2017 PLP 105 (YLR)

ANWAR HUSSAIN, J.

Through this Crl. Misc. Application, the Applicant Inayat alias Inayatullah Chacher, has assailed the Order dated 18.9.2014, passed by learned Judicial Magistrate-III, Shikarpur, whereby while taking cognizance of the offence the learned Magistrate ordered issuance of the NBWs against the Applicant in Crime No.58/2014, registered at P.S. Rustam, District Shikarpur, for offence punishable under Section 302 P.P.C. The facts leading to filing of instant Criminal Miscellaneous Application are that on 03.7.2014, the Complainant viz. Allahwassayo Chacher, lodged FIR at P.S. Rustam, for the murder of his father viz. Muhammad Mithal, nominating present Applicant and three others with allegation that they all duly armed, made direct fires at his said father and caused firearm injuries at vital part, resulting into his death on the spot. On completion of usual Investigation the Police, submitted Challan/Report under Sections 170/173, Cr.P.C. before the concerned Magistrate, against the accused persons, but by placing name of Applicant Inayat alias Inayatullah, in Column No.II of the Challan. The learned Magistrate did not agree with the Police Report and passed the Impugned Order, whereby taking cognizance of the offence and ordered for issuance of NBWs against the Applicant, in view of such allegation/commission of murder and evidence in support of the same and sent the case for Trial before the learned Sessions Judge. Per learned Counsel the Applicant surrendered himself before the learned Sessions Judge, Shikarpur, with an Application for grant of Pre-arrest Bail and in the first instance he was admitted to Interim Pre-arrest Bail. However, later-on the same was recalled by learned 1st Additional Sessions Judge, Shikarpur, vide Order dated 20.4.2015, and the Applicant was taken into custody and remanded to Jail. Subsequently, the Applicant filed an Application for grant of Post Arrest Bail, which too was dismissed by Trial Court vide Order dated 28.4.2015. Thereafter, the Applicant filed Crl. Bail Appln. No.S-387/ 2015, before this Court, which after hearing has been dismissed vide Order dated 16.5.2016. Heard learned Counsel for the Applicant and learned D.D.P.P. and perused the material available on record. Subsection (b) of Section 190, Cr.P.C., empowers the Magistrate to take cognizance of any offence upon a report in writing of such facts made by any police-officer. The perusal of Impugned Order shows that the learned Magistrate has taken cognizance of the offence after scanning the entire material placed before him and found it to be sufficient for taking cognizance of the offence against Applicant. The Applicant has been nominated in the FIR, with specific role of making fire upon deceased; however his name was placed in Column No.II of the Challan on the basis of only defence plea. The Magistrate has rightly observed that the plea of alibi would be considered by the Trial Court after recording evidence. Even otherwise the opinion of Police is not binding upon the Court in view of case reported in 2010 SCMR 1861 and 2003 PCr.LJ 135 (Karachi). Moreover, after issuance of the Warrants of Arrest the Applicant appeared before the learned Sessions Judge, Shikarpur, with an Application for grant of Pre-arrest Bail, wherein interim pre- arrest bail granted, which was not confirmed; and after rejection of his such Application, he was remanded to jail custody; after that his plea for Post Arrest Bail was also declined by Trial Court and ultimately by this Court vide Order dated 16.5.2016, in Bail Appln. No. S-387/2015, and as per Report of the Trial Court the case is fixed before it for framing of Amended Charge. In view of the above the impugned order does not call for interference by this Court. Accordingly, the instant Criminal Miscellaneous Application stands dismissed. SL/I-13/Sindh Application dismissed.