MATAHIR SHAH vs THE STATE and 4 others

ORDER

1. ' GHULAM DASTAGIR A. SHAHANI, J.---By this Criminal Miscellaneous Application, the applicant/complainant has challenged the order, dated 29-2-2008 passed by III-Additional Sessions Judge, Karachi East, by which order, dated 17-10-2007 passed by the link VIth Judicial Magistrate Karachi East is maintained.

2. ' Facts of the case in brief are that applicant/complainant recorded F.I.R. No,286 of 2007 at Police Station Korangi Industrial Area in an offence under sections 324/506-B/34, P.P.C. Alleging therein that on 30-9-2007, when he was returning to his house, after offering Fajar prayer, accused (Respondents) fired upon him with TT pistols in order to kill him. Bullets hit at the door of complainant house. However, on arrival of neighbourers, the respondents fled away from the scene. Matter was investigated and respondents namely Habib Shah, Samber Shah and Muhammad Afzal obtained bail before arrest from the trial Court and report under section 173, Cr.P.C. Was submitted, but link Judicial Magistrate declined to take cognizance vide order, dated 17-102007.

3. ' Being aggrieved and dissatisfied Criminal Revision Application No,64 of 2007, was submitted, but that was also dismissed being not maintainable vide order, dated 29-2-2008 by the III-Additional Sessions Judge, Karachi East, on the ground that order can be challenged if same amounts to be an abuse of the process of law by relying upon a case of (PLD 2005 Karachi 375).Hence presence application.

4. ' Mr. Muhammad Rasheed learned counsel for the applicant states that orders passed by two Courts below are contrary to the facts and law arid are not sustainable and liable to be set aside and from report submitted under section 173, Cr.P.C. It reveals that version of the complainant was supported by the witnesses, but that has not been appreciated, though sufficient material was available, on the basis of which cognizance was to be taken, as respondents have committed offence punishable under sections 324/506-B/34 P.P.C., and accused were to be tried.

5. ' On the other hand Mr. Sardaruddin Qureshi learned State counsel supported the orders passed by two Courts below and made a request that same niay be maintained and Criminal Miscellaneous Application may be dismissed.

6. ' Heard learned counsel for the applicant, as well as to learned State counsel and with their assistance perused the material available on record. According to law Investigation Officer has to submit a report/ summary under section 173, Cr.P.C. Within a particular time with the concerned Magistrate who has to scrutinize the matter on the basis of material submitted before him by the Investigation Officer and to pass an appropriate order and not to act as a post office. So far present case is concerned, prima facie it appears that entire material collected by the I/O of the case is considered by him and then he has passed the order on merits and disclosed all merits and demerits of the case and pinpoint that on the place of incident some bullet marks on the wall of the complainant house were seen and empties were recovered but same were not produced before him by the !/O and in a memo. Of place of incident it has not been shown that empties were sealed, and further that Habib Shah produced his pistol to I/O of the case, but same was not taken in possession and empties were even not sent to the. Ballistic Expert in order to ascertain from which type of weapon same were said to have been fired. Looking to the aforesaid facts he ordered for cancellation of the F . I . R .

7. 'I have perused the order passed by III-Additional Sessions Judge, Karachi East, who has maintained the order passed by the Judicial Magistrate. So far section 561-A, Cr.P.C. In respect of powers of this Court is concerned, that are to be used not in each and every case, but rarely in a appropriate cases and there must be a material on the basis of which orders passed by the Courts below be set aside, when two Courts below came to the conclusion that no fruitful result will be achieved if matter proceed, no interference is required. So far lacuna left by the I/O is concerned, it is not a duty of the Magistrate to fill the same and to act as a I.O. Of the case or to be a party, but he has only to scrutinize the matter on available material, and it depends upon him to agree or disagree with police report. Even otherwise, learned counsel appearing for the applicant has failed to show any illegality which amounts to be an abuse of the process of law, so interference be made at this stage.

8. ' In view of aforesaid facts and circumstances, I am of the view that orders passed by two Courts below are proper, legal and in accordance to law and no illegality or material irregularity is committed by the Courts below and that was the reason that Criminal Miscellaneous Application No,59 of 2008 was dismissed by a short order, dated 8-10-2008. These are the reasons for the same.