ISHTIAQ IBRAHIM, J.---This criminal appeal has been preferred under section 417, Cr.P.C. by State through Advocate General KPK, Peshawar, against impugned order dated 03.12.2015, passed by learned Additional Sessions Judge-IV, Kohat, whereby the respondents Nos,1 and 2 namely Gulfam Hussain and Sadiq Ali, involved in case FIR No, 218 dated 29.08.2014, registered under section 302/34, P.P.C., Police Station Ustarzai, District Kohat, were acquitted under section 268-K, Cr.P.C., of the charges levelled against them.
2. According to prosecution case, complainant Fida Hussain on receiving information from his relatives regarding murder of his brother Hashim Gul and other family members, came to the spot and found his brother Hashim Khan, wife of his deceased brother namely Sheshna, nephew Amir Hussain, niece Mst. Fauzia and Sadia lying murdered on separate cots through firearms.
Consequently on the basis of his report, initially FIR mentioned above was registered against unknown accused. Lateron, in his supplementary statement recorded under section 164, Cr.P.C. before the Magistrate, on 2.9.2014, he nominated the accused/respondents for commission of offence.
3. After completion of investigation, complete challan against accused/ respondents was submitted before the learned trial Court, where formal charge was framed against them to which they did not plead guilty and claimed trial. After recording statements of complainant Fida Hussain (PW.2) and Naeem Ullah Inspector (I.O/PW.3), an application under section 265-K, Cr.P.C. for acquittal of accused/respondents was submitted before the learned trial Court, notice whereof given to the other side and after hearing arguments of learned counsel for the parties, the learned trial Court while allowing application of respondents under section 265-K, Cr.P.C., acquitted both the respondents from the charges levelled against them. Hence, the present appeal has been preferred by the State through Advocate General, Khyber Pakhtunkhwa, Peshawar regarding involvement of respondents in the reported murders as there were rumors in he Illaqa that the accused/respondents had Killed the deceased but in support of his stance he did not record statement of any person from the area who had allegedly conveyed this information to him, which makes the case of prosecution doubtful regarding involvement of respondents in the commission of offence.
4. We have heard arguments of learned State Counsel and gone through the material available on file.
5. Admittedly, respondents have not been directly charged in the FIR for commission of offence rather they were named by the complainant in his supplementary statement under section 164, Cr.P.C. recorded on 2.9.2016 before the Magistrate, wherein no source of satisfaction regarding involvement of respondents in the commission of offence has been disclosed. No eye-witness has been brought on record by prosecution which could depict that the deceased were killed by the respondents in his presence. The complainant is also not an eye-witness of the occurrence and while examining before the learned trial Court as PW.2, he exonerated the accused/respondents from commission of offence by denying his supplementary statement being not made by him nor he charged the respondents in his Court statement for commission of offence, who stated that the respondents have never been charged by him rather they were implicated by police at their own on the basis of suspicion. This fact lends support from the statement of Investigation Officer namely Naeem Ullah Inspector (PW.3), who in his cross-examination admitted this fact that he did not find any eye-witness of the occurrence and that he had suspicion.
6. The respondents despite remaining in police custody have made no confession before the competent Court nor any incriminating article/weapon of offence has been recovered from their immediate possession or at their instance/pointation. So when no ocular or circumstantial evidence was available against respondents and the case of prosecution was based only on rumors and suspicion, then the learned trial Court had no other option but to acquit the respondents by accepting their application under section 265-K, Cr.P.C., which he rightly did so and there was no need to record the remaining evidence. It has been provided under section 265-K, A Cr.P.C. that:-- "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."
It is obvious that the legislature in its wisdom did not leave the question of recording evidence as a condition before taking action under the said provision. The use of expression "at any stage" of the case is indicative enough of the intention that any such stage could be the very initial stage, after taking cognizance or it could be a middle stage after recording some proceedings and/or even it could be later stage as well. Reliance is placed on the case titled, State through Secretary, Ministry of Interior v. Ashiq Ali Bhutto (1993 SCM R 523).
7. Keeping in view the above provision, it is clear that recording of entire evidence is not necessary for acquittal of an accused rather at any stage the Court while exercising powers under section 265-K, Cr.P.C., can acquit the accused if there is no probability of his conviction in any offence. Mere naming of respondents on the basis of suspicion and rumours, is not sufficient to establish their guilt, particularly, when the same has no corroboration from ocular or circumstantial evidence.
Moreover, the complainant (PW.2) has never charged the respondents for commission of offence and denied any supplementary statement made by him before the Magistrate, therefore, the learned trial Court has rightly acquitted both the respondents from the charges levelled against them by allowing their application under section 265-K Cr.P.C., which needs no interference by this Court. Consequently, this Criminal appeal being devoid of any force is dismissed in limine.