2018 PLP 63 (YLRN)

SHAHNAWAZ TARIQ, J.

Through captioned Constitution petition, petitioner Abdul Razzak has invoked the Constitutional jurisdiction of this COurt under Article 199 of Islamic Republic of Pakistan, 1973, and impugned the order dated 09.05.2015, passed by the Court of learned II-Civil Judge and Judicial Magistrate, SuKkur, whereby summary report submitted by Investigating Officer was approved under 'C'-Class.

2. Relevant facts narrated in instant petition are that complainant lodged FIR on 30.03.2015, stating therein that on 21.02.2015, he along with his companions were available in the house, when accused persons namely Mohammad Saleh and Mohammad Farooq alias Farooq entered into his house and they made ,gun fires upon the complainant but he fell down and escaped him, hence instant FIR.

3. Learned Counsel for petitioner contended that petitioner lodged FIR against nominated accused persons and specific role has also been assigned to main accused Mohammad Saleh, whereby accused persons had attempted to commit murder of petitioner, as they are disputed over the property; that witnesses have fully supported the contention of complainant mentioned in FIR in their statements recorded under section 161, Cr.P.C.; that police without recording statements of any defence witness, has submitted summary under 'B' Class; that learned trial Magistrate had failed to consider the material available on record properly while approving summary report and disposed of the case under C-Class; that impugned order may be set-aside and Investigating Officer may be directed to submit Challan before the concerned Magistrate. Learned counsel relied on the case of Anwar Shamim and another v. The State (2010 SCMR 1791).

4. While controverting the above submissions, learned Counsel for respondent No.3 vehemently contended that parties are disputed over the property, hence petitioner has lodged false only to settle account of enmity against accused persons; that petitioner in miscellaneous application filed before the Court of learned 1st Additional Sessions Judge/Justice of Peace had narrated three different stories but same have not been mentioned in FIR, which reflects the ulterior motives on the part of petitioner. Learned counsel relied on the case of Allah Yar v. Jeevan and 7 others (2015 PCr.LJ 142).

5. Learned AAG supported the impugned order and contended that Investigating Officers has properly investigated the case and submitted the summary report which was approved by the learned trial Court, hence instant petition is liable to be dismissed.

6. Heard learned Counsel for the parties supported with case law and perused the material available on record prudently.

7. Perusal of record reflects that petitioner and respondents are disputed over property and such factum is reflected from the averments of FIR. Allegedly incident occurred on 21.02.2015, while instant FIR. was lodged on 30.03.2015 in compliance of order passed by Justice of Peace in criminal misc. application No.200 of 2015. From bare perusal of averments of said miscellaneous application, it is crystal clear that petitioner has narrated three different stories in his miscellaneous application by levelling series of allegations against the respondents, however, in FIR, he has not narrated same facts and has taken divergent stances which have invalidated the entire structure of the case. It is well settled that no body can change his stances before different Courts and forums by narrating different stories and such controverting attitude is sufficient to disbelieve the allegations leveled by the complaining party. It is significant to mention that allegedly accused persons made gun fire shot upon the petitioner which was missed, but even then, he was at the mercy of accused persons, nevertheless neither they had repeated any fire upon petitioner nor caused any kind of injury or harassment by issuing threats to him. Moreover, during investigation neither any empty was recovered from the spot nor any other connecting iota of the evidence was collected by the Investigating Officer. Petitioner had not made any complaint that during investigation, the Investigating Officer did not record statements of his witnesses correctly or refused to record their statements or had investigated the case impartially, thus the allegations leveled by the petitioner have. no legal substance for consideration. It is well settled that Magistrate is not bound to follow the findings of Investigating Officer placed before him in shape of summary report at the time of conclusion of investigation, however, it is incumbent upon the Magistrate to examine entire material and set of allegations prudently while passing the order on summary submitted by the Investigating Officer. Learned Magistrate has passed an appropriate and speaking order and has not committed any illegality or material irregularity while passing impugned order, which does not call for any interference. Consequently, instant petition stands dismissed being devoid of any legal substance. However, petitioner is at liberty to file direct complaint before competent Court of law, if he is advised so. WA/A-70/Sindh Petition dismissed.