Cr.Misc.A.No.S-510 of 2012

 

 

Date of hearing:                     25.02.2013

For Applicant:                        Mr. Sudhamchand Kewal Ramani, Advocate.

For resp: 2 to 6:                    Mr.Parmanand, Advocate.

For State:                               Mr. Abdul Rehman Kolachi, A.P.G.

 

 

              O R D E R

 

 

 

SALAHUDDIN PANHWAR, J:- Through instant application applicant/ complainant Mailap Mal has challenged the order dated 11th August, 2012, passed by the Civil Judge and J.M.Kot Diji, whereby summary report u/s 173 Cr.P.C. has been approved under false ‘B’ Class.

 

2.         Precisely, the facts are that. On 29-06-2012 complainant along with his wife Seeta Bai, sons Suneel and Wali Ram were available in the house, at about 7:00 a.m. morning accused Deewan Mal armed with pistol, Jeeso Mal with iron rod, Ramesh Kumar with lathi, Chandar Mal with pistol, Odhar Mal with lathi intruded into the house of complainant, accused Chandar Mal abused the complainant by saying that he refused to sold his house to them, they will never spare them and instigated other accused to attacked upon complainant party on which accused Deewan Mal caused pistol blows to Seeta Bai, on her head and different parts of body, who raised cries and fell down on earth, the accused Chandar Mal dragged Seeta Bai from her neck and accused Jeeso Mal gave iron rod blows to Seeta Bai on her arms and neck. Thereafter complainant filed petition before the Court of learned Sessions Judge, Khairpur and after getting order, lodged the instant FIR against above named accused persons.

     

3.         It is further revealed that after registration of FIR investigation was carried out. During investigation, investigation officer recorded statement of defence witnesses, wherein D.Ws disclosed that at the time of offence accused were not present at the place of incident hence accused were declared innocent and report under section 173 Cr.P.C was submitted under ‘B’ false  Class.  

 

4.         Learned counsel for the applicant has inter-alia contended that witnesses categorically supported the version of complainant, which shows that accused named in FIR committed offence of cognizable offence but with mala fide intention, investigation officer not conducted investigation in transparent manner and evidence of the D.Ws was recorded, such course was not permissible under the law. The plea of alibi taken by accused was considered by investigation officer, thus, report under ‘B’ Class was submitted. Learned Magistrate while accepting the summary under ‘B’ Class has given the weight to the plea of alibi; such exercise by Magistrate is un-warranted under the law.   

 

5.         Conversely, counsel for respondents has argued that impugned order is according to law no illegality, irregularity and infirmity has been pointed out; in-fact complainant lodged false case due to enmity.

 

6.         Heard learned counsel and perused the record.

 

7.         After meticulous examination of available record, it is matter of record that complainant lodged FIR against the respondents and witnesses of said FIR have also supported the version of complainant but during investigation statements of defence witnesses were recorded, in which plea of alibi was taken by the accused persons and on that plea police opined that case is false, such opinion was also given by the Crime Branch in  re-investigation and learned Magistrate has also agreed with the version of the police report. It is pertinent to mention that, it is settled proposition of law that collection of evidence or recording statement of defence witnesses in favour of accused persons, during the course of investigation is not permissible under the law, if such practice will be allowed to remain in the field, this will open a new gate for accused persons and will cause serious effect upon the competence of trial court in determining question of guilt and innocence. It is important to say that purpose of investigation has never been to determine the question of guilt or innocence but collection of material and its submission before the court of law for determination. Moreover, plea of alibi cannot be proved without adducing evidence, such course is available to the accused persons at the time of trial reference can be made to the case of Hayatullah khan v. Muhammad Khan 2011 SCMR 1354.

 

8.         Keeping in view the above discussion, impugned order dated 11th august 2012 is hereby set aside, concerned magistrate is directed to forward the case to the court of competent jurisdiction.     

 

9.         Before parting with this order, it is pertinent to mention that, since accused persons have joined the investigation, therefore at first instance issue BWs against the accused.

 

 

 

                                                                                                   J U D G E

 

 

 

 

 

 

 

 

 

 

 

Imran