2022 P Cr (PLP)

ABDUL MAALIK GADDI, J.

This Criminal Acquittal Appeal has been filed by the appellant (Shoukat Ali) against the Judgment dated 22.12.2017, passed by the learned VIth Civil Judge and Judicial Magistrate, Karachi East in Criminal Case No. 1465/2017 under FIR No. 471/2017, registered under sections 406, 420, 471, 506 and 468, P.P.C. at P.S K.I.A, whereby, the learned trial Court, after hearing the learned counsel for the parties, acquitted the private Respondents while exercising the power under section 249-A, Cr.P.C.

2. Brief fact of the case as per FIR is that Complainant being transporter/manager of Bilal Traders, lodged FIR against the accused persons by stating that on 06.09.2014 the complainant loaded the vehicle of the accused Ismail bearing No. C-2748 in National Refinery Korangi from Furnace oil of 50 thousand liter of amounting to Rs.37,94,931/- and the same was left for Shaikhupura Machen through driver of the vehicle Nadeem Iqbal and cleaner Kaleemullah so also had given amount of Rs. 1,40,300/- as travel expenses to the son of accused Ismail namely Usman. After few days, they received information from the concern that the vehicle had not reached at the destination, then he contacted with owner of the vehicle Ismail who disclosed that the vehicle was unloaded at Atlus power and he having its invoice. When they called verification from company, the signature and seal over the invoice was found fake and forged, thereafter, after few months they again searched accused Ismail at Peshawar, they tried to settle the issue with accused by way of Jirga but of no result and rather the accused Ismail started to extend threats of dire consequences. As per FIR the driver Kaleemullah with connivance of his employer Ismail prepared forged invoices and committed criminal breach of trust.

3. It appears from the record that when the case was fixed for framing of charge before the trial Court, the trial Court while exercising the power under section 249-A, Cr.P.C., acquitted the accused by holding that the prosecution has no material to connect the accused persons for charge.

4. Mr. Tariq Mehmood A. Khan, learned Advocate for the appellant contended that the order passed by the learned trial Court is perverse and the reasons are artificial, vis-a-vis the evidence on record in shape of documents, that the grounds on which the trial Court proceeded to acquit the respondents are not supportable from document and evidence on record. He further submitted that the respondents have been directly charged that they have committed forgery with the complainant. He further submitted that the case was at initial stage and prosecution has to prove its case but the learned trial Court has acquitted the accused without assigning any valid reason and the contents of FIR as well as other documents on record have not been properly appreciated, therefore, under these circumstances, he was of the view that this appeal may be allowed by remanding the case to the trial Court for deciding the same after recording the evidence of the prosecution witnesses as per law.

5. Ms. Amna Ansari, Additional Prosecutor General, Sindh, assisted by Mr. Muhammad Haneef Qureshi, Advocate for respondent No.1 has supported the impugned order by arguing that the impugned order is perfect on law and facts and according to her though the vehicle was owned by Muhammad Ismail but it was driven by driver Nadeem Iqbal and Kaleemullah was conductor/cleaner of the vehicle, who as per FIR was supposed to off load the furnace oil to its destination and if any misappropriation or cheating was done, the respondents Nos. 1 and 2 are not responsible for the act of the driver and cleaner. She further submits that though the alleged incident was taken place on 06.09.2014 but the FIR of the incident was lodged on 24.06.2017, after the delay of about two and half years for which absolutely no satisfactory explanation has been furnished, therefore, according to her, on this ground false implication of the respondent in this case with due deliberation and consultation could not he ruled out. She further submits that the learned trial Court while exercising power under section 249-A, Cr.P.C. has rightly concluded that if the whole case is proceeded, no fruitful purpose would be achieved.

6. I have heard the learned counsel for the parties at a considerable length and have gone through the case papers so made available before me as well as the impugned order.

7. It appears from the record that alleged incident was taken place on 06.09.2014 whereas FIR of the incident was lodged by complainant on 24.06.2017, after the delay of about two and half years for which no satisfactory explanation has been furnished. During the course of arguments, I have specifically asked the question from learned counsel for the appellant to explain the delay in lodging of the FIR, but he has not plausible answer with him. Thus it appears that perhaps the FIR has been lodged by the complainant with due deliberation and consultation.

8. It appears from the record that complainant entrusted his property, if any, to driver Nadeem Iqbal and cleaner Kaleemullah, therefore, necessary ingredients of section 406, P.P.C. which says that the property which was misappropriated, must be entrusted to the person alleged and or same must be in his dominancy which are missing in this case as in the present case neither vehicle nor furnace oil was entrusted to the present respondent. The necessary ingredients of section 420, P.P.C. are cheating, inducing dishonestly deception by delivering the property but here in this case no any such fact, if so, is silent for a considerable time of two and half year having loss of a huge amount of Rs. 37,94,931/- is very questionable but the alleged invoice as alleged by the complainant, has no concern to the complainant. It also appears from the record that accused Muhammad Ismail has also lodged FIR No. 102/2017 at Police Station Bin Qasim, Karachi against present complainant under section 332, P.P.C., much prior to present FIR, taking this aspect of the case into consideration it appears that the present FIR is a counter-blast of the FIR of accused Ismail. It is pointed out by the learned counsel for accused that civil litigation is also going on in between the parties. When confronted this fact to the learned counsel for the appellant, he has not been able to refute the above position.

9. It is argued by learned counsel for the appellant that the acquittal order has been passed under section 249-A, Cr.P.C. without recording any evidence and even charge has not been framed, therefore, the appellant has been seriously prejudice by the act of the Court. Reverting to the contention as raised by learned counsel for the appellant, it is suffice to say that power to acquit accused under section 249-A, Cr.P.C. has a speedy remedy in original jurisdiction to seek his immediate emancipation from a groundless complaint. Section 249-A, Cr.P.C. was an enabling provision giving power to the Magistrate of criminal jurisdiction after hearing the prosecution and accused to give finding that charge was groundless or that no probability of the accused being convicted of any offence existed. Where the court was reasonably convinced that a criminal charge could not be sustained, going on trial was not necessary and the said powers could be exercised even before framing of charge. As stated above that the learned trial Court has elaborately discussed all the points involved in this case, therefore, the same need not to be interfered.

10. I have gone through the impugned order with the able assistance of parties' advocates but did not find any illegality or irregularity in it. Resultantly, this appeal having no merit the same is dismissed along with listed application. JK/S-108/Sindh Appeal dismissed.