2015 PLP 2196 (YLR)

SADIQ HUSSAIN BHATTI, J.

The applicant/complainant Kirshan Kumar son of Bharumal has assailed the order dated 24-5-2012, passed by the Judicial Magistrate-I, Sujjawal whereby he disposed of the case Crime No.16/2012 of Police Station Chuhar Jamali under sections 147, 148, 149, 447, 506 (ii), P.P.C. in "C" Class against the accused/respondents Nos.3 to 9.

2. Facts leading to the order impugned by complainant Krishan Kumar are as under:-- "On 5-5-2012, at about 1730 hours, by the complainant Kirshan Kumar, alleged, inter-alia, that on 4-5-2012 at about 11.00 p.m., he along with his family members viz. Roshini (Wife of complainant) and his grandson Aveenash were present at his home, where one Hondal Mal armed with stick, Kailash Kumar armed with pistol, Suneel, Joti, Padma, Gope and Heera Mal entered into his house on the force of weapons. Above named culprits forcibly beaten the complainant with kicks and fists blows and evicted the complainant Party and illegally possessed over the house. The complainant further saw at the gate of their house that four/five persons being armed with weapons were standing there, who issued threats of dire consequences against them. The complainant Party went to the house of neighbour Meenwasayo due to odd hours of night and narrated him about the facts of incident. The said four/five persons came there, who also issued threats of dire cones-quences against Meenwasayo. Thereafter the complainant informed about such facts to his son Mukesh Kumar, who came from Karachi, resultantly the FIR was registered against accused persons."

3. Police after thorough investigation submitted the report under "Cancelled 'C' Class".

4. The learned Judicial Magistrate summoned the Investigating Officer and heard him at length in submission of the above report and also perused the record produced along with the report. The main points as reported in the report by the Investigating Officer that during the course of investigation no material evidence appeared against the accused/respondents to connect them with alleged offence, there was a dispute pending between the parties over the possession of house and such civil litigation was pending. The above facts were surfaced through the statements of the notables which appeared through record and reiterated that no such incident ever took place. The learned Magistrate after considering all the above facts and circumstances passed the order which has now been called in Question before this Court by involving the power as laid down under section 561-A, Cr.P.C.

5. I have heard the learned counsel for the respective Parties and the learned APG.

6. Applicant/Complainant raised following grounds in support of his petition, that the impugned order is perverse and illegal and the learned Judicial Magistrate has not applied his mind properly in deciding this application. The Investigation of the case was transferred to CIA Police, Thatta, who have not conducted the investigation fairly.

7. The applicant also submitted that his wife Mst. Vishini Kumari also filed Civil Suit against respondents in the Court of Senior Civil Judge, Sujjawal, who had passed the order of the status quo. He admitted that there was dispute between the Parties over a house. He relied upon the case of "Farooq Sumar and others" published in 2004 PCr.LJ Page 1023.

8. Conversely, the learned counsel for the respondents submitted that in order to cow down the respondents the applicant/ complainant, who is also an Advocate has filed a false case. He also repeated that no such incident has ever occurred. The local Police and CIA Police after due investigation verifying the documents has filed the report which according to the facts and circumstances truly appeared. He at the end pleaded that the Petition in hand be dismissed as the same is false and frivolous.

9. Learned APG has very candidly supported the above version that the dispute between the Parties is over property and such proceedings are pending decision under Illegal Dispossession Act, 2005. He also disclosed that a Civil Suit between the Parties is disposed of.

10. Having heard the above submissions advanced at the bar perused the available record as well as the case-law cited by the applicant.

11. It is an admitted fact that dispute over the property persists between the parties and such litigation is pending decision between the Parties. The perusal of the investigation report as well as available record it appears that no such incident had occurred. Accordingly, the alleged incident kicks and fists were caused to complainant Party but the allegations are not supported by Medical Certificate. Though the applicant being an Advocate did not give such importance to appear before Medical Officer for verification. The applicant has failed to lodge the FIR regarding the alleged incident promptly and wasted 16 to 17 hours in simply informing about the case to one his relative at Karachi through telephone about the alleged incident. The Criminal Courts have taken such lapses very seriously, when such delay in lodging the FIR is not properly explained.

12. I have also perused the order of the Judicial Magistrate, who has passed the same very comprehensively taking into consideration all the aspects of the case. Since the order of cancellation of Cr. Case being an administrative order, the Magistrate is not obliged to hear the Parties or their counsel. Nevertheless, it is the bounded duty to act fairly, justly and honestly to meet the ends of justice and should pass comprehensive order taking into consideration all aspects of the case very minutely and avoid passing slipshod orders.

13. For the foregoing reasons, the order passed by the learned Judicial Magistrate is proper and does not suffer from any legal infirmity and the same is maintained. Consequently, the Petition filed by the applicant fails, merits no consideration and is dismissed. However, the applicant is at liberty to file a direct complaint if he is so advised.

14. The case-law submitted by the applicant also supports my above view in principles. MH/K-2/Sindh Application dismissed.