Through this criminal appeal filed under Section 417 Cr.P.C., appellant Mst. Parveen Bibi has called in question the judgment dated 28.04.2010 passed by learned Addl. Sessions Judge, Bahawalnagar, whereby respondents No.1 to 4 have been acquitted in private complaint under Sections 302, 34, 201 PPC.
2. Learned counsel for the appellant mainly contends that the impugned judgment has been passed in haphazard manner and accused/respondents No.1 to 4 have been acquitted even without recording statement under Section 342 Cr.P.C.; it has been mentioned in the impugned judgment that application under Section 265-K Cr.P.C. was submitted by the accused/respondents No.1 to 4, which was accepted and resultantly they were acquitted but no such application i.e. under Section 265-K Cr.P.C. was filed by the accused/ respondents No.1 to 4, therefore, case is liable to be remanded back after setting aside the impugned judgment.
3. Learned counsel for accused/respondents No.1 to 4 has controverted all the aforementioned contentions raised on behalf of learned counsel for the appellant and has supported the impugned judgment.
Learned law officer though has not requested for remand of the case but otherwise contends that order of acquittal of accused/respondents No.1 to 4 is not sustainable.
4. Arguments heard. Record perused.
5. As far as first contention raised by learned counsel for the appellant regarding acquittal of accused/respondents No.1 to 4 without recording their statements under Section 342 Cr.P.C. is concerned, same is holding no water rather can safely be termed as "misconceived", for the reason that after incorporation of Section 265-K Cr.P.C., learned trial Court in Sessions Trial Cases has been empowered to acquit the accused at any stage, when it finds that there is no probability of his conviction and Section 265-K Cr.P.C. has been introduced in the relevant statute purposely. Even otherwise, recording of statements of the accused under Section 342 Cr.P.C. before their acquittal under Section 265-K Cr.P.C. is not necessary because if no incriminating material is available on record then nothing is to be put to accused under Section 342 Cr.P.C. and his straightaway acquittal while exercising the powers under Section 265-K Cr.P.,C. by the learned trial Court is true intent of the law on the subject, therefore, this contention is also repelled. Reliance can be safely placed upon the case of "Muhammad Khalid Mukhtar versus The State through Deputy Director, F.I.A. (C.B.A.), Lahore"
(PLD 1997 SC 275), relevant portion is hereby reproduced:- "Dealing with Section 249-A and 265-K Cr.P.C. a learned Bench of this Court observed in the case of Ashiq Ali Bhutto ( 1993 SCMR 523 ) as below: "It is obvious that the Legislature in its wisdom did not leave the question of the recording of the evidence as a condition before taking action under eithe r of the provisions. The use of the 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 late stage as well."
So far as the contention of learned counsel for the appellant regarding non-availability of application under Section 265-K Cr.P.C. on the record is concerned, suffice to observe that presumption of truth is attached to the judicial proceedings and perusal of order sheet of the trial Court reveals that on 27.4.2010, application under Section 265-K Cr.P.C. was filed and for ready reference, order dated 27.4.2010 is hereby reproduced: - "Present: Learned counsel for the complainant.
Accused Muhammad Riaz, Muhammad Iqbal, Muhammad Arfan and Muhammad Ashraf on bail with their counsel.
Cross examination upon four CWs completed. The learned defence counsel moved an application u/s 265-K Cr.P.C. The copy of the application has been delivered to the learned counsel for the complainant.
Arguments heard. This complaint is adjourned to be posted for tomorrow dated 28.04.2010 for announcement of order .
Dated:27.04.2010 Addl. Sessions Judge, Bahawalnagar Perusal of the above mentioned interim order reveals that on the very same day i.e. 27.4.2010 filing of application under Section 265-K Cr.P.C. by the accused/respondents No.1 to 4 has been categorically mentioned therein. It is trite of law that under Article 129 (e) of the Qanoon-e-Shahadat Order , 1984, presumption of correctness is always attached in favour of judicial proceedings. In this regard, reliance can be placed upon the case of "Fayyaz Hussain versus Akbar Hussain and others" (2004 SCMR 964), relevant portion is being reproduced: - "There is always a presumption of correctness in favour of judicial proceedings and credibility is attached to the proceedings before a judicial forum"
Learned counsel for the appellant has failed to annex any document/material to substantiate his said contention i.e. such application was not actually moved; in this regard, it could be safely referred that appellant was at liberty to move application for getting attested copy of the same before the learned trial Court at that time and if it was not actually filed, then Ahmad of the concerned Court and Copying Agency of said Court had made a report on application "for getting copy" that no such application under Section 265-K Cr.P.C. has been filed, but neither any such application for getting copy of application under Section 265-K Cr.P.C. has been moved nor any such report has been annexed with this appeal in order to substantiate said contention. It is also not out of place to mention here that why on 28.4.2010, complainant/appellant or her learned counsel did not raise objection that neither any such application has been filed nor any copy of such application has been delivered to either of them.
Hence, the contention regarding non-filing of application under Section 265-K Cr.P.C. is meritless and strongly repelled.
Now adverting to another aspect of the matter whether filing of any written application under Section 265-K Cr.P.C. is necessary , the answer is in negative, hence, if for a moment, it is considered that no written application was filed under Section 265-K Cr.P.C., even then it makes no difference and learned trial Court can exercise powers under Section 265-K Cr.P.C. on the oral request of the accused or of its own without any oral request of the accused, therefore, on this score also, impugned judgment does not suf fer from any illegality .
In view of above, all the contentions raised by learned counsel for the appellant for remanding the case back to learned trial Court are repelled with full force being without merits and misconceived.
6. Even otherwise, we have gone through the impugned judgment and material available on the record and for the facility of ready reference, paragraph No.23 of the impugned judgment is hereby reproduced: - "The unambiguous factual as well as legal position which emerge out to float on the surface of record before this court is that certainly this is a case of two version, one introduced by Muhammad Ashraf accused through FIR and other by Mst. Parveen Bibi through private complaint. The private complaint moved after 7/8 months of the occurrence is a deliberate attempt after consultation, to falsely involve the innocent persons. This court is of the considered opinion that state case stands corroborated even by the statements of PWs examined by the complainant Mst. Parveen Bibi. The statements of PWs also lend support to the state case. CWs have no grudge, ilI will, bitterness to grind their own axe against Ashfaq deceased or his widow Mst. Parveen Bibi who was most probably actuated by her relatives to seek revenge of her deceased husband who most probably was done to death after dacoity proceeding at the hand of his own companion. In the present case the prosecution did not stick to the version set up in the FIR and introduced a new version through private complainant which is result of due deliberation and consultation and such deviation without justification creates doubt regarding story of prosecution which has totally changed its initial version. Undeniably ipsi dixit of police is not binding upon the court but at the same time opinion of the police based upon the statements of witnesses cannot be thrown to the winds. In the present case PWs particularly PW-04 admitted in his cross examination that the police found the case of dacoity and during dacoity the deceased Ashfaq received fire arm injury from the hand of one of his companions. This witness further admitted that his brother did not work in any workshop. PW-03 also admitted in his cross examination that police declared that it was a case of dacoity and during dacoity proceedings the deceased received fire arm injury from the hand of one of his companions. Undeniably the complainant Mst.
Parveen Bibi as per statement of Khalid Hussain S.I CW-03, did not appear before him during investigation. Position being so, to the mind of this court this case is pragmatic blend of concoction which stem out to support the growing out rule of criminal jurisprudence to give the benefit of doubt to the accused is much more than a mere rule of law as said rule is rule of "prudence" which no man ought to and no judge acting accordance with provisions of Qanun -e-Shahadat Order , 1984 can ignore and which was vigorously enforced by Islam. It is settled principle of criminal administration of justice that conviction must be based on unimpeachable evidence and certainty of guilt and any doubt arising out in the prosecution case is to be resolved in favour of the accused. Benefit of doubt can be extended to the accused where it really spells out of evidence, the same is not just imaginary or artificial. In the case in hand, the prosecution has failed to prove its case beyond any shadow of doubt rather the story of the prosecution is shrouded in mystery and the doubt emerge from the attending circumstances of the case. Therefore, application u/s 265-K Cr.P.C is accepted and by extending benefit of doubt the accused persons are acquitted from the charges against them. Accused Irfan Mohsin, Muhammad Iqbal, Riaz Ahmad and Muhammad Ashraf are acquitted of the charge. They are present on bail. Their sureties are discharged from the obligation of bail bonds.
After having close scrutiny of the evidence and documents available on the record, we have found that grounds mentioned, reasons discussed and conclusion arrived at by the learned trial Court with respect to acquittal of accused/ respondents No.1 to 4 recorded through impugned judgment dated 28.4.2010 are perfectly in accordance with law and record of the case. We could not find any capricious/fanciful/perverse or arbitrary phenomenon in the impugned order of acquittal and it is trite of law that without these factors, order of acquittal cannot be interfered and in this regard, reliance can be placed upon the case of "Ghulam Sikandar and another versus Mamaraz Khan and others" (PLD 1985 SC 11) and "Mst. Zahida Saleem versus Muhammad Naseem and others" (PLD 2006 Supreme Court 427). Even otherwise, after acquittal accused attains double presumption of innocence, in this regard, reliance is placed upon the case of "Haji Paio Khan versus Sher Biaz and others" ( 2009 SCMR 803 ).
10. In view of what has been discussed above, instant appeal is without merits and the same is dismissed.