NOWSHAD and another vs AMIR ZAMAN and 3 otherss

' IJAZ-UL-HASSAN KHAN, 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 F.I.R. No,33, dated 26-2-1998, under sections 302/109/148/149, P.P.C. 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 Session. 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 /Zila 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 Amirzaman/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 Lah. 323; 1999 MLD 3330 (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 malicious 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, Naushad 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, Javed, 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 accomplice 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.