Assadullah Versus State

Order

Ali Baig, C.J .--- The petitioners/accused have filed the instant petition under section 561-A Cr.P.C acquittal of the accused/petitioners in criminal case FIR No. 211/2022 registered under sections 494, 365-B/34, 109, 420, 468, 471, 496-A P.P.C. at Police Station Jutial Gilgit and seek their acquittal from the charges.

2. The facts of the case narrated in the FIR are that complainant namely Ahmed Ali son of Muhammad Ali Akhtar resident of Gulmat Nagar presently at Riaz road Jutial Gilgit has lodged a complaint before the SHO P.S Jutial Gilgit stating therein that he has got married with Mst. Kulsoom daughter of Wahab Ali on 08th March 2022 and on day of occurrence i.e 19-12-2022 she went outside from her house after hearing voice of horn of vehicle and after that she did not return back and complainant searched her but he did not find her outside of the house. The complainant named one Mubashir son of Siraj Uddin resident of Yadgar Mohallah as suspect in the said application submitted to the SHO.

3. After receipt of the complaint the SHO concerned registered the above mentioned FIR and started the investigation of the case, arrested the present petitioners/ accused and their co-accused. After completion of usual investigation the SHO concerned has got committed the present petitioners/ accused to judicial lock-up and submitted incomplete challan of the case against the petitioners/ accused and their co-accused before the competent Court of jurisdiction for trial of accused.

4. It is pertinent to mention here that during proceedings before the learned trial Court the present petitioners / accused had filed an application under section 265-K Cr.P.C before the learned trial Court/ Sessions Judge Gilgit seeking their acquittal in the above mentioned criminal case. The learned District and Sessions Judge, Gilgit after hearing the arguments on behalf of learned counsel for the parties has dismissed the application filed by the present petitioners/accused under section 265-K Cr.P.C vide order dated 30-09-2023 passed in Cr. Misc No. 63/2023.

5. Feeling aggrieved and dissatisfied with the impugned judgment/ order passed by the learned trial Court the petitioners/ accused have preferred the instant petition under section 561-A Cr.P.C before this Court for acquittal of the petitioners/ accused.

6. The learned counsel for the petitioners/accused argued that the petitioners/ accused are innocent and the police have malafidly and falsely involved them in this case. The learned counsel for the petitioners/accused further argued that the petitioners/ accused are not directly nominated in the FIR and no eye-witness is available with the prosecution to connect the accused/ petitioners with the alleged crime. The learned counsel for the petitioners/accused further submitted that the alleged abductees had filed an affidavit before the learned Magistrate Dassu Kohistan stating therein that she has got married with one Mubashir on her own free will and consent and she has not abducted by any person. The learned counsel for the petitioners/accused further submitted that offence under sections 365-B and 494 P.P.C. do not attract to the case of the petitioners/ accused. The learned counsel for the petitioners/accused further submitted that nothing has been recovered from the possession of the petitioner/ accused. The learned counsel for the petitioners/accused further submitted that there is no probability of conviction of accused/ petitioners if full-fledged trial is conducted by the trial Court. The learned counsel for the petitioners/accused lastly submitted that the instant petition be allowed and the accused/ petitioners may be acquitted from the case in the interest of justice.

7. On the other hand, the learned Dy. Advocate General assisted by learned counsel for the complainant controverted the arguments advanced by the learned counsel for the petitioners/accused by contending that the vehicle has been recovered from the house of present petitioners/ accused. The offences with which the accused/petitioners are charged are heinous in nature and petitioners and their co-accused have committed an offence of moral turpitude. The learned Dy. Advocate General and learned counsel for the complainant further contended that accused/petitioners are fully involved in the abduction of weded wife of complainant. The learned Dy. Advocate General and learned counsel for the complainant further submitted that the trial of case has commenced and charge has been framed against the petitioners and the case is fixed for prosecution evidence as such the instant petition at this stage is not maintainable and liable to be dismissed. The learned Dy. Advocate General and learned counsel for the complainant further contended that the petitioners/accused has committed an offence against society and prima facie there are sufficient material on record to connect the petitioners/ accused with the alleged offence, therefore, they are not entitled for acquittal.

8. I have heard arguments advanced by the learned counsel for the parties and perused the available record of the case with their able assistance.

9. Admittedly challan/ final police report has been submitted in the Court of competent jurisdiction against the accused/ petitioners and their absconding co-accused charge against the present petitioners has been framed by the trial Court as admitted by both the parties and trial of accused/ petitioners has commenced. The principal accused namely Mubashir and Kulsoom Tabusum have absconded immediately after the occurrence and their names have been disclosed in the column No.2 of incomplete Challan. The vehicle which was used in the occurrence has been recovered from the house of the present petitioners/ accused as evident from recovery memo. Usually the criminal case should be allowed to be disposed of on merit after recording of prosecution evidence, statement of accused under section 342 Cr.P.C, if so desired and hearing final arguments of both the parties. Provisions of sections 265-K, 249-A and 561-A Cr.P.C should not normally be passed into action for deciding the fate oft criminal case. Moreover, the trial Court is fully competent to apprise analysis and scrutinize the prosecution evidence with a view to find out whether the charge is groundless or that there is no satisfactory and reliable evidence to establish the guilt of the accused. However, there are more accused them one and one of them move an application under section 265-K Cr.P.C then in such a situation the approach of Court to analysis and apprise the evidence would be different from the one where is only one accused is facing trial. In the instant case two accused have yet not been arrested and prosecution has to produce about 20 witnesses to prove allegations against the present petitioners/ accused. As such acquittal of accused / petitioners at this stage will definitely prejudice the case of co-accused.

10. For what has been discussed above, this petition being bereft of merit is hereby dismissed.

11. Needless to mention here that the observations made herein above are tentative in nature and the learned trial Court may not be influenced and it shall decide the matter / case strictly in-accordance with law and merit of case. File.

MQ/10/GB Petition dismissed.