P L D 2008 Karachi 567 (PLP)

KHALID ALI Z. QAZI. J,

Through the present application under section 561-A, Cr.P.C. the Applicant/accused has sought quashment of the proceedings in Sessions Case No.465/2006 under section 302/34, P.P.C. registered at Police Station Orangi Town, Karachi vide F.I.R. No.95/2006 dated 11-7-2006 pending before the 1st Additional District Judge Karachi (West).

2. The brief facts giving rise to the present application are that one Mst. Hajra wife of deceased Ali Hassan in her statement, recorded by the police in F.I.R. bearing No.95/2006 dated 11-7-2006, registered in the Orangi Police Station, under section 154 of the Cr.P.C. stated that her deceased husband i.e. late Ali Hasan was having illicit relation with one Mst. Nawab Khatoon for about 16/17 months when a conspiracy was hatched to murder him by her own son Gul Hasan (the applicant) and Rahim Buksh, the brother of Mst. Nawab Khatoon. As per the said F.I.R. on 11-7-2006 at about 1-00 a.m. Rahim Buksh along with three companions came over and stabbed Ali Hasan to death while he was asleep. The specific role assigned to Gul Hasan, the applicant/accused and son of the complainant and deceased was that he tied up his father Ali Hasan so as to facilitate his stabbing by Rahim Buksh.

3. The police recorded statements under section 161, Cr.P.C. and submitted the challans. However, in her statement before the trial Court dated 13-9-2007 Exh.7 Mst. Hajra, the complainant and wife of the deceased and mother of the applicant/accused Gul Hasan, became hostile to the prosecution, while completely changing' her stance vis-s-vis her statement in the F.I.R. In her statement before the learned trial Court Mst. Hajra did not implicate the accused/applicant Gul Hasan but rather stated that three unknown assailants had attacked their house, killing her husband i.e. late Ali Hasan. In her said statement Mst. Hajra also stated that the said unknown assailants had also attacked accused/applicant Gul Hasan and since she was an illiterate woman the police recorded an incorrect statement which was not even read over to her. The prosecution in the cross-examination failed to shatter her testimony. In fact Mst. Hajra has gone on to even depose that she did not sign any paper at the spot, as claimed by the police.

4. Before the trial Court an application for compromise was filed but the same did not materialize due to certain technical objections, which are not relevant for the purposes of disposal of the present application.

5. The applicant/accused moved an application under section 265-K of the Cr.P.C, which, however was dismissed by the trial Court vide order dated 7-12-2007 on the grounds that the weapon in question had been recovered and the motive behind the murder was clear from the police file. It was also observed by the trial Court the material eyewitnesses were still required to be examined and the statements under section 161, Cr.P.C. sufficiently implicated the accused, hence the probability of the accused being involved in the crime could not be ruled out.

6. Mrs. Zubaida K. Jamali, the learned counsel for the applicant/accused contended that after the unambiguous testimony of the complainant i.e. Mst. Hajra before the trial Court there was no possibility of the, applicant being convicted in the murder case. Hence any continuation of the proceedings was nothing but an abuse of process of the Court. On the other hand, Mr. Muhammad Bakhsh Awan, the learned State Counsel has supported the order of the trial Court dated 7-12-2007.

7. I have heard the arguments of parties, perused the material on record and the relevant case law on the point.

8. There is no cavil with the proposition that the power of quashment either under sections 249-A/265-K or section 561-A of the Cr.P.C. is to be used sparingly in exceptional circumstances where it is clear that from the material on record there is no possibility of the accused being convicted even after full completion of the trial.

9. It reveals from perusal of record that statement of P.W.2 Mst. Zarina was also recorded on 13-9-2007 by trial Court (Exh.8) daughter of the deceased also became hostile to the prosecution and did not support the prosecution case being another eyewitness. She stated that she was present in the house on the day when her father was murdered. She had not seen any person while committing murder of her father. The prosecution in cross-examination failed to shatter her testimony.

10. Prosecution also produced and examined P.W.3 Noor Hasan alias Uzair Gul in trial Court on 13-9-2007 as Exh.9 who is son of the deceased and brother of accused. This P.W. has also not supported the prosecution case and said that Exh.9/A memo. of dead body inspection does not bear his signature and thumb impression. He is illiterate person. He said that accused is not behind this murder.

11. Prosecution also produced and examined P.W.4 Amanat Ali S.-I.P. P.S Orangi Town in trial Court as Exh.10. His testimony is formal in nature.

12. In Malik Salman Khalid v. Shabbir Ahmed 1993 SCMR 1873, the Supreme Court of Pakistan was pleased to observe that the Courts could use section 561-A, Cr.P.C. to save a party from harassment and abuse of the process of Court. In the State v. Asif Ali Zardari 1994 SCMR 798 it was observed that a party could move for acquittal at any stage of the proceedings and that there was no legal requirement that the application for acquittal could only be moved before the trial Court after recording of evidence of all the witnesses. Looking to the testimonies of the witnesses thus far recorded, the Supreme Court upheld the order of the High Court whereby the trial proceedings had been quashed. Dilating upon the scope of power under section 561-A, Cr.P.C. the Supreme Court in Hussain Ahmed v. Irshad Bibi 1997 SCMR 1503 was pleased to hold that the High Court upon reaching the conclusion that the order passed by a subordinate criminal Court was an abuse of the process of the Court, could rectify the injustice under the inherent powers. A Division Bench of this Court in Nazir Iqbal v. The State NLR 1999 Criminal 181 was pleased to quash the proceedings under section 561-A, Cr.P.C. It came to the conclusion that from the material on record no useful purpose could be served by continuation of the proceedings, as there was no possibility that the accused could be convicted. Writing for the Court, Syed Saeed Ashhad J, as he then was, was pleased to hold that any further proceedings of the Trial Court would only cause agony and misery to the accused. In Miraj Khan v. Gul Ahmed 2000 SCMR 122 the Supreme Court again reiterated the principle that proceedings could be quashed if upon the consideration of the material on record there was no chance of conviction of the accused. Very recently, a learned Single Judge of this Court i.e. Syed Pir Ali Shah J, in Asif Ali Zardari v. The State PLD 2008 Karachi 310 has been pleased to quash criminal proceedings, inter alia, under section 561-A Cr.P.C. In this case the statements of 13 witnesses had been recorded which did not incriminate the accused. It was further observed that it was not necessary that all the witnesses were to be examined before the Court could quash the proceedings.

13. The law in relation to quashment of proceedings seems well settled. In appropriate cases, applications can be moved at any stage. It is not necessary that the entire evidence is to be recorded first (see State v. Asif Ali Zardari 1994 SCMR 798 and Asif Ali Zardari v. The State PLD 2008 Karachi 310, both cited supra). Equally, it is settled that where upon the material on record a safe assessment can be made that the accused cannot be convicted, any further delay in the proceedings would be nothing but an abuse of process of the Court, liable to be quashed.

14. Applying the above principles, it seems rather clear that after the testimony of Mst. Hajra w/o late Ali Hasan recorded by the trial Court on 7-12-2007 and testimony of Mst. Zarina recorded by trial Court on 13-9-2007 there was no possibility for the trial Court for recording conviction in respect of the applicant/accused. Mst. Hajra and Mst. Zarina were both eyewitnesses, who clearly testified that the deceased Ali Hasan had been murdered by unknown assailants, who had also injured the accused/applicant. In the cross-examination Mst. Hajra further confirmed that her statement as recorded by the police was not correct and that the same neither read over to her (she being illiterate) nor signed any document.

15. In light of the above, the testimony of Mst. Hajra and Mst. Zarina being both crucial eyewitness of the incident, there is now no possibility of the accused/applicant being convicted by the trial Court. In my humble opinion the trial Court had materially erred in failing to acquit the accused under section 265-K, Cr.P.C. Accordingly, the proceedings pending before the 1st Additional Sessions Judge, Karachi (West) in Sessions Case No.465/2006 against the applicant/accused Gul Hasan arising out of F.I.R. No.95/2006 registered in P.S Orangi Town is hereby quashed and the accused Gul Hasan is acquitted under section 265-K, Cr.P.C. He shall be released forthwith if not required in any other case. N.H.Q./G-19/K Proceedings quashed.