Reported
in 2014 MLD 52
ORDER SHEET
IN THE HIGH COURT OF SINDH, KARACHI
Crl. Misc. Application
No. 127 of 2013
Date Order with signature of Judge
For Katcha
Peshi.
Heard on 11th September, 2013.
Mr. Hussain Bux Saryo, Advocate for applicant.
Mr. Malik Khushhal,
Advocate for complainant.
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SYED MUHAMMAD
FAROOQ SHAH, J.:- This is a criminal miscellaneous
application under section 561 Cr.P.C. filed by the applicant, against the short
order dated 26.01.2013, passed by the learned 3rd Judicial
Magistrate, Karachi-West, whereby he had accepted the report under section 173
Cr.P.C. in “A” Class, on the ground that Investigation Officer failed to establish the case.
2. Contents of the FIR lodged
by one Habibullah Ali Zai,
Manager Construction KESC are that during material inspection on 17.12.2012 the
provided material of the contractor of KESC property was found stolen by the
accused person. On such written complaint, FIR was registered and during
investigation the complainant inspected the site where he found four numbers of
disc insulators belonged to KESC lying at EPLA Laboratory. He has recorded
statement of all material witnesses. The
investigation officer submitted in his report that if there were the said equipments, then why the same were not taken into
possession. According to the Investigating Officer, it is found that neither
there appears any property of four numbers of insulators of KESC, nor the same
is taken into possession. More so, the complainant has failed to provide any
evidence of the property as such he sent report under section 168 Cr.P.C. to
higher authorities and with their approval he has submitted the report under
clause (A).
3. Arguments heard. Record perused.
4. The learned counsel for the
applicant contended that under the mentioned circumstances the case covered in “B”
Class (false) as the learned Magistrate has himself observed in the impugned
order that Investigation Officer has failed to establish the case. The SHO/Investigating
Officer has wrongly submitted report under “A” Class, as contents of the report
reveal that it falls under “B” Class. Per
learned counsel, “A” Class applies when the case is true but accused is
untraceable; “B” Class applies when the case found false and “C” Class is
applicable when there is insufficient evidence or the matter is non-cognizable.
Learned counsel submitted that the impugned order dated 26.01.2013 is against natural
justice and is not sustainable in law and liable to be set aside.
5. Notice
of this application was returned served and Mr. Malik Khushal
Khan has shown his appearance for the complainant and filed objections on the
captioned application. He has submitted that the police with malafide intention and ulterior motive disposed of the case
under “A” Class though there was sufficient evidence against the
accused/applicant. Learned counsel submitted that on stolen material clear
words as “KESC Property”, are visible which evidence has been ignored by the
police officials. Complainant’s counsel much stressed for re-investigation of
the case in the interest of justice and next contended that there is sufficient
evidence collected by the prosecution against the accused person showing their
involvement in this case, hence police was bound to submit challan against
them.
6. A perusal of the record transpires that
the police has submitted final report in “A” class due to lack of prosecution
evidence but it appears that “A” class is not attracting in the circumstances
of present case as the
police has submitted final report in “A” Class wrongly and learned Magistrate
has also seriously erred to accept the report in “A” class as due to lack of
evidence, it falls in “B” class {False}. While passing administrative order the
Judicial Officer/Magistrate is not supposed to act upon the police report, on
the contrary, it is duty of the Judicial Magistrate to give his own finding
with regard to sufficient or lack of evidence in the case as in present case
Judicial Magistrate while passing the executive order has not gone through the
record of the case with such prudence as his office demanded from him and also
failed to apply his conscious mind to the facts of the case and evidence
collected by the police. Suffice is to say that non-speaking order has been
passed without any reason. It need not to iterate that opinion of police is not
to be followed blindly in every case and such opinion in view of legal evidence
has to be tested in the light of totality of the material on the record.
Consequently, the order dated 26.01.2013 is set aside and report of police be
treated as accepted under “B” Class.
7. So far as the contentions of the
learned counsel for complainant are concerned, the complainant is set at
liberty to approach the proper forum by filing a direct complaint before a
Magistrate having jurisdiction if so advised.
8. The captioned application is decided in
the manner indicated above.
*Shoukatullah/PA* J
U D G E