ORDER SHEET
IN THE HIGH COURT OF SINDH BENCH
AT SUKKUR
Crl. Acquittal Appeal No. D – 130
of 2019
|
Date
of hearing |
Order with
signature of Judge |
Present
Mr. Justice Muhammad Saleem
Jessar &
Mr. Justice Khadim Hussain
Tunio.
Date of hearing: 20.10.2021
Date of order: 20.10.2021
Mr. J. K. Jarwar, Advocate for appellant / complainant.
Mr. Alam Sher Bozdar, Advocate for respondents /
accused.
Mr. Zulfiqar Ali Jatoi, Additional Prosecutor General.
O
R D E R
MUHAMMAD
SALEEM JESSAR, J. Heard arguments and perused the
record.
2. Admittedly, an innocent citizen was
killed in an encounter with the police vide FIR No.13/2017 PS Mithiani under
Sections 324, 353, 402, 399 PPC; however, the appellant / complainant got her
case registered vide FIR No.80/2017 with PS Naushahro Feroze under Sections 302,
364, 457, 344, 343 PPC, whereby she has alleged that respondents / accused had
abducted her son Shafique Ahmed on 08.05.2017 and made a huge demand of illegal
gratification, which she could not arrange; therefore, she was threatened to
either grease their palms else her son will be done away with in any fake
police encounter. In order to save the precious life of her son, the appellant
moved an application to SSP, Naushahro Feroze on 18.05.2017, which was moved to
the DSP concerned for report. However, after completion of investigation, her
case was challaned vide Sessions case No.156/2017 re: State v. Inspector Abdullah
Khan and another. Said case was assigned to the Court of 3rd
Additional Sessions Judge, Naushahro Feroze (trial Court). The relevant facts
of the prosecution case arisen out of FIR No.80/2017 PS Naushahro Feroze, under
Sections 302, 364, 457, 343, 344, PPC, are as under:
“Brief facts of the
prosecution case as stated in the FIR lodged by the complainant Mst. Wazeeran
Solangi with Police Station Naushahro Feroze on 01.06.2017 at 1000 hours,
alleging therein that on 08.05.2017 at 3:00 a.m. night time, complainant, her
husband Khan Solangi, brother-in-law Imamuddin Solangi and her son Shafique
Ahmed were available in their house, suddenly accused Abdullah Awan, Muhammad
Moosa Solangi and 3 / 4 other police officials illegally entered into her house
and forcibly took away her son Shafique Amed and her husband Khan on the force
of weapons and in the morning, she along with witnesses namely Imamuddin and
other relatives went at PS Bhiria City, where accused Abdullah Awan and
Muhammad Moosa Solangi were available, who met with her and on demand of
complainant for return / release of her son and husband, accused Abdullah Awan
demanded ransom amount of Rs.3,00,000/- for releasing of her husband and son,
but she being poor lady did not pay such amount to them and after passing three
days, he released her husband and asked him to arrange amount for release of
Shafique Ahmed, but they being poor did not arrange such amount and in this
context on 18.05.2017, complainant moved an application to SSP Naushahro
Feroze, but nothing was done with her and subsequently on 21.05.2017 accused
persons committed murder of Shafique Ahmed by showing him murdered during
police encounter and then complainant moved an application u/s 22-A&B, Cr.
P. C. for registration of FIR against above named accused persons, ultimately,
on Court orders her FIR was registered.”
3. Learned counsel for the appellant /
complainant submits that the trial Court without framing of charge and
recording evidence of the prosecution witnesses, entertained the application
under Section 265-K, Cr. P. C. filed by the respondents / accused and thereby
has caused miscarriage of justice. He further submits that respondents have
been charged with an offence which carries capital punishment and it was
mandatory for the trial Court to record evidence of prosecution witnesses
instead of entertaining the application moved by the respondents / accused. He,
therefore, submits that by acquitting the respondents through impugned order at
a premature stage, the trial Court has considered the defence plea only and has
deprived the prosecution of being heard. He, therefore, submits that by
allowing instant appeal against acquittal, impugned order dated 17.07.2019 may
be set aside and case may be remanded to trial Court with direction to proceed
with the case / trial and decide the case after recording evidence of the
parties on merits.
4. On the other hand, Mr. Zulfiqar Ali
Jatoi, learned Additional Prosecutor General appearing on behalf of State,
supports the appeal and opposes the impugned order.
5. Mr. Alam Sher Bozdar, appearing for the
respondents No.1 and 2 opposes the appeal on the ground that deceased Shafique
Ahmed along with co-accused Manzoor was killed in an encounter held with police
of PS Bhiria City vide FIR No.37/2017 under Sections 402, 399, 324, 427 and
353, PPC in which respondent No.1 was the complainant on behalf of State. He,
therefore, submits that the impugned order being a speaking one does not suffer
from any illegality or infirmity and trial Court has discussed each and every aspect
of the case; therefore, it does not require any interference by this Court;
hence, submits, that by dismissing the appeal against acquittal impugned order
passed by the trial Court with regard to the acquittal of the respondents, may
be maintained.
6. Heard arguments and perused the record.
7. Admittedly, specific allegations of abduction
as well as of murdering the son of appellant / complainant are leveled against
respondents No.1 and 2, for which sufficient material was collected by the
Investigating Officer through investigation; therefore, it was mandatory for
the trial Court to record evidence of the parties after framing of charge
instead of entertaining the application under Section 265-K, Cr. P. C. In cases
of corruption and grave misuse of powers otherwise granted to protect the
citizens, Courts are required to act with extreme care and caution in deciding
such cases and should not proceed hastily in acquitting the accused persons involved
therein either under section 249-A or 265-K of the Cr.P.C., as the case might
be, but should provide the prosecution with ample opportunity to prove the
charge and establish the guilt of the accused after a full-fledged trial. In
the case of The State through Advocate
General, Sindh High Court of Karachi v. Raja Abdul Rehman (2005 SCMR 1544),
the Hon’ble Apex Court has held that:-
This
Court in the cases of Bashir Ahmad v. Zafar ul Islam PLD 2004 SC
298 and Muhammad Sharif v. The State and another PLD 1999 SC 1063
(supra) did not approve decision of
criminal cases on an application under section 249-A, Cr.P.C. or such allied or
similar provisions of law, namely, section 265-K, Cr.P.C. and observed
that usually a criminal case should
be allowed to be disposed of on merits after recording of the
prosecution evidence, statement of the accused under section 342, Cr.P.C.,
recording of statement of accused under section 340(2), Cr.P.C. if so desired
by the accused persons and hearing the arguments of the counsel of the parties
and that the provisions of section
249-A, section 265-K and section 561-A of the Cr.P.C should not normally be
pressed into action for decision of fate of a criminal case.
8. We, therefore, are of the view that
impugned order is unjustified and cannot be maintained. Accordingly, same is
hereby set aside. Consequently, this appeal against acquittal is hereby allowed.
The case is remanded to trial Court with direction to record evidence of the
prosecution witnesses, after framing of charge against the accused and conclude
it within six months’ time, under intimation to this Court.
9. Since the respondents / accused were
granted bail by the trial Court and they had already furnished surety before
the trial Court; hence, they shall be deemed to be on bail by furnishing their
fresh PR bond as well as surety affidavit.
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.N.M.