ORDER SHEET

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Cr. Rev. Appln. No. D- 88 of 2018

For hearing of main case

16.01.2019

Mr. Allah Wassayo Ujjan Advocate for the Applicant

Mr. Irfan Mehdi Soomro Advocate for the complainant

Mr. Abdul Rehman Kolachi, Deputy Prosecutor General

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Irshad Ali Shah, J;- The applicant by way of instant criminal revision application has impugned order dated 30.06.2018 passed by learned Additional Sessions Judge / Special Judge ATC-II Khairpur, whereby an application under section 265-K Cr.P.C for acquittal of the applicant and others was dismissed by him with the following observation;

“Perusal of record reveals that no doubt the names of applicants/accused were placed in column No.2 of charge sheet but Hon’ble Incharge Judge/ATC Khairpur took cognizance of this offence against the accused vide order dated 28.2.2018 giving observation that sufficient material is available on record against these accused to connect them in the commission of alleged offence. Record further reveals that complainant and eyewitnesses have implicated these accused during investigation, yet the case has not been proceeded so far, the accused are facing charge of heinous offence falling within the prohibitory clause of section 497(1) Cr.P.C. In these circumstances I am of the humble opinion that applicants/accused Ali Dad alias Juman Khan and Hassan Ali alias Mashooque have failed to make out their case for their acquittal u/s 265-K Cr.P.C at this stage, hence their application for acquittal is hereby dismissed.”

2. The facts in brief for disposal of instant criminal revision application are that the applicant with rest of the culprits allegedly during course of robbery caused fire shot and butt blows to PW Abdul Hussain, for that the present case was registered with police station Tando Masti Khan at the instance of complainant Altaf Hussain alias Mir Hazar.

3. It is contended by the learned counsel for the applicant that the applicant being innocent has been involved in this case falsely by complainant party, there is 02 days delay in lodgment of FIR, the applicant on investigation was found to be innocent by the police, there is conflict between the contents of FIR and mashirnama of place of incident, there is inconsistency between ocular and medical evidence. By contending so, he sought for acquittal of the applicant as according to him regular trial against the applicant would never raise probability or possibility of his conviction.

4. It is contended by Learned DPG for the State and learned counsel for the complainant that the applicant was neither innocent nor was involved in the case falsely by the complainant party, the applicant obtained undue favour from the police during course of investigation, which was not consented by the Court and there is every probability and possibility of his conviction, if the prosecution is permitted to examine its witnesses against him. By contending so, they sought for dismissal of the instant criminal revision application.

5. We have considered the above arguments and perused the record.

6. The name of the applicant is appearing in the FIR with specific allegation that he with rest of the culprits during course of robbery caused fire shot injury to PW Abdul Hussain. Whatever is stated in FIR is supported by ancillary evidence to large extent. In that situation, it would be premature to say that applicant being innocent has been involved in this case falsely by the complainant party. It is true that there is delay of 02 days in lodgment of FIR but there could be made no denial to the fact that such delay has been explained in FIR itself. The applicant has been let off by the police during course of investigation on the basis of his plea of alibi while disbelieving the case of the prosecution against him without lawful justification such opinion of the police was not consented by the Court, perhaps rightly. The conflict between ocular and medical evidence and/or contents of FIR and mashirnama of place of incident may be there but same could not be resolved by this Court in summarily manner only to order acquittal of the applicant which of-course is calling of its adjudication on merit, which could only be achieved by recording evidence. In these circumstances, it would be hard to make a conclusion that the prosecution if is permitted to examine its witnesses against the applicant would never raise probability of possibility of his conviction.

7. For what has been stated above, it is concluded that learned trial Court was right to dismiss the application of the applicant for his acquittal u/s 265-K Cr.P.C by way of impugned order, which is not calling for any interference by this Court by way of instant Criminal Revision Application, it is dismissed accordingly.

Judge

ARBROHI