' SARDAR MUHAMMAD SADIQ KHAN, J.-The captioned appeal is addressed against the judgment of the Shariat Court dated 13.4.2011, whereby criminal revision filed by the complainant-appellants, has been dismissed.
2. The precise summary of facts necessary for disposal of this appeal is that a case under sections 302, 337-V and 109, AP.C was registered against the accused-respondents on 5.2.2010 at Police Station Thorar, under . F.I.R. No, 8/2010. The Police registered the case and after investigation, found the accused-respondents guilty of the offences and submitted challan under sections 302, 322, 337-V, 451, 109, 34, APC and section 13 of Arms Act, 1965 against the accused to face the trial before the Court of competent jurisdiction. The complainant moved an application on 10.6.2010, wherein it was prayed that the accused, Wasim Khadim, may be charge-sheeted under section 302, APC.
After hearing the learned counsel for the parties, the Trial Court discharged the accused- respondents from the offences in which they were challaned vide its order dated 10.6.2010. The complainant-appellants, feeling dissatisfied from the order of the Trial Court approached the Shariat Court through criminal revision No, 170 of 2010. The learned Judge in the Shariat Court, after hearing the learned counsel for the parties, dismissed the .Revision petition, hence this appeal.
3. Raja Sajjad Ahmed Khan, the learned counsel for the complainant-appellants, after brief statement of facts seriously attacked the impugned judgment of the Shariat Court. He argued that the judgment of the Shariat Court is not maintainable on the ground that the evidence collected by the Investigating Officer clearly reveals that the accused- respondents were fully involved in the alleged offences but both the Courts below have failed to examine the evidence. He next argued that respondent No, 1, Wasim Khadim, was responsible for the occurrence and due to his illegal acts the murder of Mst. Misbah Kliatoon was committed, but both the Courts below have failed to appreciate the facts of the case: ' Both the Courts below have also failed to appreciate that sections 322 and 451, APC were fully attracted against the accused-respondents. He further argued that the complainants- appellants filed an application before the learned District Criminal Court for framing the charge against the respondents under section 302, APC, but the lower Courts have neither considered the application nor disposed of the same in accordance with law. The learned Judge in the Shariat Court has failed to appreciate the scope of sections 249-A and 265-K, Cr.P.C. He further argued that without recording the evidence, the findings of the Trial Court as well as the Shariat Court are premature, therefore, the judgments of both the Courts below are not maintainable. He lastly argued that the order of the learned Shariat Court dated 13.4.2011 as well as that of the District Criminal Court dated 10.6.2010 may be set aside and the Trial Court may be ordered to proceed in accordance with law.
4. While controverting the arguments of the learned counsel for the appellants, Barrister Humayum Nawaz, the learned counsel for accused-respondents ( Nos. 2 & 3,forcefully defended the impugned judgment of the Shariat Court. He argued that the instant appeal is not appeal in its present form. The complainants-appellants have challenged an order of the Hon'ble Shariat Court under the provisions of section 25 of the Islamic Penal Laws (Enforcement) Act,1974. This order was only challengeable in revisional jurisdiction of this Court and not in appellate jurisdiction. The appeal merits dismissal on this sole ground. He further argued ' that the accused-respondents Nos. 2 & 3, who are parents of the principal accused, have been roped in the case just to take revenge and put the whole family under a huge burden. He further argued that the prosecution failed to collect even single evidence against these accused- respondents. He further submitted that the prosecution has badly failed to bring on record any material to connect the accused-respondents No, 2 & 3 with the alleged offences because it is not a case of prosecution that the accused-respondents Nos. 2 & 3 are the abettor of the alleged offences. Even if at all the allegation levelled in the F.I.R, is accepted then too the Courts have to see whether the constituent elements for attraction of , section 107, APC are, prima facie, made out or not. The learned counsel further argued that the application of section 109, APC is not attracted in the instant case because to attract the said section, premeditation and common intention is the foremost requirement, which is missing in the instant case. The case of prosecution is simply that at the place of occurrence only four persons, namely, Basharat, Wasim, Talib and victim were present and the reasons advanced by the prosecution for alleged murder is illicit relations of Wasim, accused-respondent No, 1, with the victim. Nothing has been brought on record by the prosecution which suggests that accused-respondents Nos. 2 & 3 had prior meditation with the principal accused, therefore, the application of section 109, APC is not justified to the extent of accused-respondents Nos. 2 & 3. He next argued that no illegality has been committed by the Shariat Court while passing the impugned order to the extent of accused-respondents. As there is no likelihood of their conviction even after appreciating all the evidence against them. He lastly argued that the Courts below have acquitted accused-respondents Nos. 2 & 3 quite in accordance with law, therefore, the orders of the Courts below need no interference by this Court, hence, the appeal filed by 1he complainant-appellants may be dismissed.
2. We have heard the learned counsel for the parties and also minutely perused the record as well as the judgments of the Shariat Court and that of the District Criminal Court, Rawalakot. The District Criminal Court, Rawalakot admitted the facts of the case and allegations levelled by the prosecution but decided the matter on the basis of the offence under which the accused- respondents were challaned. The District Criminal Court, while reproducing section 322, APC in verbatim and illustrating the same, has disagreed with the version of the prosecution and discharged the accused-respondents of the alleged offences. The District Criminal Court, without assigning any cogent reasons to be recorded has passed the order dated 10.6.2010 and the Shariat Court has concurred with the District Criminal Court on the same line. The conclusion drawn by the learned Shariat Court is reproduced as under :-- "A careful consideration of the record reveals that the Trial Court has rightly discharged the accused-respondents after examining the police record and the challan file after due consideration of the facts and circumstances of the present case. The same like proposition in case titled"Muhammad Khalid Mukhtar v. The State" [P.L.D. 1997 S.C 275]. Dealing with sections 249- A and 265-K, Cr.P.C a learned Bench of this Court observed in the case , of Ashiq Ali Bhutto (1'993 SCMR 523), as below:-- "It is obvious that the legislature in its wisdom did not leave the question of recording of. The evidence as a condition before taking action under either of provisions: The use of the expression at any stage of the case is indicative enough of the intention that any such stage could be the very initial stage, after taking cognizance or it could be-a middle stage after recording some proceedings and/or even, it could be later stage as well."
' In view of above observation, the Trial Court has rightly been recorded the impugned order in right direction, which warrants no interference by this Court. No patent or latent illegality having been found in the impugned order, therefore, the same is allowed to stand. "
' It may be observed that the case-law referred to and relied upon by the Shariat Court is not applicable to the facts and circumstances of the case in hand rather the same supports the version of the prosecution. It is settled principle that the Courts i.e, Magistrate, Sessions Court and High Court/Shariat Court can quash any criminal proceeding under the statutory provision keeping in view the principles laid down therein. For ready reference, it would be appropriate to reproduce here sections 249-A 265-K and 561-A, Cr.P.C, to resolve the controversy: "249-A. Power of Magistrate to acquit accused at any stage. -Nothing in this Chapter shall be deemed to prevent a Magistrate from acquitting an accused at any stage of the case if after hearing the prosecutor and the accused and for reasons to be recorded, he considers that the charge is groundless or that there is no probability of the accused being convicted of any offence.
265-K. Power of Court to acquit accused at arty stage. -Nothing in this Chapter shall be deemed to prevent a Court from acquitting an accused at any stage of the case, if, after hearing the prosecutor and the accused and for reasons to be recorded, it considers that there is no probability of the accused being convicted of any offence.
561-A. Saving of inherent power of High Court. Nothing in this Code shall be deemed to limit or affect the inherent power of 1he High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."
From the perusal of section 249-A, it is clear that a Magistrate can acquit an accused at any stage of the case if after hearing the prosecutor and the accused and for reasons to be recorded, he considers that the charge is groundless or there is no probability of the accused being convicted.
Likewise, under section 265-K, Cr.P.C., the Court can acquit an accused at any stage of the case if after hearing the prosecutor, the accused and for reasons to be recorded, it considers that there is no probability of the accused being convicted. Iii both the statutory provisions reproduced hereinabove, it is crystal clear that a Magistrate or the Court, as the case may be, can acquit an accused but a condition is precedent that either Magistrate or the Court shall record the reasons while acquitting the accused. The intention of this section is very much clear that while exercising powers under this section the Court while acquitting an accused shall hear the prosecutor, the accused and shall also take, into consideration the overall facts/ circumstances and the evidence brought on record. If the Court, on the basis of evidence brought on record, comes to the conclusion that there is no likelihood of the accused being convicted then the Court can acquit ap accused, however, while acquitting the accused, the Court shall record the reasons. We are fortified in our view from the cases reported as Qurban Ali Jatoi v. The State and others [2003 YLR 1208] and The State through Advocate-General, Sindh High Court of Karachi v. Raja Abdul Rehman [2005 SCM R 1544. The perusal of record shows that the prosecution has collected sufficient material against accused-respondent No, 1, Wasim Khadim and the District Criminal Court, Rawalakot didn't ^ bother to frame charge under section242, Cr.P.C, and without recording any reason discharged die accused.
3. So far as the case of accused-respondents Nos. 2 & 3 is concerned, they are infirm persons of age of 80 and 70. They have been implicated in the case merely being parents of the principal accused. The prosecution failed to collect any iota of evidence against these accused- respondents. The result of the above discussion is that the judgments of District Criminal Court, Rawalakot dated 10.6.2010 as well as that of the Shariat Court dated 13,4.2011 are maintained to the extent of accused-respondents Nos. 2 & 3 and while partially accepting the appeal to the extent of accused-respondent No, 1, judgments of District Criminal Court, Rawalakot dated 10.6.2010 as well as that of Shariat Court dated 13.4.2011 are set aside.
With these observations, this appeal is disposed of. Judgment Accordingly.