' SHAKEEL AHMED BALOCH, J.--- This Criminal Acquittal Appeal No.343 of 2008 is directed against the judgment dated 22nd November 2008 (hereinafter referred as, "the impugned judgment") passed by learned Special Judge, Anti-Terrorism Court-II, Quetta (hereinafter referred as "the trial Court") whereby the accused/ respondent Abdul Hameed Son of Ghuman Khan, Nazeer Ahmed son of Abdul Hameed and Abdul Ghani son of Anwar were acquitted of the charge under sections 365-A, 109, 34 of the P.P.C. Read with section 7 of Anti-Terrorism Act.
2. Facts of the case are that on 26th July 2008 the complainant Mohsin Ali son of Safar Khan lodged FIR No.108/2008 at Police Station, Brewery Road, Quetta under above mentioned sections, stating therein that a year back the complainant was on his way to home, at about 9:00 p.m. Four persons sitting in a 2.0D Car, having Kalashnikovs, forcibly put the complainant in their vehicle and blind folded his eyes. It is further alleged that after six hours drive after removal of muffles the complainant saw that he is at Dalbandin. He identified the accused Abdul Hameed, his son Nazeer, whereas the 3rd accused was Abdul Ghani, while the 4th can be identified if brought before him. It is also alleged that the complainant was taken by accused Nazeer along with his 4/5 companion towards mountain, where the complainant was confined in a room from where they talked with the mother of the complainant and demanded Rs.1,50,00,000 and in alternative to transfer his property in their name and they further threatened for dire consequences, if the police was informed. It is also alleged that after one and half month the accused again contacted his mother and demanded for payment of ransom, which she refused having no money to pay. In alternate the accused persons asked his mother to transfer the house situated in Block-I, Hazara Town, Quetta in their name and to vacate same; that the said house was transferred in their name and she also vacated the same. On 25th July 2008, after a journey of 4/5 hours the complainant was de- boarded from the vehicle and he was told to unfold his eyes after ten minutes; that when the complainant unfolded his eyes, he found himself near Hazara graveyard at 9:00 p.m. It is further stated in the FIR that when the complainant reached his house, he did not find his mother, he contacted his mother on phone, who informed him that she is at the house of Ibrahim.
3. In pursuance of above FIR, investigation was entrusted to P.W.2. Jalaluddin IP/I0 who during investigation prepared map Exh.P/2-B, arrested the accused Abdul Hameed on 30th July 2008; recorded 164, Cr.P.C. Statement of the complainant; obtained the non-bailable warrants of accused Nazeer Ahmed; recorded the statement of mother of complainant under section 161, Cr.P.C. Who had also sworn an affidavit on stamp paper Exh.P/2-C, obtained non-bailable warrants of accused Abdul Ghani on 7th August 2008 and submitted incomplete Challan to the extent of accused Abdul Hameed; arrested the accused Nazeer Ahmed on 23rd October, 2008 after rejection of his pre-arrest bail. Where after he was transferred to judicial custody and the investigation was handed over to Asif Rasheed IP who submitted complete Challan before the trial Court as Ex-P/2-E.
4. At the trial, the prosecution produced P.W.1. Rehmatullah Umrani, Judicial Magistrate, who had recorded 164 Cr.P.C. Statement of the complainant Mohsin Ali. Notices to complainant and his mother were issued by the trial Court for recording their statements before the trial Court, but neither the complainant nor his mother appeared before the trial for recording their statements and finally the statement of CW-2 Jalaluddin Inspector was recorded who stated that the outer gate of complainant is locked and on inquiry from the neighbours it revealed that the complainant along with his family have shifted to Kabul. In the meantime, the accused/respondent filed an application under Section 265-K, Cr.P.C. For their acquittal, which was allowed vide impugned judgment dated 22nd November, 2008 whereby the accused/respondent Abdul Hameed, Nazeer Ahmed and absconding accused Abdul Ghani were acquitted of the charge. Whereafter the State filed the instant Criminal Acquittal Appeal.
' On 20th December, 2010 nephew of respondent No.3 namely Naveed appeared and stated that respondent No.3 has proceeded to Qatar, therefore, the process was not served upon him. On subsequent dates despite issuance of warrants as well as publication, respondent No.3 did not appear and in the circumstances Mr. Azam Qambarani, Advocate, was appointed as counsel for respondent No.3 by the Court.
5. Learned Special Prosecutor ATA contended that sufficient time was not provided to the State to procure the attendance of complainant and other prosecution witnesses; that the trial Court at pre-mature stage in haste manner not only acquitted the accused facing trial but also the absconding accused too; that sufficient incriminating evidence is available on record to connect the accused/ respondent; that the acquittal of the accused/respondents is perverse and contrary to material available on record.
6. Learned counsel for respondents stated that no specific date of abduction is mentioned in the FIR and FIR was lodged after inordinate delay of almost one year without any plausible explanation; that sufficient opportunity was afforded to the State to procure the attendance of complainant and his mother, but the prosecution has failed to examine the said witnesses; that the case could not have been kept pending for indefinite period for appearance of prosecution witnesses, which fact was rightly appreciated by the learned trial Court while entertaining the application under section 265-K, Cr.P.C. And acquitting the respondents; that entire case of prosecution is doubtful and even appearance of the complainant and his mother before the trial Court could have not benefited the case of the prosecution.
7. Heard the learned counsel and perused the available record. According to the prosecution the complainant lodged FIR on 26th July 2008 stating therein that he was abducted by the accused/respondent about a year ago and he was taken to Dalbandin, from where the accused persons contacted his mother and demanded Rs.1,50,00,000 as ransom for the release of complainant, but his mother refused to make the payment, therefore, the accused/respondent demanded to transfer his residential house in the name of accused persons and also vacate the same, hence the house was transferred in the name of accused persons and the mother of complainant along with other family members vacated the said house. Thereafter on 25th July, 2008 the complainant was released at Hazara graveyard and on following date i.e. 26th July, 2008 the FIR was lodged.
8. That the prosecution story is doubtful and the prosecution story apparently is not trustworthy for verity of reasons. The complainant of the case is not sure that on which date he was abducted and even otherwise in his absence the other family members of the complainant have failed to inform the police or to lodge the FIR. It is unnatural that the family member of aggrieved party is abducted by the accused persons and the names of the accused are also known to the family of the complainant but no prompt report was lodged well in time. This fact renders the entire case of the prosecution doubtful. The naming of the accused in the FIR by the complainant is also highly doubtful and it appears that the accused persons were earlier known by the complainant. In our view there was a civil transaction/dispute between the parties, but the same was converted into criminal case. Furthermore the abductee was already released on 25th July 2008 but despite such fact he informed the police on the following date i.e. 26th July 2008. The main purpose of lodging FIR is to set criminal law in motion and to bring on record firsthand information about the occurrence of a crime. Thus, the main object of recording FIR promptly is to provide a sound basis for carrying out the investigation in the right direction excluding the possibility of fabrication of any false story, whereas in the case in hand as the actual date of incident has not been mentioned nor the FIR has been promptly lodged. In view of the circumstances of the present case, delay of one year in lodging FIR cannot be taken lightly and it casts serious doubt in the case of prosecution. It is a settled principle of law that delay in lodging the FIR can only be condoned when such delay has been adequately explained, but in the instant case there is no explanation for inordinate delay in lodging FIR after a year.
9. The demand of ransom amount in such a manner as stated by the complainant is also highly doubtful and does not appeal to the logic in any sense, how could the ransom be paid in shape of transferring the property of the complainant in the names of accused/respondents when otherwise the accused persons are also known to the complainant party. It appears that there had been some civil dispute between the parties and in order to pressurize or to blackmail the accused the instant false FIR has been lodged. The mala fide of the complainant party is further evident from the fact that they avoided to appear before the trial court to record their statements and CW- 2 time and again visited their houses, but the outer gate of complainant party was always found locked and on query it revealed to CW-2 that the complainant along with his other family members have permanently shifted to Kabul.
10. The case of prosecution mainly hinges on the statement of complainant and his mother but both the witnesses avoided to appear before the trial court and besides these two witnesses there is no other independent, corroborative evidence on record to connect the accused/respondent with the commission of offences. The Investigating Officer of the case got recorded the 164, Cr.P.C.
Of complainant before the Judicial Magistrate-V, Quetta on the basis of suspicion. The Investigating Officer of the case himself was not sure about the genuineness of the prosecution case, therefore, the learned trial Court has rightly acquitted the accused/respondent of the charge, as the trial Court could not have adjourned the case sine die for an indefinite period which is against the spirit and mechanism provided by Section 344, Cr.P.C. The indefinite postponement of a criminal case is undesirable. For proper appreciation and correct understanding section 344, Cr.P.C. Is reproduced below:-- "344. Power to postpone or adjourn proceedings. (1) If, from the absence of a witness or any other reasonable cause, it becomes necessary or advisable to postpone the commencement of or adjourn any inquiry or trial, the Court may, if it thinks fit, by order in writing, stating the reasons therefor from time to time, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody: Remand. Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time.
(2) Every order made under this section by a Court other than a High Court shall be in writing signed by the Presiding Judge or Magistrate."
11. The above cited provision of law clearly establishes this fact that the trial Court may postpone or adjourn proceedings for a definite reasonable time by mentioning the reasons thereof, but simultaneously it restricts the powers of a Court to adjourn the case sine die for an indefinite period and only the case could have been adjourned or kept pending for a good reason and too up to a reasonable time. The section ibid never provides that for procuring evidence of a witness the case be kept pending for an indefinite period. The reasons behind the same are that if such practice is allowed, no sessions case would arrive to a conclusion. Mostly in frivolous and concocted cases, a witness would intentionally avoid to appear in the Court. The policy of criminal law aims at bringing accused persons to justice as speedily as possible, so that if they are found guilty, they may be punished and if they are found innocent, they may be acquitted and discharged. Therefore, in our view the learned trial Court has rightly exercised its jurisdiction as envisaged under section 249-A, Cr.P.C. R/W section 265-K, Cr.P.C. Reliance in this regard is placed on the case of Saadullah Khan v.
The State reported in 2014 YLR 2638. The relevant portion thereof is reproduced herein below: "9. A bare reading of the above section reveals that the court may if it thinks fit by order in writing stating the reason therefor from time to time, postpone or adjourn proceedings for a definite reasonable time. The section 344, Cr.P.C. Restricts the powers of Sessions Judge to adjourn the case sine die for an indefinite period. The Sessions Judge may adjourn the case for good reason, but up to a reasonable time. The section ibid never provides that for procuring evidence of a fugitive from law the case be kept pending for an indefinite period. If such practice is allowed, I am afraid no sessions case would reach to a conclusion. In frivolous and concocted cases, a witness would deliberately absent himself and the Court would have to do nothing except waiting. The policy of criminal law aims at bringing accused persons to justice as speedily as possible, so that if they are found guilty, they may be punished and if they are found innocent, they may be acquitted and discharged."
12. Section 265-K, Cr.P.C. Empowers the trial Court to acquit the accused at any stage of the case, if, after hearing the prosecution and the accused, it considers that there is no probability of his conviction, after recording reasons thereof.
For the sake of convenience section 265-K, Cr.P.C. Is reproduced as follows:-- "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."
13. Careful perusal of Section 265-K reflects that the trial Court has ample power to acquit the accused, even if the witnesses are not examined. Besides, Section 265-K, Cr.P.C. Is meant to prevent the rigours of a prolong trial, when it is apparent from the record, that there is no probability of the accused being convicted of the offence charged with, the trial Court can exercise judicial discretion in a fit and appropriate case but such power not intended to be exercised arbitrarily.
When the court reaches at the conclusion that it would be sheer futile exercise to linger on the case which shall not culminate on conviction, the court may exercise such powers as there is no clog of time on exercise of inherent powers by the Court, which could be used at any stage. Reliance in this regard is placed on the case of Muhammad Arastu v. The State, reported in 2014 PCr.LJ 802.
Relevant portion is reproduced herein below: "9. Suffice is to say that the provision of section 265-K, Cr.P.C. Is meant to prevent the rigours of a prolong trial, when it is apparent from the record, that there is no probability of the accused being convicted of the offence charged with, the trial Court can exercise judicial discretion in a fit and appropriate case but such power not intended to be exercised arbitrarily. When the court reaches at the conclusion that it would be sheer futile exercise to linger on the case which shall not culminate on conviction, the court may exercise such powers as there is no clog of time on exercise of inherent powers by the Court, which could be used at any stage."
14. The Investigating Officer of the case appeared as P.W.2 before the trial Court who stated that during investigation the mother of the complainant namely Bibi Nooria sworn affidavit as Ex-P/2-A. In her affidavit, complainant's mother told a different story other than the story narrated by her in the Fard-e- Bayan and FIR.. According to the said affidavit, after demand of ransom amount, she herself proceeded to Dalbandin and handed over Rs.70,00,000 to respondent Abdul Hameed. On one hand it is the contention of the prosecution that in lieu of ransom amount the house of the complainant worth Rs.1,50,00,000 was mutated in the name of respondents, whereas on the contrary, according to the contents of the affidavit of the mother of complainant Rs.70,00,000 was paid in cash to respondent Abdul Hameed in Dalbandin. In view of above, the entire case of prosecution has become doubtful.
15. Record reveals that there is no direct or circumstantial evidence against the respondents connecting them with the commission of the alleged offence. The respondents cannot be convicted merely on the basis of a concocted and fabricated story. The trial court has rightly appreciated the evidence in its true perspective resulting into acquittal of the respondents, because the complainant party had tried to culminate a civil dispute into criminal case, which is unwarranted. According to settled principle of law, double presumption of innocence is attached to the order of acquittal and interference is unwarranted unless the acquittal is arbitrary, capricious, fanciful or against the record. In the instant case the order of acquittal passed by the trial court is neither arbitrary, capricious, fanciful nor contrary to the evidence on record, warranting interference by this Court.
' For the above reasons the appeal being devoid of merits is dismissed.