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Criminal Miscellaneous No. 35 of 2014, decided on 26th June, 2014.

----S. 561-A---Penal Code (XLV of 1860), Ss.302 & 34---Qatl-i-amd, common intention---Quashing of order/judgment, petition for---Petitioner had sought quashing of order/judgment of the Trial Court, whereby, he who was discharged by Investigating Authorities under S.169, Cr.P.C., was directed to be summoned to face the trial---Alleged complainant, during the course of recording of his statements, disowned his first information report; stating that at the time of occurrence, he was not even present at the place of occurrence, rather was in another city---Complainant further stated that on his reaching the village, his relatives told him that they had registered F.I.R. on his behalf; and asked him to admit the report; and on the basis of his said statement, original F.I.R. lodger, was declared hostile---Reliance, in said state of affairs, on the eye-witness named by a hostile witness/original F.I.R. lodger, who did not own the contents of the same; and even his presence in the village concerned, during the commission of the offence, was highly unsafe and unwarranted---Even, if statements of alleged two eye-witnesses, named in the F.I.R., were relied upon even then there was no piece of corroborative evidence available against the petitioner---Prosecution had already recovered a rifle from co-accused, who had subsequently been exonerated from the charge under S.302, P.P.C.---No purpose would be achieved by making the petitioner to stand and to face the charges of murder---Impugned order/judgment, was set aside, in circumstances. Malik Haq Nawaz for Petitioner. Assistant Advocate-General for the State.

Through the above captioned application the petitioner seeks quashment of order/judgment of the learned Additional District Judge Diamer Chilas whereby the petitioner who was discharged by the investigating authorities under section 169, Cr.P.C. was directed to be summoned to face the trial under section 302, P.P.C. vide F.I.R. No.16/2006 of police station Tangir. Brief facts of the case are that on 8-6-2006 at about 9-00 a.m. one Rajuddin of Mashkay Tangir recorded report before Police Station Tangir stating that at about 15:00 hours while he was present in the house of his paternal uncle Syed Ghulam, one Sherzada son of Hayun resident of Bayun Tangir came and called his uncle outside of the home. After a little while the above complainant also came out of the house in search of his uncle and found the above Sherzada and his uncle Syed Ghulam and the present petitioner talking. In the meantime Sherzada moved a few paces ahead while the other two remained there talking with each other, in the meanwhile the petitioner allegedly fired at the uncle of the complainant Syed Ghulam resultantly he fell on the ground as the complainant was empty handed so he did not dare to approach near the scene of occurrence however he saw Altaf son of Akash and Zafaran son of Hamayoon running away along with the present petitioner from the scene of occurrence. The complainant besides Sherzada also named Abdul Qudoos, Abdal Muhammad son of Bakhtiyar as eye-witnesses of the occurrence. The motive according to the contents of F.I.R. was stated to be involvement of the wife of petitioner in the F.I.R. pertaining to the murder of one Ali. The investigation of the above case was initially entrusted to one S.I Amirullah of investigation wing who during the course of his investigation carried away the necessary formalities i.e. taking into possession of dead body of the deceased, preparing of inquest report and identification of dead body, preparation of site plan, recovery of empties of firearm from the scene of occurrence and recording of statements under section 161, Cr.P.C. of 3 eye-witnesses Sherzada Khan, Abdal Muhammad and Abdul Qudoos who corroborated the contents of F.I.R. Exh-P.W.5/A alleging that the petitioner has murdered the deceased in their presence but the three named accused could not be arrested and were accordingly declared proclaimed offenders. After more than 1/2 years another I.O. posted as SHO Police Station Tangir arrested one Altaf and Zafaran along with the petitioner in the case in hand. He also got recorded statements of Molvi Abdul Rashid and Rajdar stating that the murder was committed by the accused Altaf. He also got recorded a five shot rifle from the accused Altaf stating to be the crime weapon in the presence of the said witnesses. Owing to the above developments the final challan of the case was prepared and submitted before the Court of competent jurisdiction at Diamer wherein the prosecution got examined six out of ten witnesses listed in the column of witnesses abandoning the witnesses namely Tajdar, Molvi Abdul Rashid and DSP Mahzoob Khan and closed their evidence on 18-11-2013. Afterwards the above named accused Altaf filed an application under section 265-K, Cr.P.C. which was allowed vide impugned judgment dated 5-12-2013 and in the Para No. 15 of the same judgment the learned trial Judge directed to summon the petitioner for 23-2-2014 to face the trial of the murder of deceased Syed Ghulam. I have heard both the learned counsel for the petitioner as well as learned A.A.-G. for the state at length and also perused the record of the case with their able assistance. The only ground on the basis of which the learned trial has found the petitioner responsible for murdering the deceased are the statements of Sher Zada Khan and Abdul Qudoos who clearly stated in their statements under section 161, Cr.P.C. as well as their statements before the Court that the deceased Ghulam was murdered by Loo Khan, petitioner discharged under section 169, Cr.P.C. It is worth mentioning here that the above two eye-witnesses on the basis of the statements of whom the learned trial Court summoned the present petitioner to face the trial has been named as eye-witness by the F.I.R. lodger Rajuddin P.W.5 who was present before the trial Court as P.W.5 who during the course of recording of his statements disowned his first information report Exh.P.W.5/A stating that at the time of occurrence he was even not present in Tangir rather he was in Murree. Further stating that on his reaching to the village his relatives told him that they had registered F.I.R. Exh.P.W.5/A on his behalf and asked him to admit the report and accordingly on the basis of his above statement, the original F.I.R. lodger namely Rajuddin was declared hostile. In the above admitted sorry state of affairs the reliance on the eye-witness named by a hostile witness who did not own the contents of the same and even his presence in the village during the commission of the offence is highly unsafe and unwarranted. If for the sake of arguments the above statements of the two eye-witnesses named in the F.I.R. are relied, even then there is no piece of corroborative evidence against the petitioner and the prosecution has already recovered a rifle from the accused Altaf son of Akash resident of Tangir who has subsequently been exonerated from the charges under section 302, P.P.C. by accepting his petition under section 265-K as mentioned above. So no purpose shall be achieved by making the petitioner to stand and to face the charges of murdered under F.I.R. No. 16/2006 on the basis of statements of two eye-witnesses whose names are incorporated in the F.I.R. by the complainant who categorically disowned the contents of the F.I.R. and even his presence in the scene of occurrence on the fateful day as stated above. On the basis of what has been discussed above I am constrained to accept the petition and set aside the impugned order dated 5-12-2013. Order accordingly. File. HBT/11/GB Petition accepted.

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