ORDER ABDUL HADI KHOSO, J.---This is an application under section 561-A, Cr.P.C. Filed on behalf of the applicants/ accused Muhammad Rahim son of Darhoon Chandio, Latif son of Uris Chandio, Muhammad Saleh son of Urs, Niaz son of Soomar Chandio, Muhammad sharif son of Peer Bux Chandio, Muhammad Siddique son of Imam Bux Chandio, Ghulam Mustafa son of Ahmed, Pir Mehmboob Shah Rashidi son of Pir Fazal-ul-Haq Shah Rashidi and Muhammad Umar son of Allah Bux Chandio, praying that the impugned order dated 2-11-2009 passed by the Court of learned civil Judge and Judicial Magistrate Tando Bago, in connection with Crime No. 49 of 2009 of Police Station Tando Bago, under sections 302, 324, 114, 120-B, 147, 148 and 149, P.P.C. Be set aside.
2. The facts as stated in the petition are that complainant Ali Gul son of Bukhshal Khoso, lodged F.I.R. No.49 of 2009 at Police Station Tando Bag stating that he is resident of village Pir Bux Khoso, Taluk Saeeabad, District Matiari. One Pir Mehboob Shah, the zamindar, who is resident of their vicinity, had advised him, his father Bukhshal and others to accompany with him to the land situated in the Tando Bago, District Badin, where he has obtained lease of agricultural land from Chandio community and they see and if they like the land they may work as Hari on the land. On which, the complainant, his father Bukhshal, their relatives Rehmatullah, Ali Nawaz, Nazar, Allandino and Dr. Sharif Chandio, accompanied Pir Mehboob Shah, who brought them at the land situated in Taluka Tando Bago, District Badin. They saw there were some houses of which Pir Mehboob Shah informed them that these houses of the people by caste Rahimas and the complainant party there came to know that on the said land there was dispute between the D.1 community and Chandio community. They also saw that in the Otaq other persons namely Muhammad Rahim Chandio, Muhammad Siddique Chandio, Muhammad Saleh, Niaz Ahmed Chandio, Umer Chandio, Latif Chandio and Ghulam Mustafa Wadho were sitting, who were introduced by Dr. Sharif Chandio to the complainant party. There Dr. Sharif and Pir Mehboob Shah informed the complainant party that there is dispute on the same land between Chandio and D.1 Communities and asked that in help of Chandio Community they should occupy the land. The complainant party replied that they are poor persons and they will not indulge in such quarrel and they will not stay at the land. In the meantime at about 4-30 p.m. Accused Muhammad Rahim son of Darhoon Chandio, Ghulam Mustafa son of Ahmed Wadho, Muhammad Siddique son of Imam Bux Chandio, Muhammad Saleh son of. Uris Chandio, Niaz Ahmed son of Soomar Chandio, Umer son of Allah Bux Chandio and Latif son of Uris Chandio took out weapons lying in the Otaq and started making straight firing at the houses of Rahima brothery. The complainant and others tried to prevent them on which, the accused fired straight at the complainant party with intention to kill them. It is stated that due to firearm shots Bukshal, Rehmatullah and Ali Nawaz became injured, out of whom father of the complainant Bukhshal and his uncle Rehmatullah died on the spot and in the firing Gulzar Turk also died. Some people from the Rahima and Machi communities were injured. Thereafter police came at the place of incident and took the deceased and injured to hospital and also recovered weapons from the accused persons. Thereafter complainant came at Police Station, narrated the facts to the S.H.O. And asked him for registration of the F.I.R., but the S.H.O. Kept him on promises and at the instance of accused the S.H.O. Lodged the F.I.R. As narrated by accused Muhammad Rahim as F.I.R. No.4 of 2009 under section 302. Thereafter, complainant made efforts for lodging the F.I.R. And also moved application before the Sessions Court, but his application was rejected.
Thereafter the complainant filed petition before the High Court and on 20-6-2009 he obtained order for registration of the F.I.R. He produced the order of the High Court bearing No. 9783 dated 20-6-2009 before the police and lodged the F.I.R. Alleging that due to conspiracy of Pir Mehboob Shah and Sharif Chandio the accused persons with intention to kill them made straight fires and have murdered his father Bukhshal, his uncle Rehmatullah and Gulzar Turk and in the firing Ali Nawaz Khoso and persons of Machhi and Rahima communities have also injured. Prior to this the applicant/accused No.1 had lodged F.I.R. No.4 of 2009 under section 302, P.P.C. At Police Station Tando Bago on 5-2-2009, who is stranger to the affected persons and the complainant and in that F.I.R. a set of accused was challaned in the Court.
3. In the present case. From the very beginning it is plea of complainant Ali Gul that his F.I.R. Was not registered by the S.H.O. Concerned, as such he had knocked the door of superior Court for that purpose.
4. The learned counsel for the applicants/accused has argued that when for the same incident F.I.R. No.4 of 2009 was jot registered by Muhammad Rahim Chandio, and that was investigated and a set of accused has been challaned then the present F.I.R., Crime No. 49 of 2009 Police Station Tando Bago under sections 302, 324, 114, 120-B, 147, 148 and 149, P.P.C. Was not justified and it has been got registered with mala fide in order to save the persons involved and challaned in Crime No.4 of 2009. In support of his contention learned counsel for the applicants/accused has relied upon 2004 PCr.LJ 1023.
5. Learned counsel for the complainant has argued that the murder of Bukhshal, Rehmatullah and Gulzar Turk was result of conspiracy hatched by Pir Mehboob Shah and Dr. Sharif Chandio to involve their rival opponents and commit murder of the people and the persons murdered and injured were duped by them and the accused mentioned in the F.I.R.. No.49 of 2009 are actual culprits so taking cognizance by the Judicial Magistrate and accepting the challan is not illegal because the Magistrate was fully competent to do so. In support of his contention learned counsel for the complainant has relied upon 2002 SCM R 63 and PLD 1967 SC 425.
6. The learned A.P.G. Has supported the order passed by the learned Judicial Magistrate.
7. The order dated 2-11-2009 is written on the copy of the challan sheet, which reads as under:-- "This final report as well as final report of Re-investigation concurrent finding of I.O. Who recommended the case under (C) class. From material placed before me it transpires that this is second F.I.R. Of incident, shown in previous F.I.R. No. 4 of 2009 of Police Station Tando Bago, which is sent up in the Court of honourable District Judge Badin. As the P. Ws. In this case have also given incriminating evidence against accused persons shown in the F.I.R. Register the case. As the offence under section 302, P.P.C. Is exclusively triable by Court of Sessions. Let this final report be sent to Court of Honourable District Judge Badin. Accused Sharif is shown on interim bail, he be directed to join the trial."
8. In view of the circumstances, I see no justification to interfere with the order, dated 2-11-2009, passed by the concerned Magistrate, as he has exercised his jurisdiction, discretion and taken the cognizance for which he was fully competent and it is up to the trial Court to decide that which set of the accused is guilty and who are the innocent. The same will be decided after conducting trial on merits.
Criminal Miscellaneous Application section is dismissed.