' SHAHNAWAZ TARIQ, J.---Through captioned criminal misc. application, applicant Ameer Ali Shaikh has impugned order dated 26.01.2015, passed by the Court of 1st Civil Judge and Judicial Magistrate, Sukkur on the summary report submitted by the Investigating Officer under "C"-Class, in respect of FIR No,122 of 2014, registered at Police Station "C" Section, Sukkur.
2. Relevant facts spelt out from instant criminal application are that applicant reported that Raees Ali Shaikh aged about 30/40 years, was his younger brother and residing with him, while respondents Abid Shaikh and Javed Shaikh are his relatives and residing in neighbourhood. His brother was seriously sick and taking treatment locally from Sukkur. About one year ago in the evening at unknown date and time, accused Abid Shaikh and Javed Shaikh along with two unknown persons came at his house, and offered for treatment of his ailing brother at Karachi.
Applicant in presence of witnesses Gahno Khan Jhandeer and Mubarak Ali, resident of Old Sukkur, permitted them to take away his brother Raees Ali Shaikh. For long time, accused did not contact with him. After three months, accused informed the complainant that his brother was expired during treatment at Jinnah Hospital, Karachi and was buried in Baldia Graveyard, Karachi.
Complainant instantly filed application before learned Sessions Judge/Justice of Peace and obtained order dated 20.06.2014 for lodging of FIR, hence instant FIR.
3. Learned Counsel for applicant contended that Investigating Officer did not conduct investigation of the crime properly and submitted report under "C" Class; that learned Civil Judge and Judicial Magistrate did not agree with such report and directed S.S.P, Sukkur to conduct re-investigation of the crime through Inspector Ghulam Ali Jumani; that second Investigating Officer also did not properly conduct investigation and submitted report before the learned Magistrate who without examining the material placed on record, has disposed of the case vide impugned order; that complainant and his witnesses have supported the averments of the FIR, hence the impugned order is liable to be set-aside. Learned Counsel also placed on record copy of F.C. Suit No,68 of 2003, Re-Muhammad Abid v. Government of Sindh and others so also copy of Judgment dated 11.1.2011 passed in Civil Appeal No,31 of 2009 by the Court of learned Ist Additional District Judge, Sukkur.
4. Learned Counselfor respondents/proposed accused contended that parties are close relatives to each other and are disputing over property; that deceased Raees Ali Shaikh was suffering from cancer and remained under treatment for a long period; that applicant never provided him medical treatment nor he ever resided in the house of applicant; that deceased Raees Ali Shaikh remained admitted in Trimax General Hospital, Karachi and subsequently, he took his last breath there and Edhi Foundation maintained his proper record and buried him; that no evidence regarding commission of murder of deceased is available on record, but complainant only to pressurize the proposed accused, has lodged instant false FIR which was investigated twice by different Investigating Officers and they submitted summary reports under "C"- Class.
5. Learned APG supported the impugned order and adopted the arguments advanced by learned Counsel for the proposed accused and also produced medical treatment record of the deceased by the Trimax General Hospital, Federal "B" Area, Karachi, and further submits that the deceased was suffering from Chronic Neck Cancer and died due to said disease but applicant did not produce any proof that deceased had been residing in his house; that complainant was unaware about his medical treatment as well as factum of death and during the period of more than one year he never filed any application before any competent authority nor before the Court in respect of allegations leveled by him in subject FIR; that proposed accused are sons of real sister of the applicant and deceased Raees Ali Shaikh.
6. Heard learned counsel for the parties at length and perused the material available on record.
7. Perusal of record emanates that applicant obtained order dated 20.06.2014 from Justice of Peace and at first instance, he lodged FIR No,99/2014 on 26.06.2014 at P.S. Abad, Sukkur with unexplained delay of one week regarding the incident which was subsequently disposed of on the point of jurisdiction of the said PS. Thereafter applicant again lodged second FIR No,122/2014 on 09.07.2014 under sections 302, 201, 506/2 and 34, P.P.C. at P.S. "C" Section, Sukkur. The deliberate delay in the lodgment of FIRs for the incident occurred in the year 2013 i,e, one year ago was not plausibly explained, which also reflects mala fide on the part of the applicant.
8. First Investigating Officer properly investigated the case and submitted report for the disposal of the case under "C"-Class, but learned Magistrate did not approve said report and ordered for re- investigation of the case which is reproduced as follows:-- "This case relates to the homicide death, which has been concluded by the Investigating Officer to be natural and allegation of malice has been alleged by the complainant against the Investigating Officer and, in this view of the matter I feel it apt to direct Inspector Ghulam Ali Jumani, an officer of well repute, to conduct further investigation in the matter and submit the report within two weeks' time. SSP, Sukkur shall provide Inspector Ghulam Ali Jumani with the facility, to which an Investigating Officer is entitled in accordance with law. A copy of this order be sent to SSP, Sukkur and Inspector Ghulam Ali Jumani."
9.Second Investigating Officer Inspector Ghulam Ali Jumani, properly re-investigated the case and again submitted report under "C"-Class which was approved vide impugned order. Perusal of re- investigation report demonstrates that duringre-investigation, Investigating Officer recorded statements of the applicant, his witnesses, accused persons, neutral persons and neighbours by conducting oven spot investigation and after perusal of medical record of the deceased and other case papers, he has concluded A that deceased Raees Ali Shaikh was suffering from cancer.
Thereafter, Raees Ali Shaikh himself had gone to Karachi to the house of the sister of his father namely Mst. Rashidan, where he remained under treatment at Trimax General Hospital, Karachi but ultimately he expired there, and his burial formalities were completed by Edhi Centre Karachi.
These facts were also confirmed by one Roshan Baig (son in law of Mst. Rashidan). Mst., Rashidan paternal aunt of the deceased in her statement under section 161, Cr.P.C. has stated that deceased was residing with her and she was providing him treatment with the help of neighbours, but due to his serious illness, she requested Edhi Centre Karachi for his treatment and after some time, she was informed about his death and he was buried by the Edhi Centre Karachi.
10.Perusal of Criminal Misc. Application No,396/2014 and FIR reflects that applicant had mentioned different facts in Misc. Application which were not narrated in subject FIR. Applicant mentioned in application that one year ago accused persons came at his house in presence of both witnesses and said that they came to know about serious sickness of his brother and they offered to provide proper medical treatment to his brother at Karachi, as applicant being a poor person could not bear heavy medical expenses, hence he permitted them and they took his broths during the same night from Sukkur to Karachi, while per FIR both accused persons are close relatives of the applicant and they have been residing in his neighbourhood since very beginning, hence such stance of applicant could not be believed, while per FIR, Raees Ali Shaikh was suffering from cancer and was continuously under treatment at Sukkur and such fact was well in knowledge of entire family and mohalah people. Similarly, in misc. application it was mentioned that applicant time and again inquired about the health condition of his brother from accused persons and they always replied that his brother was admitted in Jinnah Hospital and his health was improving. It is further mentioned in said application that he along with his above referred both witnesses again visited the accused persons and inquired about his brother, but they did not allow him to see his ailing brother but assured them that his brother was recovering his health. It is also stated in said application that applicant along with his above referred both witnesses visited Jinnah Hospital, Karachi but his brother was not admitted there, and when applicant insisted the accused persons to disclose the where about of his brother, they became annoyed and replied that his brother Raees Ali Shaikh had demanded his share in a disputed house, hence they had committed his murder and buried him at an unknown place and also issued threats to the complainant that in case, he would approach the police, they will also commit his murder. Whereas in FIR, above referred facts have not been narrated but applicant has stated that after long time when he inquired from accused persons about his brother, accused informed him that his brother had expired and was buried in Baldia Graveyard, Karachi. Indeed, the facts mentioned supra are stranger to the averments of FIR, whereby applicant has alleged that above named accused persons with common intention have enticed his brother for treatment and subsequently, committed his murder and buried him at an unknown place. Such controverting allegations have invalidated the authenticity of the averments of FIR.
11. It is significant to mention that in FIR the date and time for the alleged offence is mentioned as unknown which occurred one year ago somewhere in the year 2013, but no satisfactory explanation has been furnished for causing delay of one year in the lodgment of FIR. Conversely, applicant did not mention the date and time when accused persons visited applicant's house and took away his brother Raees Ali Shaikh from his house to Karachi. Applicant has also not mentioned the date and time when applicant approached accused persons to know about the health condition of his sick brother. Applicant has also not mentioned the date and time when he approached accused persons and they disclosed him that his brother was admitted in Jinnah Hospital, and even he has failed to disclose the date and time when he approached accused persons and then visited Jinnah Hospital. Similarly, applicant did not mention the date and time when he again approached accused persons after visiting Jinnah Hospital and his brother was not admitted there. Even applicant did not disclose the date and time when he again approached accused persons and they disclosed that they had committed murder of his sick brother due to enmity. Likewise, applicant neither mentioned the date and time when he approached for first time to police and narrated the incident nor disclosed the name of police officer who had assured him to investigate the incident. Applicant has also failed to narrate the date and time when he again approached police officer who informed him that he had collected sufficient material against accused.
Whereas in FIR, applicant has simply mentioned that his brother was sick and was taking treatment at Sukkur, but he malafidely did not mention that his brother was suffering from advance stage cancer.
12.During the course of reinvestigation, relevant record of burial and photographs of deceased Raees Ali Shaikh were collected by Investigating Officer from Edhi Centre Karachi. It also worthwhile to mention that applicant did not cooperate with Investigating Officer and even refused to identify the photographs of his deceased brother collected by the Investigating Officer, thus identification of said photographs was made through neighbours of both parties residents of Nusrat Colony No,5, Old Sukkur, and they all certified these photos to be of late Raees Ali Shaikh. Furthermore, during the spot enquiry, no any single witness had deposed that deceased Raees Ali Shaikh was residing in the house of the complainant during his life time, hence his such claim remained uncorroborated.
13.Investigating Officer also collected medical record from Agha Khan Hospital, Sukkur Hospital and Trimax General Hospital, Karachi, which emanates that deceased was suffering from advance stage cancer. Applicant did not produce any material regarding commission of murder of Raees Ali Shaikh by accused persons nor here is any eye witness who had witnessed the commission of murder of Raees Ali Shaikh by accused persons nor there is any medical record which may reflect that deceased was murdered and his death was not a natural. Undeniably, Raees Ali Shaikh was suffering from advance stage cancer and was passing his last days and his natural death was expected in near future, thus there was no need to take him from Sukkur to Karachi to commit his murder by accused persons due their animosity going on between the parties over immoveable property since 2003. Applicant has failed to produce any documentary or oral evidence to establish that said Raees Ali Shaikh was residing with him and he had provided him any medical treatment.
14.Bare perusal of averments of Criminal Miscellaneous Application No,396/2014, under section 22-A, Cr.P.C., FIRs, statements under section 161, Cr.P.C. and reports submitted by Investigating Officers, there are series of material contradictions, improvements and concealment of material facts and even factum of animosity over property is admitted. The demeanor of applicant by taking divergent stances as well as concealment of the material facts throughout the proceedings after the alleged occurrence, reflects that applicant with ulterior motives only to compel and pressurize the accused persons to compromise their dispute over immoveable property upon his terms and conditions, has lodged a false and fictitious FIR which otherwise was properly and honestly investigated twice by different Investigating Officers and they recommended the disposal of the case under "C"-Class. Applicant has also failed to point out that re-investigation was not conducted properly or his statement or statements of his witnesses under section 161, Cr.P.C. were D recorded wrongly or improperly or documentary evidence produced by him was not considered by Investigating Officer, thus neither re-investigation report could be discarded nor disbelieved being superficial mere on the wish and whim of complainant who otherwise had leveled self- contradictory allegations and failed to produce any corroborative tangible evidence.
15.Conversely, accused Abid Shaikh filed F.C. Suit No,68 of 2003, Re: Muhammad Abid v.
Government of Sindh and others (including applicant and late Raees Ali Shaikh) before the Court of learned 1st Senior Civil Judge, Sukkur, which was decreed, and applicant filed Civil Appeal No,31 of 2009, Re: Ameer Ali v. Government of Sindh and others passed by the Court of learned 1st Additional District Judge, Sukkur which was decided vide Judgment dated 11.01.2011, and such dispute over immoveable property is still sub-judice before the High Court.
16.Considering the factand circumstances referred supra, I am of the firm view that applicant has failed to point out any illegality or material irregularity committed by the learned Magistrate while passing the impugned order dated 26.01.2015, which is well discussed and strictly on merits, hence it does not call for any interference and stands maintained.Consequently, instant criminal miscellaneous application stands dismissed being devoid of any legal substance.