2026 P Cr. L J 406

 2026 P Cr. L J 406

[Sindh]

Before Jawad Akbar Sarwana, J

ZAHID HASSAN KHADO---Applicant

Versus

The STATE through Prosecutor General, Sindh and another---

Respondents

Crl. Misc. Application No. 734 of 2025, decided on 15th September,

2025.

Criminal Procedure Code (V of 1898)---

----Ss. 173 & 561-A---Penal Code (XLV of 1860), Ss. 322, 320, 279 & 427-

--Quashing of order---Inherent jurisdiction of High Court---Scope---

Applicant/complainant sought quashing of order passed by the

Judicial Magistrate who accepted the final report under S.173, Cr.P.C

in a road accident case after dropping S. 322 P.P.C, which was a non-

bailable offence and was mentioned in the FIR filed by the

applicant/complainant while accepted the remaining sections of the

FIR---Held: although the FIR was lodged under S.322 P.P.C, including

certain other Sections of the P.P.C, the Magistrate dropped the said

Section from the final report under S.173 of the Cr.P.C.---In the

present case, the Judicial Magistrate based on the material collected

by the Investigating Officer, the pontification of the prosecutor, and

the final challan submitted by the Investigating Officer took note

that while the accused had a valid learner's license to operate the

motor vehicle, the deceased persons did not have a driver's license

to operate the motorcycle---Therefore, it could not be said in the

instant case that the concerned Judicial Magistrate did not apply his

mind while passing the impugned order---Matter at hand was a

traffic accident case leading to death involving a collision between a

motor vehicle operated by an operator having a valid learner's

license and a motorcycle being operated by a biker without a valid

license/permit---Judicial Magistrate accepted the challan after

hearing all the parties and applying his mind, thus there was

neither any irregularity nor illegality nor error in law in the

impugned order passed by the Judicial Magistrate---Application was

dismissed, accordingly.

Khalid Hussain and 6 others v. Asif Iqbal and 2 others 2021 PCr.LJ

242 ref.

Khadim Hussain v. The State and 12 others PLD 2025 Sindh 12 and

2021 PCr.LJ 242 rel. Majid Ali for Applicant.

Nemo for the Respondent No.1/Complainant.

Nemo for Respondent No. 2.

Date of hearing: 8th September, 2025.

ORDER

JAWAD AKBAR SARWANA, J.---The applicant/complainant is

aggrieved by the impugned order dated 12.06.2025 passed by the 1st

Judicial Magistrate, Thatta, accepting the final report under section

173 Cr.P.C. in a road accident case after dropping section 322 P.P.C

(Qatl-bis-sabah), which is a non-bailable offence and was mentioned in

the FIR filed by the applicant/complainant accepting the remaining

sections of the FIR, namely, Sections 320, 279 and 427 Cr.P.C. The

applicant/complainant has relied on the case of Khalid Hussain and 6

others v. Asif Iqbal and 2 others, 2021 PCr.LJ 242 wherein given the

facts and circumstances mentioned in the said case, it was observed

that the Magistrate in a case which was based on a police report, could

not add or subtract sections of P.P.C at the time of taking cognizant.

After hearing Counsel, I reserved this application for maintainability.

2. Heard Counsel. In Khadim Hussain v. The State and 12 others, PLD

2005 Sindh 12, the learned Single Judge of the High Court made the

following observations concerning the criterion the magistrate should

consider when considering a final challan presented by the I.O.:

4. It is settled, as per scheme of law, that in a positive report of I.O. in

investigation referring the accused to a trial, the Magistrate has no

jurisdiction to disagree with him by disposing of the case or

deleting a particular section. The conclusion drawn by the I.O. that

there is sufficient material to show that a particular offence or the

case as reported has been made out for the Court to hold a trial

thereon is always based on some material collected by him during

investigation. The evidentiary value of which the Magistrate is not

competent to discard on taking a summary tour of material before

him. It requires examination of witnesses. Therefore, it would be

for the Court, be it Magistrate's trial or the Sessions' trial, to apply

its mind, in the trial, and decide whether the case is made out; or

there is sufficient material to attract applicability of a particular

section and then follow the procedure accordingly.

5. The Magistrate's power to disagree with the opinion of I.O. is limited

to only reports disposing of the case or deleting a particular

section. In such cases, the Magistrate by going through the material

can form his own opinion disagreeing with the opinion of I.O. and

take cognizance of offence against the accused by accepting the

Challan or restoring the deleted provision. The ratio laid down in 1972 SCMR 516, 1983 SCMR 370 (para-8), 2010 YLR 470 and 2015

YLR 2312 postulates that the Magistrate has no power to dispose of

the case recommended for trial by the I.O on the basis of

investigation. The same rule would be equally applicable in the

case where the Magistrate proceeds to delete a particular

provision, although the same has been opined to have been made

out by the I.O. on the basis of material collected in the

investigation.

3. Although the FIR was lodged under section 322 of the P.P.C,

including certain other sections of the P.P.C, the Magistrate dropped

the said section from the final report under section 173 of the Cr.P.C. In

the present case, the learned 1st Judicial Magistrate Thatta based on

the material collected by the I.O., the pontification of the Deputy Public

Prosecutor, and the Final Challan submitted by the I.O. took note that

while the respondent No.2/accused had a valid learner s license to

operate the motor vehicle, the deceased persons did not have a

driver's license to operate the motorcycle. Therefore, it cannot be said

in the instant case that the concerned 1st Magistrate, Thatta, did not

apply his mind or did not go through the case law, as mentioned above

on the point by the learned single Judge of this Court. In the instant

case, the 1st Magistrate, Thatta, has passed the impugned order dated

12.06.2025, keeping in view the ratio laid down by this Court as well as

by the Supreme Court in the above cases, within 15 days.

4. Meanwhile, the facts of the case relied upon by the

applicant/complainant in 2021 PCr.LJ 242 are entirely different from

the facts in hand. That case involved the Magistrate taking cognizance

of an offence upon receiving a private complaint of facts which

constitute such offence. This is not the factual case before this bench.

The matter at hand is a traffic accident case leading to death involving

a collision between a motor vehicle operated by an operator having a

valid learner's license and a motorcycle being operated by a biker

without a valid license/permit. The 1st Judicial Magistrate Thatta

accepted the challan after hearing all the parties and applying his

mind. I find there is neither any irregularity nor illegality nor error in

law in the impugned Order dated 12.06.2025 passed by the learned 1st

Judicial Magistrate, Thatta.

5. Given the above, at present, no case is made out for any

interference in the impugned Order dated 12.06.2025. Accordingly, the

complainant/applicant s Application under section 561-A Cr.P.C. is not

maintainable and dismissed herewith.

JK/Z-20/Sindh Application dismissed.