HIGH COURT OF SINDH AT KARACHI

Criminal Acquittal Appeal No.574 of 2017

Appellant                        :         Muhammad Zubair son of Ali Khan

In-person

Respondent No.1            :         The State, through Mr. Syed Meeral

Shah, Additional Prosecutor General.

Respondent No.2            :         Abid Hussain son of Lal Hussain

through Mr. Amjad Hussain, Advocate

Date of hearing               :        21.11.2019

Date of Judgment           :        21.11.2019

ORDER

Abdul Maalik Gaddi, J. Through this criminal acquittal appeal, the appellant has assailed the legality and propriety of the order dated 30.10.2017, passed by the learned IVth Judicial Magistrate, Karachi (West), in Criminal Case No.552 of 2017, emanating from Crime No.70 of 2017, registered at police station Docks, Karachi, under Section 406, 420, 506, 427 and 34 of PPC, whereby the learned trial Court after full dressed trial acquitted the respondent No.2 by giving him benefit of doubt.

2.       The allegations against the respondent No.2 are that on 26.01.2017 at 2000 hours, respondent No.2 committed criminal intimidation by threatening the appellant/ complainant to cause hurt him and his family when appellant/ complainant demanded his earlier paid dues of utility bills and respondent No.2 did not deposit the same paid amount to the concerned utility providers.

3.       At the very outset, appellant who is present in person submits that the impugned judgment passed by the trial Court is bad in law and on facts, inasmuch as, at the time of hearing, he has also not been heard, therefore, according to him, impugned judgment has been passed in his back, which is not tenable under the law. He further submits that since he has not been heard, therefore, he has been seriously prejudiced and has been deprived from his right of fair trial as envisaged under Article 10-A of the Constitution of Pakistan, 1973. During the course of arguments, beside this ground, he has also agitated other grounds as mentioned in the memo of appeal.

4.       When confronted to learned APG whether the appellant/ complainant, who is present in-person, has been heard before the trial Court before announcement of judgment, he replied in negative. Again this question was asked to learned counsel for respondents, he also replied in negative.

5.       In my humble view, that no judgment/order could be passed at the back of the party, particularly, against a person, who may be effected by such judgment/order, which deprived him from his vested right or interest. When the basic judgment/order has been passed without hearing to the concerned party, the entire superstructure raised thereon falls on the ground automatically, as the fair trial is the alienable right of every person, which could not be denied in any circumstances as envisaged under Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973. Admittedly in this matter, appellant/ complainant Muhammad Zubair has not been heard, therefore, on this ground alone, it is a fit case for allowing this appeal, setting aside the impugned judgment and remanding the case to trial Court to give an opportunity of hearing to the appellant/ complainant only at the stage of final arguments.

6.       In view of the above, this appeal is allowed, impugned judgment stands set-aside and case is remanded to the trial Court to pass the fresh judgment after providing an opportunity of hearing to the appellant/ complainant Muhammad Zubair and all concerned without influence of its earlier judgment. Since the matter pertains to 2017, under the circumstances, parties are directed to appear before the trial Court on 05.12.2019, only for the purpose of final arguments and it is expected from the Presiding Officer of the trial Court to hear the parties and deliver the fresh judgment as per law. Compliance report be submitted to this Court through MIT-II. Pending application is also disposed of. Office is directed to send copy of this order along with R&Ps of the case to the trial Court for information and compliance.

JUDGE

asim/pa