IN THE HIGH COURT OF SINDH AT KARACHI

Present:

Mr. Naimatullah Phulpoto, J.

Mr. Abdul Maalik Gaddi, J.

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Criminal Miscellaneous Application No.211 of 2015

Applicant Muhammad Usman S/o Muhammad Yaqoob Qureshi, through Muhammad Ramzan Tabassum, Advocate

Respondent The State through Mr. Abdullah Rajput, Assistant Prosecutor General Sindh

Date of hearing 16.11.2015

Date of Order 19.11.2015

O R D E R

NAIMATULLAH PHULPOTO, J. By this order we will dispose of Criminal Miscellaneous Application No.211 of 2015 filed under section 561-A, Cr.PC.

2. Brief facts leading to filing of above application are that a case bearing Crime No.19/2013 was registered against the accused at P.S. New Karachi on 24.01.2013 under sections 302, 34 PPC read with section 7 of the Anti-Terrorism Act, 1997. After usual investigation, challan was submitted against the applicant/accused under the above referred sections.

3. Charge was framed against the accused by learned Judge, Anti-Terrorism Court-VIII and accused pleaded not guilty. Prosecution examined material witnesses. Thereafter, application under section 265-K Cr.PC was moved for pre-mature acquittal of the accused. Learned trial Court after hearing the counsel for the parties, rejected the same vide order dated 31.07.2015. Hence, above application is filed for similar relief.

4. Learned advocate for the accused mainly argued that there is no probability of conviction of accused Muhammad Usman in this case and evidence recorded before the trial Court is insufficient to connect the accused in the commission of offence. It is also argued that there are material contradictions and inherent defects in the prosecution evidence. Lastly, it is submitted that the applicant/accused is entitled for acquittal without recording evidence of remaining prosecution witnesses.

5. Mr. Abdullah Rajput, learned Assistant Prosecutor General Sindh argued that there are eye witnesses of the incident and both the eye witnesses have fully implicated the accused before the trial Court in the commission of offence. Learned A.P.G. further argued that appreciation of the evidence is a primary duty of the trial Court. Lastly, it is submitted that the case will end to the conviction of the accused for the offences with which accused are charged.

6. We have carefully heard the learned counsel for the parties, perused the impugned order and depositions of the prosecution witnesses brought on record.

7. Learned trial Court rejected the application after hearing the counsel for the parties, mainly for the following reasons:

After hearing arguments advanced by the learned counsel for the parties, I have carefully perused the material available on record. Accused have connected with the allegation of the murder of the deceased Sub-Inspector Alamgir. The alleged incident has taken place at conspicuous place. The charge has been framed. All the witnesses including eye witnesses have supported the prosecution case and did not depose in favour of the accused. Medical evidence is inconformity with the ocular version and confirmed the cause of death of the deceased by means of fire arm injuries. The submission of the learned defence counsel as contended above will be apprised properly after recording the evidence of the all prosecution witnesses including statement of the accused and at this stage no positive conclusion can be drawn.

In view of the above circumstances, I am of the considered opinion that the accused have no case for acquittal in terms of section 265-K, Cr.PC, the applications in hand have no merits consideration and stands dismissed accordingly.”

8. From the perusal of the depositions of the eye witnesses Aman and Sarwar it transpires that obviously they have implicated the accused Muhammad Usman while deposing that both accused present in the Court are same who fired upon deceased SIP Alamgir. We agree with the learned A.P.G. that it is the primary duty of the trial Court to appreciate the evidence according to the settled principles of law. Deeper appreciation of evidence at this stage is not permissible under the law. Yet trial Court has to record evidence of remaining prosecution witnesses. In our considered view, prosecution should be given full opportunity to produce the entire evidence available with the prosecution. At the same time, defence would be at liberty to cross-examine the prosecution witnesses, then statements of accused are to be recorded and the trial Court after considering the entire evidence has to decide the case on merits in accordance with law. The powers under section 561-A Cr.PC cannot be so exercised as to interrupt the ordinary course of Criminal Procedure as prescribed in Criminal Procedure Code. Reliance is placed on the case reported as RIAZ ALI alias RAJOO versus THE STATE (2011 YLR 997 [Karachi]), in which Division Bench of this Court has observed as under:

“12. The Hon’ble Supreme Court in case of A. Habib Ahmed v. M.K.G. Scott Christian and 5 others (PLD 1992 Supreme Court 353), has formed view that if prima facie the offence had been committed justice required that it should be enquired into and tried. If the accused are not as a result of the trial found guilty they have a right to be declared as “honourably acquitted by a competent Court.” On the other hand if the evidence against the accused discloses a prima facie case then “justice clearly requires that the trial should proceed according to law.” The inherent jurisdiction of the High Court is not an alternative jurisdiction or additional jurisdiction. It is only in the interest of justice to redress grievances for which no other procedure is available. The power given by section 561-A, Cr.PC, can certainly, not be so utilized as to interrupt or divert the ordinary course of criminal procedure as laid down in the procedural stature.”

9. Trial Court has already observed that eye witnesses have implicated the accused in the commission of offence. Prima facie, offence is made out; it is requirement of law that case should be tried in accordance with law. Inherent powers of this Court cannot be exercised to defeat the ends of justice. Therefore, we find no merit in the above application, the same is dismissed. However, trial Court is directed to decide the case expeditiously.

10. Needless to mention here that above observations are tentative in nature, the trial shall not be influenced with the same while deciding the case of the applicant/accused on merits.

J U D G E

Gulsher/PA