ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT,

HYDERABAD.

Cr. Misc. A. No. D – 683 of 2014.

DATE ORDER WITH SIGNATURE OF JUDGE

31.03.2015.

FOR ORDERS ON OFFICE OBJECTIONS.

FOR KATCHA PESHI.

FOR HEARING OF M.A.

Mr. Ayaz Hussain Tunio, Advocate for the applicant.

None present for the complainant.

Syed Meeral Shah Bukhari, D.P.G. for the State.

This criminal miscellaneous application has been preferred against an order dated 25^th September 2014 passed by Anti-Terrorism Court Hyderabad in A.T.C. Case No.26 of 2013 (CrimeNo.19/2014, P.S.Hatri) whereby the application moved by the applicant under Section 23 of the A.T.A. 1997 was dismissed.

The brief facts of the case are that 9 to 10 persons allegedly arrived at the land of the complainant on 26.01.2014 armed with weapons started firing on the complainant party and also demanded ‘Bhatta’.

The learned counsel for the applicant argued that police submitted the report in ‘B’ class and exonerated the accused persons but no orders have been passed so far by the learned Anti-Terrorism Court on the final report submitted by the I/O. The relevant portion of the impugned order is reproduced is as under:-

“……. In this case although I.O. has submitted B Class report and has exonerated all the accused persons after reinvestigation and has moved B. Class report on the basis of documents of verification of Airline ticket that accused Mashooq has left Karachi on 26.01.2014 and arrived Karachi on 27.01.2014 and his own statement that there is dispute between the parties over the land when learned counsel for the complainant has very rightly argued that plea of alibi is to be seen at the trial. Again he has argued that son of accused Mashooq Ali is an employee of PIA and that no boarding card is available. To me arguments of learned counsel for the complainant are appealing. Therefore, it is ordered that B. Class report be kept in abeyance.”….

The learned counsel argued that the propriety demands that the matter may be remanded back to the learned trial Court to first pass the order on the final report and if the recommendations are not accepted then decide this application in accordance with law.

The learned D.P.G. also supported the contention of counsel for the applicant to the extent that when the final report was submitted in ‘B’ class then the trial Court should have passed the order first on the final report before proceeding the case or the application moved under section 23 of the A.T.A. 1997 and he is also of the view that matter may be remanded back to the learned Judge for passing appropriate orders.

We have considered the arguments and also examined the impugned order. The portion reproduced above clearly depicted that I/O has submitted ‘B’ class report and has exonerated all the accused persons after reinvestigation. The documents produced by the applicant No.1 had also shown his movement and there is a dispute between the parties over the land but despite submitting this report the learned trial Court kept the recommendation in abeyance without passing any order and dismissed the application moved under Section 23 of the A.T.A. 1997 so in our view the ‘B’ class report should have been considered first and if the trial Court is of the view that cognizance is to be taken in this case despite submission of ‘B’ class report then the learned trial Court may pass order on the application submitted under section 23 of the A.T.A. 1997.

In view of the above the impugned order is set-aside with the directions to the learned trial Court to first pass the order on the report submitted in ‘B’ class and if cognizance is taken then decide the application under section 23 of the A.T.A. 1997 within a period of fifteen days time.

This criminal Misc. application is disposed of accordingly.

Judge