' IQBAL HAMEED-UR-RAHMAN, J.--- Through this revision petition, the petitioners have assailed the judgment dated 23-4-2009 passed by the learned additional Sessions Judge, Ferozewala, whereby their application under section 265-K, Cr.P.C. Was dismissed.
2. Brief facts of this revision petition are that one Manzoor Hussain son of Waris Ali got registered a case F.I.R. No,94 dated 1-3-2007 at Police Station Sharqpur Sharif District Sheikhupura under sections 109, 302, 149 and 148, P.P.C. Against Zafar Iqbal, Muhammad Amin, Munawwar Ali and three unknown persons, wherein he alleged that the complainant along with his brother Abdul Ghafoor, Maboor Ali and his ' nephew Abdul Shakoor were going to Salepur after selling their milk in village Mehta Tridda. When they reached near Guava Garden of village Samoonlana, Zafar Iqbal and Muhammad Amir armed with .30 bore pistols and Munawwar Ali armed with a rifle 8 MM along with three unknown persons, all of a sudden, came out from the garden. Zafar Iqbal fired with his pistol, which hit Abdul Ghafoor, brother of the complainant, on right side of his chest. Abdul Ghafoor was removed to Mayo Hospital Lahore where he succumbed to the injuries. It was further alleged in the F.I.R. That murder of Abdul Ghafoor was committed upon the abetment of Ijaz Shah son of Arif Shah.
3. During the course of investigation, police on the basis of statements of Rai Muhammad Ali son of Ibrahim caste Mughal, resident of Barkat Colony Chung District Lahore and Rai Ahmad Ali son of Muhammad Sultan caste Kharl resident of Walianwala, District Sheikhupura after the lapse of about five months declared the nominated accused of the F.I.R. As innocent and involved the present petitioners in the murder of Abdul Ghafoor. The petitioners were accordingly challaned.
4. The complainant being dissatisfied with the investigation of the local police, filed a private complaint against the accused nominated in the F.I.R. And Mian Muhammad Afzal S.-I. Police Station Sharqpur Sharif, District Sheikhupura under sections 302, 109, 201, 148 and 149, P.P.C. And under Article 155(c) of Police Order, 2002 read with section 190(1), Cr.P.C,, wherein actual accused of the F.I.R. Are facing trial.
5. The petitioners filed an application under section 265-K, Cr.P.C. In the State case for their acquittal of the charge but the same was dismissed by the learned Additional Sessions Judge, Ferozewala, vide his judgment dated 23-4-2009. Being aggrieved of the said judgment, the petitioners have filed this, criminal revision.
6. It is contended by learned counsel for the petitioners that the petitioners have neither been nominated by the complainant and the eyewitnesses of the F.I.R. Nor they have been implicated subsequently by the complainant in the complaint case; that the subsequent two witnesses, namely, Rai Muhammad Ali son of Ibrahim and Rai Ahmad Ali son of Sultan, are the touts, of the police who have been planted as witnesses to the occurrence in order to damage the F.I.R. Case and to benefit the accused of the F.I.R. With mala fide intention; that statements of both the prosecution witnesses against the petitioners were recorded after, unexplained delay of five months and such statements are inconsistent with the ocular evidence of the complainant and eye-witnesses and it is difficult to rely on the evidence of the witnesses, which are recorded after inordinate delay and that both the said witnesses have been joining - investigation, from the, very beginning but they remained silent for about five months which causes serious doubts on the credibility of such witnesses, in this regard reliance is placed upon Muhammad Sadiq and another v. The State PLD 1960 SC (Pak.) 223; Amir and another v. The State PLD 1968 Lah. 49; the State v.
Tanveer-ul-Hassan and 5 others 2009 PCr.LJ 199, Muhammad Rafiq and 3 others v. The State 1974 PCr.LJ 391; Wahid Bakhsh and another v. The State 1976 PCr.LJ 34 and Muhammad Khan v. Maula Bakhsh and another 1998 SCMR 570. It is further contended that both the witnesses are not residents of the locality; that on 23-3-2007 and 25-3-2007, both the witnesses appeared before the police but did not make any statement against the petitioners. It is further contended that the petitioners are shown empty handed in the F.I.R. And have not been attributed any role in the occurrence and that nothing has been recovered from the petitioners during investigation. It is also contended that'the accused nominated in the F.I.R. Were declared innocent on the basis of oath and as procedure of swearing on Holy Qur'an is not applicable in criminal proceedings under Article 163 of the Qanun-e-Shahadat Order, 1984, declaration of innocence of the accused nominated in the F.I.R. By the policd is in contravention of the said Article and in this behalf reliance is placed upon Abdul Sattar and others v. The State 1995 PCT.LJ 1793 and Khalid Nawaz v. The State 1999 PCr.LJ 391. It is further contended that under section 265-K, Cr.F..C. The Court can acquit the accused at any stage of the case, as such, the learned Additional Sessions Judge, Ferozewala, was not right in dismissing the application of the petitioners under section 265-K, Cr.P.C., holding that the same is pre-mature. Reliance in this behalf is placed upon State through Secretary, Ministry of Interior v. Ashiq Ali Bhutto 1993 SCMR 523 and Ghulam Mujtaba v. The State 2009 YLR 169.
7. On the other hand, the learned Assistant Prosecutor-General while opposing the contentions of learned counsel fur the petitioners and supporting the impugned order, has stated that since the evidence of the two witnesses, namely, Rai Muhammad Ali and Rai Ahmad Ali, is recorded under section 161, Cr.P.C. And there is sufficient material on the file, the learned trial Court is the best forum to decide the credibility of the said witnesses; that the power of the police to join any person as witness of the case is not curtailed by law and that the application of the petitioners was under section 265-K, Cr.P.C. And the Court was to determine whether there is a sufficient material for probable conviction of the accused, therefore, the learned Additional Sessions Judge, Ferozewala, was right in dismissing the application of the petitioners under section 265-K, Cr.P.C.
8. I have heard learned counsel for the petitioners as well as the learned APG and have also perused the impugned order and other material available on the record.
9. A perusal of the F.I.R. As well as the complaint case reveals that the petitioners were not nominated as accused in the case. It was for the first time that during the investigation, the police on the basis of statements of Rai Muhammad Ali son of Ibrahim caste Mughal, resident of Barkat Colony Chung District Lahore and Rai Ahmad Ali son of Muhammad Sultan caste Kharl resident of Walianwala District Sheikhupura after the lapse of about five months declared the nominated accused of the F.I.R. As innocent and involved the present petitioners in the murder of Abdul Ghafoor. Even during the inquiry, which was made on the basis of the complaint case filed by the complainant, the petitioners were not nominated as accused, as is evident from the inquiry report dated 28-5-2007 made by the learned Judicial Magistrate Section 30, Ferozewala. A perusal of the statements of Maboor Ali and Abdul Shakoor, who are witnesses of the F.I.R. As well as the complaint case, also reveals that they while nominating the accused mentioned in the F.I.R., did not nominate the petitioners as accused. They further stated that the police mala fidely declared the accused innocent. Rai Muhammad Ali and Rai Ahmad Ali, who were not residents of the locality, appeared before the police on 23-3-2007 and 25-3-2007 but they did not make any statement against the petitioners and on 28-7-2007 i.e. After lapse of about four months, they nominated the petitioners as accused and such statements are inconsistent with the ocular evidence of the complainant and eye-witnesses and it is difficult to rely on the evidence of the witnesses, which are recorded after inordinate delay. In this respect, reliance is placed upon Muhammad Sadiq and another v. The State PLD 1960 SC (Pak.) 223, Amir and another v. The State PLD 1968 Lah. 49, The State v. Tanveer-ul-Hassan and 5 others 2009 PCr.LJ 199, Muhammad Rafiq and 3 others v. The State 1974 PCr.LJ 391, Wahid Bakhsh and another v. The State 1976 PCr.LJ 34 and Muhammad Khan v. Maula Bakhsh and another 1998 SCMR 570. In view of the same, it appears that the police mala fidely nominated the petitioners as accused. The accused nominated in the F.I.R. Were declared innocent on the basis of oath and as procedure of swearing on Holy Qur'an is not applicable in criminal proceedingi under Article 163 of the Qanun-e- C Shahadat Order, 1984, declaration of innocence of the accused nominated in the F.I.R. By the police is in contravention of the said Article and in this behalf reliance is placed upon Abdul Sattar and others v. The State 1995 PCr.LJ 1793 and Khalid Nawaz v. The State 1999 PCr.LJ 391. Even otherwise under section 265-K,. Cr.P.C. At any stage of the case, the Court can acquit the accused if it considers that the charge is groundless and there is no possibility of conviction of the accused. As the petitioners were not nominated as accused in the F.I.R., the complaint case and even in the inquiry report dated 28-5-2007 D of the learned Judicial Magistrate section 30, Ferozewala, which was made on the basis of the complaint case and the charge against them is groundless and there is no possibility of conviction of the petitioners, the learned Additional Sessions Judge, Ferozewala, was not right in dismissing the application of the petitioners under sections 265-K, Cr.P.C.
10. In view of the above circumstances, this revision petition is accepted and the impugned order dated 23-4-2009 is set aside and the petitioners are acquitted of the charge.