2013 PLP 2487 (YLR)

HABIB-UR-REHMAN SHEIKH, J.

The appellant has filed this Criminal Acquittal Appeal against the Judgment passed by IV Judicial Magistrate (Malir) Karachi while acquitted the accused in F.I.R. No.264 of 2008 Police Station Shah Latif Town in offence under sections 380, 411, 506, 34 P.P.C. on 4-2-2011 and praying that the learned trial court has not considered the prosecution case and acquitted them. The Criminal Acquittal Appeal was dismissed. Learned counsel for the appellant moved an application for restoration of Criminal Acquittal Appeal. It appears from the record that on 26-5-2011 notices were issued to the respondents. On 14-3-2012 this Criminal Acquittal Appeal was dismissed for non-prosecution as the learned counsel for the appellant as well as appellant were not in attendance on so many dates of hearing, thereafter on 8-5-2012 the application for restoration of the appeal was moved along with urgent application and the learned counsel for the respondents waived notice of the same date and the matter was adjourned. On 5-7-2012, the order reveals that the application for restoration of the appeal was also dismissed for non-prosecution as the appellant nor his counsel were in attendance. Again an application on 17-7-2012 was moved by the learned counsel for the appellant and the same is fixed today. Learned counsel for the appellant contended that he was ill and due to his illness he remained absent on the dates of hearing and he got the treatment in his home from doctor. He prayed for restoration of the same. On the other hand, learned counsel for the respondents Nos.1 and 2 has vehemently opposed the application and say that the appeal was dismissed twice but the learned counsel for the appellant never turned down and again he moved this application regarding his illness. He prays for dismissal of application. Learned counsel for the respondent No.3 argued the same points so also the learned A.P.-G. adopted the same arguments. Heard counsel for the parties. Heard the learned counsel for appellant and learned counsel for respondent as well as A.P.-G. for State. From perusal of record, it appears that appellant habitualy remained absent so also his counsel. On so many dates of hearing has been shown neither the appellant nor his counsel was present. This court passed the order and dismissed the same for non-prosecution. The application for restoration was moved which was also fixed for arguments but the appellant as well as his counsel was in attendance along with respondent counsel were present, hence this court again dismissed the application for restoration of the appeal and this is third round in which learned counsel for the appellant prays that the appeal may be restored and decided on merits but it appears from the attitude and the conduct of the appellant that after acquittal of the accused from the trial Court simply he filed the appeal against the acquittal of the accused persons, by this way. No doubt the appeal after admission of appeal the same be decided on merit, but when the appellant is unnecessarily dragging the respondents/ accused by filing the appeal and habitual to remain absent, deliberately not attending the court on date of hearing, even though after dismissal of appeal he filed restoration application after about four months without showing any cogent reason, again remained absent and such application was also dismissed and again he repeated the restoration application without any proof as his counsel argued that he was ill on the date of hearing but he has not produced any prescription of doctor or failed to mention about the reason of absence of appellant, then the court can see the attitude and conduct of the appellant for its relief against the double innocent-persons who were acquitted by the trial Court. The order passed by this court twice in this matter is very much correct and also in my humble view I am not in a position to consider the argument of the learned counsel for the appellant. Thus, the application is accordingly dismissed. MH/A-89/K Application dismissed.