2014 P Cr (PLP)

FAROOQ ALI CHANNA, J.

The appellant through this criminal acquittal appeal has called in question the order dated 25-11-2013, passed by learned Additional Sessions Judge-IV, Karachi (West) in Sessions Case No.858/2009 arising out of F.I.R No.635/2009, Police Station SITE-A, Karachi under sections 324/427/34 P.P.C. lodged by complainant Haji Abdul Ghaffar Khan, acquitting the respondents under section 265-K, Cr.P.C. Learned counsel for the appellant has contended that the trial Court has acquitted the respondents on the sole ground that the prosecution witnesses were not attending the Court, the fact is that the Complainant and another eye-witness Jalal were attending the Court for recording their evidence, however, all the time they were returned un-examined. To support his contention learned counsel has invited the attention of this Court towards the case diaries of the trial Court dated 12-9-2013 and 25-9-2013, which reflect the presence of both the witnesses. Learned A.P.-G. in addition to the submissions made by learned counsel for the appellant has further contended that non-appearance of some private P.Ws. is no ground provided for the acquittal of accused, under section 265-K, Cr.P.C., hence the impugned order is perverse passed contrary to the law. Learned counsel for the respondents while confronted could not controvert the aforesaid assertions however, his contention is that after 25-9-2013 no prosecution witness was appearing for evidence though the trial Court had issued process through I.O. of the case, S.S.P. and A.I.-G., as such there was no other option with the trial Court except to acquit the respondents due to lack of evidence. I have considered the arguments and perused the impugned order. The trial Court has observed that after framing of charge the process for procuring the attendance of P.Ws. was issued number of times but the prosecution has failed to examine even a single witness, the I.O. has also reported that complainant and other private witnesses have shifted to some unknown place, there was no possibility of procuring the attendance of P.Ws. in near future, the S.S.P. has also failed to respond to the process issued against the witnesses. The above assertions are belied by the case diaries, which reflect that about two months prior to the impugned order, P.W. Jalal Khan was present on 12-9-2013 and complainant was present on 25-9-2013, however, they were returned un-examined. I have also examined the charge-sheet, which reveals that besides the above witnesses, some police officials, have also been cited as, prosecution witnesses; the impugned order nowhere indicates that the process was also issued against the official witnesses and they despite service failed to appear before the trial Court for evidence. From the record of case as well as this criminal acquittal appeal it is revealed that the prosecution witnesses, are vigilant in pursuing their case. The trial Court on the basis of non-appearance of private witnesses on one or more dates of hearing was not justified to observe that the complainant and other witnesses have nothing to depose against the respondents and in these circumstances there would be no probability of the respondents being convicted, such observations prima facie appear to be imaginary and unfounded. The Courts are under obligation to exercise powers under section 265-K, Cr.P.C. sparingly and judicially and in no way arbitrary. I, therefore, set aside the order dated 25-11-2013 and remand the case to the trial Court with directions to record the evidence of the prosecution witnesses and decide the case on merits. Learned counsel for the appellant undertakes that on summons being issued he will produce all the private witnesses before the trial Court. The trial Court is also directed to conclude the trial within three months. Accordingly, this criminal acquittal appeal is allowed. MWA/J-3/Sindh Appeal allowed.