Pakistan Case LawWaqas Younus Versus Arshad Khan alias Kala
This criminal appeal was filed against the order of the Additional Sessions Judge, Kotli, which acquitted the accused/respondent under Section 265-K of the Code of Criminal Procedure 1898 pursuant to a private complaint. The core legal question before the High Court of Azad Jammu and Kashmir was whether the trial court was justified in exercising premature acquittal powers under Section 265-K of the Code of Criminal Procedure 1898 at a stage when prosecution evidence had already been concluded and the statement of the accused under Section 342 had been recorded. The High Court set aside the impugned acquittal order and remanded the case for a fresh decision in accordance with law. It held that although Section 265-K allows acquittal at any stage if there is no probability of conviction, such statutory power should not be exercised when the trial has reached its final stage. Instead, the trial court is obligated to decide the case on the merits after a proper appreciation of the recorded evidence.
- Can a trial court exercise powers of acquittal under Section 265-K of the Code of Criminal Procedure 1898 when the trial is at its final stage and prosecution evidence is complete?
- Is premature acquittal under Section 265-K of the Code of Criminal Procedure 1898 justified without a proper appreciation of the recorded evidence after the accused's statement under Section 342 has been recorded?
- Whether an application under Section 265-K of the Code of Criminal Procedure 1898 is feasible when the accused has already indicated an intent to record a statement under Section 340(2) of the Code of Criminal Procedure 1898?
Chaudhary Khalid Rasheed, J .---
Foreword:
The supra titled appeal has been brought against the order dated 28.04.2025 passed by learned Additional Sessions Judge Kotli whereby the accused/respondent has been acquitted of the charge under section 265-K Cr.P.C.
Facts briefly stated are, appellant herein filed a complaint under section 203 Cr.P.C. against respondent No.1 in the Court of Additional Sessions Judge Kotli and levelled allegation that respondent No.1 has illegally occupied houses of the complainant and proforma respondents in garb of a contract. During trial of the case the accused/respondent filed application under section 265-K Cr.P.C., the other side filed objections on the application. The learned court below after hearing arguments on the application accepted the same and acquitted the accused/respondent under section 265-K Cr.P.C. through the impugned order dated 28.04.2025, hence the captioned appeal.
STANCE OF THE APPELLANT:
The learned counsel for the appellant vehemently argued that in the complaint filed by the appellant the prosecution evidence has been recorded and even statement of the accused under section 342 Cr.P.C. has also been recorded, thus the acquittal of the accused under section 265-K Cr.P.C. was not justified. The learned advocate further argued that the Court below while passing the impugned order has not pondered the evidence of the prosecution, thus requested for the acceptance of the captioned appeal.
REFUTATION OF THE RESPONDENTS:
The learned counsel for the respondents supported the impugned order on all counts by submitted that the accused and the complainant are collateral and co sharers thus, the complaint under section 203 Cr.P.C. was not maintainable and prayed for the dismissal of the instant appeal.
I have heard the learned counsel for the parties, gone through record of the case with due care and caution.
COURT OBSERVATIONS AND RELEVANT LAW:
No doubt, under section 265-K Cr.P.C. an accused can be acquitted of the charge at any stage of the proceedings if after hearing the prosecutor, accused and for the reasons to be recorded the Court is of the opinion that there is no probability of the accused being convicted of any offence, however the words "there is no probability of accused being convicted of any offence" used in the said section suggests that if the case is at final stage then the powers under section 265-K Cr.P C. should not be exercised rather the Court should decide the case after proper appreciation of evidence. Reliance may be placed on 2005 SCMR 1544 , wherein at page 1553 it has been observed as under:
"It is, however, to be noted that though there is no bar for an accused person to file application under section 249-A, Cr.P.C. at any stage of the proceedings of the case yet the facts and circumstances of the prosecution case will have to be kept in mind and considered in deciding the viability or feasibility of filing an application at any particular stage. The special or peculiar facts and circumstances of a prosecution case may not warrant filing of an application at a stage when the entire prosecution evidence had been recorded and the case was fixed for recording of statement of the accused under section 342 Cr.P.C."
As the case was at final stage, hence the exercise of powers by the Court below under section 265-K Cr.P.C. was not justified in any stretch of imagination.
Furthermore, the learned counsel for the appellant rightly argued that the impugned order has been passed without appreciating the evidence produced by the prosecution despite the fact that the prosecution evidence has been completed and even the statement of accused under section 342-Cr.P.C. has been recorded. Record further shows that the accused was intended to record his statement under section 340(2) Cr.P.C, however instead of recording his statement he filed application under section 265-K Cr.P.C. The Court below has observed that if the entire prosecution evidence is recorded the accused cannot be convicted which is sufficient proof of the fact that the Court below while passing the impugned order has not pondered the evidence and decided the case without assigning any justified reasons, therefore not sustainable.
DISPOSAL:
The sum and substance of the above discussion is, the captioned appeal is hereby accepted while setting aside the impugned judgment the case is remanded to the Court below for fresh decision in accordance with law.
JK/11/AJK H.C Case remanded.
Judges on this bench
- Chaudhary Khalid Rasheed73 judgments