ZAFAR IQBAL and anothers vs THE STATE

' SARDAR SAID MUHAMMAD KHAN, C.J.--- This appeal has been directed against the judgment of the Shariat Court, dated 29-3-2001 whereby the revision petition filed by the appellants, herein, was dismissed and order of the District Criminal Court, Rawalakot, was maintained.

2. The brief facts of the case are that the appellants, herein, are facing trial before the District Criminal Court, Rawalakot for committing offences under sections 307, A.P.C. And 5/15, Islamic Penal Laws Act read with section 34, A.P.C. It is alleged in the F.I.R. Filed on 14-8-1989 that the complainant alongwith Muhammad Riaz and others, were on their way to their home from Rawalakot when the accused-appellants, alongwith others, armed with fire-arms and Chhuris waylaid them and launched attack on them. Consequently, one Mahmood was killed while some others were injured. It is further alleged in the F.I.R. That motive for the incident was that the father of the complainant contested election against Zafar Iqbal, accused. On this, a case was registered against them and subsequently, the accuseJ persons were challaned in the District Criminal Court, Rawalakot. The statements of eight prosecution witnesses out of 26 were recorded when the appellants filed an application under sections 249-A and 265-K, Cr.P.C. Alleging that no case is made out against them in view of the statements of the prosecution witnesses already recorded and that they may be acquitted of the charges levelled against them.

3. The District Criminal Court, Rawalakot, after hearing the parties, dismissed the application observing that in view of the statements of Muhammad Haroon and Mansoor Aziz, P.W.s., who were admittedly present at the time of occurrence, it cannot be said that there was no, prima facie, case against the accused-appellants. The revision petition filed before the Shariat COurt was also dismissed except that it was directed that the case should be decided within a period of four months.

4. Sardar Muhammad Siddique Khan, Advocate, the learned counsel for the appellants, has argued that the material witnesses have been left out by the prosecution and those who were produced do not support its case. He has further contended that Muhammad Haroon and Mansoor Aziz were in fact members of the aggressor party against whom a cross-case is also pending for trial before the District Criminal Court. According to the learned counsel the aforesaid two witnesses have also narrated some facts in the cross-examination which demolish the prosecution story. He has submitted that the remaining prosecution witnesses are formal in nature and recording of their statements would not prove the case of the prosecution, specially so when the complainant has also not been produced as prosecution witness and the F.I.R. Stands unproved. The learned counsel has tried to persuade us that in fact members of the accused party have also sustained injuries in the incident. The learned counsel has submitted that firing was resorted to by the accused party and not by the complainant party. Thus, according to the learned counsel for the appellants, in any case, the accused-appellants are entitled to right of self-defence.

5. In reply, Syed Ajaz Ali Gillani, Assistant Advocate-General, has controverted the arguments advanced on behalf of the appellants. He has argued that mere delay is no ground to acquit the accused persons under sections 249-A and 265-K, Cr.P.C. He has drawn our attention to the statements of Muhammad Haroon and Mansoor Aziz in support of his contention that there is no substance in the arguments advances on behalf of the appellants that there is no prima facie case against the accused-appellants. The learned counsel has referred to the cross-examination directed to the aforesaid two witnesses and has submitted that the trend of the cross-examination shows that the incident has been admitted by the prosecution. He has further argued that the contention on behalf of the appellants that the accused-appellants acted in self-defence can be resolved only by the trial Court at proper stage and not in the present proceedings.

6. We have given due consideration to the arguments raised at the Bar. It may be observed here that' most of the arguments advanced on behalf of the appellants cannot be resolved at this stage. The close perusal of statements of Muhammad Haroon and Mansoor reveals that it cannot be said at this stage that, prima facie, there is no case against the appellants and that what would be the fate of the prosecution case after the completion of the trial. It may be observed that according to the case of the appellants a cross-case is also pending for trial in the District Criminal Court. Normally, the cross-case are decided simultaneously after completing the trial in both the cases. Thus, it is all the more important that the proceedings in cross-cases are also finalized as early as possible. Needless to say that after completing the trial in both the cases, the same are to be disposed of simultaneously. With these observations, the appeal filed by the accused- appellants is hereby dismissed.