FAZAL GAFUR Versus State
ABDUL MAALIK GADDI, J.--- Through this appeal, the appellant has assailed the legality and propriety of the Judgment dated 30.09.2016 passed by the learned IXth Civil Judge and Judicial Magistrate, Karachi (West) in Criminal Case No.1085 of 2014 [re. State v. Muhammad Ashfaq Ahmed], arising out of Crime No.215 of 2014, registered at Police Station Jackson, Karachi, under section 408, P.P.C., whereby the learned trial Court through impugned judgment, acquitted the respondent No.2 by giving him the benefit of doubt,
2. The allegations against the respondent No.2/accused is that on 21.03.2013, he being Assistant Manager Legal in the employment of appellant, was handed over Suzuki Mehran Car bearing registration No.AJD-796, colour white, but the said vehicle was not returned back to the appellant even after leaving the job with the appellant on 01.08.2013.
3. Learned Counsel for the appellant besides other grounds as agitated in the memo of acquittal appeal submits that the impugned judgment passed by the trial Court is against the law and on facts and according to him, though, he has filed his power on behalf of appellant/complainant before the trial Court, but the Presiding Officer of the learned trial Court did not heard him; however, his name/attendance was mentioned in the impugned judgment. He further submits that on the date of arguments, he was out of country and he has not been heard, therefore, according to him, the Presiding Officer of the learned trial Court has committed gross illegality and deprived the appellant/ complainant for his arguments and according to him, it is the case of serious violation of Article 10A of the Constitution of Islamic Republic of Pakistan, 1973; hence, he was of the view that this appeal may be allowed and case may be remanded to the trial Court from the stage of arguments with directions to the trial Court to decide the same as per law without influence of his earlier judgment.
4. Learned Additional Prosecutor General, Sindh submits that in this case judgment has been passed by the learned trial Court in a haste manner on the ground that the statement of accused was recorded on 30.09.2016 and the judgment was also passed on same day without hearing the learned Counsel for the appellant/complainant, therefore, for hearing to him, this is a fit case for remand the same to trial Court for arguments of the parties and decide the same as per law.
5. I have given my anxious thoughts to the contentions raised by the learned Counsel for the parties and have also gone through the case papers so made available before me.
6. It appears from the record that Mr. Asif Rauf, Advocate was appearing in this case on behalf of appellant before the trial Court. It is stated by the learned Counsel for the appellant that before the passing of the judgment, he has not been heard as according to him, on the relevant date, he was out of country and in this regard, his Associate Advocate was appeared before the trial Court for adjournment, but his request was not allowed. It also appears from the record that the presence/attendance of the Counsel for the appellant/complainant was mentioned in the top of the impugned judgment, but his arguments is not appearing in the impugned judgment; hence, this aspect of the case proves that on the relevant date, Counsel for the appellant was not present, therefore, the appellant has been condemned unheard. Article 10A of the Constitution of Islamic Republic of Pakistan, 1973 speaks about the fair trial, but in this case, Counsel for the appellant has not been heard before passing/announcement of the impugned judgment. As fair trial is the alienable right of every person, which could not be denied at any circumstances and in this connection, I am supported with the case of Mir Muhammad Ali Rind v. Zahoor Ahmed and another reported in PLD 2008 Supreme Court 412, wherein it has been held by the Hon'ble Supreme Court of Pakistan as under:-
"(a) Administration of justice---
---Natural justice, principles of---Opportunity of hearing---Scope---Order adverse to interest of a person cannot be passed without providing him an opportunity of hearing---Departure from such rule may render such order illegal."
In view of the aforesaid case law and the discussion made above, I have come to the conclusion that it is a fit case for remand of the case. Therefore, this criminal acquittal appeal is allowed. The impugned judgment dated 30.09.2016 passed by the trial Court stands set-aside and case is remanded back to trial Court for passing fresh judgment after providing an opportunity of hearing to both the parties, without influence of his earlier judgment, preferably, within the period of two (2) months, after receipt of this judgment. However, it is made clear that during proceedings, the respondent No.2 will remain on bail before the trial Court. Office is directed to send back the R&Ps of the case along with copy of this judgment to the trial Court immediately for information and compliance. Since the matter pertains to year 2014, therefore, trial Court is directed not to grant any unnecessary adjournment to either side and compliance report be submitted to this Court through MIT-II.
SA/F-8/Sindh Case remanded.