1995 P Cr (PLP)

I have heard Mr. Dawood Balouch, the learned counsel for applicant who is assisted by Mr. Ghulam 1-Iyder Baloch, Advocate and also Mr. Abdul Ghani Shaikh, learned Assistant Advocate-General, Sindh. The' contention of the learned counsel for applicant are that the present applicant is a respectable senior lawyer of Shikarpur, who has been representing the Shikarpur District Bar Association in Sindh Bar Council since last three terms and he has been involved in the present case only on account of enmity and mala fides. He has further pointed out that no overt act has been attributed to the present applicant. Even his presence at the place of incident, at the time the incident had taken place, has- not been shown. All that is alleged against the applicant is that on 19-8-1994 he had advanced threats to the complainant party when he was sitting in the Otak of Mumtaz Khan where the complainant party on quite a large number approached him for Faisla, whereas the incident is said to have taken place on 6-9-1994 i.e. about 18 days thereafter. The learned counsel has submitted that there is no ingredient to show the commission of offence under section 120-B, P.P.C. He has further submitted that in the present case the applicant. has been involved because Shah Nawaz son of Yasin Khan is an accused and it is common practice for the complainant party to rope in the parents and others relations of accused in the case just to cause harassment. Lastly, the learned counsel has submitted that there is no iota of evidence available against the present applicant and there is absolutely no likelihood of his conviction; and that the involvement of the applicant in the Abase at the instance of the complainant party is nothing but abuse of process of Court. He has also referred to certain judgments of the superior Courts. As against this the, learned Assistant Advocate-General has opposed this application on the grounds that no evidence in the case has yet been recorded; and that this application is premature. He has further submitted that in the present case at least some evidence should be allowed to be brought on record and thereafter if a case of acquittal is made out then only such application can be moved. I have given anxious consideration to the submissions made by the learned counsel for the parties. In the first instance I would deal with the criminal conspiracy which has been defined in section 120-A, P.P.C. which reads as under:-- "120-A. Definition of criminal conspiracy.-- When two or more persons agree to do, or cause to be done,-- (1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy: Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof. Explanation. It is immaterial whether the illegal act is the ultimate object of such agreement., or is merely incidental to that object." The proviso as above would show that only an agreement to commit an offence shall amount to a criminal conspiracy. In the present case the F.I.R. does not contain any allegation that the present applicant had entered into an agreement to commit any offence. There is absolutely no material available from which it can be inferred that such agreement was entered into by the present applicant. In these circumstances, prima facie section 120-B, P.P.C. would not be attracted in the present case. As regards the submission of learned Assistant Advocate-General on the point that no evidence has yet been recorded and, therefore, this application is premature, I would like to reproduce the provisions of section 265-K, Cr.P.C. which reads as under:-- . "265-K. Power of Court to acquit accused at any stage.

Nothing in this Chapter shall be deemed to prevent a Court from acquitting an accused at any stage of the case, if, after hearing the prosecutor and the accused and for reasons to be recorded, it considers that there is no probability of the accused being convicted of any offence." The above provisions would show that the Court can acquit an accused at any stage of the trial if it consider that there is no probability of accused being convicted of any offence. It may further be observed that this point was also discussed in the case of Muhammad Haroon v. The State 1993 PCr.U 524 by a learned Single Judge of this Court. .It was held that the use of words "at any stage" of the case clearly indicate that such power can be exercised even before the charge is framed and also without complainant being heard at all. Also in the case of Asif Ali Zardari v. The State 1992 PCr.LJ 58 a Division Bench of this Court had considered this point and it was observed that ordinarily petitions under section 561-A, Cr.P.C. for quashing a judicial proceedings are not entertained directly by the High Court unless the accused has first approached the trial Court under section 249-A, Cr.P.C. or section 2(5-K, Cr.P.C. but the High Court by laying down such rules has only regulated its own procedure, there being no specific provision in Code to this effect. In the same case it was further held by the Division Bench as under:-- "Mere exerting of pressure by one person upon another to advance loan to a third person could not amount to instigation and could not constitute a conspiracy which meant an agreement between two or more persons to accomplish together a criminal or an unlawful act or to achieve by unlawful means any act

No such allegations had been made against accused/petitioner. by prosecution." In the same case while dealing with the abetment, their Lordships have referred to section 107, P.P.C. and held that the definition of abetment relates to instigate, conspiracy and intentional aiding. From this it may be observed that element of criminality must, therefore, be clearly spelt out before a person can be indicted for abetment. In this case the learned Division Bench was pleased to direct the quashment of the proceedings against the accused. This judgment of the Division Bench was challenged before Honourable Supreme Court in appeal and the said judgment was upheld in the case of the State v. Asif Ali Zardari 199)4 SCMR

798. Similarly in the case of State v. Ashiq Ali Bhutto 1993 SCMR

523. Honourable Supreme Court has held that expression "at any stage" connotes that recording of the prosecution evidence was not the condition precedent for acquitting an accused under sections 249-A, Cr.P.C. and 265-K, Cr.P.C. In the case it was also observed as under:-- "The Legislature in its wisdom did not leave the question of the recording of the evidence as a condition before taking action under either of the provisions. The use of the expression `at any stage' of the case is indicative enough of the intention that any such stage could be the very initial stage, after taking cognizance or it could be a middle stage after recording some proceedings and/or even, it could be later stage as well:' Thus, it may safely be concluded that an order under section 265-K, Cr.P.C. can be passed "at any stage" even before the charge is framed and if from the facts of the case no element of criminality is spelt out nor the criminal conspiracy as provided in section 120-A, P.P.C. is shown or alleged to have taken place. Criminal conspiracy is, as defined above, an act of agreement to commit an offence for which certain facts are to be alleged. There appear no such fact in the present case. It may further be observed that in the present case the accused has placed on record affidavits sworn by twelve very senior Advocates of Larkana, Jacobabad and Shikarpur Districts which include three members of Sindh Bar Council and President and - Secretaries of the District Bar Associations to the effect that on 19-8-1994 when the applicant is alleged to have advanced threats, he was. not even present in Garhi Yasin or Shikarpur but was attending a meeting at Larkana convened by Muhammad Bachal Tunio, the then sitting member of Sindh Bar Council to chalk out a programme for ensuing elections of Sindh Bar Council in which all the said twelve Advocates had participated. In view of the above discussion, I am of the considered opinion that involvement of the present applicant in the case is on account of mala fide intentions and to humiliate him by abuse of the process of Court. In these circumstances, I accept this application and direct to quash the proceedings against the present applicant in the abovesaid Sessions case. It may be clarified that as regards the remaining accused, the case may proceed according to law. Above are the reasons for the short order announced in open Court on 2nd February, 1995. N.H.Q./Y-72/B Proceedings quashed