Crl. Misc.No, 87-M/20.13 Seeks grant of interim injunction. Since main case has been listed today through supplementary cause list therefore, this petition has rendered infructuous and disposed of as such.
Syed Muhammad Kazim Raza Shamshi, J.--Intizar Ali Imran, a member of legal fraternity, by filing a petition under Section 561-A, Cr.P.C. prays for setting aside of an order dated 17.12.2012 passed by learned Judge, Anti Terrorism Court No, I, Multan whereby an application filed by the petitioner under Section 265-K, Cr.P.C. seeking his acquittal from the case FIR No, 486 dated 2.12.1994 registered with Police Station City Burewala, District Vehaii under Sections 302, 324, 34, 109, PPC was dismissed with further direction to the SHO of the Police Station to submit challan against the petitioner.
2. Brief facts of the case are that on 2.12.1994, Muhammad Ramzan son of Haji Mushtaq Ahmad made statement to Muhammad Attique SI of the Police Station mentioning that at about 2.30 p.m. on that day, he along with Abdul Hannan, Nasrullah, Mushtaq Ahmad and Munawar Ahmad were going to board on wagon his father for Multan and when they reached at Street No, 1, Multan Road, from the rear side, Intizar Shah, Intizar Ali Imran and. Ali Ibrar emerged on a motorcycle driven by Intizar Shah while the two other assailants were armed with rifle who while reaching at the spot started firing upon Mushtaq Ahmad who fell on the ground. Munawar Ahmad attempted to pick up Mushtaq Ahmad when petitioner Intizar Ali Imran fired with his rifle hitting at the neck of Munawar Ahmad who also fell down. The assailants shouted lalkara that they had taken the revenge of murder of Mazhar-ul-Haq (father of the petitioner). After the occurrence, the suspects decamped towards the canal side. The injured were taken to the hospital where Mushtaq Ahmad succumbed to the injuries.
The motive for the occurrence statedly was thatyears ago Mazhar-ul Haq father of Intizar Ali Imran'was murdered and Mushtaq Ahmad was the nominated accused of the case. According to the complainant the occurrence had taken place at the instigation and conspiracy hatched by Jalil Saqlain Naqvi, Zakir Hussain Shah and Riaz Rizvi Advocate, Burewala. On this report, formal FIR was lodged against the accused persons.
3. The police investigated the matter and found that the petitioner Intizar Ali Imran along with other co-accused did not participate in the occurrence, thus, sent the challan against Saeed- urRehman and Zakir Hussain to the Court mentioning the name of the petitioner in column No, 2 of the report. The petitioner in view of the declaration of innocence given to him by the police went abroad and returned later in the year, 1999. In the meanwhile, the learned Court conducted the trial of the challan of accused persons and acquitted both Saeed-ur-Rehman, Zakir Hussain and issued perpetual warrants of arrest against Ghulam Raza, Intizar Ali Imran, Ali Ibrar and Jalil Saqlain Rizvi as they were declared proclaimed offenders. This judgment was handed down by the learned Judge, Special Court on 24.5.2002. Subsequently, the Court tried Ghulam Raza alias Abbas Raza in second round and by accepting his application filed under Section 265-K, Cr.P.C. he was also acquitted from the charge of murder of Mushtaq Ahmad vide judgment dated 14.10.2004. The main reason prevailed upon the mind of the Court was that PW-9 Muhammad Attique S.1. vide his statement dated 2.9.2004 declare six persons innocent and the predecessor Court had, acquitted the main accused Mujahid Hussain therefore, there was no reason to farther, continue with the trial of the case.
4. The petitioner when gamed the knowledge that he had been declared proclaimed offender, appeared before the learned trial Court and furnished his surety bonds on the ground that he had no knowledge of the proceedings initiated against him under Sections 87 & 88, Cr.P.C. and that he had shifted his residence to Lahore, the address of which was available in the police file but no summon/warrants were sent at that address for his service. The Court accepted surety bonds furnished by the petitioner. The petitioner then filed an application under Section 265-K, Cr.P.C. seeking his acquittal from the case on the following grounds:--
(a) The instant, case was got registered by the complainant-Muhammad Ramzan with afterthoughts as the deceased and the complainant were facing the charge of the murder of Mazher-ul Haq, the father of the petitioner subject-matter of case FIR No, 125 dated 28.5.1993.
(b) During investigations of the case in hand the petitioner along with other six persons was- declared innocent by the police and their names were mentioned in Column No, 2 of report submitted to the Court under Section 173, Cr.P.C.
(c) In the trial conducted against Zakir Hussain and Saeed-ur Rehman the Court had recorded whole of the prosecution evidence and after analyzing the same, both of the main culprits were acquitted. Added that if same evidence is now produced and considered by the . Court against the petitioner, the result would not be different than the result of Saeed-ur-Rehman etc. Added that the allegation as per FIR against the petitioner is that he fired at Munawar Ahmad injured PW but said Munawar Ahmad did not appear as prosecution witness before the Court when the trial of Saeed- ur-Rehman etc. was conducted rather Munawar Ahmad PW was given up by the prosecution because of his non-availability. According to the learned counsel reportedly Munawar Ahmad PW has passed away thus, now cannot be examined by the- prosecution if the trial is conducted by the Court.
(d) The learned Special Court while dismissing the application of the petitioner had directed the SHO of the Police Station concerned to submit challan in the Court which was not needed as challan against the petitioner has already been sent to the Court mentioning his name in Column No, 2 thus, according to the learned counsel the. Court has committed illegality in passing such an order.
(e) The complainant Muhammad Ramzan even did' not enter in the witness box to support his crime report in earlier trial.
(f) Solitary statement of P W-4 Nasrullah is not enough to believe the participation of the petitioner in the occurrence.
(g) That sending petitioner in view of available material on record would be misuse of process of law.
Learned counsel in view of submission prays for his acquittal from the charge.
5. The request made by the learned counsel for the petitioner has been contested by the learn ed Deputy Prosecutor General submitting that the petitioner had fully participated in the occurrence which had taken place in broad day light and with his fire Munawar Ahmad received injury at his neck tierefore, he cannot be exonerated' from his liability. According to the learned counsel PW-4 still stands against the petitioner whose testimony is sufficient to record the conviction of the petitioner.
6. We have given our anxious thoughts to the submissions made by the learned counsel for the par ties and ourselves examined the record.
7. We have examined the narration of allegations made by Muhammad Ramzan in his crime report that the petitioner along with his co-accused launched murderous assault upon Mushtaq Ahmad and Munawar Ahmad resulting into the death of Mushtaq Ahmad and a bullet of petitioner hit at the neck of letter. In the trial conducted against Saeed-ur-Rehman etc. Muhammad Ramzan who is the complainant of the case did not enter into the witness box to support the allegations maintained by him in his first information report rather he was given up by prosecution itself. The' arguments of learned Law Officer that Muhammad Ramzan PW may now be examined if trial of the petitioner is conducted, is a sham submission for the reason that his statement if recorded now, that may have adverse effects upon earlier trial conducted in respect of Saeed-ur Rehman etc. When the star witness of the prosecution was given up by prosecution itself, then now that witness cannot be allowed to enter in the witness box to say that the petitioner is the person who had fired at Munawar Ahmad injured PW. Munawar Ahmad injured PW as per report Mark-A submitted by Zafar Iqbal ASI, is no more in this world to substantiate the injuries received by him allegedly at the hands of the petitioner. The report is dated 15.9.2004 and upon the basis of this report, the Court had passed an order on 16.9.2004. Furthermore, during the investigation, a clean chit was given to the petitioner by the police as a consequence of which, no incriminating evidence connecting the petitioner with the commission of crime is available on the file. Solitary statement of PW-4 in absence of statements of the complainant and injured Mushtaq, in our opinion may . not be sufficient to implicate the petitioner with the commission of crime alleged in the FIR. In our view, if the prosecution of the petitioner is undertaken now in the light of afore-noted facts that would be abuse of process of law and would be an exercise in futility as there appears to be no probability of recording any conviction against the petitioner. It would also amount to beat dead horse. The learned trial Court did not concentrate upon these facts borne out of the record thus impugned order is not sustainable. In this backdrop, we may observe that there is no probability of conviction of the petitioner of any offence and if petitioner is sent to face trial that may be abuse of process of Court. Learned trial Court, in the circumstances, has failed to exercise jurisdiction vested in it under law while refusing application of the petitioner.
8. For the foregoing reasons, the petition in hand is allowed, and order impugned is set aside, Resultantly, application filed by the petitioner under Section 265-K, Cr.P.C. before the trial Court is accepted and petitioner is acquitted from the charge. Bail bonds submitted before the trial Court are cancelled and sureties are relieved of their liability.