1. ' NAIMATULLAH PHULPOTO, J.---This criminal miscellaneous application is directed against the Order dated 20-8-2010 whereby learned. 1st Additional Sessions Judge, Sukkur dismissed an Application under section 265-K, Cr.P.C. Moved on behalf of applicants/accused involved in a case/Crime No,50 of 2008 registered at Police Station, Bagerji for offences under sections 302, 452, 458, 148, 149, P.P.C. And 13(d) A.O.
2. ' Brief facts of the prosecution case as disclosed in the F.I.R. Are that on 28-11-2008 complainant Mst. Imam Khatoon, her husband Haji Bahram Khan and other family members were sleeping in house after taking meals. The electric bulbs were burning. At 3 a.m.., there was some commotion on which complainant and her husband Haji Bahram woke-up and saw the accused persons namely Jamal son of Sachal With Kalashnikov, Mujahid son of Sachal, Sikander son of Bahadue with Guns, Hafeez son of Punhal with Rifle and two other unidentified persons armed with hatchets.
3. It is further, alleged that accused Jamal fired from his Kalashnikov, which hit Haji Bahram, husband of complainant and he fell down and died. Remaining accused also fired from their respective weapons for creating harassm ent. On the cries of complainant party P. Ws. Wali Muhammad, Manjhi and other persons were attracted. F.I.R of the incident was lodged by Mst.Imam Khatoon on 1-12-2008 under sections 302, 452, 458, 148, .149, P.P.C. And 13(d) A.O and 161, Cr.P.C. Statements were recorded.
4. ' Further statement of the complainant, was recorded on 26-12-2008 in which, she stated that on 28-11-2008 she was sleeping in her house alongwith her son and husband Bahram after taking meals. The electricity was on. At 3 a.m. She woke-up on hearing fire-arm reports and saw three accused persons standing in the house with Kalashnikovs and there was breach in the wall. She saw her husband injured and he succumbed to injuries at spot. It is stated that soon after the incident; she gave information of the incident to the police and went to Baluchistan for consultation with her brother. She returned back, on 23-12-2008 there was a private FAISLA held before Sardar Muqeem Khan Khoso and Sardar Muhammad Ibrahim Jatoi, where the present applicants/accused admitted to have committed the offence. Thereafter, she went to Police Station and her further statement was recorded and on the basis of such statement and 161,. Cr.P.C.
5. Statement of son of deceased the accused were challaned by the police under the above referred sections. Presently, the case is pending in the Court of learned Ist Additional Sessions Judge, Sukkur, where an application under section 265-K, Cr.P.C. Was moved on behalf of the applicants/accused which was rejected by the learned Ist Additional Sessions Judge, Sukkur vide his order dated 20-8- 2010 for the following reasons:-- "Perusal of arguments of both the parties viz. Accused and state through their counsel and so also R & Ps in hand show that Admittedly prosecution has examined one P.W. A.S.-I. Muhammad Ali. The bailable warrants against complainant and his witnesses are being issued by this court, therefore, there is likelihood of procurement of complainant and his witnesses. Furthermore, the charge against accused was framed on 29-8-2009, thereafter on 13-7-2010 one accused Jamaluddin voluntarily appeared before the honourable Sessions Judge, Sukkur along with bail application under section 498-A, Cr.P.C. And the same has been received by this court. The accused Jamaluddin has sought pre-arrest bail and now case is fixed for framing the amended charge.
6. This is a heinous offence of murder in which one innocent person has been murdered and there is likelihood of the accused to be convicted after recording the evidence of complainant and witnesses. I therefore dismiss the application under section 265-K, Cr.P.C".
7. ' The learned counsel for the applicants/accused contended that the names of the applicants/accused did not transpire in the F.I.R.But subsequently their names were introduced by complainant in further statement. Further statement of .Complainant is not sufficient for conviction of applicants in this case and charge is groundless. There is no probability of conviction of accused in the case.
8. ' The learned D.P.-G. For the State argued that the applicants/accused were implicated by the complainant in her further statement, corroborated by medical evidence and there is sufficient material against the accused to connect them with the commission of alleged offence, the learned trial Court has rightly observed that there is every possibility of conviction of the accused in this case.
9. ' In the case of Sikandar A. Kareem. v The State through Chairman, National Accountability Bureau and another (2011 M LD 313, this Court on the scope of an application under section 265-K, Cr.P.C.
10. Observed as under:- "24. With regard to the contention of the learned counsel for the petitioners that there is no material against the petitioners and the question of any conviction does not arise. We have examined the record of the case. The case against the petitioners rest upon documentary evidence, which the NAB authorities will produce its witnesses. We are clear in our mind that there is sufficient material against the petitioners to connect them with the alleged offence. The Court under the garb of section 265K, Cr.P.C. Could not deprive the prosecution from providing opportunity to produce evidence. The power under section 265-K, Cr.P.C. Is always conditional and can be invoked only if the Court considers that there is,no probability of an accused to be convicted of any offences with which he is charged".
11. In my considered view, the evidentiary value of further statement of complainant Mst.Imam Khatoon is yet to be determined by the trial Court. In the further statement of complainant and in 161, Cr.P.C. Statement of P.W. Muhammad Alam prima facie, applicants/accused have been fully implicated in this case. Apparently, above statements of the complainant and P.W. Muhammad Alam are corroborated by medical evidence. The I.O. Had also collected sufficient material during investigation against the accused to connect them with this crime and he submitted challan against the accused in the competent Court of law. The Court under the garb of section 265-K, Cr.P.C. Cannot deprive the prosecution from providing opportunity to produce the evidence before the trial Court. Learned trial Court has already observed that there is probability of accused to be convicted for the offence with which they are charged. Therefore order dated 20-8-2010 passed by the trial Court is based upon sound reasons and requires no Interference.
12. ' Consequently, this Criminal Miscellaneous Application is without merit and is dismissed with directions to the trial Court to decide the case within a period of three months under intimation to this Court.
13. ' The observations made hereinabove are of tentative in nature and the trial Court shall not be influenced by any of the such observation and decide the case of the applicants/accused on its own merits in accordance with law.