Kandhkot was challenged.

                   It is urged that in the FIR, it is alleged that the accused Dilawar alias Dili and Akhtar along with one unidentified person stolen donkey cart of the complainant. I.O investigated the case. During investigation, it was reported that on 25.9.2012, I.O visited the place of incident and recorded statement under section 161, Cr.P.C of Prosecution Witnesses namely Sain Bux and Ghulam Nabi, who supported the version of the complainant. Thereafter, I.O recorded statement of defence witnesses namely Abdul Karim Shaikh, Lakhan Khan Shaikh and Ramesh Kumar Oad. Defence witnesses disclosed in their statements that the complainant and accused have dispute over outstanding amount due to that they have exchanged harsh words and complainant lodged the false FIR. In terms of impugned order, the learned Magistrate was of the view that in terms of the record both the prosecution witnesses have supported the version of the complainant and there is no solid evidence about the enmity between the parties to substantiate the statement of defence witnesses, therefore, there is  sufficient evidence about the commission of offence.

                        Learned counsel for the applicant has relied upon the case of Haq Nawaz versus Haji Alam Khan and 8 others 2012 MLD 1075, wherein Division Bench of this Court observed that the Magistrate is competent to take cognizance under section 190, Cr.P.C, however, no power vested in the Court to override any legal provision and direct the investigation officer either to submit or not to submit a report in a particular manner. Learned counsel for the applicant submits that the impugned order to the extent whereby it was observed by the trial Court that the original police papers are returned to SHO with direction to submit charge sheet on “prescribed proformna”. Such observation per learned counsel for the applicant is devoid of any force.

                        Learned State Counsel has supported the impugned order and states that learned Magistrate is vested powers to take cognizance and can issue directions that means submission of the challan. Learned State Counsel in support of his contention has relied upon the case of Safdar Ali versus Zafar Iqbal and others reported in 2002 SCMR 63, wherein the Hon’ble Supreme Court had observed as under :

“……It is well settled by now that the Magistrate can take cognizance of an offence even in case of negative report submitted by police that accusation is baseless and no case is made out against the delinquents. There is no cavil to the proposition  that the accused placed in column No.2 of challan cannot  be summoned by the learned trial Court to face the trial and there is no legal bar whatsoever that at first instance the evidence should be recorded to ascertain as to whether the prima facie case is made out against them.

8.         It is well-entrenched legal principle that “when a Magistrate takes cognizance under section 190(1)(b) on a police report he takes cognizance of the offence and not merely of a particular person charged in the report as an offender. He can, therefore, issue process against other persons who also appear to him on the basis of the report and other material placed before him when he has taken cognizance of the case, to be concerned in the commission of the offence when he does so he does not act under clause (c), therefore, section 191 is not applicable.” (Mehrab v. Emperor (F.B) 26 Cr.L.J 181, Lal Bhirai Sindh v. Emperor 31 Cr.L.J 55). On the touchstone of criterion as discussed hereinabove we are of the considered view that the order passed by learned Ilaqa Magistrate dated 8.11.1997 is neither perverse nor capricious but on the other hand it has been passed after having an in-depth scrutiny of the entire record and thus, it cannot be termed as non-speaking as held by the learned High Court in the impugned judgment and being unexceptionable it hardly calls for any interference. We are inclined to convert this petition into appeal and accordingly while allowing the same the impugned order, dated 11.5.2001 is hereby set aside being violative of the relevant provisions of law and consequently order, dated 8.11.1997 is restored. The learned trial Court is directed to proceed with the case in accordance with law.”

                        It is thus, apparent that the learned Judicial Magistrate is well within the competency to take cognizance of the offence reported before him. The impugned order seems to have been passed within the parameters referred in judgment supra and there apparently seems to be no error. The fact that the direction which prescribes the submission of charge sheet on “prescribed proforma” in fact suggest cognizance taken by Judicial Magistrate. There seems to be no  ambiguity or error in the impugned order. Such observation as disputed by applicant is to be read as taken cognizance by the Judicial Magistrate. This Crl. Misc. Application has no substance, which is accordingly dismissed.

Judge

Panhwar/**