ORDER SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT, HYDERABAD
Criminal Revision Application No.S-137 of 2018
(Ghanshamdas & another v. The State)
Date of hearing: 26.11.2018
Date of Decision: 26.11.2018
Applicants: Ghanshamdas and Prem Chand through Mr.Ishrat Ali Lohar, Advocate.
Respondent No.1: Beejal through Mr. Fayyaz Hussain, Advocate.
Respondent No.2: The State through Mr. Shawak Rathore, Deputy Prosecutor General Sindh.
O R D E R
Fahim Ahmed Siddiqui,J-. The applicant has challenged the order dated 08.06.2018 passed by learned Additional Sessions Judge-I, Mirpurkhas, in Sessions Case No. 06/2018 (Re: The State v. Ghanshamdas & others) u/s 302, 201, 34 PPC, whereby application u/s 265-K Cr.P.C filed by accused was dismissed.
2. Succinctly, the prosecution case is that the applicants were nominated in F.I.R. No. 13/2017 of PS Tando Jan Muhammad u/s 302, 201 & 34 PPC lodged by respondent No. 1. In the said F.I.R, it is stated by the complainant that his brother deceased Mohan Rabari was working at the shop of applicants. On the day of report, his uncle namely Soomohon informed him that his brother was taken by the applicants to their warehouse and on enquiry, he came to know that they have put allegation of theft upon his deceased brother. On such information, the complainant went to the vegetable shop of his said uncle and accompanied with him approached the applicants' shop where the applicant No. 1 informed him that his deceased brother after committing theft has gone away. Thereafter the applicant continued to search his deceased brother and in the evening one of his relative namely Ajay Rabari informed him that the body of his deceased brother was found hanging in the warehouse of the applicants. The complainant party reached at the warehouse of the applicants, where they found the dead body of his deceased brother namely Mohan Rabari hanging with a rope and his knees were touching the floor.
3. After registration of F.I.R, the investigation was started and after completing the investigation, the police has submitted a report before the concerned Judicial Magistrate under C-Class but the learned Judicial Magistrate, after disagreeing with the police report, has taken cognizance. The case was sent up to the Sessions Court for trial from where it was entrusted to the learned Additional Sessions Judge-I, Mirpurkhas, where the applicants have filed an application under Section 265-K for their pre-mature acquittal, which was dismissed through the impugned order.
4. The learned counsel for the applicants in support of the instant criminal revision application has preferred his arguments at length. According to him, the deceased has committed suicide and this fact is established through the investigation. He submits that the report of Medical Officer is very much clear, which suggests that the deceased himself has taken his life. He emphasised upon the negative police report regarding the incident, which was submitted after investigation and his contention is that there was no iota of evidence against the applicants, as such, cognizance was wrongly taken. He submits that the deceased was under employment of the applicants for about one year and previously, the complainant of the case was also employee of the applicants and both the brothers were honest during the period of their employment. He submits that since, he committed theft and in a fit of shame and despair, he committed suicide. According to him, the case of the applicants cannot be established even after the trial; therefore, it will be appropriate that the applicants should not face the agony of trial, which ultimately will culminate upon the acquittal of the applicants.
5. As against the above, the contention of the learned counsel for the respondent No. 1 is that a poor fellow was ruthlessly murdered, therefore, the applicants are not entitled for pre-mature acquittal. According to him, the brother of complainant was working with the applicants and they have levelled false allegation of theft upon him and have tortured him during which he lost his life. He submits that after murdering the deceased brother of complainant/respondent No. 1, the applicants have given it a colour of suicide but the same was not a suicidal death. He submits that even from the report of Medico Legal Officer, it cannot be said with certainty that it was a suicidal death unless the Medico Legal Officer is cross-examined.
6. The learned DPG has supported the impugned order by submitting that in the peculiar circumstances of the case, it is appropriate that the prosecution be given a chance to establish the case after a full-dress trial.
7. After hearing the arguments, I have scanned the impugned order and the relevant record in the light of valued submissions made before me. There is much material in this case, which requires consideration. It is the allegation against the applicants that they have levelled false charge of theft upon the deceased and took him to their warehouse and his dead body was later on found at the same place. It is also alleged by the complainant respondent No. 1 that when he along with his uncle approached the applicants, they informed them that the deceased brother of complainant has gone away after committing theft. Even at that time they did not disclose that he is available with them in their warehouse. Regarding factual aspect of the case, the complainant has also mentioned in his F.I.R. the names of witnesses, who have informed the complainant/respondent No. 1 about the different phases of the happening of affairs pertaining the incident and ultimately finding the dead body of the deceased. As far as, the report of Medico Legal Officer is concerned, I am of the opinion that its veracity cannot be judged without recording of the evidence of the Medico Legal Officer. In the instant matter, police have submitted a negative report, which was not assented by the learned Judicial Magistrate and even the trial court came to conclusion that the case against the applicant is a fit case for the charge, as such, it cannot be said that the charge against the applicants is baseless. As far as, the existence of some probabilities regarding acquittal, the same cannot be a ground for the pre-trial acquittal for the applicants; what is more, the report of Medico Legal Officer cannot be considered as gospel truth regarding his opinion of suicidal hanging unless his opinion is established on the touchstone of cross-examination, for which trial is necessary. Hence, I am of the considered opinion that at least at this stage, no case of premature acquittal is made out in favour of the applicants. These are the reasons due to which the instant criminal revision application was dismissed through my short order dated 26.11.2018.
*Abdullah Channa/PS*
Hyderabad.
Dated 11.12.2018