2023 PLP 813 (MLD)

KHADIM HUSSAIN M. SHAIKH, J.

This criminal acquittal appeal is directed against the order dated 12.11.2019, passed by the learned XXI Judicial Magistrate, Karachi East, in Criminal Case No.1540 of 2018, re-Adnan and others v. The State, emanating from Crime No. No. 265 of 2017 for offence under sections 380, 457, 34, P.P.C., registered at Police Station Korangi, whereby, respondents, namely, Azeem, Asghari and Adnan have been acquitted under section 249-A, Cr.P.C.

2. Briefly the facts of the case are that appellant Zahid Saeed Khan had lodged his FIR bearing Crime No. No.265 of 2017 for offence under sections 380, 457, 34, P.P.C., registered at Police Station Korangi, and after usual investigation, the final report under section 173, Cr.P.C., was submitted, whereupon the learned trial Court took cognizance.

3. After completing the formalities, a formal charge was framed against the respondents, to which they pleaded 'not guilty' and claimed to be trial and then the trial commenced. Prosecution examined complainant Zahid Saeed Khan as PW-1 at Ex.3, who produced the memo of arrest, FIR and memo of site inspection at Ex.3/A, 3/B and 3/C respectively; and, PW-2 Haroon Rasheed at Ex.5, who produced order of SSP, Map and photographs at Ex.4/A to 4/E; PW-3. Then the application under section 249-A, Cr.P.C., was filed by the respondents, which was allowed by the learned XXIst Judicial Magistrate Karachi East vide impugned order dated 12.11.2019, thereby the respondents have been acquitted under the provisions of section 249-A, Cr.P.C. 5(sic.) Having felt aggrieved by the said acquittal order, the appellant has preferred the present appeal.

6. The learned advocate for the appellant has mainly contended that the learned trial Court has acquitted the respondents in a cursory manner without affording sufficient opportunity to the prosecution to adduce remaining evidence: and, that the impugned acquittal order is illegal, and prays that this criminal acquittal appeal may be allowed and the matter may be remanded to the trial Court to decide it after allowing the prosecution to adduce further evidence.

7. Learned Additional Prosecutor General, supporting the impugned acquittal order, has mainly contended that the learned trial Court has passed acquittal of the respondents on the valid grounds; and, that there is no illegality in the impugned order, which may be maintained by dismissing the instant criminal acquittal appeal.

8. I have considered the submissions of learned counsel for the appellant and learned Additional Prosecutor General, and have gone through the material brought on the record.

9. From a perusal of the record, it would be seen that the incident was shown to have taken place on 18/19-7-2017 and whereas the FIR was lodged on 31.07.2017 and there was absolutely no explanation for such an inordinate delay of more than twelve [12] days in lodgment of the FIR, which being significant could not be lost sight of, as the possibility of false implication of the respondents after deliberations and consultations could not be ruled out more particularly in view of the fact that the appellant and the alleged witnesses are admittedly not eye-witnesses of the alleged occurrence, and per prosecution nobody had seen the actual occurrence and the names of the respondents were shown in the FIR on the basis of suspicion; it is well settled that the suspicion howsoever strong may be that cannot take the place of the legal evidence and conviction cannot be awarded on the basis of suspicion; no incriminating article whatsoever was recovered from the respondents; PW-1 complainant Zahid Saeed Khan in his cross-examination had made many admissions adverse to the prosecution case such as 'I reside at the first floor of the building; we gave the keys to them while going down; main entrance gate of the building is one; the keys of the main gate is in possession of us as well as accused; it is not mentioned in my statement under Section 161 Cr.P.C. that we gave the keys of almirah to accused; it is not mentioned in my statement that the household articles were in here and there position: from the date of incident till registration of the FIR I did not make complaint to any authority; while PW-2 ASI Haroon Rasheed, who was examined in absence of the defence counsel, was cross-examined by the accused/respondents, in his cross-examination had stated that nothing was recovered from you [the accused]; complainant has not given any proof that he handed over the keys of house to your mother: the complainant lodged the FIR on the ground of suspicion. Under these circumstances, I am of the view that there was absolutely no evidence worth consideration available with the prosecution to establish accusation against the respondents and as such there was no probability of accused being convicted for any offence and even the examination of the remaining witnesses would not improve the prosecution case, rather it would not only be an exercise of futility, but it would also be the abuse of the process of the Court to continue proceedings of the subject case before the learned trial Court, when there was no probability of the accused being convicted for any offence; it is worthwhile to mention that by enacting sections 249-A, Cr.P.C., the legislature in its wisdom did not leave the question of recording of the evidence as a condition before taking action under either of the provisions. The use of the expression "at any stage of the case" is indicative enough to the intention that any such stage could be the very initial stage, after taking cognizance, or it could be a middle stage after recording some evidence and/or even, could be later stage as well. Reliance in this context is placed on the case of Muhammad Sharif v. The State [PLD 1999 SC 1063] and The State through Secretary, Ministry of Interior v. Asfaque Ali Bhutto [1993 SCMR 523] and Ajmeer Khan v. Abdul Raheem and others [PLD 2009 SC 102]. In such view of the matter, I am of the humble view that the learned trial Court by acquitting the respondents invoking the provisions of section 249-A, Cr.P.C., vide impugned acquittal order dated 12.11.2019, has not committed any illegality. The learned counsel for the appellant has also not been able to point out any illegality or jurisdiction defect or any arbitrariness in the impugned acquittal order, attracting interference of this Court in acquittal appeal. Accordingly, this criminal acquittal appeal, having no substance, is dismissed. JK/Z-3/Sindh Appeal dismissed.