ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

             Crl Revision No.57  of 2012. 

DATE OF HEARING

ORDER WITH SIGNATURE OF HON’BLE JUDGE

          1. For Katcha Peshi.

          2. For Hearing of M.A.No.2602/2012

15.01.2013.

Mr. Rehmat Ally Rajput advocate  for the applicant.

                        Mr. Muhammad Yaqoob Dahani, State Counsel.

                                                -.-.-.-.-.-.-

                        By this revision application, the applicant/accused has challenged the order dated 18.7.2012 in terms whereof the application filed by the applicant under section 249-A, Cr.P.C was dismissed.

                        Brief facts of the case are that an FIR bearing Crime No.12/1996 was registered at Police Station, ACE, Larkana under section 467, 468, 471-A, 34, PPC. It is the case of the applicant that after lodging of the FIR, he was granted bail. However, subsequently on account of his illness he could not appear and consequently he was declared as absconder.

            He submitted that the evidence was recorded in the crime and it was held by the Special Judge, Anticorruption Larkana that in view of the evidence that has come on record, the prosecution has failed to bring home the charge against the accused person “Azizullah” and consequently the said Azizullah was acquitted. Whereas the case against the present applicant Paltoo Khan was ordered to remain on dormant file till his arrest. Subsequently, he appeared before the trial Court and was again granted interim bail. Where-after, he also moved an application under section 249-A, Cr.P.C for his acquittal on the ground that on the basis of “no evidence” the other accused was acquitted. Learned counsel for the applicant submitted that the impugned order is not justified as the complainant Ghulam Umar, who registered the FIR himself disclosed that he was neither posted in ACE, Larkana nor the FIR contains his signature and on this evidence the contents of the FIR cannot be proved which would be sufficient for his acquittal.

                        Learned State Counsel has opposed the instant application and submitted that this revision application under section 435 & 439, Cr.P.C is not maintainable. The applicant is an absconder and did not face the trial and as such the benefit of the evidence cannot be given to the applicant. He submits that the impugned order is exhaustive and apart from the evidence of one Ghulam Umar, there is further evidence of other witnesses who involved the applicant in such offence.

                        I have heard the learned counsel and perused the record. It is the matter of record that in terms of judgment dated 25.5.2011, the other accused, namely, Azizullah son of Ali Nawaz Zangejo was acquitted on account of failure of prosecution to bring home the charge against the accused person namely Azizullah. The applicant by moving an application under section 249-A, Cr.P.C claims such benefit of acquittal of Azizullah. The evidence given at the trial against co-accused of the absconder/applicant, or other persons cannot by an ex post facto operation be converted as evidence recorded under  section 512, Cr.P.C and used subsequently at the trial of the absconding accused after his arrest  unless the evidence has been specially recorded under the above provision and the other conditions as to its admissibility are present. Though the applicant has only relied upon the evidence of one witness i.e. Ghulam Umar,  who is the complainant and Sub-inspector, ACE, Larkana, however, the evidence of other witnesses has some how been concealed from this Honourable Court, as only the evidence of complainant was relied upon.

            In the order dated 18.7.2012, passed by the trial Court in respect of application under section 249-A, Cr.P.C, it has been categorically observed that the case of the applicant is distinguishable from the case of the accused,  who was acquitted, since applicant is beneficiary. It is further observed that the charge against applicant is not groundless and there are evidence of P.W Lal Bux, PW Ghulam Akbar, PW Zahid, PW Tapedar Sher Muhammad Siyal and PW Mehmood etc who are the star witnesses and I.O Imamuddin and Muhammad Ismail Chandio, the then Circle Officer, Anti-corruption Establishment Larkana, who in terms of the impugned order have not been examined at trial and the side of prosecution was closed. PW Imamuddin, I.O of the case who has collected documents which are lying in police file and same would be produced at trial. Such observation made by the trial Court have not been controverted.

                        It is the matter of record that the applicant was/is absconder and such benefit could not be given to the present applicant as a token of love and fidelity on account of his being absent through out trial and remained absconder. Such privilege as claimed by the applicant is neither justified nor lawful. The applicant who is absconder and has recently surrendered after several years has to face music of the trial which is to commence against him in respect of offence that is claimed to have been committed by the applicant as mentioned in the subject FIR. The impugned order is very exhaustive and detailed reasoning is given by the trial Court and I see no reason and justification to upset finding of the trial Court and accordingly this revision application was dismissed by short order today and these are the reason for the same.

Judge