2009 P Cr (PLP)

ARSHAD NOOR KHAN, J.-- By this acquittal appeal the appellant has challenged the judgment dated 23-9-2008 passed in Sessions Case No.183 of 2007 Manzoor Ahmed v. Liaquat Ali Wand others whereby the direct complaint filed by the appellant, was dismissed. The facts leading to the present appeal in brief are that the appellant filed direct complaint for the offence under sections 395, 397, 506/2, 337-F (vi), 337-F(i), 147, 148, 149 and 504, P.P.C. against the respondents, which after recording of the PE, was brought on record and registered as Sessions case. The respondents were served, who appeared before the learned trial Court, who framed the charge against the respondents on 7-4-2008 and the matter was posted for evidence. The appellant did not lead his evidence and the evidence of his witnesses for so many dates and on the fateful day viz. 23-9-2008 when the matter was fixed for the evidence of the complainant and his witnesses, the appellant, his witnesses and his counsel remained absent without any intimation, as such the learned trial Court closed the side of the appellant and after recording of statement of the respondents' under section 342, Cr,P.C. acquitted them from the charge; hence the present appeal. I have heard Mr. Abdul Rehman Kolachi, learned counsel for the appellant, Mr. Shamsuddin N. Kobher, learned counsel for the respondents and Mr. Ali Haider Ada Dareshani, learned State Counsel. The learned counsel for the appellant vehemently contended that on 23-9-2008 the appellant did not remain absent wilfully or deliberately from the proceedings of the case as he had gone to Karachi to file Criminal Miscellaneous application, which was registered as C.M.A. D-166 of 2008 Manzoor Ahmed v. S.H.O. and because of his appearance at Karachi in connection with the constitutional petition, he did not appear before the learned trial Court, as such the learned trial Court was not justified in passing the order whereby closing the side of the appellant and wrongly acquitted them from the charge. The learned counsel for the respondents has refuted the arguments and has contended that no material is available on record to show that on 23.9-2008 the appellant along with his witnesses had gone to Karachi in connection with the petition which he had to file at Karachi and such intimation was not sent to the trial Court, as such the trial Court rightly passed the impugned order. The learned State Counsel has also supported the order passed by the learned trial/Court. I have considered the arguments advanced on behalf of the parties and have gone through the material available before me. The contention of the learned counsel for the appellant that the appellant had gone to Karachi on 23-9-2008 to file a petition before the High Court, has not been supported from the material available on record. The learned counsel for the appellant has produced photostat copy of Criminal Miscellaneous Application No.D-166 of 2008 Manzoor Ahmed v. S.H.O., which bears the date of its filing on 24-9-2008 viz. one day later to the passing of the impugned order. The learned counsel for the appellant further clarified that this application No.D-166 of 2008 was heard by the learned D.B. vide judgment Annexure "G" therefore the presence of the appellant, is established at Karachi. Perusal of the order passed by the learned D.B. Annexure "G", shows that several petitions numbers of which have been mentioned in the order Annexure "G", were heard by the learned D'.R. on 23-9-2008 and the order in those petitions, was announced on 30-9-2008 but unfortunately the number of Criminal Miscellaneous Application No.D-166 of 2008 Manzoor Ahmed v. S.H.O. is missing amongst the numbers mentioned in the order passed by the D.B. vide Annexure. "G", nor it bears the name of the present appellant or the name of counsel of the present appellant, in the order Annexure "G", as such the contention of the learned counsel for the appellant seems to be devoid of any force for the reason that the Criminal Miscellaneous Application No.D-166 of 2008 was filed one day later to the passing of the order impugned herein and that the order passed by DB in several petitions as Annexure "G", does not mention the Criminal Miscellaneous Application No.D-166 of 2008, even. otherwise if the contention of the learned counsel for the appellant is taken into consideration then too the Criminal Miscellaneous Application No.D-166 of 2008 shows that it was filed and presented on 24-9-2008 whereas the order Annexure "G" passed by the D.B. shows the hearing on 23-9-2008 i.e. one day earlier to the presentation of Criminal Miscellaneous Application No.D-166 of 2008. In such State of affairs, the contention advanced by the learned counsel for the appellant is without any force. The record of the case also shows that the charge was framed against the respondents on 7-3-2008 and thereafter the matter was repeatedly adjourned on one or the other reason and the appellant did not lead his evidence nor he produced any witness before the learned trial Court and on 23-9-2008 he as well as his counsel remained absent from the Court without any intimation, as such there was-no alternate with the learned trial Court except to close the side of the appellant and to proceed further with the matter. The order passed by learned lower Court dated 23-9-2008 therefore does not suffer from any infirmity or illegality so as to interfere in it. From the perusal of whole material available on record as well as the order passed by the learned trial Court, I am of the firm opinion that the learned trial Court rightly passed the order impugned herein, which does not require any interference in this appeal. The appeal has therefore no merits and the same is hereby dismissed in limine. H.B.T./M-122/K Appeal dismissed.