PLJ 2013
AJ&K 68
Present: Munir Ahmed Chaudhary, J.
Professor
MUHAMMAD HASSAN (Rtd. Principal)--Appellant
versus
MUHAMMAD RASHEED
and 2 others--Respondents
Crl. Appeal No. 4
of 2012, decided on 19.5.2012.
Criminal
Procedure Code, 1898 (V of 1898)--
----Ss. 169
& 249-A--Acquittal order was passed by trial Court ignoring facts and
provisions of law--Prosecution could be given chance to produce evidence in
support of prosecution version--No material to justify order of
acquittal--Validity--Six PWs were incorporated in report submitted before trial
Court--Out of them, statement of only one witness was recorded who was an
eye-witness--Accused submitted an application u/S. 249-A, Cr.P.C.
and acquittal order was passed ignoring remaining witnesses whom statements
were to be recorded--Although offences were not proved during investigation and
two nominated accused were discharged u/S. 169, Cr.P.C.
but facts cannot be made a base for acquittal of remaining accused in remaining
offences which were proved during investigation--Magistrate was duty bound to
record statements of remaining witnesses and thereafter to pass any appropriate
order--Prosecution was not given an appropriate to produce its witnesses--If
one eye-witness contradicts or even denies the story of prosecution, accused
cannot be acquitted on basis of statement of single witness--Trial judge had no
sufficient evidence on record to justify order of acquittal and had resulted in
miscarriage of justice--Such order was of no legal effect--Accused can be
convicted in offences dropped by police during investigation if such offences
were proved later on by remaining witnesses in their statements--Order of
acquittal under appeal was not sustainable--Case was remanded to trial Court. [Pp. 70 & 71] A, B & C
M/s. Malik Habib-Ullah Zia, and Ch.
Abdul Razzaq, Additional Advocate General for
Appellant.
Raja Shehnaz Khan, Advocate for Respondents.
Date of hearing:
19.5.2012.
Order
This appeal
against acquittal of respondents/accused has been filed by the
appellant/complainant against the order passed by Civil Judge/Magistrate Court No. II Kotli dated 22.01.2011.
2. Precise facts of the case are that a case was
registered on the written report of complainant against the respondents/accused
under FIR No. 61/2009 under Sections 147, 148, 149, 337, 341, APC and 14/EHA at
Police Station Naar. It was stated in the FIR that on
25.07.2009, the complainant was going to his village from Kotli
along with Professor Haseeb-ul-Hassan.
They were in the way on foot, the respondents/accused along-with Sakeena Begum and Fatima Begum and some other unknown
persons who were armed with hatchets and sticks attacked on complainant and his
companion. The complainant and his companion tried to save themselves but they
faced some strokes. Meanwhile an amount of Rs. 55,700/- was dropped out of the
complainant's pocket, which was taken by anyone of the accused persons. Abdul Hameed and Subedar Muhammad
Sharif witnessed the occurrence.
3. After completion of investigation, a report
under Section 173, Cr.P.C. was submitted before trial
Court under Sections 341 and 34, APC only on 15.09.2009. Other offences were
dropped as not having been proved. Moreover, the said
Sakeena Begum and Fatima Begum were also discharged
under Section 169, Cr.P.C. having no sufficient and
reasonable grounds. The charge was framed on 30.10.2009 under Section 242, Cr.P.C. The accused denied the allegations levelled against them and thereafter, the prosecution was
ordered to produce witnesses. The statement of one witness Subedar
Muhammad Sharif was recorded on 07.06.2010. The respondents/accused submitted
an application under Section 249-A, Cr.P.C. before
the trial Court to acquit them. After hearing the parties,
the learned Civil Judge/Magistrate
Court No. II Kotli
acquitted the accused persons.
Feeling
aggrieved, the complainant Professor Muhammad Hassan preferred the instant
appeal before this Court. Arguments were advanced by the learned counsel for
the parties and Additional Advocate General.
4. Malik Habib-Ullah Zia Advocate, the learned counsel for the
appellant/complainant argued that the learned Judge of the trial Court passed
the order of acquittal ignoring the facts and provisions of law. Only one
witness appeared before the Court, while other five (05) witnesses were left
whose statements had to be recorded. The complainant including two (02)
eye-witnesses and Investigating Officer are the witnesses whose statements were
not recorded till passing of the said acquittal order. The learned counsel
argued further that the complainant and prosecution could be given a chance to produce
their evidence in support of the prosecution version but the same was not
given. The learned Judge of the trial Court relied on the statement of only one
witness and passed his order ignoring the facts of the case and provisions of
law. The learned Judge had no material to justify the order of acquittal. The
learned counsel requested to set-aside the said acquittal order and to remand
the case to proceed afresh in accordance with law and referred the following
precedents in support of his arguments.
2000 P.Cr.L.J 752
2010 MLD 1595
5. While controverting
the learned counsel for the appellant, Raja Shehnaz
Khan Advocate, the learned counsel for the respondents/accused contended that
the order under appeal was passed by the trial Judge based on sound and cogent
reasons. The story narrated by the complainant in his report at police station
was strongly contradicted during investigation and majority of the offences
were not proved. Even two (02) ladies were mentioned in the FIR who were discharged under Section 169, Cr.P.C.
during investigation. The witness whose statement was
recorded, clearly contradicted the prosecution story. The learned counsel
requested to dismiss the instant appeal.
6. After hearing the arguments advanced by the
learned counsel for the parties, I have examined the record of the trial Court
and the precedents, which have been referred by the learned counsel for the
appellant/complainant, with utmost care. The record reveals that six (06)
prosecution witnesses have been incorporated in the report submitted before the
trial Court. Out of them, the statement of only one witness No. 4 Subedar Muhammad Sharif was recorded who was an
eye-witness. Thereafter, the respondents/accused submitted an application under
Section 249-A, Cr.P.C. and the learned Judge passed
the order under appeal, ignoring the remaining witnesses including the
complainant two (02) more eye-witnesses Haseeb-ul-Hassan and Abdul Hameed, Javaid Hussain Investigating
Head-constable and Raja Gul Nisar
Khan Station House Officer Police Station Naar whom
statements were to be recorded. Although, the offences under Sections 147, 148,
149, 337, 341, APC and 14/EHA were not proved during investigation and two (02)
nominated accused Sakeena Begum and Fatima Begum were
discharged under Section 169, Cr.P.C., but these
facts cannot be made a base for acquittal of remaining accused persons in
remaining offences, which were proved during investigation. The trial
Magistrate was duty bound to record the statements of remaining witnesses and
thereafter to pass any appropriate order. Prosecution was not given an
appropriate chance to produce its witnesses. If one eye-witness contradicts or
even denies the story of prosecution, the accused persons cannot be acquitted
on the basis of the statement of the said single witness. The learned trial
Judge had no sufficient evidence on record to justify the order of acquittal
and the same had resulted in miscarriage of justice. Such like order was of no
legal effect. These principles have been laid down in
the precedents referred
by the learned
counsel for the appellant/complainant. Moreover, the
accused persons can be convicted in the offences dropped by the police during
investigation, if those offences are proved later on by the remaining important
witnesses in their statements.
In the light of
what has been discussed above, the order of acquittal under appeal is not
sustainable at all, which is hereby set-aside. The case is remanded to the
trial Court with a direction to dispose of the case after recording evidence of
remaining prosecution witnesses and giving chance to the respondents/accused to
produce evidence in defence if adviseable.
(R.A.) Case remanded
