2025 P Cr (PLP)

Shamsuddin Abbasi, J.

In this Criminal Miscellaneous Application under section 561-A, Cr.P.C order dated 05.06.2024 passed by learned Additional Sessions Judge-I Karachi East has been sought for to be set aside whereby, in order to effect appearance of applicant before trial Court/Court of Sessions, NBW has been issued against her, who was neither named in FIR nor in report under section 173, Cr.P.C but she was arraigned as accused in supplementary challan and learned Magistrate concerned sent up the case to the Court of Session for trial.

2. The brief facts of the case are that on 16.08.2020 there was valima ceremony of his son, which was ended at 12:30 a.m. and they reached home on 17.08.2020 at 02:15 a.m., 5/6 friends of his son also accompanied them to home. Wife of complainant went to second floor of the house and started shouting that someone has committed theft as articles are lying outside Almirah. Complainant went to rooftop and fired 3/4 shots, however, no one was on the rooftop. One of his neighbors called on 15, three police personnel came, Zeeshan Ali friend of his son, was coming down from first floor, police personnel presumed him to be a thief and fired on him to which he sustained injury, who was taken to hospital for treatment. Checking the house revealed that prize bonds of Rs.1,100,000/-, two normal jewellery sets, two bangle, earing were missing, hence he came to police station and lodged such FIR No.254/2021 was registered under sections 380, 34, P.P.C was registered at P.S. Al-Falah, Korangi Karachi. During treatment inured Zeeshan Ali expired, therefore, on behalf of State FIR No.255/2020 was also registered under sections 324, 502, 302, P.P.C against PC Zulfiqar for causing firearm injury to Zeeshan Ali.

3. Perusal of record reveals that upon conclusion of investigation, IO submitted report under "A" Class in FIR No.254/2020 while charge sheet was submitted against accused Syed Suleman Ali, Syed Kamran Ali and PI Saadat Butt in FIR No.255/2020. However, learned Magistrate concerned disposed of the said FIR in view of the dictum laid down in Sugran Bibi case and after taking cognizance in FIR No.255/2020, sent the R and P of case to the Court of Session for trial vide order dated 03.03.2021.

4. Thereafter Investigating Officer submitted supplementary challan in FIR No.255/2020, mentioning the name of present applicant in Column 2 of charge sheet, however, learned Magistrate forwarded to the same to the Court of Sessions, empowered to take cognizance, vide order dated 26.06.2023. Later on, upon application filed by legal heirs of deceased, learned trial Court took cognizance against applicant and issued NBWs against the present applicant.

5. Learned counsel for the applicant mainly contended that applicant was neither nominated in the FIR no IO placed her name in the list of accused in final challan; that learned concerned Magistrate after accepting final challan sent the case for disposal in accordance with law to learned Sessions Judge on the ground that Section 302, P.P.C is exclusively triable by learned Sessions Court; that learned Sessions Judge sent this case to learned Additional Sessions Judge-I, Karachi East for disposal in accordance with law; that learned trial Court proceeded with the case and charge was framed and case was fixed for recording the evidence of prosecution witnesses, till then no cognizance has been taken by learned trial Court against the applicant but later on, on the basis of application moved by the legal heirs of deceased, cognizance has been taken against the applicant on the basis of supplementary challan; that the impugned order passed by learned trial Court is improper, illegal and incorrect and is liable to be set aside; that learned concerned Magistrate has already taken cognizance on the report under section 173, Cr.P.C wherein applicant has not been implicated by the IO; that even learned trial Court after receiving supplementary challan has not passed any order or taken the cognizance against the applicant and charge was framed; that trial Court cannot exercise the powers in terms of Section 265-D, Cr.P.C, therefore, impugned order is void in the eyes of law; that learned trial Court can issue summons against the proposed accused but in the present case, without hearing the applicant, learned trial Court issued NBWs against the applicant; that learned trial Court has failed to pass any speaking order; that after framing the charge, cognizance taken by the learned trial Court is illegal, null and void. He finally prayed that impugned order may be set aside.

6. On the other hand, learned D.P.G., assisted by counsel for respondents 4 and 5, supported the impugned order on the ground that IO collected sufficient evidence against the applicant/accused, therefore, he filed supplementary challan before learned concerned Magistrate, which was sent to the learned trial Court; that learned trial Court in terms of Section 193, Cr.P.C is competent to take cognizance against the accused persons at any stage; that no any illegality has been committed by learned trial Court, hence instant application may be dismissed.

7. Heard learned counsel for applicant, learned D.P.G., learned counsel for respondents 4 and 5 and perused the material available on record.

8. In the present case, two FIRs bearing Nos.254/2020 and 255/2020 of the same police station were registered for the same incident and in view of Sugran Bibi ccase, FIR No.254/2020 was disposed of in "A" Class whereas report under section 173, Cr.P.C was submitted in FIR No.255/2020. Learned concerned Magistrate has taken the cognizance on the final report submitted by the IO under section 173, Cr.P.C and sent the case to learned Sessions Judge concerned as Section 302, P.P.C was exclusively triable by the Court of Sessions, learned Sessions Judge transferred the case to learned Additional Sessions Judge-I, Karachi East on administrative grounds for disposal in accordance with law. Learned trial Court after formal proceedings, framed the charge against the accused. It is a matter of record that neither applicant is nominated in the FIR not her name came on surface in the final report/challan. After submission of final report under Section 173, Cr.P.C IO furnished supplementary challan before learned concerned Magistrate, who sent the supplementary challan to learned trial Court on the ground that he has already taken the cognizance on the report under Section 173, Cr.P.C and now he has become functus officio. It is a matter of record that learned trial Court after receiving supplementary challan has not passed any order and after compliance under Section 265-C, Cr.P.C framed the charge against the accused who were placed on the list of column of accused in the final report forwarded by the Magistrate concerned under section 173, Cr.P.C. Case was fixed for recording evidence when counsel for legal heirs of deceased has pointed out that before proceeding further learned trial Court has to pass order on the supplementary challan and learned trial Court after hearing the parties has passed the impugned order by issuing NBW against the applicant. Applicant has been implicated by the IO after collecting evidence against her as she has played role for disappearing evidence in connivance with accused Syed Suleman Ali, who is husband of the applicant, which requires adjudication. So far as the points raised by learned counsel for the applicant that neither the applicant is nominated in the FIR nor her name is mentioned in the report under Section 173, Cr.P.C as accused; charge was framed against co-accused and trial Court was not competent to take cognizance at belated stage are concerned, I am of the considered view that learned trial Court can take cognizance in view of the provisions of Section 193(1) Cr.P.C on receiving the supplementary report from learned Magistrate concerned. I do not see any illegality while taking cognizance of offence by learned trial Court against the applicant. However, instant criminal miscellaneous application is converted to protective bail and applicant Erum Suleman Ali wife of Syed Suleman Ali is admitted to protective bail for a period of Seven (7) days, subject to furnishing solvent surety in the sum of Rs.25,000/- and P.R. Bond in the like amount to the satisfaction of the Nazir of this Court. Operation of NBW issued against the applicant is suspended for a period of seven (7) days.

9. The instant criminal miscellaneous application is disposed of in the above terms. JK/E-2/Sindh Protective Bail granted.