SARFARAZ HUSSAIN vs THE STATE and 2 others

ORDER

1. ' ARSHAD NOOR KHAN, J.---By this application under section 561-A, Cr.P.C., the applicant is seeking setting aside of the order dated 25-1-2008 passed by the learned III-Civil Judge and Judicial Magistrate, Sukkur in Crime No,27 of 2007 under sections 302, 324, 148, 149, P.P.C., whereby the learned Magistrate disagreed with the report submitted by the I/O under section 173, Cr.P.C. For disposal of the F.I.R. In B-Class.

2. ' The case of the prosecution in brief is that the applicant who is S.H.O. Of Police Station Bagarji has been nominated in the aforesaid crime for having committed the murder of deceased Muharram Jatoi on 9-4-2007. After registration of the F.I.R. Investigation was conducted and after recording evidence of the prosecution witnesses the I/O submitted report under section 173, Cr.P.C. And the learned A Magistrate did not agreed with the report submitted by the I/O and directed the I/O to submit the challan against the applicant within seven days, hence the present application.

3. ' I have heard Mr. Noor Hassan Malik Advocate for the applicant and Mr. Imtiaz Ali Soomro A.A.-G.

4. For the State.

5. 'The learned counsel for the applicant vehemently contended that the learned trial Court did not pass the speaking order thereby directing the I/O to submit the challan against the applicant and that no particular evidence has been referred by the learned Magistrate while disbelieving the report of the Investigating Officer thereby directing the I/O to submit the challan as such the order passed by the III-Judicial Magistrate Sukkur, being non speaking order, is liable to be set aside. In support of his contention he has relied upon the case of Khalid Meharban v. Judicial Magistrate reported in 2005 YLR 829.

6. ' Mr. Imtiaz Ali Soomro learned A.A.-G. For the State vehemently controverted the submissions advanced by the learned counsel for the applicant and has submitted that the Magistrate has all the powers to disbelieve the report' submitted by the I/O as such there appears no illegality, infirmity or discrepancy in the orders passed by the Magistrate.

7. ' I have considered the arguments advanced on behalf of the parties and have gone through the material available before me.

8. A perusal of the impugned order passed by the learned Judicial Magistrate shows that some of the prosecution witnesses have fully supported the occurrence stated in the F.I.R., but the I/O has disbelieved their version because of the reason that the witnesses more in number, have not supported the occurrence which is sufficient to dispose of the crime in B-Class. The analogy on which the Investigating Officer seeks the disposal of crime in B-Class seems to be a fanciful and arbitrary. In criminal administration of justice, the quality of the evidence is to be considered by the Court irrespective of the quantity of the evidence and even, in case, if one witness whose evidence is sufficient, confidence inspiring and is, free from all hypothesis, may be treated as sufficient and convincing to convict the accused. In the present case, the eye-witnesses have supported the occurrence, therefore, it could not be said that the number of witnesses who are less in number, their evidence could not be considered in view of more number of the witnesses, who have not supported the occurrence and, if such principle is applied and case is disposed of in B-Class there should be no proper justice in the criminal matters, as the parties may produce number of vague witnesses and keeping in view the number of vague witnesses the evidence of the genuine eyewitnesses may be ignored which is not the spirit of the law.

9. Since the learned Magistrate is of the opinion that the eye-witnesses have supported the occurrence, in comparison to those witnesses who had not supported the occurrence, the matter requires further judicial enquiry, therefore, Magistrate was well within his powers not to accept the report submitted by the I/O for disposal of the matter in B-Class and rightly directed c the I/O to submit the challan. Case of Khalid Meharban relied upon by the learned counsel for the applicant, in my humble opinion is not supporting the version of the learned counsel for the applicant and is distinguishable from the circumstances of the present case.

10. Keeping in view of the aforesaid circumstances and reasons I do not find any merit in the present application which is hereby dismissed, in limine along with listed application.