P L D 2016 Sindh 87 (PLP)

SALAHUDDIN PANHWAR, J.- Through instant criminal acquittal appeal the appellant has challenged order dated 28.06.2012, passed by IInd Assistant Sessions Judge, Umerkot in Sessions Case No.08/2010, whereby respondent No.1 was acquitted on application under section 265-K Cr.P.C.

2. Precisely, relevant facts of the case are that complainant Maqbool Ahmed lodged FIR at Police Station Kunri, stating therein that he owns agricultural land admeasuring 45 acres in Deh Barani and look after the same. One Shah Muhammad (respondent No.1) is lessee on the same watercourse, who many times asked the complainant to give his land on lease. On refusal, said Shah Muhammad became annoyed and threatened that he will see the complainant. On 28.02.2012, when complainant along with his nephew Nafis, having completing his work at Kunri, was returning to his village on motorcycle and reached near Kunri Sarmast Rind road at about 03.45 p.m where they saw three persons standing. Out of them two persons were identified as Ashraf alias Ashroo and Ghulam Rasool, whereas third one was unidentified. Accused Ashraf asked the complainant as to why he has not understanding with Shah Muhammad and saying so he took out pistol from fold of his shalwar and with intention to kill fired upon the complainant, which hit on his left side abdomen resultantly he fell down on the ground. In the meanwhile, Muhammad Shahid S/o Nazeer Ahmed came on motorcycle, which also saw the incident. Accused Ashraf fired 06 fire shots. Thereafter, accused persons fled away while issuing threats. Then, Nafis and Muhammad Shahid took the complainant to Taluka Hospital Kunri from where he was referred to Liaquat University Hospital, Hyderabad; from where he again referred to Agha Khan Hospital, Karachi. Thereafter, complainant lodged FIR.

3. It is further revealed that charge against respondent No.1 was framed on 18.05.2012; thereafter application under section 265-K Cr.P.C. was moved which was allowed by impugned order dated 28.06.2012.

4. At the outset, learned counsel for appellant, inter alia, contends that impugned order is against the settled principle of criminal administration of justice, trial Court has committed patent illegality by accepting plea of alibi without leading evidence, or providing opportunity to the prosecution on that aspect, therefore, impugned order is not maintainable under the law. In support of his contention, he has relied upon NAWAIZISH ALI v. STATE (2010 SCMR 1785) and HAJAN v. IST ADDITIONAL SESSIONS JUDGE, DADU (2014 PCr.LJ 824).

5. On the other hand, learned counsel for respondent No.1 contends that impugned order is in accordance with law; even otherwise, co-accused Ghulm Rasool against whom specific allegations were alleged was acquitted after full dressed trial by judgment dated 30.10.2013; however, he further contends that co-accused Ashraf is still facing trial in same crime. In support of his contention, he has relied upon the cases of ASIF ALI ZARDARI v. STATE (PLD 2008 Karachi 310) and STATE v. ASHIQ ALI BHUTTO (1993 SCMR 523); whereas learned D.P.G. contends that impugned order is not in accordance with law.

6. At the outset, it would be conducive to refer relevant portion of impugned order, whereby respondent No.1 was acquitted:- "I have heard the arguments and perused the material. It reveals from the facts that the FIR was lodged with delay of 17 days after incident and it is also clearly mentioned in the FIR that applicant/accused was not present at the place of incident while offence was made and he was on duty for which he produced his Service Card and Duty Certificate. The case of the prosecution has become highly doubtful from the material it appears that accused is being convicted, if even case is fully tried. The reliance is placed on the citation of Honburable Supreme Court reported as in "1993 SCMR 528". It shall be abuse of process of Law if the case against instant accused is further proceeded. Hence in these circumstances, the applicant/accused Shah Muhammad S/o Muhammad Raheem Khaskheli is hereby acquitted under section 265-K, Cr.P.C. While the case. against remaining accused shall proceeded accordingly."

7. Since learned counsel for appellant has emphasized on legal proposition of law that plea of alibi taken by accused/respondent No.1 can be substantiated through leading evidence and merely production of some documents and submitting such aspect would not be sufficient to acquit any accused from the trial without leading evidence. In support of his contention, he has also referred some case law. Further learned counsel for respondent No.1 contends that this Court is competent to examine the other aspect when patently there was no sufficient set of evidence against the respondent No.1, as it was prosecution case that due to abetment and conspiracy of respondent No.1 other accused persons committed such offence, hence no useful purpose will be served when admittedly co- accused in same case has been acquitted by the trial Court.

8. Without prejudice to .the above, I am mindful of the fact that instant criminal acquittal appeal is relating to impugned order passed on application under section 265-K, Cr.P.C.; worth to add here that acquittal appeal against a judgment of full-fledge trial and against one against order passed on application under section 265-K Cr.P.C. cannot be compared in same parameters. There is no denial to the power of the court to acquit an accused at any stage of the proceeding by exercising powers under Section 265-K, Cr.P.C, however, such power is subject to satisfaction of the Court, after examining material and hearing prosecution, that there is no probability of the accused being convicted of any offence not necessarily the one with which he is charged, thus, trial Court can acquit the accused at any stage if no iota of evidence is available on record against the accused.

9. The acquittal under section 265-K Cr.P.C. can only be sought with reference to prosecution material and any material of defence, if not came on record as required by law, cannot be legally considered to acquit the accused because the term 'no possibility of conviction of accused for any offence' has no room for a material or plea of defence. The accused may come with any defence plea, including that of alibi but a defence plea, whatever, it may be shall remain a defence plea which unlike the civil proceedings, needs not necessarily be proved to earn a success (acquittal).

10. In the instant matter the trial Court Judge has acquitted the respondent No.1 while considering the plea of alibi and the document in support of such plea. Can a document of defence be based for final determination (order having an effect of acquittal) without letting the opposite party (prosecution) to make an attempt to disprove or least challenge the authenticity of document by cross-examining?. The answer to this proposition shall be in negative. If such trend is allowed to hold the field it would frustrate the very scheme of the 'trial procedure' as provided by Section 265-F of the Code. In other words it would amount to putting the cart before the horse as it would allow the defence to prove his plea before the prosecution, which is not permissible under the scheme of trial, so provided by the Code. It is settled principle of law that plea of alibi, can be substantiated through leading evidence which an accused shall, no doubt, enjoy but at his turn within meaning of Section 265-F of the Code. Reference can be made to the case of Ghulam Ahmed Chishti (2011 SCMR 385) and case of Rashid Minhas (2012 PCr.LJ 816 F.S.C.)

11. Further, I cannot lost sight of another important fact that charge against the accused was that of 'abetment or conspiracy'. To constitute an offence of abetment or conspiracy the physical presence of the accused in or at time of commission of offence is not necessary. This legal position was entirely ignored by the trial Court Judge while acquitting the respondent No.1 with reference to document, showing presence of respondent No.1, at some other place at time of commission of offence.

12. In above touchstone, perusal of impugned order reflects that same is not falling within the four corners of criminal administration of justice so framed to exercise jurisdiction under section 265-K Cr.P.C. Consequently, impugned order is hereby set aside; case is remanded back to the trial Court; respondent No.1 shall face the trial; however, it is pertinent to mention that application under section 265-K Cr.P.C. moved by respondent No.1, would be deemed as pending there and trial Court shall pass fresh order thereon after considering all aspects of the prosecution case, even the judgment passed by the trial Court in case of co-accused Ghulam Rasool, within a period of one month.

13. Needless to mention that observations made hereinabove would not prejudice the case of either party. Disposed of. YN/M-22/Sindh Case remanded.