' SHAH JEHAN KHAN AKHUNDZADA, J.---At the first instance Faqir Muhammad, complainant/petitioner has filed appeal under section 417 Cr.P.C. Against the order dated 15-1-2011 passed by the learned Addl. Sessions Judge, Lahor District Swabi whereby while he accepting the revision petition of Muhammad .Ashfaq and his two brothers (accused/respondents Nos.1 to 3 herein) acquitted them of the charge. During the pendency of the appeal, learned counsel for the petitioner submitted an application (Criminal Miscellaneous No,461 of 2011) for converting the appeal into quashment petition and vide order of this Court dated 31-10-2011 the said application was allowed , and the appeal was directed to be treated as quashment petition.
2. The brief facts of the case are that on 12-7-2009 at 20-00 hours Faqir Muhammad complainant/petitioner lodged the report of the incident to the effect that on the said day at 15-55 hours he alongwith his brothers Sher Muhammad and Dost Muhammad and so many other persons were going to participate in the funeral ceremony of the wife of Jabbar, when reached at the place of occurrence in the meanwhile Muhammad Ashfaq, and his two brothers namely, Muhammad Abid and Muhammad Aamer came in the motorcar and when reached near him, the said persons got down from the vehicle. He was caught hold by them and gave him blows with the butts of their fire-arm as a'result of which he sustained injuries.
3. After completion of investigation complete challan was submitted before the trial Court where on 9-1-2010 the accused were formally charged to which they pleaded not guilty and claimed trial.
During the pendency of trial, an application under section 249-A, Cr.P.C. For acquittal of the accused/respondents Nos.1 to 3 was filed and after hearing the learned counsel for the parties, the learned Judicial Magistrate, Lahor vide his order dated 13-10-2010 rejected the said application and continued the trial. Feeling aggrieved from the said, order, the accused/respondents filed, revision petition which was allowed by the learned Addl. Sessions Judge, Lahor Districi Swabi vide -his order dated 15-11-2011 and they were acquitted from the charges levelled against them by accepting their application under section 249-A, Cr.P.C. Hence the present petition.
4.
4. I have heard the learned counsel for the parties and have gone through the record of the case with their able assistance.
5. The law is fairly well-settled that before exercising the powers under section 561-A, Cr.P.C. Are concerned, this Court should come to a conclusion that allowing the impugned judicial proceedings to continue would defeat the ends of justice or in other words would either operate or perpetuate injustice viz it would be an abuse of process of law and a perversion of the performance of the law so as to cause harassment to an innocent party. In other words it should be established that as a matter of fact even if the allegations against the accused were accepted they could never be convicted, there was no sufficient evidence before the learned trial Court to convict accused of the Charges levelled against them. It is also well-settled that the powers enshrined in section 561-A, Cr.P.C. Should not be resorted to readily but only in the circumstances dilated upon above as the said section is not meant to stifle the prosecution but is intended to prevent the abuse of the process of Court.
6. Applying the foregoing proposition to the facts of the present matter it would be seen that whether the prosecution has established its case against the accused/ respondents in the evidence so far recorded and if the case is remanded back to the trial Court for recording remaining evidence, the respondents can be convicted or otherwise. In the instant case, admittedly there are litigations between the parties both criminal and civil, which are pending between them before the Civil and Criminal Courts. While appearing as P.W.3 Faqir Muhammad complainant has deposed that he had also lodged an F.I.R. Against Muhammad Younas father of the accused/respondents. He has also admitted that another F.I.R. Under section 447 was also lodged by him against the father of accused/respondents in which he was acquitted. He has further admitted that there are previous civil litigations between him and accused party which are also pending in the civil court. He has also admitted that civil Suit No,138/1 instituted by him against his father of accused was dismissed. This P.W. Has also admitted that accused Harnid is serving in the Foreign Office at Islamabad. Likewise, Muhammad Ismail P.W.5 has admitted in the cross- examination that he had not mentioned any locale of injury nor the cleaning of blood with his `chadar' nor accompanied with the complainant to the police station. He has further admitted that he is working in the poultry form of Sher Muhammad brother of the complainant. Besides civil litigations between the complainant and the father of accused party there is a copy of F.I.R. No,457 lodged by the complainant against the father of accused in which he was acquitted wherein Muhammad Ismail the alleged eye-witness in the instant case has also been appeared in that case as P. W . Another case F. I. R . No, 816 under section 447 has also been lodged by the present complainant against the father of accused/respondents in which he has also been acquitted.
7. Furthermore, Tariq Saeed A.S.-I. While appearing in the witness box ,as P.W.1 stated that after the receipt of F.I.R. The investigation of the case was entrusted to him. He prepared the site plan Exh.P.W.1/1 at the instance of the complainant in the light of torch. He has also recorded the statements of the P. Ws. Under section 161, Cr.P,.C. In the cross-examination this witness admitted that the complainant has not pointed out any spot of any vehicle. According to him Grocery shop of Ijaz, (Butcher) shop of Wali and Flour machine of Iftikhar have been shown in the site plan but he has neither mentioned this fact that whether it were closed or opened at the time of preparation of site plan nor he has recorded the statements of those shop-keepers. He has further admitted that no locale of injury has been shown in the medical report. He has also deposed that one of the accused Hamid has taken the plea of alibi that on the day of occurrence he was on duty at Islamabad and to this effect a copy of certificate has been placed on file as Mark "A". He has admitted that there is a delay of two hours in lodging the report which delay has not been explained by the complainant.
8. Thus, perusal of the record and evidence on file leads me to draw a firm opinion/conclusion that the evidence so far B recorded by the Judicial Magistrate during the trial is replete with contradictions and if the prosecution is allowed to produce further evidence, it will be a futile exercise and also sheer wastage of time and on the strength of existing evidence on record, there appears no possibility/probability of conviction of the accused/respondents and the charges levelled against acquitted accused-respondents seem baseless and groundless. Thus the, learned revisional court has rightly exercised its jurisdiction while acquitting the accused/respondents under section 249-A, Cr.P.C.
8. So the upshot of the above discussion is that this petition under section 561-A, Cr.P.C. Merits no consideration which is hereby dismissed.