MUHAMMAD IQBAL KALHORO, J.---A direct complaint was filed by respondent No,1 Syed Muhammad Amin Shah before the Anti-Terrorism Court, Mirpurkhas alleging abduction of his nephew Syed Zuhaib Shah for ransom by the applicants on 12.12.2014 at 9.45 p.m. Learned ATC Judge conducted preliminary inquiry into the complaint, during which he examined complainant, the abductee Zuhaib Shah, and other witnesses. After evaluating all the statements, learned Judge, ATC took cognizance of the offence vide order dated 22.4.2015 and issued notice to the applicants.
In response thereof, the applicants appeared in the court and moved an application under section 265-K, Cr.P.C. For their acquittal. This application was dismissed vide impugned order dated 16.07.2015. The learned Judge has mainly held that the points raised by the applicants are related to the factual aspect of the case, which-require evidence. The applicants are not satisfied with the said order and have challenged it in the instant application.
2. Mr. Tahseen Ahmed Qureshi, learned counsel for applicants in support of his contentions has mainly argued that the impugned order is illegal and not sustainable in law as the learned Judge has not considered the points that he has raised in the application under section 265-K, Cr.P.C. He further states there are material-contradictions and variations between the contents of the complaint and the statements of the complainant and witnesses recorded in preliminary enquiry, but the learned judge has completely ignored them while taking cognizance of the offence.
According to him, there was no convincing material before the court to take cognizance of the offence; that the complaint has been registered against the applicants on the basis of surmises and conjectures. He has contended that contradictions and improvements made by the witnesses have made it obvious that the case against the applicants is managed and false one. Benefit of such discrepancies, not as a matter of grace but as a right, should have been given to the applicants by the trial Court. He is of the view that the application under section 265-K, Cr.P.C. Can be moved at any stage even before framing of the charge, therefore, the observations of the trial Court that only after recording of the evidence, the points raised therein could be appreciated are not sustainable under any law. The next point emphasized by him is that there is a considerable delay in filing of the complaint, which has rendered the entire case against the applicants as dpubtful. According to him, in the cases of direct complaints the delay has always been considered by the superior Courts as fatal. Explaining the point, he states that although in the criminal cases the delay per se has never been construed as a ground for acquittal, but in direct complaints the delay leaves a negative impact on the merits of the case, for in such scenario, chances of chicanery and manipulation of the record cannot be ruled out. In support of his arguments, he has relied upon the cases reported as PLD 1999 SC 1063, 2012 PCr.L,J 999, PLD 1978 Kar. 348, PLD 1996 (Karachi) 253, 1996 M LD 111, PLD 1980 (Karachi) 1840, 1998 SCM R 1840, 1991 PCr.LJ 1368.
3. On the other hand, Mr. M. Waseemuddin Shaikh, learned counsel for complainant/respondent No,1 has argued that the delay in filing of the complaint occurred due to certain facts and while explaining those facts he has stated that the incident took place on 12.12.2014 and immediately thereafter on the next day i.e, 13.12.2014 an application under section 491, Cr.P.C. Was moved before the learned Sessions Judge, Mirpurkhas for recovery of the abductee, but as the abductee could not be recovered from the pointed place, the application was dismissed. Then due to pressure of the applicants, who are police officials, the' complainant was dissuaded from taking any action against them. But after recovery of the abductee against ransom on 19.1.2015, he filed an application under section 22-A and B, Cr.P.C. For registration of FIR against the applicants. It was dismissed on 30.1.2015. Then after collecting the certified copies of all the relevant documents, the complainant filed the instant complaint against the applicants. He contends that the delay in filing the complaint was due to these reasons and in such scenario the delay cannot be considered materially affecting merits of the case. While replying to the contention of the applicants that there are material contradictions between the complaint and statements of the witnesses, he has argued that no material discrepancy has been pointed out by the applicants to show that the allegations on the face of it against them are false or fabricated. He further states that the documents produced by the complainant prima facie establish the offence against the applicant and whether these allegations are false or not can only be determined in trial. In support of his arguments, he has placed reliance on the case reported as 2008 SCM R 383.
4. Syed Meeral Shah Bukhari, learned Deputy Prosecutor General has also opposed the grant of this application. According to him, there is sufficient material against the applicants to connect them with the commission of the alleged offence. He has also pointed out that applicants did not challenge the order whereby the learned ATC took the cognizance of the offence and now they are referring to some alleged contradictions in the statements of the witnesses which were considered by the trial court only for the said purpose. In his view referring to these contradictions, in the application under section 265-K, Cr.P.C. Will not help the applicants. He states that the learned Judge, ATC has rightly dismissed the application. He has relied upon the case reported as 2008 SCM R 1544 in support of his arguments.
5. We have heard the learned counsel for the parties and have perused the material available on record including the decisions cited by A them at the bar. The salient grounds taken by the applicants for their acquittal under section 265, Cr.P.C. Are mainly the alleged contradictions in the statements of the witnesses recorded during preliminary enquiry and the contents of the complaint; and in addition to above the delay in filing of the complaint has been questioned. In so far as the first ground is concerned, learned counsel for the applicants has not been able to show any material discrepancy in the contents of complaint and the statements of witnesses to establish that allegations against the applicants are prima facie false and fabricated, and these allegations even if proved would not end in conviction of the applicants. We are of the humble view that, even otherwise, on the basis of any such alleged contradictions in the statements of the witnesses, the object of which was to satisfy the court, prima facie, about occurrence of the incident, the applicants cannot be acquitted under section 265, Cr.P.C. The benefit of this provision of the law can only be extended to the applicants once they are able to establish that charge of the offence against them is groundless, and there is no probability of their conviction on the basis of such charge. The applicants here have simply pleaded that the charge against them is false and in support of their contention have referred to certain contradictions in the complaint and the statements of the witnesses. Admittedly, the proposition that a charge is false has an altogether different connotation than the one that the charge is groundless. In the first case, it is only after the evidence is recorded; the court can reach such conclusion and can acquit the accused. However, if the charge is groundless, the accused can be acquitted at any stage of the trial, even before framing of a formal charge against them. But to show that a charge is groundless, the accused have to convince the court, that there is no material on the basis of which, they can be convicted and continuation of the trial against them is an exercise in futility. That even if the allegations leveled against them are taken to be true, there is no probability of their conviction. Merely urging that the allegations against them are false and fabricated would not bring the case of the applicants within the ambit of benefit provided under section 265-K, Cr.P.C.; and, in our view, on such premise, the applicants are not entitled to be released under section 265-K, Cr.P.C.
6. The delay in filing of the instant complaint cannot be -considered a valid ground for acquittal of the applicants under section 265-K, Cr.P.C. Either. Whether any adverse consequence is to follow, or not due to the delay, is essentially a factual question, which has to be appreciated only in light of the evidence. By merely referring to the delay in initiation of an action against the accused, in our estimation, no acquittal can be ordered. More so, in the matter in hand, the delay in lodging the complaint, against the applicants appears to be reasonably explained, and we would not like to deeply examine its consequences here, lest it may prejudice case of the either party before the trial court. Suffice it to say, that on the basis of any alleged delay per se, the applicants cannot be acquitted, under section 265-K, Cr.P.C. Consideration under this provision of law is entirely different than the one raised by the applicants in the application under section 265-K, Cr.P.C.
Resultantly, we see no merits in the instant application and dismiss it accordingly. The trial court is, nonetheless, directed to expeditiously conclude the trial strictly in accordance with the provisions of Anti-Terrorism Act, 1997.
The observations made herein above are tentative in nature.