MALIK HAQ NAWAZ, J.---The precise facts giving rise to present petition are that on 16.12.2013 one Mir Yaqoob son of Rahmat Khan lodged FIR No, 101/13 at Police Station Airport Gilgit under section 302/34, P.P.C. For murder of his real brother Muhammad Wakil. He has not charged anybody for commission of murder, however, he suspected the crime to be the result of Sectarian violence.
2. The local police of concerned police station reached at the scene of occurrence and started investigation, prepared site plan and took into their possession, blood stained earth and two crime empties from the place of occurrence on the same day and also completed some other codal formalities.
3. Interestingly, the complainant Mir Yaqoob submitted another application on 23.5.2014 and, he charged five persons namely Fidaullah son of Umar Khan, Sangroop, Saeedullah, Mir Afzal and one Mehboob Ullah sons of Shalmir for murder of his brother. The police recorded the statement of one Nasirullah real son of deceased on 05.01.2014, wherein he showed his presence near the place of occurrence and posed himself as an eye-witness along with one Ansar Ahmad. The statement of Ansar Ahmad under section 161, Cr.P.C. Was recorded by the police on 17.12.2013. Both these P.Ws..Did not specifically name any assailant and only stated that two muffled persons riding on a red colour bike came at the place of occurrence and opened fire on the deceased. Neither these witnesses described features of the assailant, nor after arrest of the petitioner identification parade was held before these alleged eye witnesses.
4. The police arrested the present petitioner/accused and on 02.06.2014, a site plan of the place of occurrence was prepared on his pointation and no any other recovery was effected from the petitioner/accused. The police released Sangrup, Mir Afzal and Mehboob Ullah under section 169, Cr.P.C. While accused Saeed Ullah is still at large.
5. The petitioner/accused submitted an application under section 265-K, Cr.P.C., before the trial Court, which was declined on 07.11.2015 and not contended with the verdict rendered against him, he by means of the present revision petition, approached this Court for his relieve from the criminal liability.
6. The learned counsel for the petitioner submitted at bar that the case is false and the petitioner has been falsely implicated in the case due to the efforts of some ill wishers and the prosecution evidence if believed as correct, there exists no probability of conviction of accused. The learned counsel further submitted that the trial in the prevailing circumstances would be a futile exercise.
7. On the other hand the learned Dy.A.G. Opposed the petition and submits that the application is pre-mature and the accused facilitated in commission of offence and section 34 of P.P.C. Is fully attracted in the instant case, which invites the same punishment as provided for principal offender.
8. I have heard the parties at length and also perused the record with their able assistance.
9. From the perusal of record it transpires that the complainant has been changing his version time and again. In the FIR he termed the murder as a result of Sectarian hatred, prevailing in the area.
Again he woke up on 23.5.2014 and submitted an application, wherein he charged five accused including present petitioner for commission of murder. Out of the five nominated accused police released accused Sangrup, and Mehboob Ullah, while accused Saeed Ullah is still absconder. The complainant despite of release of accused named above under .Section 169, Cr.P.C. Did not bother to file a private complaint or sought any remedy available to him under law.
10. The I.O. Of the case either due to lack of professional skill or because of some extraneous consideration did not bother to conduct investigation in a fair and transparent manner. The I.O. Did not take the motor bike, which as per prosecution case was owned by the petitioner/accused and was used in commission of offence nor any solid reasons have been advanced for non-recovery of motor bike. The alleged eyewitnesses of the occurrence stated in their statements under section 161, Cr.P.C., that the firing was opened by two muffled persons but no identification parade was held in this regard, after arrest of The present petitioner, which was a mandatory requirement of law.
11. Identification parades are conducted under Article 22 of Qanune-Shahadat, 1984 for two fold purpose, the first is to establish the identity of the accused and secondly to rule out the possibility of false implication of the accused by the complainant/witnesses for any ill designs.
12. After scanning the record, the only evidence available on the file is pointation of place of occurrence by the accused, while in police custody. The pointation of place of occurrence by the petitioner/accused is not covered under Article-40 of Qanun-e-Shahadat, 1984, as there was no discovery of. Fresh facts and the place of occurrence was already known to the police before arrest of present petitioner/accused and site plan of the occurrence almost all similar to the site plan prepared on the pointation of the petitioner was available on record.
13. Under dispensation of Criminal Justice System, there is no concept to burry any criminal proceeding at the very initial stage and Courts of the country always lean towards disposal of cases on merits after proper adjudication but at the same time the remedy to the accused, facing criminal trial is available to invoke the provisions of section 265-K, Cr.P.C. In Sessions trial, if no offence is made out against him. From plain reading of section-265-K, Cr.P.C. It is crystal clear that no embargo has been placed on the powers of the Court to acquit the accused at any stage .Of proceedings, if the charge is groundless and the possibility of conviction is not insight.
14. As discussed above, there is, no incriminating evidence against the petitioner/accused and the conclusion of trial on a capital charge would further the miseries of the petitioner/accused which has never been the intention of law givers and does not find any place in criminal dispensation of justice.
15. As a result of above discussion the petition in hand is allowed and the petitioner/accused is relieved from the criminal liability of FIR No, 101/2013 dated 16.12.2013 registered under section 302/34, P.P.C. At Police Station Airport Gilgit. However, the case of absconding accused Saeed Ullah is on different footing. The trial up to his extent will take his own cause after his arrest.