2011 MLD 956 (PLP)

AQEEL AHMED ABBASI, J.

This is an application under section 561-A, Cr.P.C. impugning order dated. 18-3-2010 passed by learned 1st Additional Sessions Judge, Jacobabad in Sessions Case No.718 of 2008 Criminal Miscellaneous Application No.5 of 2010) whereby application moved on behalf of the present applicant/accused under section 265-K, Cr.P.C. was dismissed by the learned trial Court. Notices were directed to be issued to the State as well as complainant Birj Lal who is present in Court.

2. It is, inter alia, contended by the learned counsel for the applicant that all the applicants/accused present in Court are innocent and were implicated in the instant case by the prosecution. Learned counsel has read out the contents of the F.I.R. and submitted that there were three eyewitnesses of the alleged crime including the complainant. Per learned counsel, statement of complainant and two eye-witnesses namely, Birj Lal son of Arjun This,

2. Roshan Lal son of Achar Mal and Pars Rain son of Kalu Mal were recorded on 3-9-2009 and 10-9-2009 / respectively wherein all the eyewitnesses have stated that accused present in Court are not the same. Per learned counsel, the main prosecution witnesses who are also eyewitnesses of the instant crime have absolved the present applicants/accused from the instant crime, therefore there is no likelihood of their conviction, and no useful purpose is likely to be served by continuing their prosecution before the learned Additional Sessions Judge, Jacohabad. Learned counsel further argued that this court has ample powers under section 561-A, Cr.P.C. to quash the proceedings where, there is no likelihood of conviction on the basis of evidence available on record and the prosecution amounts to abuse of the process of law. In support of his contention he has placed reliance on the case of Miraj Khan v. Gul Ahmed and 3 others 2000 SCMR 122 and Muhammad Hussain v. State PLD 2004 Karachi. 133.

3. The learned State counsel, in view of the arguments and the case-law referred and relied upon by the learned counsel for the applicant, does not controvert the legal position. Complainant Birj Lal who is present in Court, also concedes to such position and states that the present applicant/accused are not involved in the instant crime.

4. In view of the herein facts and the case law referred and relied upon by the learned counsel for the applicant, the contention of the learned counsel appears to be correct as there is no likelihood of conviction of present applicant/accused persons in the instant crime. Accordingly, the proceedings against the present applicant/accused namely, Shah Nawaz son of Abdul Ghafoor Thaheem, Mithal son of Qurban Ali Thaheem and Akram son of Malguizar Thaheem in respect of F.I.R No.116 of 2008 Police Station City, Jacobabad under sections 392,

34. P.P.C. and 13 DAO are 'hereby quashed, whereas remaining case will proceed in accordance with law. Instant application stands I disposed of in above terms. H.B.T./S-31/K???????????????????????????????????????????????????????????????????????? Proceedings quashed.