2014 P Cr (PLP)

SARDAR ABDUL HAMEED KHAN, J.

This appeal has been filed against the order of Sessions/Special Judge Anti-Corruption Muzaffarabad dated 21-2-2003, whereby the application filed by the respondents/accused under sections 249-A/265-K, Cr.P.C. was allowed and the respondent/ accused was acquitted, hence this appeal. The learned A.A.-G. while arguing on behalf of State contended that the learned Sessions Judge Anti-Corruption, Muzaffarabad has illegally treated the application filed by the accused/respondent under section 249-A, Cr.P.C. and acquitted the accused under section 265-K, Cr.P.C. himself, which is not warranted by law. The learned counsel also contended that this is a case of more than 70 prosecution witnesses listed in the calendar of the witnesses and only 7 prosecution witnesses have been recorded by the trial Court and most important witnesses are left behind, but the trial Court hurriedly acquitted the respondent/ accused. Had the opportunity been given to the prosecution to adduce all the proposed evidence, the guilt of the accused/respondent had been brought to home. The learned counsel vehemently contended that the Courts are bound to dispose off the cases on merits after recording of the evidence and acquittal of the accused on technicalities is purely injustice to the prosecution. The order has been passed which is patently illegal and is also erroneous on facts. Lastly, the learned A.A.-G. prayed for the acceptance of the appeal and remand of the case with the direction to the trial Court for recording the prosecution evidence and to conclude the case on merits. While controverting the arguments of the learned A.A.-G., Syed Sarosh Gillani, the learned counsel for respondent/accused repudiated the contentions of the learned A.A.-G. and advanced his arguments that on the acquittal of the accused/respondent, he has double presumption of innocence and the impugned order has to be given weight. The learned counsel fully supported the impugned order and contended that this is a case, where not an iota of evidence is on record. The proposed evidence, if allowed to adduce it may not result into conviction of the accused in any criminal offence. The learned counsel submitted that 70 prosecution witnesses have been listed in the calendar and in 6/7 years, only 7 witnesses have been produced by the prosecution and the trial was going on snail's pace which require a century to conclude. It was further contended that the most important witness i.e. complainant (DIG Police of the time) has appeared before the Court and rest all witnesses who deposed in the Court, totally falsified the version of the prosecution, rather admitted the version of the accused/respondent. The learned counsel prayed for the dismissal of the appeal. I have heard the learned counsel for the parties and gone through the record of the file. I have gone through the statement of prosecution witnesses recorded by the trial Court and the omission of the prosecution to produce, tender or exhibit "Qabaz-ul-Wasool" in the evidence before the trial Court. Withholding of this piece of evidence is fatal to prosecution, and this is a case which is covered under Article 129 of Qanun-e-Shahadat Order, 1984, wherein in illustration (g) it has been laid down that "the evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it". Other reasons listed by the trial Court in the impugned order are sound, cogent and spelt out from the record of the case. As the learned Judge after appreciating of the evidence, the contents of the report under section 173, Cr.P.C. and other documents on record has recorded acquittal order, which merits due weight. Moreover, the acquittal recorded in favour of respondent/accused also attached double presumption of innocence to him. Thus, in view of above stated circumstances, the impugned order does not warrant any interference by this court, hence the appeal stands dismissed. AG/110/HC(AJ&K) Appeal dismissed.