IN THE HIGH COURT OF SINDH, CIRCUIT COURT

LARKANA  

Criminal Revision Appln. No. S- 82 of 2023.

Applicant:                               Asghar Ali Chandio, through Mr. Ashique Hussain Kalhoro, Advocate.

Respondent No.2.                   (Complainant Mst. Khursheed) Present-in-person.

Respondent No.3.                   The State, through Mr. Ali Anwar Kandhro, Additional Prosecutor General.        

Date of hearing:                     08.03.2024.

Date of order:                        08.03.2024.

ORDER

Muhammad Saleem Jessar, J.    The applicant has challenged the order dated 14.11.2023 passed by the learned Additional Sessions Judge-II, Mehar, in Sessions Case No.149 of 2023, on the application filed by applicant/ accused Asghar Ali invoking provisions of Section 265-K Cr.P.C for his acquittal. It would be conducive and illustrative to reproduce the operative part thereof, hereunder:

                        “It appears from the record that the cognizance of the offence punishable under Section 3 of the Illegal Dispossession Act was taken agaisnt the accused in respect of the property in question after completion of codal formalities vide order dated 27.02.2023. The charge has not yet been framed against the accused. while the contention so raised by the learned counsel for accused in support of application in hands cannot be discussed and determined at this stage until and unless the evidence of the complainant side is to be recorded. Lest any fining/ observation may cause prejudice to either of the parties. It is therefore, the application in hands stand dismissed. Let the case be proceeded as per law.”

            2.         Learned counsel submits that trial Court has not appreciated the record in its proper perspective and the fact that complainant is not the exclusive owner of the property in question. He further added that the applicant/ accused has not occupied the property in question. Learned counsel further argued that if the evidence is recorded, it will end in acquittal of the applicant/ accused; that trial of the applicant shall be abuse of process of law. He further argued that learned trial Court has not considered the case in its true perspective and on the basis of surmises and conjectures the application under section 265-K Cr.P.C. was rejected without recording cogent reasons. Per learned counsel, in these circumstances, the impugned order merits interference by this Court and warrant to be set aside and application under Section 265-K Cr.P.C is liable to be allowed.

            3.         On the other hand Mr. Ali Anwar Kandhro learned Additional Prosecutor General opposed the application by contending that the trial Court has already taken cognizance of the matter, therefore, it would be appropriate that the case may proceed and evidence may be recorded. He further argued that it is settled law that the cases may be tried and prosecution may be given a chance to adduce evidence and after completion of evidence the trial Court should decide fate of the case after appreciating evidence available on record.

            4.         Having heard learned counsel for applicant and learned Addl. P.G; and with their assistance also perused the material available on record.

            5.         A perusal of the impugned order demonstrates that the same has been vested on cogent grounds, disclosed and discussed therein. The learned counsel for applicant has remained unable to demonstrate any infirmity with respect to the impugned order.

            6.         It appears from the record that trial Court has already taken cognizance of the matter. Furthermore, as per progress report furnished by the learned trial Court the “charge” in the case has also been framed on 28.11.2023 and now the case is fixed for recording evidence, therefore, it would be appropriate that the case may proceed and evidence may be recorded. It is well settled law that, a criminal case should be allowed to be disposed of on merits after recording of prosecution evidence, whereas provisions of section 249-A, 265-K and 561-A Cr.P.C. should not normally be pressed into action for deciding the fate of a criminal case.

            7.          The Hon’ble Supreme Court in case of A. Habib Ahmed v. M.K.G Scott Christian and 5 others (PLD 1992 Supreme Court 353), has formed view that, if prima facie the offence had been committed justice required that it should be enquired into and tried. If the accused are not as a result of the trial found guilty they have a right to be declared as “honorably acquitted by a competent Court.” On the other hand if the evidence against the accused discloses a prima facie case then “justice clearly requires that the trial should proceed according to law.” The inherent jurisdiction of the High Court is not an alternative jurisdiction or additional jurisdiction. It is only in the interest of justice to redress grievances for which no other procedure is available. The power given by section 561-A Cr.P.C., can certainly, not be so utilized as to interrupt or divert the ordinary course of criminal procedure as laid down in the procedural statute.

            8.          The case is pending in the Court of competent jurisdiction and it is for the trial Court to decide the case after evaluating and appraising evidence and the prosecution be given a chance to adduce its evidence.  Frequent exercise of inherit jurisdiction contemplated under section 561-A Cr.P.C. is deprecated by the apex Court as laid down in the above cited case.

            9.         For the foregoing reasons, I see no merits in the instant application, which is hereby dismissed. However, the learned trial Court is directed to pace-up trial of the case and conclude it within a period of preferably three months hereof.

                                                       Judge

Ansari