ORDER-SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Crl. Misc. Appln. No.  S- 191 of 2013.

Date of hearing

Order with signature of Judge

01.10.2013.

 

            Mr. Sobhraj L.P, Advocate for applicants.

            Mr. Mohammad Ayoub Khanzada, Advocate for respondent No.3.

            Mr. Ali Raza Pathan, State Counsel.

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Abdul Maalik Gaddi, J:     Through this Criminal Miscellaneous Application under Section 561-A Cr.P.C, the applicants have assailed the legality and propriety of the Order dated 22.07.2013, passed by the learned 2nd Civil Judge & Judicial Magistrate, Kamber, whereby he while disagreeing with recommendation of police report case drawn under false “C” class, directing the respondent No.2 to submit challan of the above case against all three applicants/accused.

 

2.         Facts necessary for the disposal of the above miscellaneous application as that, complainant Asghar Gopang registered N.C report on 02.06.2013 with P.S Kamber that, he, his brother Dhani Bux and their father Ghulam Sarwar were present at his shop in Gopang Muhalla Kamber, where at about 1800 hours, accused Ali Akbar, Asghar having lathis in their hands, and 3. Sikander with hatchet came; they assaulted and abused complainant by stating that he had driven out their son from the shop and insulted him, therefore, they will not spare him. By saying this, accused Sikander gave hatchet blow to his father Ghulam Sarwar which hit him on his right leg. Accused Asghar gave lathi blow to Ghulam Sarwar which hit him on his left knee. Accused Asghar gave back side hatchet blow to his brother Dhani Bux, which hit him on right side of his head. Accused Ali Akbar gave lathi blows to his brother Dhani Bux, which hit him on his right shoulder and mouth. On their cries passers-by intervened and rescued them. Accused went away to their houses. He with injured came to Police station, hence this N.C and after receipt of their medical certificates the case was not registered and order of the Ex-Officio Justice of Peace Kamber-Shahdadkot was obtained, hence this F.I.R.   

 

3.         Heard the parties’ advocates and perused the case file with able assistance of the learned Advocates for the parties.

 

4.         It is contended by the learned counsel for the applicants that there is enmity in between the parties over the house property and such civil litigation is already pending before learned District Judge, Kamber-Shahdadkot, as such false implication of the applicants in this case cannot be ruled out, but this fact has not been appreciated by the learned Magistrate while passing the impugned Order. He further submitted that learned Magistrate has acted beyond his jurisdiction as no power is vested to him to direct the Investigating Officer of the case to submit or not to submit a report in a particular manner, thus according to him the impugned Order is against the law, as such liable to be set aside.  In support of his arguments he has relied upon case law reported in 2011 SCMR 1430, and 2012 M.L.D 1075.

 

5.         On the other hand learned counsel for the respondent No.3, has supported the impugned Order by arguing that the impugned Order has been passed in accordance with the law. He further submitted that the applicants are nominated in the F.I.R with specific allegation that present applicants duly armed with lathis and hatchet caused/inflicted lathi and hatchet blows to Ghulam Sarwar and Dhani Bux respectively, on their body; the version of the complainant finds support from medical certificates issued by the medical officer, but the Investigating Officer of the case dishonestly and with the collusion of applicants/accused submitted the report under “C” class, which has rightly been rejected by the learned Magistrate through his impugned Order. The learned State Counsel has also supported the impugned Order.

 

6.         Perusal of record shows that the complaiantn Ghulam Asghar registered the F.I.R against the present applicants nominating them in the F.I.R with specific allegation that at the time of incident, the present applicants duly armed with lathis and hatchet came at his shop, where applicant Sikander gave hatchet blow to Ghulam Sarwar which hit him on his right leg, accused Asghar gave lathi blow to Ghulam Sarwar which hit him on his left knee, accused Asghar gave back side hatchet blow to Dhani Bux which hit him on right side of his head (vital part of the body). Accused Ali Akbar also gave lathi blow to Dhani Bux which hit him on his right shoulder and mouth. The version of the complainant is also fully supported by medical certificates issued by Taluka Hospital, Kamber. The record shows that F.I.R has been registered against the applicants after the directions issued by the learned Sessions Judge/ Justice of Peace, Kamber-Shahdadkot, vide his Order dated 06.6.2013, the order of learned Sessions Judge is self-explanatory.   The Investigating Officer of the case while submitting his report in “C” class has mainly relied upon extraneous material collected by him and did not give weight to the medical certificates of injured Ghulam Sarwar. The injuries on the person of injured Ghulam Sarwar have been declared by the Medical Officer as Jurh-Ghyr-Jaifah Mutalahimah and Jurh-Ghyr Jaifah Damiyah, which constitute the cognizable offence. The injuries on the person of injured Ghulam Sarwar have not been declared as self-suffered by the doctor. The report of the Investigating Officer of the case in presence of medical certificates, which is corroborated by ocular evidence, has no value. In my view and under the circumstances of the case in hand, the investigating officer could not be considered such as skilful person to give his opinion on medical evidence. Question as to whether medical evidence corroborated ocular version or not and what was evidentiary value of expert’s report could be decide only by trial Court having substantial bearing on merits of case.     Besides, the Magistrate having jurisdiction can also pass order on police report; in this regard I am supported with case law reported in 2011 SCMR 1354 and 2011 SCMR 508.

 

7.         As observed above that sufficient material was available on record for taking cognizance by the Magistrate, therefore,  under the circumstances impugned Order passed by learned Magistrate appears to be justified and in accordance with law. Consequently, the instant application stands dismissed.

 

 

Judge