' MUHAMMAD JUNAID GHAFFAR, J.---Through instant Criminal Miscellaneous Application, the applicant has challenged the order dated 27-2-2014, passed by learned IInd Additional Sessions Judge, Hyderabad, ("Judge") whereby the application filed under sections 22-A and 22-B, Cr.P.C. On behalf of the applicant has been dismissed.
2. Learned counsel for the applicant has contended that learned Judge has erred in law and facts while passing the impugned order as he failed to consider that there were at least two eye- witnesses of the alleged incident reported by the applicant and such fact was also disclosed in Para 6 of the application under sections 22-A and 22-B, Cr.P.C. Filed by the applicant. Learned counsel also contended that applicant through her application had specifically alleged that her son was kidnapped and killed thereafter by the proposed accused and such incident was further corroborated through iwo said eyewitnesses as they had seen her son going along with the proposed accused on the motorcycle. Per learned counsel on the basis of such complaint admittedly a cognizable offence was made out and the learned Judge was required to issue directions to the concerned police authorities to register the FIR. Learned counsel further contended that on the contrary the learned Judge has relied upon the report submitted by the Police authorities wherein they have shown a false encounter and have alleged that complainant's son was involved in robbery and his death was a result of an encounter when allegedly the complainant's son was trying to run away. Learned counsel further contended that even if the son of the complainant was involved in other crimes as discussed in the impugned order, this was hardly a ground to dismiss the application under sections 22-A and 22-B, Cr.P.C. It was further argued by the learned counsel that even otherwise, the complainant's son was on bail in all the said cases which are otherwise false in nature. In view of such submissions, learned counsel prayed that concerned police authorities be directed to record the statement of applicant and carry out investigation and register FIR against the proposed accused. In support of his contentions, learned counsel has placed reliance on the cases reported as Wajid Ali Khan Durani and others v. Government of Sindh and others (2001 SCMR 1556), Mst. Anwar Begum v. Station House Officer, Police Station Kalri West, Karachi and 12 others (PLD 2005 Supreme Court 297), Muhammad Bashir v. Station House Officer, Okara Cantt. And others (PLD 2007 Supreme Court 539), Kaura v. The State and others (1983 SCMR 436), Jamshed Ahmad v. Muhammad Akram Khan and another (1975 SCMR 149) and Khurram Ghani v. The State (PLD 2010 Karachi 200).
3. Conversely, the learned D.P.G. Appearing for the State has supported the impugned order and has contended that no proposed FIR was filed by the applicant which was a precondition in such matters. However learned D.P.G. Frankly admitted that the learned Judge has failed to appreciate the contents of application filed by the present applicant/complainant and has also failed to discuss such contention as alleged by the applicant/complainant. In view of such position, learned D.P.G. Was of the opinion that the matter be remanded to the learned Judge to pass a fresh order.
4. I have heard learned counsel for the applicant and learned D.P.G. And have also perused the record and the case-law relied upon by learned Counsel for the applicant.
5. From the bare perusal of complaint filed under sections 22-A and 22-B, Cr.P.C. As well as the application addressed by the applicant to the concerned S.S.P, it transpires that the applicant/ complainant had made a specific allegation that on 18-12-2013, the proposed accused along with two unknown persons who can be identified by the applicant, came to her house and took away her son on the pretext that they have arranged a program to have food together at a hotel. The applicant/ complainant had also alleged that later on two eye-witnesses namely Sikandar and Sardar Abro came to her house and informed that they had seen her son with the proposed accused on a motorcycle and such reporting of the incident was in fact the last seen, when the son of the applicant/complainant was seen along with proposed accused. In view of such position, it prima facie appears that the applicant/ complainant had categorically reported to the concerned S.S.P. As well as learned Judge regarding a cognizable offence being made out, as such the learned Judge was at least required to discuss the said allegation of the applicant/complainant while dismissing the application which the learned Judge has failed to do so. On the contrary, the learned Judge after calling report from the concerned SHO/police official, which even otherwise the learned Judge was not required to, has merely relied upon the version/report submitted by the concerned SHO in which the incident of robbery and encounter was reported, which has been believed to be true and correct by the learned Judge. In fact the learned Judge went to the extent of accepting the report/ statement of said SHO, that the deceased was a habitual criminal and involved in various other cases. It is noted with concern that first of all even if a person is allegedly involved in any crime, no law permits that such person can be killed through any extra judicial process as after all it is a question of life and liberty of a citizen who has to be treated in accordance with law come what may. Further the said person or his family cannot be deprived the benefit of due process of law and merely for the fact that son of the applicant/complainant was involved allegedly in various other crimes, disentitles the applicant/complainant to seek redressal of her grievance for registration of FIR against the proposed accused under sections 22-A and 22- B, Cr.P.C. The learned Judge has failed to take any pains in applying his mind in dismissing the said application which otherwise the learned Judge was required to do so under the law. What the learned Judge is required to do in terms of sections 22-A and 22-B, Cr.P.C, is to examine the contents of the complaint/application and to see that whether or not on the basis of such complaint, any cognizable offence has been committed, and if yes, then direct the concerned Police authorities to register the FIR. In the instant matter the learned Judge has called for a report from the SHO concerned (which he is not required to do so) and merely on the basis of such report, has dismissed the application of the complainant, without even discussing the version of the applicant. The learned Judge did not bother to record any statement of the complainant and even failed to call the witnesses to record their statements, who had claimed to be the eye- witnesses of the last seen. In view of such position, the impugned order dated 27-2-2014 cannot be sustained and is liable to be set aside and is accordingly done so. The concerned SHO/ police authorities are directed to entertain the complaint of the applicant, carry out investigation and register the FIR against the proposed accused if a cognizable offence is made out.
6. In view of hereinabove, I had allowed the instant Criminal Miscellaneous Application by means of a short order dated 28-4-2014 and the above are the reasons in support thereof.