1. ' FAROOQ ALI CHANNA , J.---Appellant Sajjad Hussain Mukhi has called in question the order dated 8-12-2012 passed by learned VIIth Assistant Sessions Judge, Karachi-East (hereinafter referred to trial Court) in Criminal Case No, 116 of 2010 culminated in F.I.R. No, 387 of 2010 Police Station Soldier Bazar, Karachi under sections 392/ 406/468!471/109/193/34 P.P.C., acquitting the respondents under section 265-K Cr.P.C.
2. ' Brief facts of the case are that appellant Sajjad Hussain Mukhi lodged F.I.R. That he had purchased four flats in different areas, he was residing with his wife and two sons the respondents Nos. 5, 6 and 7. About four years prior to incident he was paralyzed, after that attitude of his family was changed. On 31-5-2008 and 5-8-2008 the respondents Muhammad Ali alias Raju, Ramiz Abbas and Shoaib Raza at the instance 'of his wife Mst. Rubab committed robbery in his office took away gold ornaments, laptop computer, cash and prize bonds. It is further alleged that respondent Muhammad Ali alias Raju also obtained forged birth certificate declaring himself to be the son of his maternal grand father Qassim Ali. On the basis of such birth certificate, he filed SMA in respect of immovable property left by his deceased maternal grandmother Gul Bano and withdrew the amount from bank fraudulently. The Investigating Officer after completing the investigation submitted the challan. The prosecution to substantiate the charge examined the appellant Sajad Hussain, however, failed to produce rest of the witnesses as such the trial Court had no other option except to decide the case on the basis of evidence available on record, consequence whereof the trial Court acquitted the respondents.
3. ' Learned counsel for the appellant has contended that impugned order is perverse suffering from infirmity, it based upon non-reading or misreading of evidence; that other prosecution witnesses were not examined for the reason that police file was not available with the Prosecutor, which in pursuance of order of competent authority was handed over to another police officer for reinvestigation of the case. Learned counsel during arguments invited the attention of the court towards the opinion of the investigating officer, that he recorded the statements of many prosecution witnesses, they beside supporting the complainant's version also confirmed that respondent Muhammad Ali alias Raju is son of Ali Hussain and Qassim Ali was his maternal grand father which prima facie constitute a cognizable office therefore the I/O submitted the challan against the respondents; that it was incumbent upon the trial Court to examine all the prosecution witnesses for a just and upright decision on merits. He requests that the impugned order may be set aside and matter may be remanded to trial court with directions to decide the same afresh after recording the evidence of all the prosecution witnesses within three months.
4. ' Conversely, learned counsel appearing for respondents has contended that the trial court had taken all possible efforts provided under the law to secure the attendance of prosecution witnesses, but they did not appear before the trial Court for evidence, that the complainant in F.I.R.
5. Besides other allegations, has also alleged that respondent Muhammad Ali alias Raju had arranged a forged birth certificate using for the purpose of cheating but the appellant in his evidence before the trial court has not deposed even a single word in that respect. Learned counsel has further contended that reporting the incident of robbery to police officer after more than two years creates doubt; that the appellant in his application addressed to S.H.O, Police Station Soldier Bazar, produced in evidence at Exh.3/A has stated that the incident took place on 31-5-2008 was witnessed by Chowkidar Janson Khan and Inayat, they both have not been cited as witnesses in this case, that the entire case is outcome of family dispute between the appellant and the respondents Nos. 5 to 7 the wife and sons of appellant.
6. ' Learned D.P.G. Has supported the impugned order and has contended that from the evidence of appellant recorded by the trial court no case was made out and if the remaining prosecution witnesses would have been examined even then there would be no probability of the respondents being convicted as such trial court in exercise of powers contemplated under section 249-A Cr.P.C.
7. Has correctly acquitted the respondents.
8. I have considered the arguments and perused the record. Besides the submissions made by learned counsel for the parties, the perusal of R&P of the case reflected that the trial court had observed all possible measures to secure the attendance of prosecution witnesses but they despite the service of notices and execution of bailable warrants did not appear therefore, the trial court in the last resort issued NBWs against them which subsequently were withdrawn at the request of advocate appearing for the complainant for condonation of absence of prosecution witnesses, however, despite the above efforts, the prosecution failed to produce the witnesses which with all fairness leave the adverse inference that either the prosecution was suppressing material facts or the witnesses were not supporting the prosecution, the trial Court will also be justified to treat such withholding evidence as a flaw in the prosecution evidence. Since the prosecution despite the measures observed by the trial court failed to produce the witnesses therefore the trial court had no other option except to pass appropriate order and A decide the case on the basis of evidence available on record.
9. ' I have also examined the evidence of appellant, he in his cross-examination has admitted that the Flat Nos. 203 and 204 situated in Pardesi Heights were the property of his wife Rubab, he has also admitted that on the basis of power of attorney executed by his wife Rubab in his favour, he executed registered sale deed in respect of said flats in his favour, he has no proof of gold ornaments allegedly robbed from his office, He has also admitted that after the incident he was residing with his wife and sons in the same flat, the above admission set out stigma in the sanctity of allegations, it does not appeal to a man of prudent mind that a victim of robbery case without redressal of his grievance was residing with the offenders in the same flat.
10. ' Learned counsel for the appellant on query has admitted that civil litigation is pending between the parties, Mst. Rubab has filed Civil Suit for cancellation of power of attorney used by the appellant in execution of sale deed in respect of flat Nos. 203 and 204 Pardesi Heights in his favour.
11. Learned counsel has also admitted that the respondent Muhammad Ali alias Raju has withdrawn the amount from the concerned bank as successor of Mst. Gul Bano appointed by the competent court of law in S.M.A. No, 194 of 2008, the said Succession Certificate has not been challenged by any other legal heirs of deceased Mst. Gul Bano before any competent forum.
12. In view of the above, there appears no illegality or irregularity in the impugned order of acquitting the respondent under section 265-K Cr.P.C. It does not require interference of this court. I, therefore, dismiss the Criminal Acquittal appeal.