2019 P Cr (PLP)

ABDUL MAALIK GADDI, J.

Through this criminal acquittal appeal, the appellant has assailed the legality and propriety of the Order dated 25.08.2015 passed by the learned IXth Judicial Magistrate West Karachi, in Criminal Case No.778/2012 (Re: The State v. Qamar Junaid Siddiqui and others) arising out of Crime No.64/2019 registered under sections 381/420/468/471/506/34, P.P.C. at Police Station Maripur, Karachi, whereby the learned trial Court on application under section 249-A, Cr.P.C. filed by the Respondents/accused, acquitted the accused persons under the said section by observing that if the case is proceeded further and evidence of other prosecution witnesses is recorded, it would be futile exercise and that there would be no probability of the accused persons being convicted in the case.

2. Facts necessary for the disposal of this Appeal are that on 23.02.2012, the Appellant through their Admin Security Manager has lodged the FIR No.64/2012 under sections 381, 420, 468/471, 506, 34, P.P.C. with Police Station Maripur, Warachi-West, alleging as under:- "I resides at above mentioned address as mentioned in column No.2 along with my family members and working as a Admin Security Manager of M/s. Venus Pakistan (Pvt.) Ltd. having office at Plot No.9/1, near Darwaish Kanta, K-28-II, Hawksbay Road, Maripur, Karachi, the Junior Technician of our Company Qamar Junaid Siddiqui son of Naseer Ahmed, accountant Rizwan along with their other companion namely Muhammad Ali son of Muhammad Aijaz, Muhammad Awais son of Muhammad Aijaz, Syed Arif Ali have stolen 159 Bags Distinator Chemical each bag 10 Kg. and 450 bags expire flour (Aata), 25 Kg. per bag and 35 compressors of the container from the yard of our Company and also received Rs.19,00,000/- through forged bill of M/s. Arif Enterprises Company fraudulently. The above said act has been committed by Mr. Qamar Junaid Siddiqui with the collusions of his companion during the period from 29.06.2007 to 22.02.2012 and "I will produce the record. On 22.02.2012 on the doubt when they check and caught hold Qamar Junaid Siddiqui with his companion Muhammad Ali son of Muhammad Aijaz at the company and then the whole picture came out. The above accused persons have brought at the police station with the official mobile for legal action, Complainant complaint against Qamar Junaid Siddiqui son of Naseer Ahmed, Rizwan, Muhammad Ali son of Muhammad Aijaz, Muhammad Owais son of Muhammad Aijaz and Arif who had received the amount through forged bill and issued threats for the dire-consequences and to kill me. I requested for legal action".

3. Mr. Muhammad Arif Khan learned counsel for the Appellant contended that the order passed by the learned trial Court is perverse and the reasons are artificial, vis-a-vis the evidence on record; that the grounds on which the trial Court proceeded to acquit the Private Respondents/accused are not supportable from the documents and evidence on record. He further submitted that the Respondents/accused have been directly charged and the Complainant has mentioned in the FIR that the Respondents/accused persons have committed offence of fraud, cheating and misappropriation and received the amount of Rs.19,00,000/- from the Company (Complainant) and this fact were also proved through documents and evidence, but in this matter out of 07 witnesses only the examination in chief of Complainant was recorded whereas the evidence of PW Rana Muhammad Kaleem was recorded and there remains 05 witnesses more to be examined but the trial Court has acquitted the accused persons without considering the fact that in this matter even the charge has not been framed and the same is not available in the R&Ps. However the discrepancies in the statement of two witnesses are not so material on the basis of which the Respondents could be acquitted. He further submitted that learned trial Court has committed great illegality and irregularity during the proceedings of the case and without framing any charge against the accused persons recorded the evidence of the prosecution witnesses therefore on this ground alone the impugned order is liable to be set aside and the case may be remanded to the learned trial Court with the direction to decide the same after framing the charge against the accused persons and after recording evidence of the prosecution witnesses and statement of accused and decide the matter on merits; That the learned trial Court has acquitted the accused persons under section 249-A, Cr.P.C. without assigning any good reasons. He added that prosecution has produced the two witnesses in this case and the said witnesses have fully implicated the accused persons with their specific role but the learned trial Court passed the impugned order arbitrarily. He also added that during the interrogation of the accused persons they have admitted that they were involved in selling the expire dated (injurious to Health) flour (Aata) to the public and they also admitted that they had stolen the compressors of the containers of the company but the learned trial Court without recording the evidence of the remaining PWs passed the impugned order.

4. As against this the Learned counsel for the Private Respondents/accused has supported the impugned order by arguing that the impugned order is perfect in law and on facts; That there is no direct or indirect evidence against the accused persons; That in this matter two witnesses namely Asif Aijaz Shaikh (Complainant) and PW Rana Muhammad Kaleem have been examined and their evidence is on record; prima facie shows the discrepancies in the evidence of the said witnesses therefore on the basis of said evidence no conviction and sentenced could be awarded to the accused persons. That nothing on record to connect the accused persons with the commission of the offence, therefore, the trial Court has rightly acquitted the accused persons under section 249-A, Cr.P.C.; That according to the diary sheet of the trial Court Charge was framed against the accused on 23.10.2012 and their pleas are also on record, therefore, according to him non availability of charge in the file of the trial Court is no nexus with the accused persons and it was the duty of the trial Court to frame the charge and for this only reason the order of the trial Court cannot be termed as illegal as the accused persons were appearing in the trial Court as well as this Court for the last about five years. That under the aforementioned facts and circumstances remand of the case would not serve the purpose and there is absolutely no probability of the accused persons being convicted in the case on the basis of documents and evidence on record.

5. Learned Assistant Prosecutor General after going through the R&Ps in Court submits that in this matter though pleas of the accused persons at Ex.2/A to Ex.2/D are on record by denial of allegation but the charge is not available in. the case file, therefore according to him if there is no charge available in the R&Ps then, how the trial Court had examined two witnesses, therefore, according to him on this ground alone he does not support the impugned order.

6. I have given my anxious thought to the contentions raised at the at the Bar and have gone through the case paper and evidence so brought on record.

7. No doubt the trial Magistrate has power under section 249-A, Cr.P.C. to acquit an accused at any stage of the case if after hearing the prosecutor and the accused and for reasons to be recorded, he considers that the charge is groundless or that there is no probability of the accused being convicted of any offence. But here in this case as per diary sheet of the trial Court dated 23.10.2012 showing Charge, was framed and pleas of the accused persons at Ex.2/A to Ex.2/D on record but on perusal of R&Ps the "framed charge" is not available in the case file. During the course of arguments the R&Ps was referred to learned counsel for the parties for their perusal. They have also perused the R&Ps in detailed but say that "framed Charge" is not available in the case file. Since the Charge is not available in the case file as confirmed by the parties' counsel, it appears that the trial Court has committed great illegality and irregularity during the proceedings of the case and without framing any charge against the accused persons, recorded the evidence of two prosecution witnesses which has no basis, therefore on this ground alone the impugned. order is liable to be set-aside and case may be remanded to the trial Court. No doubt non-framing of charge or its non-availability in the case file is not the responsibility of the accused but at the same time it is the duty of the Court to see that there should not be left any illegality in the case file. Challan Sheet showing 07 witnesses in this case to be examined by prosecution to prove its case, out of them 02 witnesses have been examined without framing of charge in this matter, therefore, on this ground the impugned order which is based upon discussion of the evidence of 02 witnesses without charge is liable to be set aside. Accordingly the impugned order is set-aside. Consequently this Appeal is partly allowed and case is remanded to the trial Court to frame the Charge against the accused persons as per law and then proceed the matter according to law. Since the matter pertains to 2012, therefore, trial Court is directed to proceed the matter expeditiously and decide the same preferably within the period of two months after receipt of this order. No unnecessary adjournment shall be granted to either side. It is made clear that after framing of the Charge the accused persons would be at liberty to file application under section 249-A, Cr.P.C. afresh if they so desire and trial Court shall then decide the same as per law without influence of his earlier order. Before parting with this order, I am constrained to show my displeasure because the nature of the order passed by the trial Court who conducted to record the evidence of the Complainant party without framing of charge which was against the law. I hope that this practice would not be repeated in future. Since the Appeal is partly allowed in the above terms, therefore, the Respondents/accused who were on bail before trial Court at the time of passing of impugned order, therefore, they would be remained on bail, however, they shall furnish fresh surety before trial Court in the sum of Rs.25,000/- each and PR Bond in the like amount to the satisfaction of the trial Court. Respondents/accused are directed to appear before the trial Court to face the trial on 15.5.2018. However till then no arrest of the accused/Respondents Nos. 1 to 4 shall be made at the hands of the prosecution. In case if the said Respondents have not appeared on 15.5.2018, the trial Court would competent to issue coercive steps to procure their presence. JK/V-4/Sindh Order accordingly.