NAUSHAD and another vs AMIR ZAMAN and 3 others
This criminal appeal arises from an order of acquittal passed under Section 265-K of the Code of Criminal Procedure 1898 in a case involving charges under Sections 302, 109, 148, and 149 of the Pakistan Penal Code 1860. The accused-respondents were tried for the murders of two young boys, but the trial court acquitted them after concluding that there was no incriminating material or possibility of conviction. The aggrieved fathers filed a quashment petition, which was converted into an appeal under Section 417(2-A) of the Code of Criminal Procedure 1898. The core legal questions involved the maintainability of the appeal on grounds of limitation, the competence of a compromise, and the proper scope of acquittal under Section 265-K. The Peshawar High Court dismissed the appeal, holding that the appeal was barred by time and that no incriminating material existed on record to connect the respondents with the crime, leaving no possibility of conviction. The court affirmed that Section 265-K is an exception meant to protect against malicious prosecution and applies when there is no probability of conviction based on the evidence.
- Whether an appeal against acquittal is maintainable when filed after the expiry of the statutory period of limitation?
- When can a trial court acquit an accused person under Section 265-K of the Code of Criminal Procedure 1898?
- Does Section 265-K of the Code of Criminal Procedure 1898 apply where there is no possibility of the accused being convicted of the offence charged?
- Section 302, Pakistan Penal Code 1860
- Section 109, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 265-K, Code of Criminal Procedure 1898
- Section 561-A, Code of Criminal Procedure 1898
- Section 417(2-A), Code of Criminal Procedure 1898
Ijaz-ul-Hassan, J.--Accused-respondents Amir Zaman (since dead), Gulab son of Mira Khan and his brother Daud, residents of Barawal Bandi, District Dir, were tried by learned District and Sessions Judge/Zila Qazi Dir at Timergara, in case FIR No, 33 dated 26.2.1998, under Sections 302/109/ 148/149 PPC, Police Station, Munda, District Dir, on the allegation of having committed murders of Asil Zada son of Naushad and Zakirullah son of Behramand, aged about 10/12 years, nephews of Muhammad Sher complainant.
2. The accused-respondents were arrested on 11.11.2000, when their pre-arrest bail was not confirmed by the Court of sessions. Supplementary challan against accused-respondents was submitted on 30.1.2001. Resultantly, accused-respondents were acquitted under Section 265-K Cr.P.C. vide order dated 30.1.2001, recorded by Mr. Amir Gulab Khan, the then District and Sessions Judge/Zilla Qazi, Dir at Timergara. Naushad and Behramand, fathers of the deceased, feeling aggrieved, filed quashment petition under Section 561-A Cr.P.C. before this Court, which was converted into appeal under Section 417(2-A) Cr.P.C, subject to all just and legal exceptions. During the pendency of appeal Amir Zaman accused-respondent expired and the appeal to his extent stood abated, by order dated 15.3.2006.
3. Qazi Zakiuddin, Advocate appearing on behalf of the appellants, assailed the impugned order of acquittal and attempted to argue that complainant Sher Muhammad, only lodged the report and he was not competent to effect compromise with the accused-respondents and that in view of the material available on record, learned trial judge had no justifiable reason to accept application and acquit accused-respondents under Section 265-K Cr.P.C.
4. As against that, Mr. Shah Nawaz Khan, Advocate. representing the State, assisted by Mr. Atlas Khan Dagai. Advocate, for accused-respondents Gulab and Daud, raised a preliminary objection regarding maintainability of the appeal on the ground that appeal has been filed after expiry of statutory period of limitation and deserves dismissal on this score alone. He placed reliance on PLD 1971 Lahore 323, 1999 M LD 330 Karachi and 2002 PCr.LJ. 806 Karachi. The Learned counsel also submitted that there is absolutely nothing on the file which could connect accused-respondents with the commission of crime 'which obliged the complainant to effect compromise with accused- respondents and the impugned order of acquittal is not open to legitimate exception.
5. We have heard at length arguments of Learned counsel for the parties in the light of the material on record.
6. Section 265-K Cr.P.C. is an exception and the same has to be construed strictly. The section has been primarily enacted to save an accused person from malice prosecution. Accused may be acquitted under this section where on the evidence on record, there is no possibility of the accused being convicted of the offence he is charged with. Where trial Court during process of trial comes to the conclusion that there was no evidence worth the name against accused, he may acquit him.
In the instant case, after 39 days of the recording of the report, Nausha d and Behramand, fathers of the deceased were informed that the dead body of Asil Zada has been found in river Panj Kor.
After one year and a half, one Javed was taken into custody by the police. During investigation, he charged accused-respondents and others for the commission of offence. Admittedly, all the main witnesses have been examined in this case but none out of them has supported the case of the prosecution. The remaining .witnesses, who are yet to be examined, are only formal witnesses and their evidence even if brought on record, is not going to improve the case of the prosecution. As stated above, Jived, Said Rehman and others have been acquitted under Section 265-K Cr.P.C. It is submitted by learned counsel for the appellants that appeal against acquittal of Javed and his accomplices is pending in this Court. On inquiry, the Court was informed that no such appeal is pending. Having considered the matter from all angles, we are of the view that on the one hand appeal is barred by time and on the other, no incriminating material has been brought on record to implicate accused-respondents with the commission of crime. The impugned order is unexceptionable and hardly requires interference of this Court. The appeal fails, which is hereby dismissed.