IN THE HIGH COURT OF SINDH AT KARACHI

Cr. Appeal No. 49 of 2014

Mehboob Ali Jatoi.………………………………...…………………..Appellant

Versus

The State……………………………….…………..……………….Respondent

Date of Hearing: 09.11.2017

None is present for appellant

Mr. Zahoor Shah, DPG

J U D G M E N T

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FAHIM AHMED SIDDIQUI, J: This judgment is directed to dispose of the instant criminal appeal filed on behalf of appellant/convict Mehboob Ali Jatoi son of Ghulam Muhammad Jatoi. The appellant was convicted by learned Special Judge Anti-corruption (Provincial) Karachi, as under:

i) For offence under Section 161 PPC RI for two years;

ii) For offence under Section 420 PPC RI for two years and fine Rs.300,000/- in case of default in payment of fine, he has to undergo SI six months more;

iii) However, trial Court extended benefit of Section 382-B CrPC to accused.

2. An application under section 426 Criminal Procedure Code was also filed by the counsel for appellant and after hearing, the appellant was granted bail subject of furnishing surety in the sum of Rs. 50,000/- and personal bond of like amount vide order dated 18-03-2014. The impugned judgement was also suspended under the same order. After getting bail, the appellant chosen to become absconder. Firstly, bailable and then non-bailable warrants were issued for his arrest but he could not be arrested. Simultaneously, proceedings against the surety were also initiated and a notice under section 514 of Criminal Procedure Code was issued to surety. It appears from the record that the surety is son of the appellant. It revealed from record that the surety and appellant have been shifted from their given address and appellant has hidden himself to avoid his arrest while the address of surety is not traceable. In these circumstances, notices under section 514 Criminal Procedure Code was issued to surety but in spite of efforts made the notices could not be served upon the surety as he was not traceable on his available address. Under the law it is the responsibility of surety that he should bring the appellant/convict before this court on each and every date of hearing in which he remained failed. This court has already issued the requisite notice against the surety and sufficient efforts were taken to serve the same upon him. There is no likelihood to serve the notice on surety as he is not traceable on the given address. The custody of appellant/convict was handed over to surety and he is bound to produce him before this court. The surety could not discharge his legal responsibility and the matter is lingering on since 2014. The bail bond has already been cancelled and NBW is issued against the appellant/convict.

3. In such a situation, it is a fit case for forfeiture of surety amount. It is hereby ordered that the Defence Saving Certificate in the sum of Rs.50,000/- deposited by surety Asad Ali Jatoi son of Mehboob Ali, before the Nazir of this court be forfeited to the state. Nazir is directed to complete the necessary formalities for the same. In this respect, I shall take reliance from Sardar Nawaz Khan Niazi v. the State and another (2009 PCrLJ 123 (Karachi)).

4. Now, I shall touch the other aspect of the case. It is evident from the recorder that neither the appellant nor his counsel is in attendance since long. In such a situation, a question arises whether a criminal appeal can be dismissed for non-prosecution if none is appearing for appellant? The answer is to be found in section 423 CrPC as under :-

423. Powers of Appellate Court in disposing of appeal: (1) The Appellate Court shall then send for the record, of the case, if, such record is not already, in Court. After perusing such record, and hearing the appellant or his pleader, if he appears and the Public Prosecutor, if he appears, and in case of an appeal under Section 411-A, sub-section (2) or Section 417, the accused, if he appears, the Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may—

(a) in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be tried or sent for trial to the Court of Session or High Court as the case may be, or find him guilty and pass sentence on him according to law;

(b) in an appeal from a conviction, (1) reverse the finding and sentence, and acquit or discharge the accused, or order him to be tried by a Court of competent jurisdiction subordinate to such Appellate Court of i7[sent for trial, or (2) after the finding, maintaining the sentence, or, with or without altering the finding, reduce the sentence, or (3) with or without such reduction and with or without altering the finding after the nature of the sentence, but subject to the provisions of Section 106, sub-section (3), not so as to enhance the same;

(d) make any amendment; or any consequential or incidental order that may be just or proper.

5. From the bear perusal of Section 423 (1) CrPC, it is clear that a criminal appeal cannot be disposed of in non-prosecution. It is the duty of the appellate court to decide the same on merit after hearing the parties available before the court. If no one is appearing for the appellant, then the matter may be decided on merits after hearing the learned prosecutor. Even if the learned prosecutor is not available or could not argue then the court is responsible to go through the record and pronounce judgement on merit. Regarding this point, I would like to take reliance from Muhammad Ashiq Faquir v. the State (P L D 1970 Supreme Court 177); Mushtaq Ahmed v. the State (1979 PCrLJ 843 (Karachi)) and Zahid Hussain v. the State and others (2011 PCrLJ 344 (Lahore)).

6. In these circumstances, the learned DPG was asked to prefer his submission regarding the instant appeal. He supported the impugned judgment and submitted that sufficient material is available on the record of trial court to connect the appellant/convict with the offences and he was rightly convicted by the trial court.

7. I have scanned the R & Ps of the trial court and perused the deposition recorded and judgment rendered by the trial court. The allegation against the appellant/convict is that he received illegal gratification from the complainant and an amount of Rs.2,42,000/- was taken by the appellant on the pretext of providing him allotment order of an industrial plot. According to complainant, the allotment order was handed over to them by the appellant after taking bribe but the same was later on proved a fabricated allotment order. After framing charge in the above terms, the case was proceeded against the appellant before the trial court. After framing of charge, the prosecution examined five witnesses, who supported the case of prosecution.

8. During trial, the prosecution examined PW-1 Khalil-ur-Rehman who produced the relevant documents pertaining to the case against the appellant. PW-2 Habibur Rehaman, PW-3 Rashid Menhaz being private witnesses supported the statement of complainant. However, the evidence of the official witnesses is important. The prosecution examined official witness PW-4 Syed Zahid Hussain who was Inspector of D.D. ACE, Karachi in his deposition stated that he could not collect convincing piece of evidence against the appellant. The evidence of official witness PW-5 Sajjad Ali is also important as he stated that the entire prosecution case was built up on the statement of one Atiq-ur-Rehman brother of complainant as complainant was unable to attend the proceedings due to his illness and in his absence, the statement of Atiq-ur-Rehman was recorded as attorney of complainant. It is worth mentioning that the said Atiq-ur-Rehman was not examined during trial. It is also worth mentioning that the prosecution witnesses Kalil-ur-Rehman and Habibur Rehman are borther and the third private prosecution witness Rashid Minhaz is their neighbor. The complainant has produced an agreement duly signed by the appellant/accused but the appellant/accused in his deposition has denied the same and has taken plea that his signatures were obtained on some blank paper after abducting him by the complainant party. The signatures when disputed ought to be verified but no such efforts were taken by the prosecution during trial. The appellant is a Sindhi speaking person and the alleged agreement is in English. The appellant is a peon and it is hard to believe that he had put his signature on the said agreement with his free will and consent.

9. Another aspect of the case is important. The appellant is only a peon and he has no authority in the office to allot any land. It is indeed surprising that the appellant has persuaded the complainant party to enter in a deal of allotment of a huge piece of land. The complainant has not mentioned the name of any other person or officer of DC Office as accused.

10. In view of the above discussion, I am of the view that the prosecution remained failed to establish the case against the accused/appellant. As such the instant appeal is allowed and appellant is acquitted from the charge. He is not in attendance, but as he is acquitted on merit therefore surety is discharged.

J U D G E