MUHAMMAD YOUSAF Versus A.S.I. AND OTHERS

This petition under section 561-A, Cr.P.C. has been filed for the quashing of order, dated 24-3-1994 passed by the Judicial Magistrate, 1st Class, Gujrat and the order, dated 13-9-1994 passed by the learned Additional Sessions Judge, Gujrat as being illegal and without any lawful authority with a prayer that the case be remanded to the learned trial Court for decision in accordance with law, after recording the remaining evidence.

2. The brief facts according to the F.I.R. of the prosecution case are; that on 3-3-1992 Dil Khurram one of the accused persons had come to the shop of the complainant/petitioner and asked him to accompany the accused to do some decoration work in his village near Head Marala, The complainant/petitioner alongwith his `servant Shamsher accompanied Dil Khurram. When they reached there, the complainant/petitioner was asked to proceed to the village Simbli Jattan. Muhammad Yousaf, complainant/petitioner had Rs.1,00,000 in his pocket. On reaching in the village Simbli Jattan, the said accused snatched the money on gun point with the help of his father and two unknown persons. The occurrence was witnessed by Shamsher Ali, servant of the complainant/petitioner while standing outside the room where the occurrence had taken place. On the next day i.e. 4-3-1992, the case was got registered. The investigation of the case was carried out by the local police who found Dil Khurram, Fazal Karim Bashir Ahmed and Aziz involved in this case and on the accomplishment of the usual investigation the accused persons were challaned and the same was submitted in the trial Court of competent jurisdiction. On the receipt of the challan, the charge was framed against the accused persons. The evidence of the prosecution was summoned. The testimony of as many as five witnesses was recorded till July, 1993. The accused persons filed an application under section 249-A, Cr.P.C. in the trial Court. The same was accepted vide order, dated 24-3-1994 passed by the Judicial Magistrate 1st Class, Gujrat who acquitted all the accused. A revision petition against the acquittal order, dated 24-3-1994 was preferred and the same was dismissed vide order, dated 13-9-1994 passed by the learned Additional Sessions Judge, Gujrat.

3. The learned counsel for the petitioner has argued the case mainly on the ground that the evidence of five witnesses was recorded including the eye witnesses, who have deposed to prove the recovery of money as well as gave the details of the occurrence. The trial Court, without appreciating the evidence, acquitted the accused illegal. Further argued that the decision without recording the remaining, evidence could have not been taken as all the material was not before the trial Court to adjudicate upon; though the recovered money given on Superdari to the petitioner was not produced during the trial to confront the witnesses, yet the recovery memos. exhibited have all the evidentiary value, even if the contents of the recovery memos. have not been proved through the witnesses, who had attested the same and prayer to accept the petition.

4. Conversely, the petition was opposed by the learned counsel appearing on behalf of the respondents Nos.3 to 5 stating that the material witnesses were produced and their evidence was recorded. The evidence of the eye-witnesses and the extra judicial confession of the witnesses was recorded and no such material witness was left to be recorded the testimony of which would have been essential to reach the just conclusion. The money/case property which was given on Superdari to the petitioner was never brought in the Court to confront the witnesses of the recovery; rather the said amount of Rs.60,700 which was allegedly recovered from all the five accused persons, was misappropriated by the petitioner and that he very frankly conceded before the trial Court. Vehemently argued 'that this alone ground of non-confrontation of the snatched money to the witnesses is sufficient to make the order of acquittal of the accused.

5. I have heard the learned counsel for the respective parties at full length and have also perused the evidence before me very minutely. The star witnesses of the prosecution were produced in the trial Court and the testimony of eye witnesses and the witnesses of extra-judicial confession was recorded. The evidence of the recovery witnesses was also recorded. The perusal of the record clearly indicates that no such material witness was left to be recorded the evidence of which would have been very essential for the just decision the case property which was given on Superdari to the petitioner, was illegally misappropriated by him while using for his personal needs is sufficient to show that the prosecution could not prove its case regarding the recovery of the amount from the accused persons. Even otherwise, the details given in the recovery memos. of the de-nomination of the currency notes contradicts the statement made by the petitioner in the trial Court. I have perused the evidence brought on the record, which is full of contradiction on the basis of which no conviction can be recorded against the accused persons. I have also perused the impugned order. I do not find any legal infirmity in the orders made by the, Courts below.

6. In view of what has been discussed above, I am of the considered view that this petition has no force and the same is dismissed.

H.B.T./M-2496/L Petition dismissed.