SYED MUHAMMAD FAROOQ SHAH, J.---Applicant Saleemullah Khan, ex-DIG, Mirpurkhas region, being unsuccessful to obtain order of acquittal from the trial Court under Section 265-K Cr.P.C. In case Crime No, 35/2007, registered with Police Station Khipro under Sections 458/354/344/220/506/34, P.P.C. r/w Articles 155-C, 156-A, C, D of Police Order, 2002, approached this Court by filing the captioned application and sought the following reliefs:-- "WHEREFORE, it is most respectfully prayed that the impugned order dated 22.10.2007, passed by learned Addl. Sessions Judge, San ghar be very graciously set aside, in the interest of justice.
' It is further prayed that the operation of the said order be suspended, in the meanwhile.
' It is also prayed that the attendance of the applicant/accused in the trial Court, be dispensed with, till the decision of this application.
' Any other relief that this Honourable Court may deem appropriate, may also very graciously be granted".
2. Record transpires that on 30.05.2007, the learned Civil Judge and Judicial Magistrate, Khipro, took the cognizance by accepting the challan; the applicant was in custody and co-accused Inspector Shahid Bajwa was shown as absconder. The case was transmitted to the Sessions Judge on 02.06.2007, being .0 session case. Copies as required under Section 265:C, Cr.P.C. Were supplied to the applicant/accused. It is worthwhile to mention here that in compliance of bail order, granted by this Court, release writ of applicant/accused was issued by the trial Court. On 01.08.2007, co- accused. Inspector Shahid Bajwa was declared proclaimed offender and copies as provided under Section 265-C, Cr.P.C. Were supplied to the applicant/accused. On the very same day, the applicant filed application under Section 265-K, Cr.P.C. And the impugned order was passed on dated 22.10.2007.
3. From perusal of record, it also appears that the application under Section 265-K, Cr.P.C. Was filed on factual as well as legal grounds, before framing of the charge and the trial Court vide order dated 22.10.2007 (impugned herein), declined to acquit the applicant at premature stage while observing that the applicant/accused took two women from the custody of their husbands, who did not belong to 'Mano Bheel' family, therefore, in the given circumstances, it cannot be held at the pre-mature stage that the accused acted with bona fide intention in discharge of his duties, which point requires evidence; the trial Court has further observed that tentative assessment made by the Superior Courts by granting bail to the applicant may not be equated to the ground of acquittal under Section 265-K, Cr.P.C. So far as implication of Article 172 of Police Order is concerned, the trial Court has made the following observations:-- "The grounds emphasized by the applicant/accused on factual side require deeper appreciation, which cannot be undertaken at this stage when no evidence has been recorded at all. As regard applicability of Article 172 of Police Order, 2002, it depends upon the facts, whether applicant acted bonafidely under discharge of his duties or under the cover of his duties. The applicant has reiterated both the women he recovered were the daughters of Mano Bheel. However, he has failed to produce either statements of these women admitting them to be daughters of Mano Bheel or evidence proving fact, even he has admitted that he has not so far received DNA reports.
Thus at present it cannot be said that while apprehending of the family members of the complainant's family he has any evidence available with him to secure two married women or arrest complainant and other members of his family. At present I am of the view that when any police official does any act which constitute any offence, it cannot be considered to be an act committed by him under the cover or discharge of his official duties on this I am fortified by celebrated authority Muhammad Ismail and others v. The State (PLD 1970 Karachi Page 261 Placitum (F) ".
3. However, by concluding the impugned order, the appellant was set at liberty to repeat the similar application, if some evidence come on the record and supports, the contention of the applicant/ accused.
4. Heard. Record perused.
5. Brief facts of the FIR as averred in the instant Revision Application are reproduced hereinabove in verbatim:-- "Complaint is that I along with my relatives, my relatives Allahdino son of Achho Bheel and others along with families reside in Warji-Pat Deh Nian Taluka Khipro and do labour. On 15.09.2006 after taking meal we slept in our houses. In between night of 15/16-9-2006 five/six police mobiles encircled our houses. The persons in police uniform and plain dress being armed with weapons entered in our houses without any information. Same of them entered in my house and by coming they made me stand from cot while asking as to where my wife Chhaman is. I enquired from them about their identity and place and that why they are enquiring about my wife. On my such enquiry the person in plain dress disclosed ' that he is Saleemullah the DIG Mirpurkhas. Meanwhile, my wife Chhaman also woke up and became frightened having seen the persons with weapons.
She also started raising cries. Rana Saleemullah by holding her from hair said that she does not know that he is DIG Saleemullah and you (she) are Momal the daughter of Mannoo Bheel.
Meanwhile, a person with three stars brought Allahdino and his wife Raj Bai and disclosed that she is Babli the daughter of Mannoo Bhel. That person was calling himself as DIG, to be afraid of God as she is my wife Chhaman while other is Raj Bai, the wife of Allahdino and we have no concern with Mannoo Bheel. Upon which Shahid Bajwa and DIG Rana Saleemullah caused serious maltreatment to us. I, my wife Chhaman, son Bhorio aged 13 years, daughters Srwari age 10 years, Kareem age 7 years, Qaiman age 1-1/2 year, Allahdino, his wife Raj Bai and his daughter Surma age 2 years were put in police mobiles by dragging and tying our eyes after causing torture upon males and holding ladies from hair and clothes. We were wrongfully confined at a private place at Mirpurkhas. Time to time Shahid Bajwa and Rana Saleemullah used to come at night for issuing threats to us that we should say that Chhaman is Momal while Raj Bai is Babli, the daughters of Mannoo Bheel. On our .Refusal they used to maltreat the male persons and used filthy language with women. On our constant refusal Rana Saleemullah and Inspector Shahid Bajwa brought Mannoo Bheel stated that these are his daughters Momal and Babli and he is refusing for nothing.
Upon which Mannoo Bheel stated that they may get the D.N.A. Test for girls done. The blood of our wives was got taken by some doctor. During the period Shahid Bajwa and Rana Saleemullah remained torturing us to compel us to say that these are daughters of Manoo Bheel. Despite receipt of report of D.N.A they kept us under wrongful confinement for about 39 days. My father- in-law Chhapro remained making press conferences and applications after our abduction. DIG Rana Saleemullah, Inspector Shahid Bajwa and other officials maltreated us and kept us under wrongful confinement for about 39 days by misusing their poweRs, My case be lodged and justice be done.
6. It is averred in the instant Criminal Revision filed under Section 435, Cr.P.C. r/w Section 561-A, Cr.P.C. That the FIR does not carry the signature or thumb impression of the Complainant, which according to law, is incurable; non-identification of the applicant and 8 months delay in lodging the FIR. It is stated that Article 172 of the Police Order provides that complaints in the Police Order delayed by 6 months or more shall not be entertained; that Section 458 of the P.P.C. Is not applicable and attracted to the FIR and so also Sections 344 and 220, P.P.C. As well; that there were no mala fide or foul play on the part of the applicant/accused or, deems assisting him as he was simply complying with the directions of the Supreme Court; That DNA test was still pending when the applicant/accused was placed under suspension on the eve 22.10.2006. In paras 23 and 24 of the revision application, the applicant has stated that the FIR is politically motivated move, which arose out of cleavage and animosity on account of a number of suo motu notice cases of the Apex Court, in which the applicant/accused submitted factual reports to the Hon'ble Supreme Court, giving rise to anger against the Applicant, among those who were at the helm of affairs on the administrative side; that 164, Cr.P.C. Statements of complainant and the FIR witnesses recorded before the Learned Civil Judge and J.M. Khipro, reveal a number of serious contradictions among themselves as well as from the contents of the FIR which goes a long way to establish that this FIR registered against the applicant/accused is false, baseless, mala fide and a product of ongoing vendetta.
7. So far as frequent applicability of Section 265-K, Cr.P.C. Is concerned, it has been emphasized over and again by the Superior Courts that the discretionary powers under Section 265-K are to be exercised sparingly and judiciously and in no way arbitrarily and capriciously. It may not be, therefore, fair for the trial Court to pass order of acquittal without providing proper and full opportunity to the parties Concerned to produce evidence. Undoubtedly, the Court is empowered to acquit the accused at any stage as mentioned in the aforesaid provision of law but it should do so only after hearing both sides, on the basis of adequate reasons to the definite conclusion that there is possibility of accused being convicted of any offence. Contents of the FIR and subsequent investigation reveals that such extraordinary powers cannot be exercised by this Court under Section 561-A, Cr.P.C. To quash the FIR at its very inception, more particularly, the charge has not been framed as well and it is a case, which requires deeper appreciation of evidence, cannot be decided at its initial stage i,e, before framing of the charge. Section 561-A, Cr.P.C. Is meant to prevent and abuse of process of the Court and not to circumvent and defeat the procedure laid down by the law and to be followed by the Courts. In the instant case, the applicant/accused has specifically been nominated in the FIR for committing a heinous offence, which requires evidence hence the trial Court has correctly made observation that the application under Section 265-K Cr.P.C. Be filed after recording some evidence come on the record.
8. Whatever mentioned/stated above, I reached at the irresistible conclusion that in the given circumstances, the impugned order is neither perverse, arbitrary and shocking. In the instant case, learned trial Court has proceeded to exercise its power by taking into consideration of facts and circumstances, in absence of evidence in the shape of deposition of material witnesses; it was pre- mature to determine the guilt or innocence of the applicant/ accused as the trial Court has to properly examine all aspects of the case. I am clear in my mind that there is sufficient material against the petitioner to connect him with the alleged offence, therefore, the trial Court under the garb of Section 265-K, Cr.P.C. Cannot deprive the prosecution from providing opportunity to adduce evidence as the power under Section 265-K, Cr.P.C. Can be invoked only if there is no probability of accused to be convicted of any offence with, which he has charged. I am fully in agreement with the findings of A the learned trial Court as there is sufficient material against the applicant to connect him in the commission of the offence.
9. Above are the reasons of short order dated 12.01.2016, by which the captioned revision application was dismissed.
10. Needless to say that observation made herein above are of tentative nature and the trial Court shall not be influenced by any of such observation and expedite to conclude the case preferably within a period of 3 months. Office is directed to return the R&Ps to the trial Court forthwith.