' Applicant abovenamed has filed the above petition for quashment of proceedings pending against him under sections 302, 307, 392/397 and 353, P.P.C. In the Court of learned Sessions Judge, Shikarpur, in Sessions Case No,82 of 1980, on the following facts and grounds:--
2. That the petitioner is an accused, alongwith respondents Nos.2-4 in a case under sections 302, 307, 392/397 and 353, P.P.C. Now pending in the Court of learned Sessions Judge, Shikarpur.
3. That the case against the petitioner was registered as Crime No,75 of 1979 at New Foujdari Police Station, Shikarpur, on 13-8-1979 at 2 p.m. When complainant Wazir Ali Police Constable lodged his report in respect of murder of Police Constable Kalandar Bux.
4. That in the charge-sheet presented on 13-11-1979, in the Court of learned Sessions Judge, Shikarpur, the name of the principal accused in the F.I.R. Namely Khanoo Jakhrani, was dropped, while the names of the petitioner and respondent No,3 were substituted in his place.
5. That the petitioner filed an application under section 561-A, Cr.P.C. In this Court (being Criminal Miscellaneous Application No,99 of 1981) for quashing the proceedings against him, but the said application was dismissed, by the order, dated 8-2-1981 with the direction, that the trial Court shall examine all witnesses named in the F.I.R. Within 3 months. It was further left open to the petitioner to file an application under section 265-K, Cr.P.C. In the trial Court.
6. That although one year has passed, the aforesaid order of this Court has not been complied with, and not even a single witness has been examined so far. The petitioner however, filed an application under section 265-K, Cr.P.C. In the trial Court, but the same was also dismissed by the learned Sessions Judge, Shikarpur, by his order 7-1-1982.
7. That while dismissing the application of the petitioner the learned Sessions Judge has not at all applied his mind to the facts of the case or the grounds mentioned in the aforesaid application, but has dismissed the same, merely on the ground, that the name of the petitioner was mentioned in the F.I.R.
' The petitioner abovenamed, being aggrieved by impugned order, dated 7-1-1982, passed on petitioner's application under section 265-K, Cr.P.C. Has preferred the above petition for quashment on the following grounds:--
(a) That impugned order, dated 7-1-1982 of the learned Sessions Judge proceeds on a misreading of the F.I.R.., wherein the name of the applicant is conspicuous by its absence.
(b) That even if were to be assumed, that `Agha Buledi' mentioned in FIR. Is none else than the petitioner, all that is alleged therein is that 'one aged person was being called as Agha Buledi'. This part of the assertion will not be admissible under any provisions of the Evidence Act, as it is not even specified as to who was addressing that accused as `Agha Buledi'. It is significant, that there is no allegation, that any one knew or identified the applicant and named him on that basis.
(c) That even in the F.I.R. Apart from being aged, no other description of this Agha Buledi' is given nor has the applicant been put to any Identification Test. It is, therefore, not understood as to how and on what basis, the applicant has been shown as an accused person.
(d) That even against `Agha Buledi' the only allegation is, that he prevented his co-accused from committing murder. This does not amount to an offence, by any stretch of imagination.
(e) That the petitioner had no motive whatsoever to commit murder of a poor constable, who was not even known to him, nor has any such motive been alleged by the prosecution.
(f) That the applicant is a well-to-do Zamindar as well as businessman. It was inconceivable, that he would commit robbery of the nature alleged in the F.I.R.
(g) That even on the basis of version of incident as given in F.I.R., petitioner. Even if he is presumed to be `Agha Buledi' named in F.I.R. Still the provisions of section 34, P.P.C. Will not be applicable to the case of petitioner at all and as such the trial in question cannot result in conviction of the petitioner under any circumstances.
(h) That petitioner on coming to know, that he was wanted in case in question, voluntarily appeared and surrendered. No recoveries at all were made from the petitioner.
' In view of above submissions, the learned advocates for the petitioner urged that this was case of no evidence at all against the petitioner and as such continuance of the proceedings in question against the petitioner would amount to abuse of the process of the learned trial Court.
8. The learned Additional Advocate-General, appearing for the State submitted, that he supports the above petition for quashment of proceedings against the present petitioner, in view of above facts and legal position, specially as no identification test of the petitioner was held, so as to establish, that he is the same person, who has been described as `Agha Buledi' in F.I.R. Beside the part assigned to `Agha Buledi' in F.I.R. Cannot under any stretch of imagination make out any case against the petitioner, even under section 34, P.P.C., for murder in question.
9. I have carefully considered, the above submissions made before me by the learned counsel and have gone through F.I.R. As well as impugned by the learned counsels and have gone through F.I.R.
Well as impugned order, dated 7-1-1982 of the learned trial Court and have gone through the police papers.
10. In my opinion, even if petitioner is legally `Agha Buledi' mentioned in F.I.R., then too version of the incident, as given in the said F.I.R. Cannot under any stretch of imagination, make out any case against the petitioner, for murder in question, on the basis of applicability of section 34, P.P.C. To the case of petitioner. The orders dated 8-2-1981 of this Court passed in Miscellaneous Application No,99 of 1981, had remained uncomplied by the learned trial Court, even after lapse of 9 months. No identification test of the petitioner has been held so as to connect him, as a companion of the alleged murder in question. In my opinion, prosecution evidence against the present petitioner cannot end in conviction of the petitioner. Therefore continuance of the proceedings pending against the present petitioner, in the Court of learned Sessions Judge, Shikarpur, under sections 302, 307, 342/397 and 353, P.P.C., in respect of Sessions Case No,82 of 1980 would amount to abuse of the process of the said learned trial Court.
11. Therefore, I allow the above petition and quash the proceedings pending against the present petitioner only under sections 302, 307, 392/397 and 353, P.P.C. In connection with Sessions Case No,82 of 1980, in the Court of learned Sessions Judge, Shikarpur and discharge the bail bonds executed by him. This order shall not affect the trial of the remaining co-accused.