ZULFIQAR ALI vs Peer AHMED HUSSAIN and 5 others
This criminal miscellaneous application under section 561-A of the Code of Criminal Procedure 1898 challenges the appellate and original orders dismissing the applicant's direct complaint for offences involving torture, injury, and snatching of cash after the recording of preliminary evidence. The core legal question concerns whether the courts below erred in refusing to take cognizance and dismissing the complaint based on alleged contradictions in witness statements and unproved medical evidence. The Sindh High Court held that the concurrent dismissals by the lower courts were justified due to material contradictions and infirmities in the statements of the complainant and his witnesses, coupled with the failure to properly prove the medical certificate. The court laid down the principle that a direct complaint may be lawfully dismissed at the preliminary stage where the recorded evidence is materially contradictory, infirm, and fails to establish a prima facie case for taking cognizance.
- Whether a direct complaint can be dismissed at the preliminary evidence stage when material contradictions exist between the statements of the complainant and his witnesses?
- Does the High Court interfere under section 561-A of the Code of Criminal Procedure 1898 with concurrent findings of lower courts that found no prima facie case for taking cognizance?
- Is a medical certificate sufficient to support a direct complaint when it is not properly proved through the evidence of a medical officer and contradicts the complainant's statement?
- Section 561-A, Code of Criminal Procedure 1898
ORDER
1. ' ARSHAD NOOR KHAN, J.--- By this Criminal Miscellaneous. Application under section 561-A, Cr.P.C., the applicant has questioned the order dated 19-6-2006 passed by the learned Additional Sessions Judge, Kandiaro whereby the revision application filed by the present applicant, was dismissed thereby maintaining the order dated 9-9-2005 whereby the direct Complaint No,26 of 2005 filed by the applicant was dismissed after recording of the P.E.
2. ' The facts in brief are that the applicant advanced an amount of Rs,40,000 to the respondents who did not return the same, therefore, on the fateful day of the alleged incident the applicant went to the respondents for return of his money where he was tortured and beaten by the respondents and he allegedly sustained severe injuries and at that time also snatched cash of Rs,35,000 from him at the time when he went unconscious because of their torture. The applicant therefore filed direct complaint against the respondents wherein the learned Judicial Magistrate held the PE and recorded the statement of the applicant and his witnesses namely P.W. Hashim and P.W. Zaeef and after hearing of the learned counsel for the parties, was of the view that no prima facie case has been made out to take cognizance of the matter and dismissed the direct complaint. Being aggrieved against dismissal of his direct complaint, the applicant preferred Revision Application Np.23 of 2005 before the learned Sessions Judge, which was transferred to the learned Additional Sessions Judge, Kandiaro who vide order dated 19-6-2006, dismissed the revision application; hence this application.
3. ' I have heard Mr. Shaikh Amanullah, learned counsel for the applicant and Mr. Ali Haider Dareshani, learned State counsel.
4. ' The learned counsel for the applicant contended that the applicant brought on record sufficient evidence to take the cognizance and the evidence of the applicant and his witnesses has not been considered by the Courts below while rejecting the direct complaint of the applicant and that the medical evidence available on record, is also supporting the case of the applicant, which has not been considered by the two Courts below, as such the application may be allowed and the matter may be remanded to the trial Court for adjudication of the matter on merits.
5. ' The learned State counsel opposed the submission advanced by the learned counsel for the applicant and has contended that there are material contradictions in the statements of the prosecutions witnesses, who have disclosed the different place of incident, besides the different nature of the injuries allegedly sustained by the applicant and because of such contradictory evidence, the case for taking any cognizance was not made out, therefore, both the Courts below, rightly passed the order.
6. ' I have considered the arguments advanced on behalf of the parties and have gone through the material available on record.
7. The complainant has alleged that he had gone to take back his amount of Rs,40,000 but when he demanded the said money from the respondents, they maltreated and tortured him and had also snatched cash of Rs,35,000 from him. The statement of the complainant did not speak about his going unconscious because of the alleged torture by the respondents, whereas P.W. Zaeef stated so in his statement before trial Court. P.W. Hashim has even not disclosed about the occurrence as deposed by the complainant and his evidence is completely silent regarding the allegation of the case of the complainant and all these circumstances show that the evidence brought on record, was infirm and contradictory, therefore the learned two Courts below rightly passed the order in dismissing the direct complaint. The medical certificate produced by the applicant has also not been sufficiently proved through the evidence of medical officer and even otherwise as per statement of the applicant, the injuries contained in the medical certificate, are derogatory with his statement, which also adversely reflect on the case of the applicant.
8. ' In view of the aforesaid circumstances, both the learned Courts below rightly passed the order thereby dismissing the direct complaint filed by the applicant, Which do not suffer from any infirmity or illegality. The application has therefore no merits and is dismissed.
Cited by 1 case
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