2022 PLP 133 (YLRN)

ABDUL MAALIK GADDI, J.

Captioned appeal is directed against the order dated 26.01.2017, recorded by the Court of XXth Civil Judge and Judicial Magistrate, Karachi (East) in Criminal Case No.1468 of 2015, emanating from Crime No.272 of 2015, registered under sections 420/406/506/34, P.P.C. at Police Station Gulshan-e-Iqbal, Karachi, whereby the learned Presiding Officer of the said Court after hearing the parties on application under section 249-A, Cr.P.C., filed by the counsel for Respondents Nos.2 to 10, acquitted the said respondents under the said section.

2. Facts necessary for the disposal of instant acquittal appeal as alleged in FIR by the complainant that he was residing at the address mentioned in the FIR along with his family and is serving in Global Education as Secretary. In the year 2007, he had purchased 11 flats bearing Nos.707, 708, 709, 103, 605, 203, A-209, 1009, 304, 1004 and A-902 through Qasim Ali Tower, Scheme No.33, and the said flats were purchased by him from the owners of Messrs Fatima Ali Builders namely, (1) Ramzan Ali (2) Muhammad Yousuf, (3) Asif Jiwani, (4) Zainab Jawed Jiwani, (5) Siraj, (6) Zehra Jewani, (7) Asif Yousuf, (8) Noor Jehan Ramzan and (9) Hina Ramzan, and he had paid total sale consideration of Rs.2,57,00,000/- to them through pay order. Despite receiving the payment, the complainant several times requested above named persons to transfer the flats in his name, and hand over him possession of the said flats, but they used delaying tactic on one or other pretext. On 05.05.2015, at about 04.00 p.m., the complainant was present at his office, when two unknown persons came at his office and handed him over a letter and disclosed that they have sold out his flats to some other persons and now he has no concern with the said flat. The complainant asked them as to why they had sold out his flats, then they gave him one more letter, on which the names of the said persons to whom the flats were sold out were mentioned, to which complainant further told them that he had already paid the sale consideration, on which the said persons became annoyed and extended threats for dire consequences to the complainant. At that time Muhammad Saleem was also present with the complainant in his office. Thereafter, said persons left office of the complainant by extending threats of dire consequences. Hence, this FIR.

3. Mr. Raghib Junejo, learned Counsel for the appellant argued that the order passed by the learned trial Court is perverse and the reasons are artificial, vis-a-vis the documentary evidence on record; that the respondents Nos.2 to 10 have committed the offence of dishonesty and cheating with the complainant/ appellant by not delivering possession of flats to him; that the charge against private respondents has been framed on 02.11.2015 after acceptance of first report submitted by I.O. under section 173, Cr.P.C. and the evidence of prosecution witnesses are yet to be recorded and the said respondents have been directly charged with the offence as alleged, but the learned trial Court on the basis of reinvestigation report submitted by another I.O. in "B-Class" has acquitted the accused/Respondents which was against the law. He further submits that the learned trial Court was also erroneously opined that the matter was also of civil nature and the same could be decided through civil adjudication, as such he was of the view that the impugned order may be set aside by allowing this appeal and remand the case to the trial Court to decide the same as per law after giving proper opportunity to the parties to prove their assertions. In support of his contentions he has relied upon the following case laws:- (1) Ghulam Muhammad v. Muzamil Khan and 4 others (PLD 1967 SC page 317) (2) Muhammad Akbar v. The State and others (PLD 1968 SC page 281) (3) Sufi Muhammad Anwar v. Mst. Badshah Begum and 6 others (1999 SCMR page 1475) (4) Abdul Ahad v. Amjad Ali and others (PLD 2006 SC page 771).

4. Conversely, Mr. Muhammad Hanif Samma, learned counsel for the private respondents, while supporting the impugned order, argued that the impugned order passed by the trial Court is perfect n law and on facts and the same is correct and proper. He submits that in fact no incident has taken place as stated in the FIR and this fact is evident from the reinvestigation report submitted by another I.O. in "B-Class" and the learned trial Court while relying the said report rightly acquitted the accused/ Respondents which needs no interference by this Court.

5. Mr. Abdullah Rajput, Deputy Prosecutor General, Sindh has not supported the impugned order by arguing that in this matter first charge sheet under section 512, Cr.P.C. was submitted against the Respondents by the first I.O. of the case and on the basis of this report the trial Court took the cognizance and issued NBWs against the Respondents but surprisingly the trial Court on the basis of reinvestigation report submitted by another I.O. in "B-Class" acquitted the Respondents erroneously without recording evidence of any prosecution witnesses.

6. I have heard the learned Counsel for parties at a considerable length and with their able assistance, perused the documents available on record as well as the impugned order.

7. It is noted that after registration of the FIR in the said crime, investigation was carried by the I.O. of the case (SIP Muhammad Aslam Baloch) who after due investigation submitted the report under section 173, Cr.P.C. on 02.06.2015 showing the respondents as absconder and the said report was accepted by the Presiding Officer of the trial Court on 03.06.2015 while issuing NBWs against the absconding accused (Respondents). However it reveals from the record that they have succeeded in obtaining their bail from competent Court of law. It is also noted that the reinvestigation was also carried out of the said crime by the order of the Court by another I.O. (Inspector Muhammad Naeem Awan) who submitted his reinvestigation report on 07.09.2015 in "B-Class", on said report the Presiding Officer of trial Court has passed the following order:- "In this case cognizance has already been taken. Now thereafter report submitted in "B" Class by the I.O. same is taken on record."

8. On perusal of above order it appears that the said report has not been accepted or rejected but kept on record, however it reveals from the record that a charge against accused/Respondents was framed on 02.11.2015 much after reinvestigation report, this fact shows that in the wisdom of trial Court - there was some substantial material against the accused/Respondents for trial, but subsequently and surprisingly without recording any evidence in the matter, trial Court acquitted the accused/ Respondents without assigning any valid reasons.

9. Before proceeding further in the matter, it need not be said that there is no particular juncture/stage is provided in Cr.P.C. for filing an application under section 249-A, Cr.P.C. It is the idiosyncrasy of an accused to make such an application and judicial wisdom of the Court seized with the matter to take into account as to whether the application so filed can be disposed of in view of material available on record. So far as the case in hand is concerned, record reflects that learned Judicial Magistrate while passing the acquittal order under section 249-A, Cr.P.C. relied upon reinvestigation report submitted by second I.O. (Inspector Muhammad Naeem Awan). As regards to reinvestigation report submitted by second I.O., needless to say that no legal bar existed for reinvestigation of a criminal case even after submission of final report under section 173, Cr.P.C. in shape of Charge Sheet and Police could carry the reinvestigation and submits its report but findings of such investigation are just an opinion of the police and Court has to decide the case after recording of evidence. In my opinion a Court of law is not bound by the Ipse Dixit of the police authorities and rather should formulate its own independent views irrespective of the investigation whether or not to charge the accused with a particular crime. No invariable rule also existed to the effect that criminal case of civil nature could not be proceeded. It is by now well settled that once cognizance has been taken by the Court on final report under section 173, Cr.P.C. then case cannot be disposed of merely on the basis of subsequent report. However it may be mentioned here that the material collected during subsequent report could be brought on record in evidence for consideration of the Court for just decision of the case. It is also well established principle of law that section 249-A, Cr.P.C. cannot be pressed into service to stifle or throttle the prosecution for deciding the fate of a criminal case without providing an opportunity to the prosecution to produce witnesses and documentary evidence. In this matter learned D.P.G. has rightly and efficiently pointed out the illegality/ irregularity committed by the trial Court while passing the impugned order.

10. During the course of arguments I have specifically asked the question from learned counsel for the Respondents to point out any valid ground for maintaining the impugned order but he has no satisfactory answer with him.

11. Keeping in view of the above, I am of the firm view that the Presiding Officer of the trial Court acted erroneously in the matter with misconception and misinterpretation and disposed of the matter purely on non-appreciation and non-application of the required norms of law and that of justice. Consequently, I allow this appeal, set aside the impugned order and remand back the case to the learned trial Court to decide the case on merit as per law. Respondents were said to be on bail they would remained on bail, however they would furnish their fresh sureties and PR Bonds before the trial Court in the sum of Rs.25,000/- each for the satisfaction of the trial Court for their presence before the Court. The parties are directed to appear before the trial Court on 19.12.2019 without fail. In case the Respondents failed to appear/surrender before the trial Court without any plausible explanation, the trial Court would act strictly in accordance with law and proceed the matter as per law.

12. Since the matter is old one pertaining to year 2015, therefore, trial Court is directed to proceed the matter expeditiously and decide the same on merits within the period of three' months under the intimation to this Court through MIT.

13. Office is directed to immediately send the copy of this order along with R&Ps to the trial Court for information and compliance. SA/S-23/Sindh Appeal allowed.