2014 PLP 2200 (YLR)

FAROOQ ALI CHANNA, J.

Through this criminal acquittal appeal, the appellant Sultan Khan has challenged the order dated 21-3-2013 passed by Additional Sessions Judge, Tharparkar at Mithi, (hereinafter referred to as trial Court) in Sessions Case No.6 of 2013 arising out of direct complaint filed by appellant against the respondent whereby the trial Court acquitted the respondent under section 265-K, Cr.P.C. The appellant in his direct complaint has alleged that on 12-11-2012 he and P.Ws. were available in his otaq, when the respondent Sobdar armed with pistol and three unknown persons arrived there and fired straightly at the complainant with intention to commit his murder, but missed. They also beaten the complainant and snatched Rs.12,000 and golden ring from him. During P.E. the statements of complainant under section 200, Cr.P.C. and his witnesses under section 202, Cr.P.C. were recorded. The trial Court examined the aforesaid statements, brought the complaint on record and ordered the issuance of bailable warrant against the respondent.

2. Pursuant to process, the respondent appeared before the trial Court and filed application under section 265-K, Cr.P.C. which was allowed and the respondent was acquitted vide impugned order.

3. Learned counsel for the appellant has contended that the trial Court has passed the order without recording the evidence of the prosecution witnesses, even before framing of charge on the basis of some contradictions in the statements of the P.Ws. recorded during P.E. Learned counsel further contended that the order is perverse based upon presumptions of the trial Court. Learned counsel has further contended that the same Judge in his earlier order dated 17-1-2013 after examining the statements of P.Ws has observed that the complainant has brought sufficient material against the accused and prima facie has made out a case for regular trial, therefore, brought the complaint on record but about two months thereafter surprisingly the learned Judge on the basis of same statements has observed that there are major contradiction in the statements of complainant and his P.Ws. therefore, acquit-ted the respondent under section 265-K, Cr.P.C. Learned counsel has also relied upon the case of GHULAM FAROOQ TARAR v. RIZWAN AHMAD (2008 SCMR 383).

4. Conversely Mr. Mashooq Ali Advocate appearing for respondent No.1 has contended that the trial Court while passing the impugned order has examined the statement of each witnesses thoroughly with due care and conscious and found material contradictions, therefore, has come to the correct conclusion that there would be no probability of accused being convicted and by exercising the power conferred upon the trial Court under section 265-K, Cr.P.C. acquitted the respondent as such, the impugned order is not suffering from any illegality and it is based upon the sound reasons.

5. Learned A.P.G. has supported the impugned order and has contended that it was a case of ineffective firing. It is an admitted position that the appellant and the respondent were known to each other prior to the incident and according to respondent there was some dispute between the parties, in these circumstances the allegation of snatching of Rs.12,000 with golden ring from complainant does not appeal to a person of prudent mind.

6. I have heard the arguments and perused the certified copies of statements recorded in P.E. and the orders produced alongwith the memo of appeal.

7. The trial Court in its order dated 17-1-2013 has discussed the statements recorded in P.E. and thereafter took the cognizance of offence and brought the complaint on file. The order dated 17-1-2013 reads as under:-- "Heard the learned counsel for the complainant and perused the statement of complainant under section 200, Cr.P.C. and his witnesses namely Bashir Ahmed and Amir Bux recorded during P.E. under section 202, Cr.P.C. The perusal thereof reveals that the complainant has brought a sufficient material against the accused named above and has made out prima facie for bringing the case on regular file under sections 324, 392, 506(ii), 337-A(i) and 337-F(i), P.P.C.. Therefore, the present direct complaint case is brought on regular file. The office is directed to assign a separate Sessions case number. Issue B. Ws. against the above named accused in the sum of Rs.5000 (rupees five thousand) with their P.R. bond, for procuring his attendance before this Court. The complainant is directed to provide one set of the documents for delivering the same to accused on the next date of hearing."

8. Whereas in the impugned order dated 21-3-2013 the trial Court has discussed the same statements again and has observed that there are major contradictions in the statements of the complainant and P.Ws. therefore, there would be no probability of the accused being convicted, if the case is proceeded further. These observations are contrary to earlier observation of trial Court recorded in order dated 17-1-2013. I saw depressed position of first order dated 17-1-2013 and second order dated 21-3-2013, when comparison was made on the basis of statements of the witnesses, no truth can be made out from both the orders which have passed in ignorance, there appeared no awareness. The trial Court has also observed that the complainant is serving as Cook while respondent/accused is serving as Teacher which shows personal grudge against him. The said observation appears to be mere presumptions of the trial Court otherwise, nothing has come on record nor any evidence has been adduced to show that there was grudge between the parties. In the above circumstances, proper and safe course would be to record the evidence of prosecution witnesses with an opportunity of cross-examination to accused and thereafter on the basis of said evidence the trial Court should ascertain the truth or falseness in allegations/charge. It is also observed in the case of Ghulam Farooq Tarar (surpa), which reproduced as under:-- "There is no cavil to the proposition that a Court can acquit the accused under section 249-A, Cr.P.C. if after hearing the Public Prosecutor it "considers that the charge is groundless or that there is no probability of the accused being convicted of any offence". If the allegations levelled in the complaint supported by the preliminary evidence are admitted to be true, it cannot be said at this stage that there is no probability of conviction of the respondent-accused. In the afore-referred circumstances, we are of the view that the learned trial Court acted in haste in passing the order of acquittal which is, therefore, not sustainable."

9. In view of above discussion and dicta laid down in the above citation, the impugned order dated 21-3-2013 passed by trial Court acquitting the respondent under section 265-K, Cr.P.C. of charge without recording the evidence appears to be perverse, suffering from infirmity, therefore, it is set aside and the case is remanded to the trial Court to frame the charge, record the evidence of prosecution witnesses with opportunity of cross-examination to the respondent/accused and thereafter decide the case afresh. Appeal is allowed. MWA/S-5/Sindh Appeal allowed.