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Official Citation: 2025 SHC 234
Court / Jurisdiction: Sindh High Court
Year of Decision: 2025
Decision Date: 2025-02-06
Parties: Muhammad Sharif s/o Faiz Muhammad vs The State
Ruling Summary: This decision was rendered by the Sindh High Court on 2025-02-06, officially reported as 2025 SHC 234. In this matter between Muhammad Sharif s/o Faiz Muhammad and The State, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2025SHC234
Court Name: Sindh High Court Judge(s): Dr. Syed Fiaz ul Hasan Shah Title: Muhammad Sharif s/o Faiz Muhammad vs The State Case No.: Criminal Misc. Application No.S-562 of 2024 Date of Judgment:2025-02-06 Reported As: 2025 SHC 234 Result: Application Disposed of
Judgment
ORDER Dr. Syed Fiaz ul Hasan Shah, J: The Applicant Muhammad Sharif has filed present Criminal Miscellaneous Application under section 561-A of Criminal Procedure Code, 1898, against Order dated 21-09-2024 passed by learned Judicial Magistrate/Consumer Protection Court, Mirpurkhas whereby it has approved the C Class report filed by the Investigation Officer in FIR No.77/2024 under sections 506(ii), 147, 148,149,337-A(i), 337- F(i), 504 PPC at PS Taluka Mirpurkhas. 2. Brief facts of the case are that applicant lodged F.I.R. bearing Crime No. 77/ 2024 under sections 506(ii),147,148,149,337-A(i),337-F(i),504 PPC at PS Taluka Mirpurkhas stating therein that on 18-04- 2020 at 09:30 a.m he went to his land for visiting purpose and was available there, where he saw that Qadir s/o Qalander Bux having hatchet, Fazal Illahi s/o Noor Muhammad having lath, Ameer Bux s/o Qalander Bux having lath, Noor Ahmed s/o Dost Muhammad having lath, Fateh Muhammad s/o Abul Hassan having lath, Din Muhammad s/o Abul Hassan having lathi, Shah Muhammad s/o Abul Hassan, having lath, Sikander Ali s/o Wali Muhammad having lath and Muhammad Khan s/o Abul Hassan having lath (sticks) came there and after abusing caused him lathies injuries, due to which he fell down on the ground and then accused took him to the Jamrao, where his nephew Muhammad Ismail and Lutuf Ali came and rescued him. Then accused persons fled away while issuing threats of dire consequences. After completing investigation, Investigating Officer submitted final report under section 173 Cr.P.C for disposal of the case/FIR under cancelled "C" class, which was approved by learned Magistrate vide order dated 21-09-2024; hence this Criminal Miscellaneous application.
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3. The Counsel for the Applicant contended that impugned order is bad on law and fact. The Judicial Magistrate has failed to appreciate that applicant was injured and Final Medical Certificate was issued by the Medical Officer Civil Hospital, Mirpurkhas. He further contended that I.O has failed to incorporate final medical certificate issued by the Civil Hospital, Mirpurkhas confirming the alleged injuries in its final report under section 173 Cr.P.C submitted before the Judicial Magistrate, for his administrative approval as such great injustice has been done with the Applicant. He further submitted that besides Sections 337A, 337(-F(i) read with Sections 504, 506(ii), 147,148& 149 PPC have been added, however, the Investigation Officer has not incorporated the "Final MLC" issued by the Civil Hospital, Mirpur Khas and the learned Judicial Magistrate has ignored such aspect of the case while passing the impugned Order. He prayed that by granting this application, impugned order may be set aside and the case may be remanded with directions to Magistrate concerned to take cognizance of the crime and submits that the sections, as applied in this case, are exclusively triable by the Court of Sessions. In support of his contention, he placed reliance upon cases of Yousuf Ali Khan Ghouri versus The State through IX J.M. and 2 others (2018 YLR 1976), Saeen Bux Versus Civil Judge and Judicial Magistrate Matiari and 9 others (2010 PCL 1060) and Pakistan Institute of Labour Education and Research and another Versus Province of Sindh through Chief Secretary, Karachi and 4 others (2017 YLR Note 343). 4. On the other hand Mr. Francis Locus Khokhar Counsel representing Respondents No. 1 to 9 states that impugned order is passed in accordance with law and the Applicant is habitual in moving false applications leveling frivolous allegations. He further contended that the application filed by the Applicant under section 22-A&B of the Code before the Sessions Judge, Mirpurkhas and in the said application, the Applicant has mentioned that he was injured due to attack with hatchet while when the Applicant recorded his statement under section 154 Cr.P.C he has alleged injury due to lathi and due to such falsehood no interference is required by this Court. 5. I have heard the counsels for parties as well as learned Assistant Prosecutor General and examined the record. First of all, I would deal with the basic concept and statutory principles regulating criminal jurisdiction by High Court and then its scope and applicability of inherent jurisdiction of this Court under section 561-A of the Code in general and its application with the present case in particularity. 6. Statutory Principles of Criminal jurisdictions--A crime or offence is an illegal act, omission or event, whether or not it is also a violation of right, a tort, a breach of contract or a breach of trust, the principal consequence of which is that the offender, if he is detected and it is decided to prosecute, is prosecuted by or in the name of State[1] and if he is found guilty, he is liable to be punished whether or not he is also ordered to compensate his victim.[2] All criminal proceedings are in theory instituted before the Judicial Magistrate[3] and conducted before the Magistrate or Court of Sessions with the exception of Courts[4] of criminal jurisdiction operating under sphere of Special laws and enactments. In the contextualize framework, the High Court has multi-folded contour jurisdiction in dealing with criminal case such as constitutional-- Revision--inherent. In its Constitutional jurisdiction, the High Court exercise powers under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, an extra-ordinary jurisdiction that may quash the FIR or investigation or stay criminal trial etc in extra-ordinary circumstances. Further, under Articles 202 & 203 of the Constitution, a High Court is empowered to frame High Court Rules and Orders enabling subordinate courts to regulate their proceedings as ordained by this Court. In addition to the Constitutional jurisdiction, a High Court exercise and regulate Revision jurisdiction5 to pass any order, which is essential for the just decision of the case . Furthermore, a High Court exercise inherent jurisdiction in terms of Section 561-A, Cr. P.C. to prevent the abuse of process of law, interalia, quash the criminal proceedings and other ancillary issues. The said jurisdiction confers to
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this Court cannot be taken away in ordinary circumstances. Reliance in this regard is placed upon the dictums of august Supreme Court of Pakistan 6 wherein it has been held: "Jurisdiction of the superior Courts could not be abolished or ousted unless same was done by express, clear and unambiguous words or clear intendment". 7. Differentiation between Criminal Revision and Criminal inherent Jurisdiction--Both the provisions have different scope and function relevant to the juridical affect, legal treatment and consideration. For convenience, the provisions are re-produced as under: Section 439 Cr.P.C.,1898 Section 561-A Cr.P.C., 1898 (1) In the case of any proceeding the record of which has been called for by itself [5][* * *] or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by sections [6][*], 423, 426, 427 and 428 or on a Court by section 338, and may enhance the sentence; and, when the Judges composing the Court of Revision are equally divided in opinion, the case shall be disposed of in manner provided by section 429. (2) No order under this section shall be made to the prejudice of the accused unless he has had an opportunity of being heard either personally or by pleader in his own defence. (3) Where the sentence dealt with under this section has been passed by a Magistrate 1[* * * * * * *], the Court shall not inflict a greater punishment for the offence which, in the opinion of such Court, the accused has committed than might have been inflicted for such offence by 7[* * *] a Magistrate of the first class. 1[(4) Nothing in this section shall be deemed to authorise a High Court-- (a) to convert a finding of acquittal into one of conviction; or (b) to entertain any proceedings in revision with respect to an order made by the Sessions Judge under section 439A.] (5) Where under this Code an appeal lies and no appeal is brought, no pro eedings by way of revision shall be entertained at the instance of the party who could have appealed. 2[(6) Notwithstanding anything containedNothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such order as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.]
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in this section, any convicted person to whom an opportunity has been given under sub-section (2) of showing cause why his sentence should not be enhanced shall, in showing cause, be entitled also to show cause against his conviction.]
Now looking to the impugned Order in the light of above jurisprudence, it would appropriate to examine as to an application against an Order of Magistrate may lie in "Revisional Jurisdiction" or a High Court may entertain it in its "inherent jurisdiction". Obviously, if alternate remedy is available under the law, an inherent jurisdiction is not entertainable as discussed above. A great deal of uncertainty emerges on account of reading the jurisdiction, function and powers defined in the Code which embodied a Magistrate as "Court".[7] 8. Nature and extendibility of Order of Magistrate--No doubt a Magistrate is a Court as defined under section 6 of the Code and an Order of Court is liable to be challenged in Revision jurisdiction. In contrast, the Shahnaz's Begum[8] a rule-making decision of Honorable Supreme Court, is the foundational structure of judicial interpretation with regard to the nature and value of the orders pass by a Magistrate while dealing with a Police Report/Charge Sheet/Challan under section 173 of the Code and held that inherent jurisdiction of a High Court under section 561-A of the Code, spanned over the judicial orders and not orders passed or steps taken during an investigation of a case. Later, the Hon'ble Supreme Court of Pakistan[9] endorsed the Shahnaz's Begum case and drew distinction between administrative and judicial functions of the magistrate under the ibid Code and held that while passing an order of cancellation of a criminal case, the magistrate exercises administrative powers, thus not functioning as a court. Therefore, such an order was not amenable to Revisional jurisdiction. In consequence, I would discuss the instances[10] about the "Revision" and "inherent power" while undertake the analysis of the functions and powers of Magistrate which has now been developed through judicial interpretation. When a Magistrate has to deal with the charge sheet/ Challan under section 173 of the Code or to dispose of any Police Report under any of the outlined[11] situations based on unique facts of each case, it has been ruled by the Hon'ble Supreme Court that nature, scope and powers of the Magistrate are administrative, executive, or ministerial and he discharges these duties not as a Court but as a personal designate.[12] Therefore, the Order pass by a Magistrate is not revisable being executive in nature. 9. Scope and Applicability of inherent jurisdiction--The applicability and scope of the inherent jurisdiction is curative in nature. The inherent jurisdiction can be attracted if no other remedy is available in other words where any other remedy is available, normally the inherent jurisdiction cannot be invoked and an application is outright to be dismissed.[13] The Peshawar High Court[14] while placing reliance on the dictum in Bashir Ahmed's[15] case held that: The power under section 561-A, Cr.P.C. is extraordinary in its nature which could be exercised sparingly, carefully and with caution and only where such exercise is justified by the tests specially laid down by section itself, as its application in frequent and light manner would tend to circumvent the due process of law. The principles for invoking the inherent provision of section 561- A, Cr. P.C. have been enunciated by the honourable Supreme Court of Pakistan in case titled Bashir Ahmad v. Zafrul-Islam (PLD 2004 SC 298) which are binding in nature. Such power ought not to be exercised capriciously or arbitrarily, but should be exercised (ex debito justitiae) to do real and substantial justice for the administration of which alone Courts exist. The jurisdiction under section 561-A, Cr.P.C. is neither alternative nor additional in its nature and is to be rarely invoked only to
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secure the ends of justice so as to seek redress of grievance for which no other procedure is available but should not be used to obstruct or direct the ordinary course of Criminal Procedure. Such jurisdiction is designed to do substantial justice and the same is neither akin to appellate jurisdiction nor to the revisional jurisdiction. Such powers do not extend to uncalled for and unwarranted interference which the procedure prescribed by law, which must always be followed." 10. Inherent jurisdiction--conclusive remedy: In view of discussions, one or more findings whatsoever given by Magistrate in case suffers from perversity or dissatisfaction from such order, an aggrieved person should have invoked the jurisdiction of this Court under Section 561-A of the Code and it does not amenable to the Revisional jurisdiction[16] being lacking the qualification of judicial order which may draw attention of a High Court to look into in exercise of Revisional Jurisdiction. To sum up the point under consideration, I held that the judicial interpretation makes it clear that the inherent jurisdiction can be invoked subject to a conditionality about no alternate remedy is available under the code against an administrative Order of Magistrate. The Applicant has filed present Criminal Miscellaneous Application by invoking jurisdiction of this Court under section 561-A Criminal Procedure Code, 1898 against an Order passed by Magistrate affirming the Police Report filed by the Investigation Officer under C" Class. Looking to the above discussion and judgments of Apex Court, I therefore, hold that the Criminal Miscellaneous Application filed against the impugned Order passed by a Magistrate for cancellation of criminal case is maintainable before this Court in its inherent jurisdiction under section 561-A of the Code. It has been observed that initially the Respondent No.10/SHO has refused to register FIR against which the Applicant had filed Criminal Misc. Application No.400/2020 under Section 22-A of the Code, before the learned Additional Sessions Judge-I, Mirpurkhas with prayer to direct the SHO, PS Taluka, District Mirpur Khas to record his Statement and to register FIR against the Respondents No.1 to 8. After hearing the parties, the learned Sessions Judge disposed of Criminal Miscellaneous Application No.400/2020 vide Order dated 14.05.2020 with direction to the SHO. PS Taluka, District Mirpur Khas to record the statement of the Applicant. The said Order dated 14.05.2020 was impugned by the Respondents No.1 to 9 before this Court in Criminal Miscellaneous Application No.S-193/2020 (New No.S-69/ 2024) and the Respondents have obtained ad interim Order on 20-05-2020. Since then matter was lingered on for considerable four years until the matter was finally came up for hearing on 21-07-2024 when my learned predecessor Judge has passed direction to the SHO concerned to record the statement of Applicant. Eventually, an FIR No.77/ 2024 was registered with PS Taluka, District Mirpur Khas. 11. Investigation--duties and veracity--After crossing the afore- mentioned abstruse barrier, the Applicant interacted with the Investigation Officer. Section 4(l) of the Code defines the term investigation: "Investigation" includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorized by a Magistrate in this behalf." The Investigating Officer is head start of investigation to unequivocally determine the truthfulness or falsehood of the occurrence-- accessory after the facts and that too without inspiring version of informant or defence but his conclusion must be based on on actual outcome of reality--not merely possibility which he discovers or ascertain during determinative investigation. This determinative investigation is not an administrative process but it is requirement of law to do the justice by way of fair investigation based on truth and nothing else as held by the superior Courts[17] and the relevant para is re-produced as under: According to para. 3 of rule 25.2 of Police Rules, 1934, it is the duty of an Investigating Officer to find out the truth and his object shall be to discover the actual facts and for the achievement of such object he shall not commit himself prematurely to any view of the facts for or against any person. 12. Legitimacy of investigation--the study and reason made note of authoritative judicial interpretations, its propriety demand truth, transparency and fairness.[18] The Hon'ble Supreme
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Court of Pakistan held that the provisions of section 173 Cr.P.C. are mandatory as their non- compliance constitutes violation of Articles 4 and 9 of the Constitution of Pakistan, 1973.[19] A further guidance can be taken from the dictum of Hon'ble Supreme Court,[20] the relevant parts are reproduced hereunder: (v) During the investigation the investigating officer is obliged to investigate the matter from all possible angles while keeping in view all the versions of the incident brought to his notice and, as required by Rule 25.2(3) of the Police Rules 1934 It is the duty of an investigating officer to find out the truth of the matter under investigation. His object shall be to discover the actual facts of the case and to arrest the real offender or offenders. He shall not commit himself prematurely to any view of the facts for or against any person. (vi) ........ (vii) Upon conclusion of the investigation the report to be submitted under section 173 Cr.PC is to be based upon the actual facts discovered during the investigation irrespective of the version of the incident , advanced by the first informant or any other version brought to the notice of the investigating officer by any other person. 13. Case property--I have noticed that the criminal investigation is dependent upon two fold fora to find out truthfulness--actual facts alongwith its recovery, seizure, if any, and handling case property together with the legal scrutiny and endorsement by the prosecution in criminal cases. Unfortunately, the standard of criminal investigation is deteriorating despite the gracious budgeting by the State. This imminent dangerous violation is regularly being examined, monitored and reminded by the superior Courts in pursuit to adhere administration of criminal justice system and dispensation of justice. Conversely, absence of "case property" may not only fatal for prosecution in order to prove the case but ultimately it can form basis of acquittal from the charge. 14. Case Property--Stages--It is mandatory for the Prosecution to undergo two tests for case property". Firstly to recover, seize, present in charge sheet or challan and to establish safe custody by preparation of documents flawless in description, accuracy and status and secondly, safe transmission of it under proper documents and production before the Court as an admissible evidence.[21] 15. Recovery, Seizure of Case Property--legal significance and importance --in our adversarial framework of criminal justice system, the pivotal role of case property" and its essential un- solving crisis in many criminal cases are indiscernible under investigation and Police file(s) exclusively compile by the Investigation Officer. Any anomaly or defect in investigation may usually led to draw a negative inference reckon definite reason of either unskillfulness--capacity building-- or malafides. The Police Rules, 1934 impose comprehensive duty and burden to the Investigation Officer for seizure, recovery of case property and its safe handling and production before the Court whilst linchpin supervisor[22] of investigation with further responsibility of legal scrutiny by the prosecutor. The guidance can be taken from the dictum laid down by Hon'ble Supreme Court of Pakistan[23], the relevant portion is re-produced: The Rule 22.16 of the Police Rules, 1934 ("the Police Rules") deals with the "case property". Sub-rule (1) thereof provides, inter alia, that in certain circumstances, police shall seize weapons, articles and property in connection with criminal cases, and take charge of property which is unclaimed. Sub-rule (2) thereof provides, inter alia, that each weapon, article or property (not being cattle) seized under the above sub- rule shall be marked or labelled with the name of the person from whom, or the place where, it was seized, and reference to the case diary or other report submitted from the police station. If articles are made up into a parcel, the parcel shall be secured with sealing wax, bearing the seal impression of the responsible officer, and shall similarly be marked or labelled. Such articles or parcels shall be placed in safe custody, pending disposal as
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provided by law or rule. Sub-rule (3) thereof provides, inter alia, that the police shall send to headquarters or to magisterial outposts all weapons, articles and property connected with cases sent for trial, as well as suspicious, unclaimed and other property, when ordered to do so by a competent Magistrate. Sub-rule (4) thereof provides, inter alia, that motor vehicles detained or seized by the police in connection with cases or accidents shall be produced before a Magistrate after rapid investigation or by means of in-complete challan. Rule 22.18 of the Police Rules deals with custody of property". Thus, under the Police Rules and the High Court Rules, mentioned above, in all cases, especially in the cases of articles sent to the chemical examiner, it is necessary that there be no doubt as to what person or persons have had charge of such articles throughout various stages of the inquiry. Besides, the person who packed, sealed, and dispatched such articles should invariably be examined. Further, the clothes, weapons, money, ornaments, food and every other article that forms a part of the circumstantial evidence has to be produced in court, and their connection with the case and identity should be proved by witnesses. 16. Description of Case property--The prescribed Performa is enforced in the light of Rule 25.56 of the Police Rule, 1934. The description of case property" is required under the Police Rules, 1934 and it ought to be mentioned at Column No.6 of the Charge Sheet/Challan/Police Report. The guidance can conveniently be taken from the Hon'ble Supreme Court[24] case; the relevant portion is re- produced: Thus, the Police Rules mandate that case property be kept in the Malkhana and that the entry of the same be recorded in Register No. XIX of the said police station. It is the duty of the police and prosecution to establish that the case property was kept in safe custody, and if it was required to be sent to any laboratory for analysis, to further establish its safe transmission and that the same was also recorded in the relevant register, including the road certificate, etc. The procedure in the Police Rules ensures that the case property, when is produced before the court, remains in safe custody and is not tempered with until that time. A complete mechanism is provided in Police Rules qua safe custody and safe transmission of case property to concerned laboratory and then to trial Court. 17. Case property--handling and presentation--The filing of Charge sheet or Police report alongwith details of case property before the Magistrate is a mandate of law. The Scheme of law forced the Investigation Officer to regard investigation as determinative of the principles from which deductions could be made out about case property" to ruminate over the implications at a point of handing down decision. The method and manners of Investigation Officer dealing with the case property" in a criminal case illustrate definitive conditions of each criminal case according to its peculiar facts and circumstances. There are countless examples to look at that a criminal investigation with strategic compliance of law--recovery and handling of case property as per Police Rules and presentation as per requirement of section 173 of the Code which is backed by…
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