' SALAHUDD1N PANHWAR, J.---Through instant application, applicant has challenged the order dated 18.04.2014 passed in Sessions Case No.02/2014 (Re The State v. Ashique Ali and others) by learned Sessions Judge, Badin on an application under section 193 moved by the complainant; whereby such application was allowed and the applicant/ accused was joined as an accused, as well, he was remanded to the custody.
2. Precisely, relevant facts are that complainant Haji son of Wali Muhammad Mallah lodged FIR at Police Station Khoski on 24.11.2012 at 1550 hours, stating therein that on 23.11.2012 at 1930 hours at the courtyard of house of deceased Muhammad Hassan Mallah, situated at the land of Major Jaffer, Deh Khoski No.2, Taluka Tando Bago, accused Amir Bux Noherio armed with iron rod caused Iron rod blow to deceased Muhammad Hassan and then instigated the son of deceased namely Ashique Ali and Mehboob Ali that deceased was fighting with him, and both the sons of deceased also caused him hatchet and lathi blows resultantly deceased expired due to receiving injuries.
3. Learned counsel for the applicant inter alia contends that applicant was exonerated by police on the basis of statements recorded by family members/legal heirs of the deceased; impugned order is against the settled principle of law as no evidence was recorded; on the same evidence, which was collected by investigation officer, trial Court has taken cognizance; such course undertaken by trial court is against the settled principle of Criminal Administration of Justice. It is further contended that the learned trial Judge while accepting the application under section 193, Cr.P.C., remanded the applicant to judicial custody, such practice is not permissible under the law: no show cause notice was given to the applicant for cancellation of his bail; admittedly he was on police bail because of insufficient evidence thus the applicant was condemned unheard while sending jail. In support of his contentions, learned counsel has placed reliance on the cases reported as 1968 PCr.LJ 1212, 1995 PCr.LJ 1543 and 2003 YLR 836.
4. Conversely, learned counsel for respondent No.1/complainant has argued that the name of applicant with specific role is evident in FIR, which shows that he caused injuries to deceased, thus exclusion of his name on the basis of defence evidence by the police was illegal as the Investigation Officer cannot announce pre-trial judgment by his opinion regarding innocence of applicant as there was sufficient evidence; the complainant was also eye-witness of the incident; charge is framed and the case is pending for trial. In support of his contentions, learned counsel placed reliance on the cases reported as 2009 PCr.LJ 367, 2009 PCr.LJ 1344 and 1997 PCr.LJ 1656.
5. On the other hand, learned A.P.G. Has supported the impugned order, however with regard to the last portion of the impugned order, he contends that it is unwarranted under the law as the applicant was on bail granted by police under section 497, Cr.P.C, therefore, trial Court was not competent to cancel the same unless providing him opportunity of hearing by issuing show cause notice.
6. Heard counsel. Perused record.
7. After careful consideration of contentions raised by respective counsel of the parties and meticulous examination of available record, suffice to say that there is no controversy with regard to the allegation that applicant was attributed a role of causing injuries to the deceased with iron rod as well as instigation to his son Ashique Ali and in this episode deceased had received in all 13 incised and lacerated wounds. It is further surfaced that during investigation, applicant was exonerated by Investigation Officer on the basis of statements of two accused persons who are sons of deceased and the legal heirs of deceased, thereby his name was placed in column No.2. It is further matter of record that during pendency of the trial complainant moved application under section 193, Cr.P.C. Notice was issued to the applicant, whereby he engaged a counsel and after providing opportunity of hearing, such application was allowed and he was taken into custody. It is worth to add here that though the Investigation Officer is competent to collect the evidence from the independent witnesses as well as witnesses mentioned in FIR but he cannot be given liberty to that extent that he can announce pre-trial verdict on the basis of material collected by him. It is utmost his duty to place all the things which surfaced in investigation before the competent concerned Magistrate as well as to the trial Court. Here when admittedly the name of applicant is apparent in the FIR with specific role and eye-witnesses have supported such version, therefore, on the basis of evidence of independent persons as defence witnesses, exclusion of name of applicant by Investigation Officer was not according to law and in case, such course would be accepted, this will open new window for Investigation Officer, resultantly, there is likelihood that investigation officer instead of collecting evidence on the line of FIR, will make attempt to collect evidence of defence witnesses, to favour the accused persons. It is germane to mention that it is function of the trial Court to decide the fate of the case in accordance with law. Candidly cognizance was not taken by the Magister however, it is manifest that trial Court has not exercised his suo-motu powers but complainant preferred under section 193, Cr.P.C. And on such application, after assessm ent of record, trial Court reached at the conclusion that accused can be joined, thereafter he was joined and taken into custody. It is note worthy to add here that this is a Criminal Revision Application and in Criminal Revision Application, scope of this Court is very much limited when a competent Court has decided the fate of application under section 193, Cr.P.C. Which warrants the trial Court to decide the late on the basis of evidence and such course has been adopted by the trial Court, therefore, when a person who is agitating in revision application about illegality of order in question, has to satisfy and point out illegality committed by the trial Court. The applicant is at liberty to move the application under section 265-K, Cr.P.C. As well as he has chance to lead evidence in his defence and such course is very much available to the applicant, therefore, under these circumstances this Criminal Revisional Application is devoid of merits.
8. With regard to the plea of learned counsel for the applicant as well as learned A.P.G. That the trial Court was not competent to remand the applicant in judicial custody, it is suffice to say that since applicant was taken into judicial custody but he failed to prefer any bail application before the trial Court. Moreover, applicant was at liberty to approach the trial court and sufficient opportunity was available to the applicant, as before deciding application under section 193, Cr.P.C, he was in a position to prefer bail application but such course he did not choose therefore, at this stage release of applicant merely on the plea that he was not given notice for cancellation of bail is not sufficient to grant him bail at this revisional stage. With regard to the case law relied by learned counsel for rival side, it is pertinent to mention that in the criminal administration of justice, each and every case is to be decided on its own peculiar facts and circumstances, however the principles laid down and same are falling within the scope of stare decisis can be followed. In this touchstone while examining referred case-law relied by learned counsel for the applicant, apparently it is not applicable in instant case.
9. Keeping in view the above circumstances of the case, applicant has failed to make out a case thus instant Criminal Revision Application having no merits for consideration is hereby dismissed.