2017 P Cr (PLP)

SHAHNAWAZ TARIQ, J.

Through captioned criminal acquittal appeal, appellant Muhammad Hayat has impugned order dated 10.08.2010 passed by the Court of Ist Judicial Magistrate, Mirpur Mathelo, in Cr. Case No.42 of 2010, Re- The State v. Rafique and others vide Crime No.341 of 2009, P.S Mirpur Mathelo under sections 457/2 and 380, P.P.C., whereby accused persons were acquitted under section 249-A, Cr.P.C.

2. Relevant facts spelt out from instant appeal are that complainant Hayat lodged FIR on 26.11.2009, at 1620 hours, stating therein that he is a retired police official and residing alone in a rented house at Gharibabad Mohallah, Mirpur Mathelo. He left for Hyderabad leaving behind TV, CD, clothes, papers of land, bank cheque book and cock in his house and returned back on 23.11.2009 and found the locks of his house to be broken. On checking, he found that TV, CD, cock and documents were stolen away by unknown persons. He remained on search of the culprits and afterwards, he informed his landlord Abdul Hakeem and one Sajjad Ali about the commission of theft and they suspected that as complainant is disputed with Gul Hassan Chachar and others they might have committed his theft. Complainant took Holy Quran and continued the search of the culprits whereupon someone informed him that due to his landed dispute Gul Hassan, Abdul Hafeez, Rasheed, Munir and Rafique all Chachar by caste, have committed such theft and said person had seen the accused persons by slaughtering his cock, hence instant FIR.

3. Learned counsel for the appellant contended that complainant lodged FIR regarding the theft committed in his house and nominated the accused persons and Challan was submitted before the Court, therefore, learned trial Court was bound to conduct the trial of case and decide the charge after recording the evidence of PWs but trial Court acquitted the accused persons under section 249-A, Cr.P.C after hearing the arguments of defence counsel and learned ADPP without hearing the complainant, therefore, case may be remanded to the trial Court for its disposal on merits.

4. Learned APG vehemently contended that learned trial Court has passed a just and proper order; that as per contents of FIR, parties are already disputed over landed property and none had witnessed the alleged offence.

5. Perusal of the material available on record and consideration of arguments advanced by learned counsel for the parties emanate that allegedly complainant left his house for Hyderabad and after some day returned on 23.11.2009 and found that locks of the house were broken and TV, CD papers and cock were stolen away by unknown persons and he did not lodge FIR instantly though he is a retired police personnel as it was not a difficult task. However, complainant lodged FIR with the delay of 03 days against accused persons without furnishing any plausible explanation on this account. It is pertinent to mention that the best evidence available with complainant is that someone had told him that as he is disputed with accused persons over landed property, therefore, they had committed his theft. Undeniably, at the time of alleged theft complainant was not present in house nor any person had witnessed the incident against accused committing the alleged theft nor any stolen article was recovered from their possession. From the perusal of the contents of FIR as well as statements of PWs Abdul Hakeem and Sajjad Ali recorded under section 161, Cr.P.C. it is crystal clear that they are not the eye-witnesses of the alleged offence but they are suspecting the present accused persons to be the culprits of said theft merely on the ground that accused are disputed with complainant over landed property.

6. Indeed, there is no tangible evidence with the prosecution against the accused persons, therefore, there is no probability of conviction of accused on the basis of available evidence and further trial of the case, would be a futile exercise. Section 249-A, Cr.P.C. empowers the Court to acquit the accused at any stage of the proceedings even before framing of the charge if there is no possibility of conviction of accused for the alleged offence. However, it is incumbent upon the Magistrate to afford opportunity to the prosecutor as well as accused persons to argue the merits of case on the basis of material available with the prosecution and recording of prosecution evidence is not a mandatory condition while passing the acquittal order under section 249-A, Cr.P.C. The wisdom and scheme provided under section 249-A, Cr.P.C. is to save an innocent person from lengthy trial for the charges which are groundless and ultimately accused will be acquitted.

7. It is well settled that mere difference of opinion regarding appreciation of evidence is not a cogent reason for setting aside acquittal order. Presumption of innocence of accused was double in case of acquittal and court would not interfere, unless it is found that conclusion drawn by the trial court was supported by the evidence available on record. Reference is placed on the case of Mohammad Aslam v. Sabir Hussain and others (2009 SCMR 985).

8. Considering the above facts and circumstances, the impugned order dated 10.08.2010 passed by the Court of learned Ist Judicial Magistrate, Mirpur Mathelo is just and proper and does not call for any interference, hence maintained. Consequently, instant criminal acquittal appeal stands dismissed being devoid of any legal merits. SL/M-5/Sindh Appeal dismissed.