2010 PLP 864 (MLD)

MUHAMMAD ALI MAZHAR, J.

This Criminal Miscellaneous application has been filed by the applicant against the impugned order, dated 4-5-2009, passed by the learned Sessions Judge Mirpurkhas on an application moved by the applicant under section 265-K, Cr.P.C. in Sessions case No.33 of 2001, which was dismissed. The present Criminal Miscellaneous Application has been filed for the qashment of proceedings.

2. Brief facts of the prosecution case as per F.I.R. lodged by complainant Dehsar, are that in between the night of 11/12-3-1999 at about 00-30 hours at 3-Miles Mori Thar Wah, Taluka Umerkot, accused/applicant Khuda Bux along with co-accused Alam, Malook, Bhoongar, Lal Bux, Ali Sher and Aloo Kolhi after maltreating and taking Mir Muhammad son of the complainant, with them from the marriage ceremony of Hukumoo, committed his murder by drawing him in the Canal.

3. After registration of F.I.R. police arrested the accused, conducted investigation and submitted challan before the Court showing accused/applicant Khuda Bux as absconder.

4. At trial, the prosecution examined (13) witnesses and after hearing the parties counsel, the trial Court vide judgment, dated 28-5-2002, convicted the accused Alam, Malook, Boongar and Lal Bux. However, this Court vide judgment, dated 19-5-2006, passed in Criminal Appeal No.49 of 2002 (preferred by the co-accused against the impugned judgment, dated 28-5-2002) acquitted the co-accused by allowing the appeal.

5. On 10-4-2007, the applicant/accused while surrendering himself before the trial Court has applied for bail. The trial Court granted bail to the applicant and therefore, he moved an application under section 265-K, Cr.P.C. which was dismissed vide order, dated 4-5-2009.

6. Learned counsel for the applicant has argued that while dismissing the application under section 265-K, Cr.P.C. the learned Sessions Judge Mirpurkhas failed to consider the grounds raised in the application and also overlooked the evidence adduced in the case. The complainant had falsely implicated the applicant and other accused in the case, the conviction recorded by the trial Court in Sessions Case No.33 of 2001 was assailed by the co-accused Alam, Malook, Bhoongar and Lal Bux by way of Criminal Appeal No.49 of 2002, which was decided by this Court in their favour vide judgment, dated 19-5-2006. He has also referred to the findings of this Court recorded in its judgment, dated 19-5-2006, whereby the entire evidence was appreciated and the learned single Judge of this Court observed that the main grievance of the complainant and his eye-witnesses was against the A.S.-I. Ali Sher, who was the head of the raiding party and alleged to have maltreated the deceased in presence of eye-witnesses. No specific role was assigned against the appellants except naming them to be in company of deceased. Though P.W. Qasim, in this statement, stated that deceased Mir Muhammad was apprehended by M. Alam, and Khuda Bux and Ali Sher gave Hakal to him and thereafter they all had beaten him. The learned single Judge of this Court also observed that except these statements of P.Ws. Qasim and Malook there is no direct evidence against the appellants or deceased accused. Deceased accused Ali Sher, whose conduct as appearing from the record during the period when complainant was searching and roaming for his missing son appears to be suspicious. The learned single Judge of this Court has further observed that there is no direct evidence against the appellants of commission of offence, therefore, the appeal was allowed and the impugned judgment was set aside. The learned counsel for the applicant further argued that on the basis of acquittal of co-accused by this Court in aforesaid criminal appeal, the trial Court should have allowed the application moved by the applicant under section 265-K, Cr.P.C., and the treatment with present applicant should not have been different, but instead of acquitting the present applicant, the learned trial Court has dismissed the application on the basis of presumption and observed in the impugned order that there is a possibility of furnishing additional evidence at the second trial and/or the admission by the accused under section 342, Cr.P.C. during the trial, which may furnish corroboratory/confirmatory/additional material which cannot be excluded. It was further observed in the impugned order that the very factum of abscondence of the applicant/accused could ordinarily be led as additional evidence against the applicant/accused. It has been further stated in the impugned order that the charge has been framed and now the matter is fixed for trial. The charge of this case requires evidence without which no conclusion can be drawn. The application was finally dismissed with the observation that the proper course for the applicant/accused would be to wait till evidence is recorded and then press for his acquittal under section 265-K, Cr.P.C. The learned trial Court also relied upon a judgment reported in 1989 PCr.LJ 2044, which is not at all relevant to the acquittal claimed under section 265-K Cr.P.C. but it only pertains to section 497(5), Cr.P.C. for cancellation of bail. Besides above, another judgment reported 1991 MLD 540 has also been mentioned in the impugned order, which is also irrelevant as in this judgment, the learned Single Judge of Peshawar High Court simply held that contents of F.I.R. had, prima facie, constitute the offence with which the accused/petitioners were charged and it could not be held at this stage that the charges were either groundless or levelled with sole mala fide intention to harass them. In both judgments relied upon by the learned trial Court, the facts and circumstances were totally different. Both these judgments are highly distinguishable as in these cases, the conviction was not set aside in appeal as done in the present case. The entire evidence was also considered by this Court in Criminal Appeal No. 49 of 2002 and after appreciating the entire evidence adduced during trial the learned single Judge of this Court set aside the impugned order in the same Crime No. 22 of 1999 (Sessions Case No. 33 of 2001).

7. The learned A.P.G. opposed the application and insisted that the trial Court be allowed to proceed against the applicant, however, he could not satisfy this Court regarding the findings of the trial Court in which, the trial Court has presumed the possibility of furnishing of additional evidence at the second trial and he conceded that in the criminal appeal this Court has already considered the entire evidence and the allegation against the present applicant was not different than the other co-accused who have been acquitted by his Court vide judgment, dated 19-5-2006.

8. I have heard the learned counsel for the applicant, learned A.P.G., for the State and perused the record made available before me. The main thrust of the arguments of learned counsel for the applicant is that the trial Court ought to have allowed the application moved by the applicant under section 265-K, Cr.P.C., keeping in view the judgment of this Court passed in Criminal Appeal No.49 of 2002 and there is no rationale to try the present applicant in the same case where other co-accused had already been acquitted, against whom also the allegations were same as against the present applicant, this fact is clearly transpiring from the contents of F.I.R. itself, in which, the complainant has opined that A.S.-I. Ali Sher, constables M. Malook, Bhoongar, M. Alain, Lal Bux and Khuda Bux in furtherance of their common object subjected his son Papoo to maltreatment and Aloo Kolhi with the aid of police had killed his son in order to take revenge and then drowned the dead body in the canal. The allegation against all these accused and the present applicant are same and the criminal appeal filed by other co-accused was allowed with the findings that there is no direct evidence against the appellant of commission of offence. The learned single Judge of this Court in the aforesaid judgment has discussed and appreciated the entire evidence and observed that the main grievance of the complainant and his eye-witnesses was against the A.S.-I. Ali Sher, who was the head of the raiding party and alleged to have maltreated the deceased in presence of eye-witnesses, no specific role was assigned against the appellants except naming them to be in company of deceased. Though P.W. Qasim, in his statement, stated that deceased Mr. Muhammad was apprehended by M. Alam, and Khuda Bux and Ali Sher gave Hakal to him and thereafter they all had beaten him. Except these statements of P.Ws. Qasim and Malook there is no direct evidence against these appellants or deceased accused. Deceased accused Ali Sher, whose conduct as appearing from the record during the period when complainant was searching and roaming for his missing son appeared to be suspicious. The learned single Judge of this Court has further observed that since there is no direct evidence against the appellants of commission of offence, therefore, the appeal was allowed and the impugned judgment was set aside. In a judgment reported in 1985 SCMR 62, on an appeal filed against conviction, the Honourable Supreme Court set aside the conviction of the accused, and while acquitting them, conviction of non-appealing convict was also set aside and he was ordered to be acquitted. In another judgment reported in 1972 SCMR 194, the Honourable Supreme Court set aside the conviction with the finding that prosecution has failed to prove its case beyond reasonable doubt and while acquitting all appellant, conviction of one absconding accused was also set aside. While arguing the case, the learned counsel for the applicant has relied upon another judgment of Honourable Divisional Bench of this Court reported in 2004 PCr.LJ 1492, in which the rule of consistency was made applicable to non-appealing accused. In this judgment it was held that where no appeal has been filed by a co-accused and the other accused placed in the same circumstances, have been acquitted the non-appealing accused can also be acquitted. He has also relied upon a judgment reported in 2007 SCMR 1812, in which the Honourable Supreme Court has held that mere abscondence would not prove guilty mind and abscondence alone would not be enough for conviction in absence of sufficient evidence connecting accused with commission of offence. The principle laid down in the above judgments is quite helpful to the case of applicant, as on the basis of evidence led in the case, there is no probability of accused being convicted of any offence. Though the present accused was not convicted earlier by the trial Court in his absentia but it transpires from evidence that sufficient incriminating material is lacking connecting the applicant with the commission of the alleged offence and second trial will be abuse of process of the Court. Under section 265-K, Cr.P.C. accused may be acquitted where on the evidence available on the record, there is no probability of accused being convicted of the offence he charged with. Expression at any stage of the c case employed in section 265-K, Cr.P.C. susceptible to a very wide connotation and indicates that at any stage can either be the very initial stage after taking the cognizance or middle age after recording some proceedings or even at later stage. The trial Court has not applied its mind properly and the impugned order is based on presumption of additional evidence, which is not at all relevant for the decision of the application under section 265-K, Cr.P.C., as the trial Court had to consider on the basis of available evidence whether there was any probability of accused being convicted of any offence, but the trial Court decided the application on mere presumption which is against the spirit of section 265-K, Cr.P.C. The jurisdictional requirement for the exercise of the powers under section 561-A, Cr.P.C. are (i) to give effect to any order under the Criminal Procedure Code, (ii) to prevent abuse of process of any Court (iii) to secure the ends of justice. In order to seek interference under section 561-A, Cr.P.C. three conditions to be fulfilled, (i) the injustice which comes to light should not be of a trivial character (ii) the injustice which is noted is of a clear and palpable character and not of a doubtful character and (iii) there exists no other provision of law by which the party aggrieved could have sought relief. The purpose of invoking provisions of section 561-A, Cr.P.C. is mainly to prevent abuse of process of Court and to secure the ends of justice and the circumstances of this case fully deserve the exercise of inherent powers conferred upon this Court under section 561-A, Cr.P.C., as after decision of appeal by this Court in the matter of co-accused/appellants of the same crime, there is nothing left to be decided against the present applicant, against whom the allegations were same, which the prosecution failed to prove against the co-accused/appellants and specific findings have already been pronounced by this Court against the non-proving the guilt of co-accused persons. The second trial on the same evidence will be a futile and time consuming exercise.

9. For the foregoing reasons, the Criminal Miscellaneous Application is allowed and the proceedings pending against the applicant in Sessions Case No.33 of 2001 are hereby quashed. Resultantly, the applicant is acquitted from the charge. H.B.T./K-10/K Application allowed.