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