ORDER SHEET

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Cr. Acq. A. No. S-37 of 2015

Date                               Order with signature of Judge

Present:

Mr. Justice Abdul Rasool Memon, &

Mr. Justice Irshad Ali Shah J.

Date of hearing 03.05.2018

Date of Judgment 03-05-2018

                   Mr. Bakhshan Khan Mahar Advocate for appellant

                   Mr. Mian Mumtaz Rabani Advocate for private respondents  

                   Mr. Abdul Rehman Kolachi APG

.,.,.,.,.,.,.,.,.,.,.,

ABDUL RASOOL MEMON J.    Appellant Mir Khan who is complainant in crime No.87/2009 u/s 302, 364, 452, 337-H2, 147, 148, 149 PPC registered at PS Mehrabpur has impugned the judgment dated 19.5.2015 passed by Additional Sessions Judge Kandiaro, whereby he has acquitted the respondents.

2.               The facts of the prosecution case are that on 26.8.2009 complainant recorded his FIR at PS Mehrabpur stating that his son Gulsher was married with Mst. Jamila through Court with consent of her parents but her brothers Saeed, Mumtaz @ Jaro and Khursheed were annoyed due to such marriage and they used to extend threats to Gulsher. It is alleged that on 25.8.2009, appellant, his son Gulsher and grand son Sajjan were present in their house, when accused Mumtaz @ Jaro with country made pistol, Saeed with TT pistol, Khursheed with gun, Seengar with TT pistol and Gul Hassan with DBBL gun committed house tress passed in the house of complainant at about 9.30 pm and on show of weapons made control upon the complainant party. Accused Saeed and Mumtaz @ Jaro dragged Gulsher out of the house and on their cries PWs Allahdino and others came at the scene of offence. Complainant followed the accused and near the lands of Boota Khan, accused Khursheed fired gun shot at Gulsher who fell down, accused Gul Hassan fired at Gulsher while accused Mumtaz and Seengar made aerial firing and thereafter accused left the scene of occurrence. Complainant found that his son was dead and then he came to PS where he recorded the FIR.

3.               Learned trial court after framing the charge examined only the complainant who did not support the contents of FIR therefore learned ADPP closed the side of prosecution and then trial court neither recorded statements of remaining witnesses namely Sajjan, Allahdino, mashirs, Investigating Officer, Doctor or recorded statement of accused u/s 342 Cr.PC or statement on oath of accused u/s 342(2) Cr.PC, acquitted the accused with the observation as under:-

“ The complainant has fully supported the incident without either implicating the above named accused or deposing a single word against them. According to him veiled face persons had done so. The learned ADPP has closed the side without examining the remaining witnesses on the ground that examination of the same shall not improve the prosecution case in view of non implicating of above named accused by the complainant. The learned ADPP was fully justified in doing so, hence, this case has become a case of no evidence.

In the light of foregoing discussion, I am of the humble view that the prosecution has failed totally to establish its case against the above named accused hence, this point accordingly is answered as not proved. “

4.               Learned counsel for the appellant submits that PWs Sajjan and Allahdino were also the eye witnesses of the occurrence and trial court was required to record their evidence but without recording further evidence passed the impugned judgment, which is liable to be set aside thus case may be remanded to trial court for recording evidence of remaining witnesses and also affording full opportunity to respondents to defend their case and pass fresh judgment.

5.               Learned counsel for the respondents submits that complainant who was also the alleged eye witness and father of deceased Gulsher has not supported the prosecution case, therefore order of the trial court is justified and in accordance with law. However, he has recorded no objection if the case is remanded to trial court for evidence of remaining witnesses and affording opportunity to respondents to defend their case.

6.               Learned APG did not support the impugned judgment and recorded no objection if the case is remanded to trial court for aforesaid purpose.

7.               We have given due consideration to the arguments advanced by counsel for the parties and have perused the record.

8.               It is an admitted position on record that trial court did not bother to examine remaining witnesses who as per contents of the FIR were the eye witnesses of the occurrence and even trial court did not record statements of accused u/s 342 Cr.PC after closing the side of prosecution, therefore learned APG is justified in not supporting the impugned judgment.

9.               In view of the above circumstances, we allow this appeal, set aside the impugned judgment dated 19.5.2015, remand this case to learned trial court for recording evidence of remaining witnesses mentioned in the charge sheet, recording statements of accused u/s 342 Cr.PC and statements u/s 340(2) Cr.PC if any they desire to record and pass fresh judgment. As the matter pertains to year 2009 and the respondents were on bail before trial court and are attending Court without fail, therefore taking all these factors into consideration, they are ordered to remain on bail and furnish solvent surety in the sum of Rs.50,000/-each to the satisfaction of learned trial court within (20) days. The trial court is expected to conclude the trial preferably within a period of three months.

10.             Instant Cr. Acquittal Appeal stands allowed in the above terms.

                                                                                      J U D G E

                                                          JUDGE

Rafi