' HASAN FEROZ, J.---Through this Criminal Miscellaneous Application, the applicants have impugned order dated 24-1-2014 passed by learned incharge Civil Judge and Judicial Magistrate, Mirpurkhas, whereby he took the cognizance of the offence and directed the I.O. To produce the applicants/accused, who were released on bail by the police.
2. Precisely, the facts of the prosecution case are that on 24-12-2013 the complainant/respondent No,2 lodged F.I.R. That there was previous enmity between the parties over murders and, applicants came in Mirpurkhas with intention to arrest the complainant who was proclaimed offender in the murder case of one of the brother of accused. Such F.I.R. No,65/2013 was registered at Police Station Badeh, District Larkana. Applicants also in his statement recorded by I.O. Stated that they came in Mirpurkhas and when they saw complainant Gulzar Gopang he fought with them and resisted.
During such they were not possessed lathi or weapons, but only hot words were exchanged.
3. Learned counsel for the applicants has contended that the applicant No,3 Hakim Ali lodged F.I.R.
No,65 of 2013 at Police Station Badah, Taluka Dokri, District Larkana under sections 302, 324, 148, 149, 337-H(ii), 504, P.P.C. Against the respondent No,2/complainant and others in which two persons were murdered and two persons have been paralyzed. Learned counsel further contended that respondent No,2 is also involved in another F.I.R. No, 87/2012 lodged by applicant at the same police station under sections 457, 380 and 511, P.P.C. And above case after investigation was challaned in the Court of law where respondent No,2/complainant and others were shown as absconders, therefore, the applicants came to know that the accused persons are residing at Mirpurkhas within the jurisdiction of Police Station Satellite and after searching they came to know on 24-12-2013 that the said accused persons are available in Lunda Bazar, as such, they informed the police/respondent No,4 who accompanied the applicants reached at the pointed place where accused persons started running away, during which one of the accused namely Gulzar Gopang/respondent No,2/complainant fell down on the road and he received simple injuries and he was arrested. Thereafter respondent No,3/S.H.O. Demanded illegal gratification; but they did not fulfill his demand, therefore, he lodged instant F.I.R. At the instance of respondent No,2 against the applicants and investigation carried out. During investigation, the I.O. Who after proper, fair and impartial investigation recommended the case for disposal under 'C' class and such summary was placed before the concerned Magistrate, but the concerned Magistrate did not agree with the report of I.O. Directed the I.O. To submit the challan in the Court of law, which is illegal and the same is liable to be set aside, as the concerned Magistrate did not appreciate the F.I.Rs, lodged by applicants against the present complainant and other persons.
4. Conversely learned DDPP candidly supports the impugned order.
5. Heard and perused the material available on record carefully.
6. Admittedly, there is previous enmity between the parties and complainant of present F.I.R. Is also nominated accused in a double murder case/F.I.R. No,65/2013, Police Station Badeh, Taluka Dokri, District Larkana which was lodged by applicant No,3 Hakim Ali and he was absconder in that case and due to this it is presumed that complainant/respondent No,2 absconded from Larkana and was living in Mirpurkhas and applicants were in search of him and others and fortunately present applicants saw the complainant (absconder of Crime No,65/2013) in Lunda Bazar and they immediately informed the police and such scuffle took place there and police malafidely involved the present applicants in the present F.I.R and it is surprising to note that a rival party of which two persons lost their lives and two persons were paralyzed by the opposite party came there armed with iron pipes and fought with them to take revenge of that murders. It is also pertinent to mention here that the medical certificate of complainant Gulzar Gopang issued by Medical Officer, which has been placed on record as annexure 'C' available at page-29 show the injuries of 337-A(i), P.P.C., which are bailable. I am conscious that the police report is not binding upon the Court, but it is to be seen in true perspective of the case whereon learned Judicial Magistrate has to apply his judicious mind and not to act mechanically.
7. In view of the above discussion, I have in my consideration that opinion of I.O. Who during the course of investigation of the case collected the material upon which recommended the case under 'C' however, the learned concerned Magistrate took the cognizance of the offence keeping the medical certificate in his view and directed the I.O. To submit challan is without consideration of facts and evidence and so also without considering the material collected by I.O. I, therefore, set aside the impugned order dated 24-1-2014 passed by learned Judicial Magistrate, Mirpurkhas.
' This Criminal Miscellaneous Application No,S-113 of 2014 stands disposed of in the above terms.