SAJJAD HUSSAIN MUKHI vs THE STATE & OTHERSs
This criminal petition challenged an order of the High Court which had dismissed the petitioner's Criminal Acquittal Appeal, thereby upholding the trial court's acquittal of private respondents under Section 265-K, Code of Criminal Procedure 1898. The core legal questions were whether the trial court erred in acquitting the respondents without allowing the petitioner to lead further evidence and whether the petitioner was denied a fair opportunity of hearing. The Supreme Court dismissed the petition, finding that the trial court had provided ample opportunity for the petitioner to produce witnesses, which he failed to utilize. Furthermore, the Court observed that the underlying dispute was essentially a civil property matter between family members, characterized by significant delays in reporting the alleged criminal incidents and pending civil litigation regarding the disputed properties. The Court held that where civil suits are pending between parties regarding the subject matter of a criminal complaint, the criminal court should stay its hands, as property disputes fall squarely within the domain of the civil court. Consequently, the acquittal was upheld as the evidence failed to substantiate the criminal allegations.
- Should a criminal court proceed with a case when the underlying dispute is essentially a civil property matter currently pending before a civil court?
- Can a trial court acquit an accused under Section 265-K of the Code of Criminal Procedure 1898 if the complainant fails to produce witnesses despite being given ample opportunity?
- Does a significant delay in lodging an FIR, without sufficient explanation, undermine the credibility of the prosecution's case?
- Section 265-K, Code of Criminal Procedure 1898
- Section 392, Pakistan Penal Code 1860
- Section 406, Pakistan Penal Code 1860
- Section 468, Pakistan Penal Code 1860
- Section 471, Pakistan Penal Code 1860
- Section 109, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
ORDER
' GULZAR AHMED, J.--The petitioner through this Criminal Petition has impugned the order dated 03.2.2014 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 FIR No. 387/2010, dated 07.12.2010 under section 392/406/468/471/109/34, PPC 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 08.12.2012 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 not 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 FIR 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 not named as witness in the challan. The petitioner in his evidence has further admitted that Flat Nos. 203 & 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 flats 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 FIR. 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 or which two civil suits are already pending..Where the suits are pending between A 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.
Acquittal Upheld.