ORDER SHEET

IN THE HIGH COURT OF SINDH CIRCUIT COURT LARKANA

Crl. Misc. Application No.S- 183 of 2012

DATE	ORDER WITH SIGNATURE OF JUDGE

1. For orders on office objection ‘A’

2. For Katcha Peshi.

31.03.2014

Mr. Habibullah G. Ghouri, advocate for applicant/complainant.

Mr. Imtiaz Ali Jalbani, APG.

Mr. Altaf Hussain Surahio, advocate for respondents No.2 and 3.

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Naimatullah Phulpoto.J-, Through instant Criminal Misc. Application filed under section 561-A, Cr.P.C, applicant/complainant has prayed to set aside order dated 01.9.2012 passed by learned 1^st Civil Judge & Judicial Magistrate, Garhi Yasin in Summary Proceedings No.119/2012 re. Rahim Bux v. Dilshad and others in Crime No.20/2012 registered at Police Station Nabi Shah Waggan for offences under Sections 392, 34, PPC.

2. Brief facts of the prosecution case as disclosed in the F.I.R are that on 30.7.2012 complainant along with P.Ws namely Ghulam Nabi and Abdul Qayoom was coming to village on motorcycle. At about 4-00 p.m. they reached near Shadi curve, they saw accused persons namely, Dilshad Ahmed, Nasrullah and one unidentified person having pistols in their hands standing there who forcibly got stopped the motorcycle. It is alleged that accused Dilshad Ahmed robbed cash of Rs.17,000/- and mobile phone from complainant and cash of Rs.2300/- and mobile phone from P.W Ghulam Nabi. It is further alleged that accused Nasrullah snatched cash of Rs.1500/- and a mobile phone from P.W Abdul Qayoom. The accused persons also demanded key of motorcycle from the complainant, but the complainant refused whereupon all the accused persons caused pistol butt blows to the complainant party. The complainant party raised cries where after all the accused persons went away towards North. The complainant approached SHO Police Station Nabi Shah Wagan for registration of F.I.R but his case was not registered. Consequently, complainant approached the Court of law, where after his F.I.R was registered under the above referred sections.

3. During investigation, 161, Cr.P.C statements of P.Ws mentioned in the F.I.R., namely Ghulam Nabi and Abdul Qayoom were recorded. Investigation officer had also recorded statements of the persons of the locality. On the basis of such statements, investigation officer arrived at conclusion that complainant had lodged a false F.I.R and he submitted such report before concerned Civil Judge & Judge Magistrate, Garhi Yasin, he concurred with the opinion of investigation officer vide order dated 01.9.2012.

4. Mr. Habibullah G. Ghouri, learned counsel for the applicant argued that learned Magistrate had no legal justification to agree with the report of investigation officer and Magistrate ordered for cancellation of crime in false ‘B’ class without taking into consideration the incriminating evidence available on record in the shape of F.I.R and 161, Cr.P.C statements of the P.Ws. He has submitted that under Section 4-(l) of the Code of Criminal Procedure, 1898 the investigation officer has only to collect the evidence but in this case investigation officer has opined that there is enmity between the parties and complainant has lodged false case. Learned counsel for the applicant submitted that opinion of the investigation officer was contrary to the law. Lastly, he has submitted that learned Magistrate has deeply considered merits of the case and order of the learned Magistrate is not sustainable under the law, the same may be set aside.

5. Mr. Imtiaz Ali Jalbani, learned APG did not support the order dated 01.9.2012 passed by learned 1^st Civil Judge & Judicial Magistrate, Garhi Yasin and argued that there was sufficient evidence against the accused nominated in F.I.R. for submission of the challan.

6. Mr. Altaf Hussain Surahio, learned counsel appearing on behalf of let-off accused/respondents No.2 and 3 argued that there is enmity between the parties and there was inordinate delay in lodging of the F.I.R. He has submitted that there was no evidence against the accused to connect them in the crime. Learned Magistrate rightly agreed with the report of the investigation officer. He has placed reliance on the case of Awal Khan v. Superintendent of Police, 1989 P.Cr.L.J 909.

7. Record reflects that F.I.R bearing Crime No.20/2012 was lodged under sections 392, 34, PPC against the accused persons namely Dilshad Ahmed, Nasrullah and another on 12.08.2012. Complainant has mentioned the names of the accused persons in the F.I.R. P.Ws have fully supported the version of complainant disclosed in the F.I.R. Prosecution witnesses have stated during investigation that accused have committed robbery. It appears that Investigation Officer found the accused persons innocent by recording the statement of the person of locality namely Ayaz Ali Soomro, who has stated that accused persons were present in his otaq at the time of alleged incident and opined that F.I.R is a false. Section 4-(l) of Criminal Procedure Code, 1898 provides as follows:-

(l) “Investigation”. “Investigation” includes all the proceedings under this Code for the collection of evidence conducted by a police-officer or by any person (other than a Magistrate) who is authorized by a Magistrate in this behalf;

8. The above provision of law clearly shows that duty of the investigation officer is required to collect the evidence only. It was not function of investigation officer to opine that FIR is a false. The finding of the 1^st Civil Judge & Judicial Magistrate, Garhi Yasin that there is enmity between the parties over the land and there was 04 days delay in lodging F.I.R is not sustainable under the law. Civil Judge & Judicial Magistrate agreed with report of Investigation Officer without application of judicial mind, the order of learned Magistrate is reproduced as under:-

“Heard I.O, complainant in person and perused the record carefully. It appears that the P.Ws have fully supported the contents of F.I.R but I.O has also recorded the statements U/S 161 Cr.P.C of neutral local person who have stated that no incident took place & the complainant lodged false F.I.R. against accused due to enmity over the landed property. Moreover there is delay in lodging of F.I.R. for about 04 days which is evident from the petition filed before the Honourable Court of 3^rd Additional Sessions Judge, Shikarpur & no such explanation has been furnished about such delay. The mashirnama of recovery also reveals that no incriminating material was secured. Thus I am of the view that there is no evidence which would connect the accused with crime excepting the ocular set of witnesses but the local person have stated that accused were implicated falsely due to enmity. Therefore, I hereby agree with the report of I.O & cancel the crime in false “B” class”.

9. Record reflects that complainant in the F.I.R has nominated the accused persons. The eyewitnesses of incident have implicated the accused in their 161, Cr.P.C statements. Prima facie, a case against accused is established under above referred sections which require trial and appreciation of evidence according to settled principles of law. Investigation officer should not have declared accused innocent by taking into consideration the statements of unconcerned/interested persons. It is the function of trial Court to believe or disbelieve the prosecution witnesses. Section 561-A, Cr.P.C confers upon High Court inherent powers to make such orders as may be necessary to give effect to any order under this Code or to prevent abuse of process of any Court or otherwise to secure the ends of justice. These powers are very wide and can be exercised by the High Court at any time. Reliance is placed upon the case of the State v. Asif Ali Zardari and another reported in 1994 SCMR 798. In such circumstances, apparently there was sufficient evidence against accused persons, learned Magistrate was required under law to take the cognizance of the offence in terms of Section 170, Cr.P.C. In such situation, I find order dated 01.9.2012 arbitrary, it is an abuse of process of Court. The same is not sustainable under the law, it is set aside. Investigation officer is directed to submit a fresh report before the 1^st Civil Judge/Judicial Magistrate, Garhi Yasin who will pass an appropriate order in the matter in the light of aforesaid observations, strictly in accordance with law.

10. Crl. Misc. Application stands disposed of in the above terms.

Judge

Abid H. Qazi/**