IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Criminal Revision Application No.S-74 of 2020

Applicant: Nadir Ali Shaikh, through Mr. Sarfraz A. Akhund,

Advocate.

Respondent No.2: Altaf Hussain through Mr. Abdul Sattar Mahesar, Advocate

State: Through Mr. Aftab Ahmed Shar, Additional PG

Date of hearing: 29.11.2021.

Date of decision: 17.12.2021.

O R D E R

Zulfiqar Ali Sangi, J: Through instant Cr. Revision Application, the Applicant has assailed the impugned order dated 27.08.2020, passed by learned Special Judge Anti-Corruption, Sukkur, whereby an application under Section 249-A Cr.P.C, filed by the Applicant, was dismissed.

2. Succinct facts as alleged in FIR No.20/2015, registered by Respondent No.2 with P.S. ACE, Khairpur are that applicant alongwith co-accused/revenue officials by way of forged sale deed as well as Sale certificate have deprived the Respondent No.2 from his landed property No.375/4 (08-00) acres of Deh Mohal; besides changed of Foti Khata Badal due to his refusal regarding payment of illegal gratification.

3. Learned counsel for the applicant, at the very outset, submits that learned Special Judge Anti-Corruption, Sukkur has passed the impugned order without applying its judicial mind; besides against the facts of the case as the applicant committed no offence as alleged; that there is private dispute between the complainant and the private Respondents over a registered sale deed which was not executed nor attested or even not registered by the applicant; that sale certificate issued by revenue authorities was in accordance with the revenue record which remained unchallenged; that the registered sale deed is intact and the same has been mutated in revenue record under Land Revenue Act and such sale deed is still not cancelled by the competent court of law; that Respondent No.2 intends to drag the applicant in criminal litigations; that applicant is not privy to the whole transaction as such applicant is not liable for its frigidity or correctness. Lastly, he submits that the name of applicant is not mentioned in the FIR and there appears no evidence against the applicant with the prosecution which connects the applicant with the alleged offence and prayed that application may be allowed and applicant may be acquitted from the charges.

4. Learned Counsel representing the Complainant submitted that the learned Special Judge has rightly passed the impugned order as evidence of two PWs have been recorded; that applicant intends to linger on the trial and filed this revision application; that applicant and co-accused in collusion with each other managed false and fake entries in respect of land related to elders of Respondent No.2; that the impugned order has been assailed only by present applicant only; however co-accused did not challenge the same before any forum; that cognizance has already been taken by trial Court; besides charge was framed and two witnesses have also been examined in this regard, hence this revision application has no basis and is liable to be dismissed.

5. Learned DPG has contended that a well-reasoned order has been passed by learned Special Judge, which does not suffer from any illegality or irregularity and is liable to be maintained as specific role has been assigned to the present applicant in the commission of offence; besides cognizance is taken and evidence of two prosecution witnesses have also been recorded.

6. I have heard learned Counsel for the Applicant, learned Counsel representing the Respondent No.2/Complainant as well as learned DAG and have gone through the material available on record.

7. Report from the trial court was called vide order dated: 07-06-2021 and the same was furnished by the incharge Special Judge Anticorruption (Provincial) Sukkur Division @ Sukkur where in para No. 2 it is stated as under:-

2. That, cases has proceeded, evidence of two witnesses has been recorded, for one witness, the process server recorded statement that he (witness namely Inspector Muhammad malook) has expired, now only three (3) witnesses are to be examined and efforts are being made to procure their attendance. The case is fixed on 03-8-202. The prosecution evidence could not be completed due to covid-19 restrictions; however, it can be completed shortly.

8. Looking to the report as stated above, I am of the view that it is duty of trial court to advert to and examine the contents of FIR, material and evidence, submitted with charge sheet. When the trial court after framing of charge recorded evidence of some of the prosecution witnesses then the court cannot acquit any accused in the middle of trial. Simpliciter, the provisions of sections 249-A and 265-K, Cr.P.C., should not be pressed into action for deciding the fate of a criminal case. It is duty of the court to sift grain from chaff and after conclusion of trial to see what offence, if any, has been proved against the accused or what offence has not been proved against the accused.

9. After hearing the parties and perusal of the impugned order so also the report furnished by the trial court, I am of the view that the evidence recorded before the trial court cannot be appreciated/ considered at this stage as still other (material) witnesses are to be examined and applicant is not a sole accused in the case. Appreciation of evidence while deciding the application under section 249-A Cr.P.C may prejudice the case of either party. It is settled law that a criminal case is to be disposed off after recording of prosecution evidence, statement of accused under section 342, Cr.P.C, and hearing of arguments of the parties. It is further settled law that where the prosecution was not given opportunity to prove the allegations leveled in the FIR, it could not be said that there was no probability of conviction of the accused.

10. In view of the above instant Cr. Revision Application is dismissed. However, the trial court is directed to conclude the trial within period of three months from the date of this order. It is made clear that no adjournment be granted to the parties except strong reasons shown in adjournment application. Compliance report be filed through Additional registrar of this court.

J U D G E