2013 P Cr. L
J 1037
[Supreme
Court (AJ&K)]
Present Ch.
Muhammad Ibrahim Zia and Sardar Muhammad Sadiq Khan, JJ
FAYYAZ KHAN
and another---Appellants
Versus
WASIM KHADIM
and 3 others---Respondents
Criminal Appeal
No.13 of 2011, decided on 14th December, 2012.
(On appeal from the judgment of the Shariat Court dated 13-4-2011 in Criminal Revision
No.170 of 2010.)
(a) Criminal
Procedure Code (V of 1898)---
----S. 561-A--- Quashing of
proceedings---Powers of court---Courts i.e., Magistrate, Sessions Court and High
Court/Shariat Court could quash any criminal proceedings under the statutory
provisions keeping in view the principles laid down therein.
Muhammad Khalid
Mukhtar v. The State PLD 1997 SC 275 and Ashiq Ali Bhutto's case 1993 SCMR 523
distinguished.
(b) Criminal
Procedure Code (V of 1898)---
----S.
249-A---Power of Magistrate to acquit accused---Magistrate could acquit an
accused at any stage of the case, if after hearing the prosecutor and accused,
and for the reasons to be recorded, he considered that the charge was
groundless, or there was no probability of accused being convicted.
(c) Criminal
Procedure Code (V of 1898)---
----Ss. 249-A
& 265-K---Power of court to acquit accused---Court could acquit an accused
at any stage of the case, if after hearing the prosecutor, accused and for the
reasons to be recorded court considered that there was no probability of
accused being convicted---Magistrate or a court, could acquit accused, but
condition precedent was that either the Magistrate or the court would record
the reasons while acquitting accused---While exercising powers under S.265-K,
Cr.P.C., court while acquitting accused, would hear the prosecutor, accused and
take into consideration the overall facts/circumstances and evidence brought on
record---If the court, on the basis of evidence brought on record, would come
to the conclusion that there was no likelihood of accused being convicted, then
court could acquit accused---Court while acquitting accused, would record the
reasons.
Qurban Ali Jatoi
v. The State and others 2003 YLR 1208 and The State through Advocate-General,
Sindh High Court of Karachi v. Raja Abdul Rehman 2005 SCMR 1544 rel.
(d) Penal
Code (XLV of 1860)---
----Ss. 302,
322, 337-V, 451, 109 & 34---Pakistan Arms Ordinance (XX of 1965), S.13---Qatl-e-amd,
qatl-bis-sabab, causing fracture of the skull, house-trespass, abetment, common
intention, possessing unlicensed arms---Appreciation of evidence---Prosecution
had collected sufficient material against accused, but Trial Court did not
frame charge under S.242, Cr.P.C. and without recording any reason discharged accused---Two co-accused were infirm
persons of 80 and 70 years, they had been implicated in the case merely being
parents of the principal accused---Prosecution failed to collect any evidence
against said co-accused---Judgments of the Trial Court as well as that of the
Shariat Court, were maintained to the extent of both co-accused, and while partially accepting appeal to the extentof principal accused, judgments of both
courts below were set aside, in circumstances.
Raja Sajjad
Ahmed Khan, Advocate for Appellants.
Barrister Humayun Nawaz, Advocate for
Respondents Nos.2 and 3.
Ch. Shoukat
Aziz, Additional Advocate-General for the State.
Date of hearing:
4th December, 2012.
JUDGMENT
SARDAR MUHAMMAD
SADIQ KHAN, J.---The
captioned appeal is addressed against the judgment of the Shariat Court dated 13-4-2011, whereby
criminal revision filed by the complainant-appellants, has been dismissed.
2. The precise summary of facts necessary
for disposal of this appeal is that a case under sections 302, 337-V and 109,
A.P.C. was registered against the accused-respondents on 5-2-2010 at Police
Station, Thorar, under F.I.R. No.8 of 2010. The Police registered the case and
after investigation, found the accused-respondents guilty of the offences and
submitted challan under sections 302, 322, 337-V, 451, 109, 34, A.P.C. and
section 13 of Arms Act, 1965 against the accused to face the trial before the
Court of competent jurisdiction. The complainant moved an application on
10-6-2010, wherein it was prayed that the accused, Wasim Khadim, may be
charge-sheeted under section 302, A.P.C. After hearing the learned counsel for
the parties, the trial Court discharged the accused-respondents from the
offences in which they were challaned vide order dated 10-6-2010. The
complainant-appellants, feeling dissatisfied from the order of the trial Court
approached the Shariat Court through Criminal Revision No.170 of 2010. The
learned Judge in the Shariat Court, after hearing the learned counsel or the,
parties, dismissed the revision petition, hence this appeal.
3. Raja Sajjad Ahmed Khan, the learned
counsel for the complainant-appellants, after brief statement of facts
seriously attacked the impugned judgment of the Shariat Court. He argued that
the judgment of the Shariat Court is not maintainable on the ground that the
evidence collected by the Investigating Officer clearly reveals that the
accused-respondents were fully involved in the alleged offences but both the
Courts below have failed to examine the evidence. He next argued that
respondent No.1., Wasim Khadim, was responsible for the occurrence and due to
his illegal acts the murder of Mst. Misbah Khatoon was committed, but both the
Carts below have failed to appreciate the facts of the case. Both the Courts
below have also failed to appreciate that sections 322 and 451, A.P.C. were
fully attracted against the accused-respondents. He further argued that the
complainant-appellants filed an application before the learned District
Criminal Court for framing the charge against the respondents under section
302, A.P.C., but the lower Courts have neither considered the application nor
disposed off the same in accordance with law. The learned Judge in the Shariat
Court has failed to appreciate the scope of sections 249-A and 265-K, Cr.P.C.
He further argued that without recording the evidence, the findings of the
trial Court as well as the Shariat Court are premature, therefore, the
judgments of both the Courts below are not maintainable. He lastly argued that the order of the learned Shariat Court dated 13-4-2011 as well as that of the
District Criminal Court dated 10-6-2010 may be set aside and the trial Court
may be ordered to proceed in accordance with law.
4. While controverting the arguments of
the-learned counsel for the appellants, Barrister Humayum Nawaz, the learned
counsel for accused-respondents Nos.2 and 3, forcefully defended the impugned
judgment of the Shariat Court. He argued that the instant appeal is not appeal in
its present form. The complainant-appellants have challenged an order of the
Hon'ble Shariat Court under the provisions of section 25 of the Islamic Penal
Laws (Enforcement) Act, 1974. This order was only challengeable in revisional
jurisdiction of this Court and not in appellate jurisdiction. The appeal merits
dismissal on this sole ground. He further argued that the accused-respondents
Nos.2 and 3, who are parents of the principal accused, have been roped in the
case just to take revenge and put the whole family under a huge burdon. He
further argued that the prosecution failed to collect even single evidence
against these accused-respondents. He further submitted that the prosecution
has badly failed to bring on record any material to connect the accused-respondents
Nos.2 and 3 with the alleged offences because it is not a case of prosecution
that the accused-respondents Nos.2 and 3 are the abettor of the alleged
offences. Even if at all the allegation levelled in the F.I.R. is accepted then
too the Courts have to see whether the constituent elements for attraction of
section 107, A.P.C. are, prima facie, made out or not. The learned counsel
further argued that the application of section 109, A.P.C. is not attracted in
the instant case because to attract the said section, premeditation and common
intention is the foremost requirement, which is missing in the instant case.
The case of prosecution is simply that at the place of occurrence only four
persons, namely, Basharat, Wasim, Talib and victim were present and the reasons
advanced by the prosecution for alleged murder is illicit relations of Wasim,
accused-respondent No.1, with the victim. Nothing has been brought on record by
the prosecution which suggests that accused-respondents Nos.2 and 3 had prior meditation
with the principal accused, therefore, the application of section 109, A.P.C.
is not justified to the extent of accused-respondents Nos.2 and 3. He next
argued that no illegality has been committed by the Shariat Court while passing
the impugned order to the extent of accused-respondents as there is no
likelihood of their conviction even after appreciating all the evidence against
them. He lastly argued that the Courts below have acquitted accused-respondents
Nos.2 and 3 quite in accordance with law, therefore, the orders of the Courts
below need no interference by this Court, hence, the appeal filed by the
complainant-appellants may be dismissed.
5. We have heard the learned counsel for
the parties and also minutely perused the record as well as the judgments of
the Shariat Court and that of the District Criminal Court, Rawalakot. The
District Criminal Court, Rawlakot admitted the facts of the case and
allegations levelled by the prosecution but decided the matter on the basis of
the offence under which the accused-respondents were challaned. The District
Criminal Court, while reproducing section 322, A.P.C. in verbatim and
illustrating the same, has disagreed with the version of the prosecution and
discharged the accused-respondents of the alleged offences. The District
Criminal Court, without assigning any cogent reasons to be recorded has passed
the order dated 10-6-2010 and the Shariat Court
has concurred with the District Criminal Court on the same line. The conclusion
drawn by the learned Shariat Court is reproduced as under:--
"A careful
consideration of the record reveals that the trial Court has rightly discharged
the accused-respondents after examining the police record and the challan file
after due consideration of the facts and circumstances of the present case. The
same like proposition in a case titled "Muhammad Khalil Mukhtar v. The
State" [PLD 1997 SC 275]. Dealing with sections 249-A and 265-K, Cr.P.C. a
learned Bench of this Court observed in the case of Ashiq Ali Bhutto (1993 SCMR
523), as below:--
"It is
obvious that the legislature in its wisdom did not leave the question of
recording of the evidence as a condition before taking action under either of
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 itcould
be a middle stage after recording some
proceedings and/or even, it could be later stage as well."
In view of above
observation, the trial Court has rightly been recorded the impugned order in
right direction, which warrants no interference by this Court. No patent or
latent illegality having been found in the impugned order, therefore, the same
is allowed to stand."
It may be
observed that the case law referred to and relied upon by the Shariat Court is
not applicable to the facts and circumstances of the case in hand rather the
same supports the version of the prosecution. It is settle principle that the
Courts i.e. Magistrate, Sessions Court and High Court/Shariat Court can quash
any criminal proceeding under the statutory provision keeping in view the principles laid down
therein. For ready reference, it would be appropriate to reproduce here sections 249-A, 265-K and 561-A,
Cr.P.C. to resolve the controversy.
"249-A
Power of Magistrate to acquit accused at any stage.---Nothing in this Chapter
shall be deemed to prevent a Magistrate from acquitting an accused at any stage
of the case, if after hearing the prosecutor and the accused and for reasons to
be recorded, he considers that the
charge is groundless or that
there is noprobability of the accused being convicted of any offence.
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.
561-A---Saving
of inherent power of High Court. Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such
orders as may be necessary to give effect to any order under this Code, or to
prevent abuse of the process of any Court or otherwise to secure the ends of
justice."
From the perusal
of section 249-A, it is clear that a Magistrate can acquit an accused at any
stage of the case if after hearing the prosecutor. and the accused and for
reasons to be recorded, he considers that the charge is groundless or there is
no probability of the accused being convicted. Likewise, under section 265-K,
Cr.P.C, the Court can acquit an accused at any stage of the case if after
hearing the prosecutor the accused and for reasons to be recorded, it considers
that there is no probability of the accused being convicted. In both the
statutory provisions reproduced hereinabove, it is crystal clear that a
Magistrate or the Court, as the case may be, can acquit an accused but a
condition is precedent that either, Magistrate or the Court shall record the reasons while
acquitting the accused. The intention of this section is very much clear that
while exercising powers under this section the Court while acquitting an
accused shall hear the prosecutor, the accused and shall also take into
consideration the overall facts/circumstances and the evidence brought on
record. If the Court, on the basis of evidence brought on record; comes to the
conclusion that there is no likelihood of the accused being convicted, then the
Court can acquit an accused, however, while acquitting the accused/the Court
shall record the reasons. We are fortified in our view from the cases reported
as Qurban Ali Jatoi v. The State and others [2003 YLR 1208] and The State
through Advocate-General, Sindh High Court of Karachi v. Raja Abdul Rehman
[2005 SCMR 1544]. The perusal of record shows that the prosecution has
collected sufficient material against accused-respondent No.1, Wasim Khadim and
the District Criminal Court, Rawalakot didn't bother to frame charge under
section 242, Cr.P.C. and without recording any reason discharged the accused.
6. So far as the case of
accused-respondents Nos.2 and 3 is concerned, they are infirm persons of age of
80 and 70. They have been implicated in the case merely being parents of the
principal accused. The prosecution failed to collect any iota of evidence
against these accused-respondents. The result of the above discussion is that
the judgments of District Criminal Court, Rawalakot dated 10-6-2010 as well as
that of the Shariat Court dated 13-4-2011 are maintained to the extent of
accused-respondents Nos.2 and 3 and while partially accepting the appeal to the
extent of accused-respondent No.1, judgments of District Criminal Court,
Rawalakot dated 10-6-2010 as well as that of Shariat Court dated 13-4-2011 are
set aside.
With these
observations, this appeal is disposed of.
HBT/39/SC(AJ&K) Order accordingly.
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