2018 PLP 217 (YLRN)

MUHAMMAD ALAM, J.

This is a criminal appeal, against order dated 08.11.2016 of Sessions Judge Astore, whereby, the said trial court has passed the following order:-- "With the above observations accused Bismillah Gul is hereby acquitted from the charges levelled against him."

2. The victim of occurrence is the FIR lodger of the case and police of Police Station Astore has chalked FIR No.22/015 on his written report. Police filed challan of the case wherein respondents Nos.3 and 4 found charge sheeted for the occurrence. Respondents Nos.3 and 4 obtained bail facility and then appellant affected compromise with respondent No.3 (Mr. Monaf Gul) and trial court passed order dated 28.10.2016 whereby, acquitted the said respondent/ accused from the case. Trial court attempted to procure attendance of respondent No.4 (Mr. Bismillah Gul) but failed and lastly on 08-11-2016, passed the impugned order.

3. I have heard learned counsel for appellant and have gone through the material available on file. Obviously, the case in hand is at its admission stage, therefore, I heard counsel for appellant on preliminaries. Counsel for appellant has wrongly arrayed respondents Nos.2 to 4 as party to case. Respondent No.2 is the State while respondent No.3 is the person who has been acquitted vide order dated 28-10-2016 by the trial court on the basis of compromise between himself and the complainant. For ready reference, I reproduce the prayer part of the appeal hereunder:-- "In the light of above facts and circumstances, it is, therefore, respectfully prayed on behalf of the appellant above named as under:

1. To set aside the impugned Judgment dated 08-11-2016, passed by the learned Session and District Judge, in which acquit the respondent No.3.

2. To give directions to Trial Court to initiate proper trail, record evidence and give judgment on merit rather on technicalities.

3. To punish the respondent No.3, in accordance with law.

4. Cost of the Appeal may. also be awarded.

5. Any other or further relief, which this Hon'ble Court may deem fit and proper under the circumstances of the appeal."

4. I have heard learned counsel for appellant and have gone through the material available on file. In view of very strange and special attending circumstances of the case, it is evident that the trial court has passed the impugned order solely in view of the compromise of victim of occurrence with respondent No.3. Learned trial court has very badly failed to procure attendance of respondent No.4 and has, in my opinion, more badly failed to properly appraise the available prosecution evidence on file. Learned trial court has referred to the statement of complainant who has admittedly received injuries and has held that the same is never sufficient for basing conviction against respondent No.3. At this stage of the case, this view and approach of the learned trial court is really astonishing and strange. In my opinion, the view and approach of learned trial court are very pre-mature and impugned order could not be passed without examining the available prosecution evidence, particularly in view of the circumstances of the case in hand where trial court has ignored the fact that he could not procure attendance of the respondent No.4 nor he attempted to pass orders of forfeiture of bonds of the sureties of respondent No.3. It is very important to note that sureties for the respondent No.3 appeared before the trial court on the day when impugned order was being passed. I have gone through the statement of complainant which can be termed as an ocular piece of evidence if left unrebutted. So, giving no consideration to such piece of evidence is a mistake on the part of learned trial court.

5. So, instead of issuing notices and warrants for arrest and production of respondent No.3, I deem it proper that trial court should do the said process. Appeal accepted up to the prayers Nos.1 and 2 of the same, impugned order set aside and case remanded to the trial court for resuming trial of the case from the stage where it was given up. This file be consigned to record. HBT/196/GB Case remanded.