MOHAMMED SACHAL Versus State
ORDER
SHAHNAWAZ TARIQ, J.--- Through captioned miscellaneous application, applicants Mohammad Sachal, Gul Muhammad, Mehboob Ali, Gul Hassan alias Toto and Hyder Bux alias Lodho have impugned order dated 13.10.2012, passed by the Court of learned I-Judicial Magistrate Mirwah, whereby summary report submitted by Investigating Officer under 'C'-Class was not approved and Investigating Officer was directed to submit challan against the applicants.
2. Necessary facts spelt out from instant miscellaneous application are that complainant lodged FIR No.20/2012 at Police Station Setharja on 24.02.2012 at 1715 hours, stating therein that about one month ago Munawar Ali Rajpar was killed and one Ali Akber Rajpar sustained injured and such FIR was lodged by complainant Mohammad Sachal Rajpar against his brother namely Ghulam Dastagir and others at Police Station Setharja. Complainant party approached the accused by taking Qur'an Pak but they did not respond properly and extended threats for dire consequences. On 23.02.2012, there was turn of water rotation, hence complainant his nephew Riaz and maternal cousin Ayaz left home after taking meals. At about 08.30 p.m., when they reached near the house of Shahid, they saw two motorbikes parked on road and one unknown person was standing near the bikes. In the meantime, 3 persons emerged from the southern side of road and two persons emerged from the northern side of the road. Complainant party identified armed accused persons as Muhammad Sachal with rifle, Gul Mohammad with gun, Mehboob with pistol, Ladho with pistol and Toto with lathi. Accused by challenging the complainant party, started firing with intention to commit their Qatl-i-amd. Complainant took shelter in the ditches by falling down and within his sight accused Sachal made straight fire on Ayaz who fell down by crying. Complainant party raised cries which attracted Mohammad Punhal, Mohammad Bux and others form their village and accused fled way. Complainant shifted his nephew Ayaz to hospital after getting letter from Police Station for first aid, hence instant FIR.
3. Learned counsel for applicants contended that at first hand after completion of investigation, Investigating Officer submitted report under "A"-Class, which was approved by learned Magistrate vide order dated 10.04.2012: that respondent No.3 Ghulam Nabi agitated said order by preferring miscellaneous application before this Court and same was allowed vide order dated 07.05.2012 and impugned order was set aside and DIG Sukkur was directed to entrust investigation to an independent official not below the rank of DSP from outside District Khairpur and such investigation report shall be submitted before the Judicial Magistrate. who will pass appropriate order: that DIG Sukkur vide order dated 18.05.2012 appointed Gul Hassan Gujar, DSP/SDPO Kandiaro to conduct re-investigation of the case within ten days; that matter was reinvestigated and Investigating Officer submitted the report on 02.07.2012 for disposal of the case under cancel Class; that learned Magistrate without considering the material placed on record and factum of animosity between the parties, as applicant No.1 Muhammad Sachal had lodged FIR No.8/ 2012, under sections 302, 385, P.P.C. at PS Setharja against complainant and others, which is sub-judice before the competent Court of law wherein applicant No.3 Mahboob Ali is eye-witness; that medical report is controverting the allegations leveled in FIR as respondent No.3 has alleged that applicant Muhammad Sachal made rifle fire, which hit injured Ayaz on his chest on right side; that only to spoil the murder case pending against respondent No.3, instant FIR has been lodged, but the learned Magistrate has not considered the motive of the complainant for lodging instant FIR.
4. While controverting above submissions, learned APG supported the impugned order and submitted that the alleged offence is punishable up to 10 years and also supported the allegations made by the respondent No.3 in FIR and medical report.
5. Heard the arguments advanced by learned counsel for applicants, learned APG and examined the material available on record minutely.
6. Perusal of record reflects that parties are already disputed over certain issues which is admitted by applicant No 1 Muhammad Sachal in FIR No.8/2012, under sections 302, 395, P.P.C. against the respondent No.3 and others, wherein applicant No.3 Mahboob is cited as eye-witness; that case has been reinvestigated by two different Investigating Officers. It is worthwhile to mention that on the directions issued by this Court, DIG Sukkur appointed Gul Hassan Gujar, DSP Kandiaro out of District Khairpur, who also thoroughly reinvestigated the case and recorded the statements of witnesses, which are available at page-49 of the file. The operative part of the findings of Investigating Officer is reproduced as under:-
"FINDINGS
I have re-investigated the case impartially, honestly and after recording the statements of both the parties as well as independent witnesses of the locality and statement of expert Medical Officer, who examined the injured and issued final Medical Certificate of the injured Ayaz Ali Lund, I am of the opinion/view that complainant and his witnesses due to revenge of the case FIR No.08/2012, under sections 302, 395, P.P.C. of P.S. Setharja lodged by Mohammad Sachal Rajper, against brother of the complainant namely Ghulam Dastigeer Lund and others, who is also absconder in that case, they committed murder of Munawar Ali Rajper and Mehboob Ali Rajper, during robbery. Hence the complainant Ghulam Nabi falsely implicated the innocent persons in his case with intention to withdraw from the murder case, as complainant of this case wants to save his hardened /criminal and absconder brother Ghulam Dastigeer Lund from the lawful arrest/legal punishment. In view of facts/grounds, I recommended for disposal of the case as cancelled Class."
7. It is well settled that learned Magistrate is not bound to accept the opinion formed by the Investigating Officer while submitting summary report, but it is incumbent upon him that while declining summary report, he should examine the entire material placed by the Investigating Officer judiciously and form his independent opinion. Bare perusal of impugned order reflects that learned Magistrate has not properly examined the material properly and ignored ulterior motives of the complainant who has lodged instant FIR with sole purpose to frustrate the proceedings of murder case pending against complainant and his companions. It is significant to mention that incident occurred during night in darkness, hence identification of accused persons with specific role while complainant was lying in ditches, could not convince the prudent mind. Conversely, medical report is controverting the allegations leveled by the complainant in FIR that injured Ayaz sustained rifle injury at right side of his chest, but per opinion of medical officer an iron piece entered in the chest of injured from his right side.
8. Considering the above circumstances, learned Magistrate while passing impugned order has committed serious illegality and material irregularity, which attracts intervention of this Court. Consequently, instant miscellaneous application is allowed, and order dated 13.10.2012, passed by the learned Magistrate Mirwah is set aside and summary report submitted by Investigating Officer for disposal of case under 'C'-Class, is approved.
JK/M-3/Sindh Application allowed.