2026 P Cr (PLP)

Sabit Ullah Khan, J.

Through this criminal appeal filed under section 417 of the Code of Criminal Procedure, 1898 (Cr.P.C), the appellant namely Habib-ur-Rahman has assailed the judgment of the learned Sessions Judge, Shangla dated 09.05.2019 rendered in case bearing FIR No. 268 dated 15.08.2018 registered under section 302 P.P.C at Police Station Dandai, District Shangla, whereby the respondent/ accused namely Zarif Khan has been acquitted on acceptance of the application of the prosecution filed under section 494 Cr.P.C.

3. On 21.07.2018 at 20:30 hours, Zarif Khan (husband of the deceased and now accused) reported the matter at the emergency ward of DHQ Hospital Battagram to the effect that his sister Mst. Yasmin Bibi has informed him that there was something wrong with his wife namely Mst. Bakht Miraja. On reaching home, he found her in critical condition and it was disclosed to him that she has consumed mouse poison. The incident was allegedly seen by other family members. This report was taken down in the shape of daily diary No.20. Postmortem of the deceased was conducted. Subsequently on 04.08.2018, the deceased's parents namely Habib-ur-Rahman and Mst. Bakht Bina, on 04.08.2018, during the course of inquiry recorded their statements under section 164, Cr.P.C., stating therein that their deceased daughter had earlier married to one Umar Rahman, from whom she had a son and after divorce, she married to Zarif Khan some three years ago and though initially there was a happy life of them, however, recently a dispute has arose. It was stated that the accused Zarif Khan has taken Rs.1,00,000/- and other items on the promise that his divorced sister Mst. Yasmin Bibi would marry Akbar Ali, the son of complainant but said Mst. Yasmin Bibi was not ready, so, the complainant was demanding the return of the money etc. and on 21.07.2018, Zarif Khan conveyed the information of the death of their deceased daughter (his wife) due to poison, hence, they charged the accused/ respondent and the FIR (Ex.PA) was lodged.

3. On 16.08.2018, the respondent/ accused was arrested and after completion of his investigation, challan for trial was submitted before the learned trial Court. On 18.02.2019, charge was framed against him, however, he denied the allegation by claiming trial. The prosecution has examined 06 witnesses when in the meanwhile on 09.5.2019, the learned APP submitted an application under section 494 Cr.P.C for withdrawal from prosecution mainly on the ground that there is no probability of conviction of the accused in the case. The learned trial Court, after hearing the arguments, allowed the said application and acquitted the respondent/ accused vide its judgment dated 09.05.2019, hence, this appeal.

4. Though, learned counsel for the appellant is not before the Court, however, this appeal pertains to the year 2019, as such, it appears that the appellant has no interest in the case, therefore, arguments of the learned counsel for the respondent/ accused and the learned A.A.G were heard. Record perused.

5. We are conscious of the fact that the prosecution particularly the APP, who has submitted the application under section 4(1)(c)(ii) of the Khyber Pakhtunkhwa Prosecution Service (Constitution, Functions and Powers) Act, 2005, was not vested with the authority to move an application under section 494 Cr.P.C. for withdrawal from prosecution in a case involving an offence punishable with imprisonment exceeding seven years and even the Director General Prosecution was lacking the statutory competence to file such an application under the said provision, however, later under section 7 of the ibid Act, certain additional powers have been conferred upon the prosecution and clause (c) thereof explicitly empowers the Director General Prosecution to withdraw from prosecution in all other offences subject to prior approval of the Court. For ease, the relevant clause (c) of section 7 of the ibid Act is reproduced as under: "(c) a District Public Prosecutor in the case of offences carrying seven years or less imprisonment and the Director General for all other offences may withdraw prosecution subject to prior approval of the Court. Provided that prosecution of an offence falling under the Anti-Terrorism Act, 1997 (XXVII of 1997), shall not be withdrawn without prior permission in writing of the Secretary to Government, Home and Tribal Affairs Department." Thus, although the application for withdrawal from prosecution under section 494 Cr.P.C. submitted by the Assistant Public Prosecutor (APP) was procedurally defective due to the lack of his legal competence, irrespective of the powers vested in the Director General Prosecution under section 7(c ) of the Khyber Pakhtunkhwa Prosecution Service (Constitution, Functions and Powers) Act, 2005, however, this appeal is pending adjudication before this Court since 2019, therefore, in the interest of justice, we deem it necessary to scrutinize the impugned judgment to determine as to whether the reasons recorded for the acquittal constitute a misuse or abuse of judicial process/ authority. We are also inclined to examine as to whether the decision of learned trial Court was based solely on the grounds urged by the prosecution in its application under section 494 Cr.P.C., or as to whether the acquittal was otherwise supported by cogent and justifiable reasons derived from the evidence already recorded during trial by applying judicial mind. In essence, we aim to assess as to whether the findings of the learned trial Court would amount to thwarting the prosecution including the complainant or constitute an interference with the ordinary and fair dispensation of justice.

6. The record would show that that prior to the filing of the subject application, the prosecution had already examined six prosecution witnesses before the learned trial Court including the complainant Habib-ur-Rahman, father of deceased (PW-3) and Mst. Bakht Bina, the mother of the deceased (PW-4). All these were cross-examined by the defence at length. It was admitted by both PW-3 and PW-4 that they are not eye-witnesses to the occurrence. More-so, it also appears that the complainant (PW-3) and his wife (PW-4) have nominated the respondent/ accused for the alleged offence after a delay of 14 days, regarding which, no plausible explanation has been offered by the prosecution. Regarding the alleged motive, no reliance and convincing evidence was brought on record. In addition to that the lady Dr. Bushra Fazal Wahab, who was examined as PW-2, during her cross-examination, categorically stated that no signs of injury were found on the body of the deceased, thus, in such circumstances, the nature of death of the deceased as to whether it was a case of homicide or suicide is still a mystery. It was also noted by the learned trial Court in the impugned judgment that even if the remaining prosecution evidence is recorded even then there would still be no likelihood of conviction of the accused and as such it will be a futile exercise. On our own careful scanning of the available record especially the prosecution evidence already recorded including that of the star prosecution witnesses (PW-3 and PW-4), we would also concur with the said observation of the learned trial Court. It also transpires from the impugned judgment if read in juxtaposition with the already recorded evidence on file that the learned trial Court has not only considered the application submitted by the prosecution but has also given due weight to the evidence available on record. It is worth mentioning that the findings recorded in the impugned judgment by the learned trial Court are based on the provisions of section 265-K Cr.P.C., which empowers the Court to acquit an accused at any stage of the proceedings if it is of the opinion that even if the remaining evidence is brought on record, the result still would be acquittal. This power may also be exercised suo motu by the trial Court in appropriate circumstances without application by the accused. Section 265-K Cr.P.C., for ready reference, is reproduced 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." Thus, in the circumstances of the case, proceeding further with the trial of the respondent/ accused would be nothing but a futile exercise as well as the wastage of precious time of the Court. Reliance is placed on "Juma Khan v. Zarif and another" (2023 PCr.LJ 693 Peshawar) wherein acquittal of accused under Section 265-K, Cr.P.C was maintained by this Court by holding that: "Adverting to other questions, it appears from perusal of section 265-K, Cr.P.C. that the court has got ample power to acquit the accused even if witnesses are not examined. Provisions of section 265-K, Cr.P.C. are meant to prevent the rigorous of a protracted trial, when it is apparent from the record that there is no probability of the accused being convicted of the offence and further proceedings if allowed to continue would be an abuse of the process of the court."

7. Even otherwise, in light of the above-discussed prosecution evidence, it appears from the impugned findings that the powers under section 265-K Cr.P.C. have been exercised by the learned trial Court judicially because the accused has not merely been discharged but acquitted after framing of charge and recording necessary evidence, therefore, the impugned decision regarding the acquittal of the accused, in our firm view, is in line with the principles of law under section 265-K Cr.P.C. and the same has caused no miscarriage of justice, in the circumstances. Irrespective of the procedural irregularity pertaining to the withdrawal application under section 494 Cr.P.C., we are not inclined to remand the case to the learned trial Court, as doing so would just result in wastage of the precious time of the Court and the parties as well. We find no ground to reverse the impugned judgment in the interest of justice.

8. In light of the above, the learned trial Court has rightly evaluated the material on record especially the already prosecution evidence of the star witnesses in the case, thus, this appeal, being devoid of any merit, is hereby dismissed. JK/182/P Appeal dismissed.