1. ' By this Criminal Miscellaneous Application, the applicant seeks quashment of Sessions Case No,320/324 of 1987 against him and others in the Court of Ilnd Additional Sessions Judge, Dadu under section 380/458, P.P.C., and section 9 of Offences against Property (Enforcement of Hudood)
2. Ordinance, 1979.
3. ' Briefly stated the facts as per F.I.R. No,108 of 1987 lodged by the complainant Chanesar son of Muhammad Punhal Lund at Dadu Police Station on 3-7-1987 at 03-00 hours are that the complainant resides with his mother and brothers in one the same house situated at Shahabad Channo Mohallah, Dadu. It is alleged that on the preceding night of the incident, the complainant after taking dinner and tying the bullocks in the front of the house and litting the lamp and closing the main front door of his house, went to sleep in the courtyard of the house, alongwith brothers Haji Bahadur, Ibrahim and younger brother Dodo aged about 6 years. It is alleged that during the descending night, he was awakened on the barking of dogs and saw four persons in the lamp light.
4. Out of them, one was armed with gun and remaining three were armed with Lathies. They were driving away his two bullocks. He raising cries thief, thief followed them. One of the thieves, who was armed with Lathi caused him lathi blow on his upper part of arm, but the complainant grappled him and fell him down. The thief called his associates to rescue him and one person caused blow of butt of gun, but that person on being challenged by the father and brothers of the complainant, and the remaining thieves made their escape good. The thief who was apprehended disclosed his name as Muhammad Khan son of Haji Hayat Chandio and names of other thieves as Qalandar Bux alias Qalandar, Yar Muhammad Alias Yaroo Lund and Mirchu Khokhar. The bullocks could not be taken away by the thieves. The complainant then, lodged the F.I.R., at Dadu Police Station on 3-7- 1987 at 0300 hours as stated above.
5. ' The police after arrest of the applicant, investigated the case and after usual investigation. S.H.O.
6. Concerned submitted report under section 169, Cr.P.C. On 10-4-1988 in the Court of Civil Judge, F.C.M. Dadu to the effect that during the entire investigation, no evidence or any kind of proof was found against the applicant. The report further reveals that identification Parade of applicant Yar Muhammad alias Yaroo was held through the complainaqt Chanesar, P.Ws. Haji son of Muhammad Punhal Lund, Ibrahim, son of Muhammad Punhal Lund and Bahadur son of Muhammad Punhal Lund in the presence of Magistrate but none of them picked him out in the identification parade. The report disclosed that footprint test was held, but the foot tracker did not identify the footprints. The report further states that there was no evidence against the applicant/accused of commission of the offence. The concerned S.H.O., further submitted in the report that there was no material and evidence against the applicant even for the purpose of challan against him.
7. ' The record shows that the applicant was facing trial and there was no progress in the case.
8. ' The applicant moved application under section 265-K Cr.P.C. In the Trial Court on 19-10-1996 which has been rejected by the learned Trial Court by the impugned order, dated 19-11-1996. The applicant filed the application under section 561-A, Cr.P.C. In this Court, which was admitted to regular hearing by the order, dated 26-1-1997.
9. ' I have heard Mr. Syed Madad Ali Shah, learned counsel for the applicant and Mr. Bahadur Ali Baloch for the State.
10. ' The learned counsel for the applicant submits that the applicant is innocent and admittedly as per prosecution case, there is no evidence against him. The learned counsel argues that there was no justification of continuation of proceedings after submission of report by the S.H.O., concerned under section 169, Cr.P.C. Which clearly indicated that there was no evidence against the applicant even for the purpose of challan. The learned counsel argues that the case being of no evidence against the applicant, there will be no conviction and continuation of proceedings will amount to undue harassm ent and abuse of process of law. The evidence of confession of co-accused Muhammad Khan will also be of no help to the prosecution as it requires corroboration which is lacking in this case.
11. ' The learned counsel in support of his arguments has placed reliance upon 1997 PCr.LJ 671, 1997 MLD (Kar.) 2529 and 1997 PCr.LJ.
12. 1782.
13. ' The learned State counsel has frankly conceded and supporting that there is no evidence against the applicant and even if case proceeds there will be no possibility of conviction of the applicant.
14. I have heard the learned counsel for the parties. I have also gone through the entire record of the case I have considered all aspects of the case, there is no direct allegation against, the applicant in the F.I.R. The complainant and other eye-witnesses have also not implicated the applicant in the commission of the offence, in any manner. None of the witnesses mentioned in the F.I.R., have levelled any allegation against him.
15. ' It is the case of prosecution itself that the police after thorough investigation found no evidence against the applicant. The S.H.O., Dadu Police Station has submitted report under section 169, Cr.P.C.
16. Clearly exonerating the applicant of the commission of the alleged offence. It is admitted position that the complainant and other eye-witnesses have not picked him out in the identification parade held by the police. As per report, footprint test was also held but of no avail. Admittedly, there is no recovery from the applicant. Thus, it is a case of no evidence against the applicant.
17. ' In 1997 PCr.LJ 671, this Court quashed the proceedings in identical case. In the reported case, the Police during investigation of the case, held identification parade of accused Muhammad Khalid Baloch, but he was not picked out in the parade.
18. ' In the case of Saleem v. State 1997 MLD (Kar.) 2529 this Court quashed the proceedings wherefrom the F.I.R., and other evidence collected by the Investigating Agency there was no possibility of conviction of the accused.
19. ' In 1997 PCr.LJ .1782, this Court quashed the proceedings against the accused as only evidence against him was of confession of co-accused as in the present case.
20. In the present case, there is no evidence against the applicant so as to warrant his conviction. The confession of co-accused is not corroborated by any other evidence, as such, even on this evidence, there is no possibility of conviction of the applicant.
21. ' Considering all aspects of the case, contents of F.I.R., report under section 169, Cr.P.C. Submitted by the police, and the case law cited at bar, I am of the view that there will be no possibility of the conviction of the applicant and that proceedings pending against him, if allowed to continue, the same will amount to abuse of process of the Court.
22. ' Up shot of the above discussion is that the Criminal Miscellaneous Application No,344 of 1996 is allowed and the proceedings pending against the applicant in the Trial Court are hereby quashed.
23. He is on bail and his bail bonds stand discharged.