1. IMAM BUX BALOCH, J.---Through this criminal miscellaneous application under section 561-A, Cr.P.C. The applicant seeks quashment of proceedings against him pending in the Court of learned Additional Sessions Judge, Kashmore, in Crime No. 77 of 2008 of Police Station Guddu, registered under sections 324, 427, 148, 149, 109, P.P. C .
2. Facts leading to filing of present application are that complainant Barkat Ali lodged above F.I.R with Police Station Guddu, with the allegation that accused Ali Gohar, Noor Khan, Afzal, Beera, Yar Ali, Aziz, Dost Ali and two unknown persons made murderous assault upon complainant party, at the instigation of present applicant Abdul Hakeem Mazari and co-accused Reza Muhammad.
3. During course of investigation police arrested accused Abdul Hakeem, and Raza Muhammad and ultimately they were released on bail. Yar Ali and Dost Ali were shown under custody in the challan sheet, whereas seven accused namely Ali Gohar, Noor Khan, Afzal, Jamal, Beera, Sabzal and Aziz were shown as absconders.
4. After submission of challan, an application under section 265-K, Cr.P.C. Was moved on behalf of the applicant in the trial Court, which was dismissed by order dated 16-9-2009, which has been assailed through this miscellaneous application.
5. Learned counsel for the applicant mainly contended that the applicant was not present at the time of alleged incident. According to the F.I.R. Accused Aligohar asked complainant that they are committing offence on the behest of applicant and one Raza Muhammad. He further contended that there is enmity between the parties on matter of general elections and due to enmity the complainant has involved an innocent and respectable person. He further contended that continuation of proceedings in the trial Court against the applicant are abuse of process of law. He further contended that after completing proceedings in the trial Court ultimately there is no probability of accused/applicant to be convicted of any offence. He further contended that this is futile exercise if proceedings remain continued in the trial Court. Learned counsel further argued that the trial Court has not considered submissions advanced at the bar and has not considered the Material available on record in its true perspective.
6. Learned counsel for the complainant argued that name of the applicant does appear in the F.I.R, as he has instigated co-accused Ali Gohar and others to commit murder of complainant and his relatives, but fortunately they had survived. He further argued that the case has been challaned and is pending trial in the competent Court of law, and it is for the trial Court to decide the fate of case after adducing evidence by the parties. He relied upon case of A. Habib Ahmed v. M.K.G. Scott Christian and 5 others (PLD 1992 Supreme Court 353).
7. Learned State counsel concedes for quashment of proceedings against the applicant on the ground that there is no evidence available with the prosecution to connect the applicant with the commission of offence and if proceedings are continued in the trial Court against applicant, it will be abuse of process of law, as there is no probability of applicant to be convicted of any offence.
8. I have considered the submissions advanced at the bar with care and caution. Admittedly, the applicant was not present on spot at the time of alleged incident. The assertion of complainant that co-accused Ali Gohar asked complainant party that they are committing the offence at the instigation of applicant does not appeal to a prudent mind. Prosecution has no strong piece of evidence against the applicant. It appears that the complainant in order to harass and humiliate the applicant has given his name in the F.I.R. At this stage it would be seen that if there is any probability of accused/applicant to be convicted of any offence, if the proceedings in the trial Court are allowed to continue. The prosecution witnesses have to depose, what they have stated in F.I.R and 161, Cr.P.C. Statements and if the proceedings are continued against the present applicant in the trial Court it will be abuse of process of law. In the instant case prosecution has no evidence about involvement of applicant in the commission of alleged offence.In case of A. Habib Ahmed (supra), relied upon by learned counsel for the complainant the Hon'ble Supreme Court observed that if prima facie the offence had been committed justice required that it should be enquired into and tried. If the accused are not as a result of the trial found guilty they have a right to be declared as "honorably acquitted by a competent Court." In the instant case prosecution has no evidence about involvement of applicant in the commission of offence. The facts of the case of A. Habib Khan (supra) are distinguishable from the facts of the case in hand.
9. In view of the above position, this criminal miscellaneous application was allowed vide short order dated 3-9-2010, and proceedings against applicant were ordered to be quashed in Crime No.77 of 2008 of Police Station Guddu, and these are the reasons for the same.