TARIQ SAEED vs The STATE and another

' SHAHID HAMEED DAR, J.---Tariq Saeed-appellant, by filing this appeal under section 417(2-A), Cr.P.C. Has assailed judgment dated 21-1-2002, passed by learned Judicial Magistrate, Lahore, whereby Abdul Rehman (respondent No,2) has been acquitted of the charge under section 249-A, Cr.P.C.

2. Precisely the facts giving rise to instant appeal are that the appellant got registered case F.I.R.No,2, dated 3-1-1999, under section 302, P.P.C. And section 13 of the Pakistan Arms Ordinance XX of 1965 at Police Station Lohari Gate, Lahore alleging therein that his brother Muhammad Shafaqat was found murdered at his house, with a dagger clubbed in his throat; the Investigating Officer held Abdul Rehman (respondent No,2) guilty of offence during the course of investigation, prepared two separate reports against him under section 173, Cr.P.C., one for the murder-charge and the other qua an illicit arm (dagger) and submitted them before the trial courts concerned for his trial; learned magisterial court indicted respondent No,2 on 30-9-2000 for an offence under section 13 of the Ordinance (ibid), but he pleaded not guilty and claimed a trial; the prosecution failed to adduce any evidence against him till 21-1-2002, whereon he verbally requested the learned trial court to acquit him under section 249-A, Cr.P.C., as he in the meanwhile had been acquitted for the murder-charge, vide judgment dated 14-11-2001 passed by the learned Additional Sessions Judge, Lahore, a copy whereof he tendered before the learned trial court then; his request was acceded to by the learned court and he was acquitted of the charge under section 13 of the Ordinance (ibid) vide the impugned judgment.

3. Learned counsel for the appellant has submitted that the impugned order is patently illegal as judgment passed in the murder case could not be made basis for recording acquittal of respondent No,2- Abdul Rehman in this case; the learned trial court may have adjourned trial of the accused sine die under section 249 Cr.P.C. Till such time, when prosecution witnesses would be available to depose against him; the learned trial court has committed a patent illegality by delivering the impugned judgment, which may be annulled and respondent-accused may be ordered to be tried again.

4. Learned counsel appearing on behalf of respondent No,2 opposes by contending that facts of illicit-arm-case are inseparably sewn in the. Main murder-case, hence, acquittal of the respondent in the murder-case was bound to influence the outcome thereof; the impugned judgment is patently legal from all corners, which may be maintained at the cost of the titled-appeal.

5. Learned Deputy Prosecutor General Punjab, after a deep look into the impugned judgment, takes the decision not to oppose it.

6. After hearing learned counsel for the parties and going through the available record, it is observed that the facts of the case relating to recovery of a dagger, shoved in the neck-wound of the deceased are inseparably stitched with the story qua murder of Muhammad Shafaqat, real brother of the complainant/appellant, as the illicit weapon (dagger) had not been recovered from the possession of respondent-Abdul Rehman. The Investigating Officer took this dagger in possession at the time of recovery of the dead body of the deceased, of course, in the absence of the accused, whosoever he was, as complainant reported the crime against some unknown accused. Abdul Rehman (respondent No,2), however, was implicated as an accused of the murder-case and he was also booked in a separate case of the Arms Ordinance (supra), under the same F.I.R. Number, for his trial in both the cases. The witnesses of recovery of dagger also deposed against respondent No,2 in the murder case and they were disbelieved, as is evident from judgment dated 14-11-2001 passed by the learned trial judge in the murder case, a copy whereof is available on the record. The story of murder of Muhammad Shafaqat and that of recovery of dagger, both were disbelieved and Abdul Rehman was acquitted of the charge as is manifest from the said judgment. Had it been a case that the dagger would have been recovered at the instance of respondent-Abdul Rehman, the judgment of acquittal passed by the learned trial court in the murder case would have been of no consequence, so far as his trial regarding recovery of dagger was concerned. Learned counsel for the appellant has rightly pointed out that persistent non- availability of the prosecution witnesses in a case would result in deferment of the proceedings of the trial sine die under section 249, Cr.P.C., but in the instant case, for mentioned exigency and inevitability, no other decision of the case was possible than the one, impugned herein. The outcome of the illicit weapon-case depended a lot on the outcome of the murder-case, which unluckily went the other way and respondent-Abdul Rehman was acquitted of the charge. How come the recovery of dagger, having been disbelieved by the learned Additional Sessions Judge, Lahore, could be proven by the appellant/complainant and his co-witnesses, in the peculiar circumstances of the case, for, the recovery of the dagger was not an independent circumstance, rather it stood imbedded in the murder-case. For the mentioned reasons, the judgment of acquittal passed in the murder-case by the learned Additional Sessions Judge, Lahore became relevant and it persuaded the learned judicial magistrate, Lahore to pass the impugned judgment, whereby respondent-Abdul Rehman was acquitted of the charge. It was also learnt during arguments on this appeal that the appellant failed to file an appeal, within prescribed time-limit, against respondent-Abdul Rehman qua his acquittal in the murder-case and half-hearted attempt made by him in this regard went begging, as submitted by his learned counsel.

7. For the discussion supra, I find no merit in this appeal, which is accordingly dismissed.