' SALAHUDDIN MIRZA, J.--- The brief facts leading to the filing of this acquittal appeal are as follows: F.I.R. No,1 of 2006 was recorded by Anti-Narcotics Force, Gulshan-e-Iqbal, Karachi, on 1-1-2006 against appellant Azam Khan and one Khushrang Khan at the instance of Inspector Jahangir Khan (respondent No,2) and it was alleged therein that during the preceding night Inspector Jahangir Khan received spy information that one Khushrang Khan, using a blue-coloured Pick-up bearing Registration No,KM-2790 was about to deliver to someone in the "Al Asif Square area" on the Super Highway a huge quantity of heroin powder whereupon Inspector Jahangir Khan reached the indicated spot at 2140 hours along with a raiding party and after a wait of about ten minutes he spotted the Pick-up and asked its driver to stop but the person sitting on the passenger seat of the Pick-up opened fire at the raiding party and the driver accelerated the engine and tried to run away towards Hyderabad. The mobile of the Anti-Narcotics Force gave chase to the fleeing Pick- up and managed to intercept it after chasing it for about two kilometers and then fired at the tyres of the Pick-up which went flat and the Pick-up stopped and as soon as it stopped the person sitting on the passenger seat, taking the advantage of darkness, managed to escape while firing at the raiding party. However, the driver of the Pick-up was apprehended and he gave his name as Azam Khan. Azam Khan also gave the name of his companion as Khushrang Khan, who was a notorious drug baron. Search of the Pick-up yielded 17 Kgs. Of heroin powder in 17 of the lies of one kilogram each. The recovered contraband was sealed, Azam Khan was formally arrested, the two burst tyres of the Pick-up were replaced by one spare tyre of the Pick-up itself and by the spare tyre of the official mobile and the raiding party brought the recovered heroin powder, the arrested accused (appellant Azam Khan) and the Pick-up to the ANF Police Station Gulshan-e-Iqbal where the F.I.R. Was lodged at 0120 hours on 1-1-2006. After the expiry of the remand period appellant/accused Azam Khan was sent to Central Jail Karachi. While in detention in Central Jail, Azam Khan sent an application, dated 16-1-2006 to the Chief Justice of Pakistan, Mr. Iftikhar Muhammad Choudhry, through the Superintendent Central Jail, Karachi, in which he alleged that the actual facts about his arrest were not that he was found in possession of heroin powder as alleged in the F.I.R. Of the Anti-Narcotics Force but the actual facts were that he had got his third wife Mst. Malaila examined by a lady doctor at Memon Hospital, near Karimabad in Federal "B"
Area, during the night of 31st December, 2005, and was thereafter going with her at about 10 p.m.
When Inspector Anti-Narcotics Force Jahangir Khan (respondent No,2) intercepted his car in front of Mina Bazar, Karimabad, on the main Shahrah-e-Liaqat and abducted his wife and implicated him in this false case, showing the recovery of 17 Kgs. Of heroin powder from his possession.
2. The Honourable Chief Justice, Supreme Court, Islamabad, directed the Superintendent Central Jail, Karachi to record the statement of Azam Khan (appellant) and, this having been done and the statement perused by the Honourable Chief Justice, he (the Chief Justice) directed the concerned authorities to register the case on the basis of the statement of Azam Khan and his application was registered in the Supreme Court as Criminal Miscellaneous No,74 of 2006. Thus, on the basis of the orders of Honourable the Chief Justice, F.I.R. No,99 of 2006 was registered at Police Station Gulberg, Karachi, on 19-4-2006 under section 16 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 against respondent No,2 Jahangir Khan.
3. Subsequent to the registration of F.I.R. No,99 of 2006 against respondent No,2 Criminal Miscellaneous No,74 of 2006 again came up before the Honourable Chief Justice for hearing on 14- 6-2006 when Deputy Attorney-General appeared along with D.I.-G. (Investigation) Karachi and submitted a detailed report which showed that the version of the incident given by appellant Azam Khan was incorrect, that a detailed investigation conducted by the police showed that Azam Khan had no third wife by the name of Malaila 'and the Honourable Chief Justice, after assessing the information brought to his notice, came to the conclusion that "the complaint had been filed by Muhammad Azam Khan without any substance and therefore, no further proceedings were required to be taken by the Supreme Court" and dismissed Criminal Miscellaneous No,74 of 2006 with the direction that if during the inquiry in future the police succeeded in tracing the lady, the matter should be reported back to the Registrar of the Supreme Court for his Lordship's perusal in Chamber for appropriate orders, if need be.
4. In pursuance of registration of F.I.R. 99 of 2006, Jahangir Khan as arrested and the police conducted investigation during the course of which a number of witnesses were examined and their 161, Cr.P.C. Statements were recorded. Alam Khan (Paternal-cousin of Azam Khan), Mst.
Zarkhana (one of the wives of Azam Khan), Mst. Guncha (mother of the alleged abductee) confirmed that Azam Khan had a third wife by the name of Malaila but none of them could say whether respondent No,2 had abducted her. However, some other witnesses in their 161, Cr.P.C.
Statements even denied that appellant Azam Khan had a third wife by the name of Mst. Malaila.
Khan Agha and Sardar Khan, who say they are Khalazad of appellant Azam Khan and that their sister Zarkhana was married to Azam Khan some sixteen years ago and that Azam Khan had yet another wife by the name of Shakila, nevertheless categorically denied that Azam Khan had wife by the name of Shakila, any third wife by the name of Malaila. Police also examined one Amaan Gul who claimed to be neighbour of appellant Azam Khan and belonging to his "Bradari" and on visiting terms to his house and he said that appellant Azam Khan had only two wives, Mst. Zarkhana (or Zafrana) and Mst. Shakila and he had no third wife. Another person whose 161, Cr.P.C. Statement was recorded by the police during the investigation is Abdul Wali Khilji, Councillor of the area, who said that Azam Khan had no third wife by the name of Malaila. Some persons employed on the nearby petrol pumps denied that any abduction had taken place in the manner alleged by appellant Azam Khan. Police also examined the Medical Superintendent of Memon Hospital who stated that no record was kept in the hospital of out door patients and therefore, it could not be ascertained whether any lady doctor of the said hospital had examined Mst. Malaila on 31-12-2005 in the evening hours. Since, no witness implicated respondent No,2 in the alleged abduction, the police submitted its report under section 173, Cr.P.C. To learned Judicial Magistrate to dispose of the case under "A" class but learned Judicial Magistrate did not agree with the police report and vide order, dated 29-5-2006 held that a prima facie case had been made out against respondent No,2 and, since respondent No,2 was nominated in the F.I.R. , the case could not be disposed of under "Class A" and therefore, took cognizance of the case and since it was triable by the Sessions Court, he forwarded the same to the Court of Session which entrusted it to the III Additional Sessions Judge, Karachi Central. Shortly thereafter, respondent No,2 moved an application before the III Additional Sessions Judge under section 265-K, Cr.P.C. Which was accepted by the Court vide impugned order, dated 9-10-2006, acquitting respondent No,2 Jahangir Khan, on the ground that in his opinion there was no substantive material on record for proceeding with the trial of the accused (respondent No,2). Learned trial Court further held that the complainant (i.e, appellant Azam Khan) was at liberty to file a private complaint if in future he comes into possession of any credible and reliable evidence against the accused (respondent No,2 in this appeal) connecting him with the commission of the crime.
5. Appellant Azam Khan has now come in appeal against the acquittal order, dated 9-10-2006.
Learned State counsel and learned counsel of the parties have been heard and the written arguments filed by learned counsel of the parties have also been perused.
6. Learned counsel for the appellant argued that learned Additional Sessions Judge should have examined the following witnesses before entertaining the application moved by respondent No,2 under section 265-K, Cr.P.C.
(1) The two wives of the appellant.
(2) Mst. Guncha the mother of the third wife Mst. Malaila.
(3) Alam Khan.
(4) The lady doctor of Memon Hospital.
(5) About 12 subordinates of respondent No,2 who were with him at the time of the alleged abduction.
7. We are of the considered view that examination of the two wives of the appellant or of Mst.
Guncha or of Alam Khan would not have served any purpose. The point at issue is not "whether appellant Azam Khan had a third wife by the name of Malaila, but it is whether respondent No,2 had abducted Mst. Malaila the alleged third wife of appellant Azam Khan and neither the two wives of the appellant, nor the mother of the third wife, nor Azam Khan, had said a word on the point at issue. They do state that appellant had a third wife by the name of Mst. Malaila but even if it were to be conceded that the appellant had a third wife by the name of Malaila, no case would be made out against respondent No,2.
8. Learned counsel for the appellant is not justified in saying that the police malafidely did not, during the course of investigation, examine the lady doctor who allegedly treated the third wife of the appellant on 31-12-2005. The police did try to examine her and for that purpose examined the Medical Superintendent of Memon Hospital, as conceded by learned counsel of the appellant himself, but the Medical Superintendent informed the police that no record was kept of out-door patients in Memon Hospital and therefore, it could not be ascertained whether any lady doctor did examine any patient by the name of Malaila on 31-12-2005 during evening hours. The police could have done nothing more in this regard. Besides, appellant Azam Khan has not even disclosed, either in the complaint to the Honourable Chief Justice or in his statement recorded by the Jail Superintendent on the directions of the Honourable Chief Justice or even in his 161, Cr.P.C.
Statement, the name of the lady doctor who allegedly treated Mst. Malaila thus, making it virtually impossible for the police to identify the lady doctor. And, granted that the lady doctor had been located and identified, she could not be expected to say, in the absence of any record, that she had examined Mst. Malaila on 31-12-2005, specially without even having benefit of seeing her face.
9. Equally of no benefit would have been the examination of the members of the raiding party under respondent No,2 because no positive information could have been divulged by them on the point at issue.
10. It is also worth noting that after his arrest on 31-12-2005, appellant Azam Khan twice appeared before the Judicial Magistrate before whom the police produced him to seek his remand, first on 2- 1-2006 and second time on 7-1-2006 and thus, he had ample opportunity to bring his grievance to his notice but he kept silent and did not inform the Judicial Magistrate that, far from being a culprit, he was an aggrieved person whose wife had been abducted by Inspector Jahangir Khan. This circumstance does not inspire confidence in the story later developed by the appellant and contained in the complaint to Honourable Chief Justice.
11. Learned counsel of the appellant referred to the judgment reported as Falak Sher and another v.
State. PLD 1967 SC 425 and Bismillah Khan v. State 2001 PCr.LJ 481 and Muhammad Akbar v. State 1972 SCM R 335 in support of his contention that, notwithstanding the absence of evidence connecting respondent No,2 with the commission of the crime, learned Additional Sessions Judge, should still have held the trial and recorded the evidence of prosecution witness before entertaining the 265-K, Cr.P.C. Application of respondent No,2. We fail to note any relevancy of these three judgments with the point under consideration.
12. After taking into account all the pros and cons of the case, we are of the considered view that no exception can be taken to the order passed by learned III Additional Sessions Judge as, in fact, this was the only appropriate order which could have been passed under the circumstances of the case. We would therefore, dismiss the appeal.