ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT,

HYDERABAD.

Cr.Rev Appl. No.D-186 of 2013.

 

DATE                         ORDER WITH SIGNATURE OF JUDGE

                                                                             Present:

                                                                                    Mr.  Justice  Nadeem  Akhtar.

                                                                                    Mr. Justice Shahnawaz Tariq.        

1. For Katcha Peshi

2. For hearing of MA 6391/2013.

 

Date of hearing:-   15.01.2014.

 

Mr. Tahseen Ahmed Qureshi Advocate for the applicants.

Mr. Muhammad Iqbal Kalhoro Addl. P.G.

                             ===

 

SHAHNAWAZ TARIQ- J:     Through instant Cr. Rev. Application the applicants have assailed the impugned order dated: 08.11.2013 passed by the learned Judge, Anti-Terrorism Court Mirpurkhas in Special Case No.07/2012, whereby the application filed by the applicants u/s 265-K Cr.P.C was declined.

2.       Relevant facts leading to the instant revision application are that on 13.07.2012 complainant Muhammad Shahid Malik lodged FIR bearing No.76/2012 at Police Station Satellite Town, Mirpurkhas, u/s 365, 344, 34 PPC, alleging therein that on 24.05.2012, he was informed by Farooque Malik, Malik Ashraf, Asif Qureshi and Waseem that on said day they were available at the Hotel, when at 2100 hours, accused DSP Abid Qaimkhani, SIP Amin Mari, SIP Amir Azam Shah, SIP Ghulam Mustafa Thebo, Constable Zulfiqar Karo, Constable Sabir Zaman, Constable Saeed, Constable Rehmatullah, Constable Wikki and constable Imamuddin came there and abducted Aftab, Zulfiqar and Sabir Zaman  in their vehicles and on their resistance, they issued deadly threats and went away towards Hyderabad road. On next day, DSP Abid Qaimkhani called the complainant party at P.S. Satellite Town and demanded amount of Rs.30,00,000/- for release of Aftab else threatened to kill him. The complainant party remained in negotiation with DSP Abid Qaimkhani through Zulfiqar Karo and finally amount of Rs.10,000,00/-was settled. The complainant party paid the aforesaid amount to above named DSP Abid Qaimkhani and Amir Azam Shah and they informed him that abductee will be released at Al Falah Hotel/pump. The complainant party reached at Al Falah Hotel Qasimabad, Hyderabad, where abductee was dropped from the car and accused fled away.

3.       After completion of investigation, the case was challaned before the learned Anti Terrorism Court Mirpurkhas. The case was proceeded against remaining co-accused, whereas the present applicants were declared proclaimed offenders.

4.       After examining all main witnesses including the abductee, the prosecution closed the side, and after recording statements of  accused persons, the learned trial court vide Judgment dated: 30.03.20113 convicted co-accused DSP Abid Qaimkhani and Inspector Ameer Azam Shah u/s 365-A, 34 PPC and section 7(e) of Anti Terrorism Act, 1997 to suffer R.I. for life, whereas co-accused Inspector Ghulam Mustafa, Police constables Imamuddin, Muhammad Saeed and Muhammad Shakir alias Viky were acquitted by extending benefit of doubt and case against the present applicants was ordered to be kept on dormant file.

5.       The applicants filed bail before arrest application before this court and also attached affidavits of abductee Muhammad Aftab (PW-1) and complainant Muhammad Shahid (PW-8), whereby they both have not involved the present applicants regarding the commission of the alleged offence.

6.       Learned counsel for the applicants contended that applicants are innocent and have been falsely implicated in the present case. The FIR was registered with delay of one and half month without any plausible explanation. There is no direct or indirect evidence connecting the applicants with the alleged incident, even then on the directions of Honourable Supreme Court, an inquiry was conducted by the SDPO Sindhri who submitted his report that there was no truth in the allegations leveled against the police officials regarding the abduction of the detenue and receiving of ransom amount. He further contended that two accused were sentenced to suffer life imprisonment, but they were also acquitted by this court by allowing their appeal. Learned counsel further submitted that the charge is groundless and there is no probability of applicants/ accused being convicted. He also argued that the complainant and abductee had filed their affidavits before the trial court alongwith application under section 265-K, Cr.P.C. moved by the present applicants, whereby they extended no objection if the applicants are acquitted. He prayed for setting aside the impugned order and acquittal of the present applicants. In support of his contentions, learned counsel for the applicant has relied upon 2013 P Cr. L J 1037(SC AJ & K),  2012 P Cr. L J 999(Sindh), 2009 YLR 169(Karachi), 2005 YLR 2800(Pesh), 1994 SCMR 798, PLD 1999 SC 1063, PLD 2008 Kar 310, 2011 SCMR 508 and 1995 P Cr. L J 1424 (Karachi).

7.       Conversely, learned Addl. P.G opposed this Cr. Revision Application and contended that the applicants remained absconder and fugitive of law, therefore, they are not entitled for any relief. He further submitted that applicants are nominated in the FIR, therefore, they have to undergo trial before the learned trial court.

8.       We have heard learned counsel for the parties and examined the material available on record. It has transpired that in result of lodging of subject FIR by the complainant, 10 accused persons were challaned to face their trial in accordance with law. The learned Anti Terrorism Court Mirpurkhas conducted trial against seven accused/ police officials, however, the rest of three police constables namely Zulfiqar Ali Karo, Sabir Zaman and Rehmatullah, the present applicants were declared proclaimed offenders and their case was kept on dormant file till their arrest. The learned trial court while concluding the trial convicted accused DSP Muhammad Abid Qaimkhani and Inspector Amir Azam Shah for the offences punishable under section 365-A read with section 34, PPC and section 7 (e) of Anti Terrorism Act, 1997, however, Inspector Ghulam Mustafa, SIP Muhammad Amin, PCs Imamuddin, Muhammad Saeed and Muhammad Shakir @ Viki were acquitted by extending benefit of doubt vide judgment dated 30th March, 2013.          Thereafter appellants/accused DSP Muhammad Abid and Inspector Amir Azam Shah filed Special A.T.A. Appeal No.D-24 of 2013 before this court and after hearing the parties at length, this court allowed the aforesaid appeal vide order dated: 30.5.2013, whereby the impugned judgment dated 30.3.2013 passed by learned Anti Terrorism Court was set aside and the both the appellants were acquitted. The operative part of the order passed by this Court is reproduced as under:-

“27. Having considered the above contentions of the learned counsel for the respective parties, we are of the opinion that since the direct evidence have miserably failed, hence conviction cannot be based on hearsay evidence.

28. Abductee, who remained with the Abductors for about 13/14 days did not support so also the complainant, who paid the ransom money to the Appellants /Accused persons, did not support the prosecution case. Then what else remains to convict the accused persons on merely surmises. The learned trial Court always should act on the evidence which is placed before it and should not be influenced by other material which apparently not tangible to the facts and circumstances of the case in hand. For example, the alleged incident occurred on 24.5.2012, but the same was reported on 13.7.2012 without any plausible explanation.

29. We fully agree with the contentions of the learned counsel for the appellants/ accused persons, that this is a case of no evidence.”

9.       We have also observed that after grant of bail by this Court, the present applicants moved application under section 265-K Cr.P.C before the trial  Court for their acquittal from the charge in the light of acquittal order passed by this court dated 30.5.2013, but the trial Court declined the aforesaid application of the present appellants with observation that the earlier evidence was recorded in absence of present applicants/accused and nothing had been brought on record for or against any of them.

10.     It is worthwhile to mention here that five co-accused were acquitted by the trial court vide judgment dated 30.3.2013 after recording the evidence/statements of nine (09) witnesses, however, the trial court convicted only two accused persons i.e. DSP Muhammad Abid and Inspector Amir Azam Shah against whom there were allegations of alleged abduction of abductee and ransom amount, but they were also acquitted by this court vide order dated 30.5.2013 passed in Special ATA Appeal No.D-24 of 2013. It appears from the record that the complainant Muhammad Shahid and abductee Muhammad Aftab had also filed their affidavits before the learned trial Court, in which they extended no objection for allowing application under section 265-K, Cr.P.C. but even then the same were also not taken into consideration by the trial court.

11.     We are also of the firm view that considering the above iota of evidence already adduced by the prosecution, both the main convicted accused have already been acquitted by this court. In the present scenario the recording of evidence afresh against present applicants/ accused against whom no serious allegations have been alleged in the FIR or other material collected by the prosecution, the proceeding of the trial of the case against the present applicants afresh would be a futile exercise and there appears no probability of their conviction in the present crime, as the trial court while passing impugned judgment has totally ignored the findings of this court as mentioned above, whereby the Special Appeal filed by both convicted accused persons was allowed.

12.     The purpose of provisions of section 265-K, Cr.P.C is very much clear and it never prevents a court from acquitting an accused at any stage of the case; if, after hearing the prosecution and the accused and for the reasons to be recorded, the court considers that there is no probability of the accused being convicted of the offence alleged against him. Though there is no legal embargo for exercising of powers conferred under this section, but even then the Court can not deprive the prosecution by giving an opportunity to produce tangible evidence under the garb of Section 265-K, Cr.P.C, therefore, it is mandatory for the Court that such discretion must be based on reasons exercised with due care and caution with sole object to prevent fruitless trial when it is apparent from the record that there is no probability of the accused being convicted of the offence.

13.     In view of above discussion, we have no hesitation in our mind that if the material available with the prosecution against the present applicants in shape of FIR, statements of PWs under section 161 Cr.P.C and evidence of PWs recorded by the trial Court are believed in toto, even then the same would not be able to establish the charge alleged against the present applicants/accused and there would be no probability of their being convicted of the alleged offence, therefore, recording of entire evidence afresh will be a wastage of time and no useful purpose would be served.       Consequently, the instant Cr. Revision application is allowed as prayed and the impugned judgment dated: 08.11.2013 passed by the learned trial court is hereby set-aside and applicants are acquitted from the charge, their bail bond stand cancelled and surety is discharged.

                                                                             JUDGE

 

                                                                   JUDGE