ORDER SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT, HYDERABAD
Cr.Rev.Appl.No.S- 99 of 2010
DATE ORDER WITH SIGNATURE OF JUDGE
For Katcha Peshi.
Date of hearing: 18.10.2010.
Date of order:
Mr. Noorul Haq Qureshi, Advocate for applicants.
Syed Meeral Shah, D.P.G for the State.
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Through this Criminal Revision Application, the applicants have impugned the order dated 18.8.2010 passed by learned Additional Sessions Judge, Sanghar in Sessions Case No.295/2008, dismissing the application filed by applicants U/s 265-K Cr.P.C.
On 15.10.2008 at 1600 hours complainant Soomar s/o Muhammad Murad Junejo set law into motion through FIR bearing Crime No.26 of 2008 which reads as under:-
“Complaint is that I am residing at the above address with my family and running a hotel with my son namely Ghulam Hussain 23/24 years old and one of my son Ghulam Rasool is residing with Shan Ali Junejo. Few days back Din Muhammad Junejo and his son Noor Muhammad Runano came at us at our hotel, by abusing us that you are back biting regarding them before Shan ali Junejo, you should avoid to this practice otherwise it will not be better for you. Today I and my son Ghulam Hussain was running hotel when my son Ghulam Rasool went with Wadera Shan Ali and Kamdar Muhammad Bux at Bharim Bari and on hotel my nephews Muzaffar Ali, Akber Ali and relative Abdul Ghani were taking tea. At about 1130 hours one Jeep bearing No.E-0191 of blue colour came and stopped infront of hotel, in which each one Noor Muhammad son of Din Muhammad having gun, 2. Ashique Ali son of Din Muhammad having rifle, 3. Sher Muhammad son of Din Muhammad having pistol, 4. Jam son of Din Muhammad having hatchet and 5. Din Muhammad son of Muhammad Khan having lathi laid down from the jeep, meanwhile one motorcycle CD-70 of Red colour No.NHP-2319 came on which Abdul Rahman son of Muhammad Khan empty handed, Abdul Raheem son of Abdul Raheem son of Abdul Rahman having gun and Aziz son of Abdul Rahman having
hatchet entered into the hotel and started instigating cautioning loudly. My son Ghulam Hussain restrained them to which Noor Muhammad with his gun holding in his hand made straight fire upon Ghulam Hussain with intention to kill, who on account of receiving injury fell down and Abdul Raheem made straight fire with his gun to Akber Ali, which hit upon his right leg. Accused Aziz and Jam inflicted/gave hatchet blows to Muzzafar Ali. We in our defence also resisted with the wooden sticks lying on our hotel for fire, thereafter by making aerial firing went away towards Sanghar road on jeep and motorcycle. Then we immediately took the injured at Sanghar Hospital, where SHO PS Chootiyaroon also came with his staff and gave letter for treatment of injured to M.O. Thereafter, on account of serious condition my son Ghulam Hussain was referred to Nawabshah. I received information that my son has been died due to succumbed injuries before reaching at Nawabshah. Now being present, making/doing complaint that above accused due to above reasons and on instigation of Manager Gulsher Rind and others, duly armed with weapons, making riot and with intention to murder caused serious injuries and committed murder of my son Ghulam Hussain and injured my nephews Muzaffar Ali and Akber Ali and harassed us by making aerial firing. Justice be done”.
It is inter alia contended that during course of investigation, prosecution could not find any evidence against the applicant No.1 therefore, his name was placed in column No.2 of the challan, however, the complainant moved an application before the trial Court whereby the trial Court was pleased and joined the applicants as co-accused vide order dated 9.1.2010; the impugned order passed by the trial Court is contrary to the facts, law and equity; the trial Court has miserably failed to appreciate the fact that except mere words of complainant there is no material on record to connect the applicant No.1 with the charge of abatement; during the investigation prosecution could not collect any material to show that when and where the alleged conspiracy was hatched and Gulsher abetted the offence; none amongst the PWs has supported the version of the complainant except PW Abdul Ghani; complainant did not dispute the credence of 161 Cr.P.C statements of PWs Abdul Ghani, Muzaffar Ali and Akber Ali whereby they did not implicate the present applicants; per learned counsel the name of applicant No.2 has been introduced for first time through 161 Cr.P.C statements of PWs Abdul Ghani and Akber Ali which were recorded on 31.10.2008 and 3.11.2008; PWs have made such improvements after lapse of 16 days showing the presence of applicant Saleem which is a result of consultation and deliberation with sole object to implicate the applicant Saleem and in similar way name of applicant Gulsher was given in the FIR by showing him as abettor even without showing his presence; it is lastly contended that prosecution could not collect any material implicating the present applicant and there is likelihood that they would not be convicted for such offence. In support of his contentions, learned counsel for the applicants has relied upon the cases reported as 1. Altaf Hussain Vs. The State (2007 YLR 1012), 2. Muhammad Nawaz and another Vs. The State (2009 P.Cr.L.J 1403), 3. Ahmad Din Vs. Haseebullah and 3 others (2008 P.Cr.L.J 1067), 4. Imdad and 3 others Vs. The State and 2 others (2006 P.Cr.L.J 1243), 5. Muhammad Younas Vs. The State (2001 P.Cr.L.J 603) and 6. Ramesh M. Udeshi Vs. The State (2005 MLD 1854).
On the other hand, learned D.P.G for the State controverted the contentions raised by learned counsel for the applicants and supported the impugned order.
Heard and perused the record.
Admittedly, the name of applicant No.1 appears in the FIR whereas applicant No.2 has been implicated by PWs Abdul Ghani and Akber Ali in their 164 Cr.P.C statements. So far the contention of learned counsel for the applicants with regard to the improvement allegedly made by PWs in their respective 164 Cr.P.C statements is concerned, at this stage same cannot be assessed as the same would prejudice the case of either party. Apparently, none amongst the material witnesses has been examined by the trial Court. With profound respect, the law relied upon by learned counsel for the applicants is distinguishable and on different footing to the case in hand.
In the case of Altaf Hussain (Supra), the facts were quite different as deceased lost his life due to injuries by a wall which fell down whereas the prosecution did not dispute the ownership of said wall by co-accused.
In the case of Muhammad Nawaz (Supra), the accused were acquitted as their names did not appear in the FIR nor in the complaint case or even in inquiry report conducted thereunder.
In the case of Ahmad Din (Supra), writ petition was filed against the acquittal order therefore, same is of quite different purpose and on different footings hence not helpful to the case in hand.
In the case of Muhammad Younas (Supra), the writ petition was filed against the acquittal order but same was turned down.
In the case of Ramesh M. Udeshi (Supra), the proceedings against the accused were quashed by their lordships in a NAB case on the ground that role of the accused in the entire episodes was confined to the floating of the summaries and the issuance of the formal orders for allotment of the land in favour of co-accused.
For the foregoing reasons, I am of the considered view that the prosecution be provided an opportunity to examine the material witnesses and if after recording their evidence, it appears that there is no evidence against the applicants, in that eventuality, the applicants can repeat the application U/s 265-K Cr.P.C, if so advised. Consequently, the instant Criminal Revision Application is dismissed.
The observations made hereinabove are tentative in nature and shall not prejudice the case of either party. The trial Court shall decide the case on its own merits and material available on record.
JUDGE