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Criminal Revision No. 52 of 1986, decided on 29th October, 1986.
‑‑‑S. 561‑A‑‑Penal Code (XLV of 1860), S.309/304‑‑Quashing of proceedings‑‑ Allegedly 38 persons, including applicants, throwing themselves into sea with intention to proceed to Karbala without any ship or vessel, out of them applicants survived whereas 18 persons drowned‑‑Except arrest of applicants from place of incident no incriminating evidence brought on record to connect them with commission of offence even nothing to show as to what was their intention by throwing themselves into sea‑‑Prosecution, held, absolutely failed to bring home charge against applicants‑‑Proceedings quashed, in circumstances.
A.M. Naqvi for Appellants.
Mrs. Salima Nasiruddin for the State.
Date of hearing: 29th October, 1986.
The applicants have been facing trial under section 309/304, P.P. C. and the case is pending in the Court of IVth Additional Sessions Judge, Karachi West. According to the prosecution on 24‑2‑1983. 38 persons entered into the sea with intention to Karbala by Sea without any ship or vessel. Eighteen persons were drowned. Their bodies were recovered. The present applicants have been challaned. Eight witnesses have been examined and they have not said anything against the accused persons. The eighth witness is I.O. He had only submitted the challan. The learned Additional Sessions Judge has observed that there is no evidence of commission of offence by the accused but the accused were arrested from the place of incident and it is yet to be proved by them as to what was their intention by throwing themselves in the sea. The counsel for the State who has appeared before the trial Court has also stated that there is no evidence of any kind against the accused. The intention of the accused is to be gathered from the material on record and if there is no incriminating evidence against the accused then inferences cannot be drawn against them. Even otherwise it is not for the accused to establish their intention. It is always for the prosecution to prove the ingredients of the offence and if the prosecution has failed to prove the charge the trial cannot be proceeded simply on the assumption that it is for the accused to show that what was their intention.
The learned counsel appearing on behalf of the State has also not supported the impugned order. As there is no evidence against the applicants connecting them with the commission of the offence it is misuse of the, process of the Court to allow the prosecution against the accused in spite of the fact that the prosecution has absolutely failed to bring home the charge against them.
The application is accepted and the proceedings pending against the applicants in the Court of IVth Additional Sessions Judge, Karachi West are hereby quashed.
S. G. D. Proceedings quashed.
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