SAJJAD HUSSAIN MUKHI vs The STATE and others

ORDER

' GULZAR AHMED, J.---The petitioner through this Criminal Petition has impugned the order dated 3- 2-2014 passed by learned Judge in the Chamber, by which Criminal Acquittal Appeal filed by the petitioner was dismissed.

2. Learned counsel for the petitioner has contended that petitioner's evidence in the trial Court was recorded, which has directly implicated the private respondents in commission of the crime alleged F.I.R. No,387/2010 dated 7-12-2010 under sections 392/406/468/471/109/34, P.P.C. At Police Station Jamshed Town, Karachi. He has contended that the petitioner was not allowed to lead further evidence and the trial Court in haste passed the order under section 265-K, Cr.P.C.

Acquitting the private respondents. He further contended that no opportunity of hearing was provided to the petitioner by the trial Court.

3. We have considered the submissions of learned counsel and have gone through the record.

4. In the first place we may note that in the impugned order of the trial Court dated 8-12-2012 the presence of Syed Amjad Ali Shah, Advocate from the complainant's side is clearly mentioned and we also note that in the memo of Criminal Acquittal Appeal no ground has been urged by the petitioner that opportunity of hearing was not given by the trial Court to the petitioner. Even on reading of impugned order does not show that such a grievance was raised before the High Court.

5. As regards the petitioner being not allowed to lead further evidence, it may be noted that the petitioner has been provided ample opportunity by the trial Court to produce his witnesses but net on a single date petitioner produced his witnesses nor they appeared before the court despite service on them.

6. As regards the submission of learned counsel for the petitioner that petitioner has made out a case by recording his evidence, we have perused the evidence of the petitioner and have found that petitioner has dispute with his wife and two sons and a stated nephew in respect of properties.

Petitioner has alleged that certain properties of his were robbed by the private respondents on 31- 5-2008 and 5-8-2008 and that he was maltreated on 19-12-2008 but the F.I.R. Of these incidents was lodged by him on 7-12-2010 which is almost after more than two years from the date of incidents. The petitioner has alleged that the incident of robbery took place in the presence of his chowkidar but the chowkidar is even pot named as witness in the challan. The petitioner in his evidence has further admitted that Flat Nos. 203 and 204, Perdesi Heights were subleased in the name of his wife Mst. Rubab, the respondent No, 5 but stated that that they were Benami. He has stated that an unregistered General Power of Attorney of said flats was made in his name on the basis of which he got the said flats sold to himself and admitted that at the time of registration of sale deed Mst. Rubab, his wife, the respondent No, 5 was not present. There is no mention whatsoever that any sale consideration of the fiats was paid to Mst. Rubab the respondent No,5. He admitted that respondent No, 5 has filed suit for declaration and cancellation and he too has filed suit. He has further admitted that he made no allegation in the plaint of suit about the criminal incidents. He further admitted that despite the incidents he continued to live with his wife and sons and he did not file any private complaint on the refusal of police to register the F.I.R. He further admitted that at the time of preparation of Mashirnama Flat No, 204 was in possession of Mst.

Rubab, the respondent No, 5 and he further admitted that he did not go with the police at the place of incidents. As regards the implication of respondent Muhammad Ali that he has withdrawn money from the bank account of petitioner's mother-in-law, we have noted that such withdrawal was made by him on obtaining succession certificate from the court which at no stage was challenged by any one. In any case, the petitioner has failed to show any interest of his own in the bank account of his mother-in-law and therefore, the petitioner cannot substantiate his allegation against the respondent Muhammad Ali.

7. The above evidence of petitioner amply demonstrates that there was practically no material or evidence available with the petitioner to substantiate his claim of robbery and that the whole issue seems to have been created by the petitioner due to family dispute with his wife and sons on account of the flats which petitioner managed to have sold to himself on the basis of purported unregistered power of attorney given to him by his wife, in respect of which two civil suits are already pending. Where the suits are pending between the parties on the subject, criminal court will obviously stay its hands in entering upon the dispute as deciding the dispute with regard to properties squarely falls within the domain of Civil Court in respect of which parties have already initiated proceedings.

8. We have gone through the impugned order and are satisfied that it does not suffer from any perversity or illegality. We find no merit in this criminal Petition. The same is, therefore, dismissed and leave refused.