HIGH COURT OF SINDH AT KARACHI
Criminal Acquittal Appeal No.351 of 2018
Appellant : Muhammad Maskin son of Gul Zaman
through Mr. Raja Hassan Nawaz, Advocate.
Respondents No.1 & 2 : Muhammad Sharif & Muhammad
Shabbir, both sons of Sooba
Khan, through Mr. Rao Taj Muhammad, Advocate.
Respondent No.3 : The State through Ms. Rubina Qadir,
Deputy Prosecutor General, Sindh.
Date of hearing : 26.04.2019
Date of Judgment : 26.04.2019
J U D G M E N T
Abdul Maalik Gaddi, J.– Through this appeal, the appellant has assailed the legality and propriety of the Order dated 31.03.2018 passed by the learned Civil Judge and Judicial Magistrate-XXII, Karachi (South) in Criminal Case No.4078 of 2015, re. The State v. Muhammad Sharif and another), arising out of Crime No.46 of 2015 registered at police station Tipu Sultan, Karachi, under Section 363/34, whereby the learned trial Court, on application under Section 249-A, Cr.P.C. filed by respondents No.1 and 2, acquitted them under Section 249-A, Cr.P.C.
2. The facts of the prosecution case need not to be reiterated here, as the same have been elaborately mentioned in the memo of appeal as well as in the impugned judgment.
3. Today this appeal is fixed for arguments. Mr. Raja Hassan Nawaz, learned counsel for the appellant contended that the impugned order suffers from illegalities and irregularities. Per learned Counsel, in this matter, initially investigating officer had submitted challan under Section 173, Cr.P.C. in ‘C’ class, but learned trial Magistrate did not accept the same and taken the cognizance in the matter. Thereafter, on 08.04.2017, learned trial Court framed the charge at Ex.2, in which the accused/respondents No.1 and 2 have not pleaded guilty and claimed to be tried vide their pleas at Exs.2/A and 2/B. Per learned Counsel, thereafter only examination-in-chief of complainant of the case namely, Muhammad Miskeen was recorded at Ex.3 and cross examination of the complainant was reserved at the request of Counsel for the accused/respondents No.1 and 2. Per learned Counsel, thereafter, an application under Section 249-A, Cr.P.C. was filed by the Counsel for the accused/respondents No.1 and 2, which was allowed by the learned trial Court vide order dated 31.03.2018 and acquit the accused/respondents No.1 and 2 without assigning any valid reason. Per learned Counsel, such conduct of the learned trial Court is in gross violation of the principles laid down by the Hon’ble Supreme Court of Pakistan, as once the report under Section 173, Cr.P.C. submitted by the investigating officer was not accepted by it and had taken the cognizance in the matter, it means that there was some substance in the matter, which needs to be decided on merits; therefore, on this ground, the conviction awarded to the appellant by the trial Court is liable to be set-aside and case may be remanded to trial Court for deciding afresh after providing an opportunity to the appellant to produce the material/eye witnesses of the case and they may be cross examined by the Counsel for the accused/respondents No.1 and 2.
4. Mr. Rao Taj Muhammad, learned Counsel for respondents No.1 and 2 though supported the impugned order, but he has not able to controvert the above legal position.
5. Ms. Rubina Qadir, learned Deputy Prosecutor General, Sindh for the State has not supported the order and submits that the impugned order has not been passed after recording of evidence of the parties, as according to her, in this matter one Bilal aged about fourteen (14) years was kidnapped.
6. I have considered the submissions advanced from both the sides and carefully perused the record. It needs not to be reiterated that recording of evidence is the great legal engine invented for the discovery of truth. Fair opportunity to produce material/eye witnesses contemplated by the law must be real, fair and reasonable. Recording of evidence was not an empty formality, but a valuable right and best method for ascertaining the truth. The right of providing an opportunity to produce eye/material witnesses of the case has from times immemorial been held to be particularly in criminal cases a valuable right to the accused and prosecution/complainant. It is a weapon which an accused person or Advocates on behalf of parties can wield for the purpose of testing the veracity of the statement made by witnesses.
7. In this matter, admittedly after investigation of the case, a report under Section 173, Cr.P.C. was submitted by the investigating officer of the case before the trial Court in ‘C’ class, which was not accepted by trial Court, however, trial Court taken into consideration the gravity of the offence, has taken the cognizance of the matter and issued notice to the respondents, whereafter, charge was framed and only examination-in-chief of complainant Miskeen Khan was record, but thereafter, learned trial Court on application filed by the respondents acquitted the accused without assigning any valid and good reasons, particularly, in the scenario that once trial Court has already taken the cognizance and then without recording any further evidence, acquitted the accused. During the course of arguments, I have specifically asked the question from learned Counsel for respondents No.1 and 2 that after taken the cognizance, what was the fresh material before the trial Court to acquit the accused, he has no answer with him. Admittedly, in this matter, after framing of charge, no evidence was recorded, therefore, in doing so, trial Court has committed gross illegality and stifling the prosecution case. Nothing on record that for securing the attendance of the prosecution witnesses, trial Court had taken any coercive steps, therefore, on this ground, the acquittal of the case is not appreciable.
8. In view of the above, this appeal is partly allowed. The impugned order dated 31.03.2018, whereby the accused were acquitted, stands set-aside and case is remanded back to trial Court for trial at the stage of evidence by providing an opportunity to the appellant to produce the eye/material witnesses of the case, who may be cross examined by the Counsel for the accused/respondents No.1 and 2, preferably, with a period of three (3) months in accordance with law, then delivered the fresh judgment after hearing the parties without influence of his early order. Office is directed to send back the R&Ps of the case alongwith this judgment to the trial Court immediately for information and compliance. Since the matter pertains to year 2015, therefore, trial Court is directed not to grant any unnecessary adjournment to either side. Respondents No.1 and 2 present in Court are directed to appear before the trial Court on 08.05.2019 to face the trial and furnish requisite bail bond in the sum of Rs.50,000/- each with P.R. bond in the like amount to the satisfaction of the trial Court. Compliance report be submitted to this Court through MIT-II.
JUDGE
Faizan A. Rathore/PA*