Syed WAHID BUX SHAH alias CHACHO SHAH and another vs THE STATE

ORDER

1. ' IMAM BUX BALOCH, J.---Through this criminal miscellaneous application, the applicants have challenged the order passed by learned Civil Judge and Judicial Magistrate, Thull, under section 173, Cr.P.C. On 20th November, 2009. The learned Magistrate disagreed with the report of police, as the S.I.O. Had recommended the case to be disposed of under "B" class.

2. ' The facts in brief are that on 21-1-2008, complainant along with his cousin Ghulam Qadir were in their house, when at about 10-30 p.m, they came out on the knock at their door and found Asadullah Shah who gave them message of Wahid Bux alias Chacho Shah that he had called them. On receiving such message complainant along with his cousin Ghulam Qadir proceeded towards bungalow of applicant Wahid Bux alias Chacho Shah, where they met with Chowkidars Rasool Bux and Saifullah; on their query complainant told them that Chacho Shah has called them.

3. It is further alleged that it was about 11-00 p.m. When complainant reached at door of bungalow, where accused Wahid Bux alias Chacho Shah; Haji alias Khuda Dino Chandio and Dodo alias Chanessar Chandio were standing duly armed with T.T. Pistols. It is further alleged that Wahid Bux alias Chacho Shah instigated Haji alias Khuda Dino and Dodo alias Chanessar to kill Ghulam Qadir, on which complainant requested them, but accused Haji alias Khuda Dino fired from his T.T. Pistol directly at Ghulam Qadir, which hit on his neck and accused Dodo alias Chanessar fired in the air in order to harass complainant. Complainant has further restated that incident was seen by Rasool bux and Saifullah.

4. ' Before lodgment of this F.I.R. An F.I.R. Crime No,21 of 2008 was registered with Police Station Thull on the same day i.e, 12-1-2008 by Ghulam Rasool. The facts of the Crime No,21 of 2008 are that Ghulam Rasool along with his brother Ghulam Qadir and their relatives Gulab and Asghar resided in the same village. About three years back they purchased plot from Abdul Qadir in Thull Town, for which they paid the entire amount and the possession of plot was handed over to them, but the mutation was not transferred in their name to which they were always kept on false hopes and about ten days before the incident they went to Abdul Qadir for transfer of Khata in their name but he refused to do the needful and issued threats to vacate the possession in a week, otherwise face the consequence. It is further case of the complainant that on the fateful evening he along with his brother Ghulam Qadir and relative Ghulam Asghar went to Thull town for their work and after finishing their work they were on the way back to their village, when at about 11-00 p.m. They reached at the shrine of Daman Shah where they saw five persons armed with pistols and on the electric bulb-light identified three of them as Abdul Qadir, Abdul Majeed and Abdul Latif. Accused Abdul Qadir gave hakal and abused complainant party that as they were demanding for transfer of Khata of plot and refused to vacate the same, hence they will not be spared. On the same moment Abdul Qadir fired from his T.T. Pistol directly at Ghulam Qadir, which hit him on his neck and he fell down and other accused pointed their weapons for keeping silence the complainant and other prosecution witnesses. As they were empty handed, they remained mum. After that all the accused went away towards eastern side. Complainant arranged for conveyance and brought his brother Ghulam Qadir at Taluka Hospital, Thull, and went to Police Station and lodged the report under sections 324, 148, 149, 502, P.P.C. During treatment Ghulam Qadir succumbed to injuries.

5. ' Police investigated Crime No,21 of 2008 and submitted report under section 173, Cr.P.C. With Civil Judge and Judicial Magistrate, Thull. The learned District Public Prosecutor also recommended the report of S.I.O. After lapse of one year and seven months the complainant Gulab Khan approached learned Sessions Judge under sections 22-A and 22-B, Cr.P.C. For registration of F.I.R.

6. ' I have heard learned counsel for the applicants and learned State counsel. The latter does not support impugned order, dated 20-11-2009 on the ground that as F.I.R. No,21 of 2008 was already investigated and challaned in the competent Court of law against nominated accused, which is pending adjudication. The learned State counsel further contended that after full investigation the Investigating Officer recommended for the cancellation of the F.I.R. Under false "B" class considering the first F.I.R. But the learned Magistrate has not considered the report of Investigating Officer duly recommended by S.P. Investigation and learned District Public Prosecutor.

7. ' Learned counsel for the applicant argued that as Crime No,21 of 2008 of. Police Station Thull was already investigated and challan was submitted by the Investigating Officer and the accused are facing trial, the second F.I.R. Was lodged with ulterior motives and mala fide intention to rope innocent persons, as first F.I.R. Crime No,21 of 2008, was registered by the brother of deceased Ghulam Qadir and the complainant of this F.I.R. Is cousin of the said deceased. After full investigation of Crime No,21 of 2008 there was no need of the present F.I.R. But the complainant with mala fide intention and ulterior motives has filed false F.I.R. After seventeen months.

8. ' I have considered the submissions advanced at the bar and perused the relevant record available with the file. Admittedly first F.I.R. No,21 of 2008 was registered by brother of deceased Ghulam Qadir and that F.I.R. Was fully investigated and challan was submitted in the Court of law, which is pending adjudication. The contents of F.I.R. No, 184 of 2009 of same Police Station seems to be concocted and fabricated as reported by Investigating Officer, which was duly recommended by S.P. Investigation and learned District Public Prosecutor. Looking to the facts and circumstances of the case I am of the view that the learned Magistrate has passed impugned order in a hasty manner and discussed the evidence which is not permissible under section 173, Cr.P.C. In existence of first F.I.R. Which was lodged by the brother of deceased Ghulam Qadir second F.I.R. By his cousin cannot be considered as true. In the above circumstances, the impugned order, dated 20-11-2009, passed by learned Civil Judge and Judicial Magistrate, Thull, is set aside. The proceedings arisen out of Crime No, 184 of 2009, of Police Station Thull are also hereby quashed. With above observations, this criminal miscellaneous application is disposed of.