2026 P Cr. L J 152

 2026 P Cr. L J 152

[Peshawar (Mingora Bench)]

Before Sabit Ullah Khan and Qazi Jawad Ehsanullah, JJ

HABIB-UR-RAHMAN---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 250-M of 2019, decided on 21st May, 2025.

Penal Code (XLV of 1860)---

----S. 302(b)---Criminal Procedure Code (V of 1898), S. 494---Qatl-i-

amd---Effect of withdrawal from prosecution---Scope---Accused was

charged for committing murder of his wife---Challan was submitted

and charge was framed, however, the accused denied the allegation

by claiming trial---Prosecution examined six witnesses when in the

meanwhile, prosecutor submitted an application under S.494, Cr.P.C,

for withdrawal from prosecution mainly on the ground that there

was no probability of conviction of the accused in the case---Trial

Court allowed the application and acquitted the accused---Validity---

Record would show that that prior to the filing of subject

application, the prosecution had already examined six prosecution

witnesses before the Trial Court including the complainant, father of

deceased and mother of deceased---All those were cross-examined

by the defence at length---Both the said witnesses admitted that they

were not eye-witnesses to the occurrence---More-so, it also appeared

that the complainant and his wife had nominated the respondent/

accused for the alleged offence after a delay of 14 days, regarding

which, no plausible explanation had been offered by the

prosecution---Regarding the alleged motive, no reliance and

convincing evidence was brought on record---In addition to that the

Medical Officer categorically stated that no signs of injury were

found on the body of the deceased, thus, in such circumstances, the

nature of death of the deceased as to whether it was a case of

homicide or suicide was still a mystery---Trial Court had noted that

if the remaining prosecution evidence was recorded even then

there would still be no likelihood of conviction of the accused and

as such it would be a futile exercise---Trial Court had not only

considered the application submitted by the prosecution but had

also given due weight to the evidence available on record---Findings

recorded in the impugned judgment by the Trial Court were based

on the provisions of S.265-K, Cr.P.C., which empowered the Court to

acquit an accused at any stage of the proceedings if it was of the

opinion that even if the remaining evidence was brought on record, the result still would be acquittal---Such power might also be

exercised suo motu by the Trial Court in appropriate circumstances

without application by the accused---Thus, in the circumstances of

the case, proceeding further with the trial of the

respondent/accused would be nothing but a futile exercise as well

as the wastage of precious time of the Court---Even otherwise, it

appeared from the impugned findings that the powers under S.265-

K Cr.P.C. had been exercised by the Trial Court judicially because

the accused had not merely been discharged but acquitted after

framing of charge and recording necessary evidence, therefore, the

impugned decision regarding the acquittal of the accused was in

line with the principles of law under S.265-K, Cr.P.C., and the same

had caused no miscarriage of justice---Appeal was dismissed, in

circumstances.

Juma Khan v. Zarif and another 2023 PCr.LJ 693 rel.

Nemo. for Appellant.

Naeem Khan, A.A.G for the State.

Muhammad Nabi for Respondent.

Date of hearing: 21st May, 2025.

JUDGMENT

SABIT ULLAH KHAN, J.---Through this criminal appeal filed under

section 417 of the Code of Criminal Procedure, 1898 (Cr.P.C), the

appellant namely Habib-ur-Rahman has assailed the judgment of the

learned Sessions Judge, Shangla dated 09.05.2019 rendered in case

bearing FIR No. 268 dated 15.08.2018 registered under section 302

P.P.C at Police Station Dandai, District Shangla, whereby the

respondent/ accused namely Zarif Khan has been acquitted on

acceptance of the application of the prosecution filed under section

494 Cr.P.C.

3. On 21.07.2018 at 20:30 hours, Zarif Khan (husband of the

deceased and now accused) reported the matter at the emergency

ward of DHQ Hospital Battagram to the effect that his sister Mst.

Yasmin Bibi has informed him that there was something wrong with

his wife namely Mst. Bakht Miraja. On reaching home, he found her

in critical condition and it was disclosed to him that she has

consumed mouse poison. The incident was allegedly seen by other

family members. This report was taken down in the shape of daily

diary No.20. Postmortem of the deceased was conducted.

Subsequently on 04.08.2018, the deceased's parents namely Habib-ur-

Rahman and Mst. Bakht Bina, on 04.08.2018, during the course of

inquiry recorded their statements under section 164, Cr.P.C., stating therein that their deceased daughter had earlier married to one

Umar Rahman, from whom she had a son and after divorce, she

married to Zarif Khan some three years ago and though initially

there was a happy life of them, however, recently a dispute has arose.

It was stated that the accused Zarif Khan has taken Rs.1,00,000/- and

other items on the promise that his divorced sister Mst. Yasmin Bibi

would marry Akbar Ali, the son of complainant but said Mst. Yasmin

Bibi was not ready, so, the complainant was demanding the return of

the money etc. and on 21.07.2018, Zarif Khan conveyed the

information of the death of their deceased daughter (his wife) due to

poison, hence, they charged the accused/ respondent and the FIR

(Ex.PA) was lodged.

3. On 16.08.2018, the respondent/ accused was arrested and after

completion of his investigation, challan for trial was submitted before

the learned trial Court. On 18.02.2019, charge was framed against him,

however, he denied the allegation by claiming trial. The prosecution

has examined 06 witnesses when in the meanwhile on 09.5.2019, the

learned APP submitted an application under section 494 Cr.P.C for

withdrawal from prosecution mainly on the ground that there is no

probability of conviction of the accused in the case. The learned trial

Court, after hearing the arguments, allowed the said application and

acquitted the respondent/ accused vide its judgment dated 09.05.2019,

hence, this appeal.

4. Though, learned counsel for the appellant is not before the Court,

however, this appeal pertains to the year 2019, as such, it appears that

the appellant has no interest in the case, therefore, arguments of the

learned counsel for the respondent/ accused and the learned A.A.G

were heard. Record perused.

5. We are conscious of the fact that the prosecution particularly the

APP, who has submitted the application under section 4(1)(c)(ii) of the

Khyber Pakhtunkhwa Prosecution Service (Constitution, Functions and

Powers) Act, 2005, was not vested with the authority to move an

application under section 494 Cr.P.C. for withdrawal from prosecution

in a case involving an offence punishable with imprisonment

exceeding seven years and even the Director General Prosecution was

lacking the statutory competence to file such an application under the

said provision, however, later under section 7 of the ibid Act, certain

additional powers have been conferred upon the prosecution and

clause (c) thereof explicitly empowers the Director General

Prosecution to withdraw from prosecution in all other offences subject

to prior approval of the Court. For ease, the relevant clause (c) of

section 7 of the ibid Act is reproduced as under: "(c) a District Public Prosecutor in the case of offences carrying

seven years or less imprisonment and the Director General for

all other offences may withdraw prosecution subject to prior

approval of the Court.

Provided that prosecution of an offence falling under the Anti-

Terrorism Act, 1997 (XXVII of 1997), shall not be withdrawn

without prior permission in writing of the Secretary to

Government, Home and Tribal Affairs Department."

Thus, although the application for withdrawal from prosecution

under section 494 Cr.P.C. submitted by the Assistant Public Prosecutor

(APP) was procedurally defective due to the lack of his legal

competence, irrespective of the powers vested in the Director General

Prosecution under section 7(c ) of the Khyber Pakhtunkhwa

Prosecution Service (Constitution, Functions and Powers) Act, 2005,

however, this appeal is pending adjudication before this Court since

2019, therefore, in the interest of justice, we deem it necessary to

scrutinize the impugned judgment to determine as to whether the

reasons recorded for the acquittal constitute a misuse or abuse of

judicial process/ authority. We are also inclined to examine as to

whether the decision of learned trial Court was based solely on the

grounds urged by the prosecution in its application under section 494

Cr.P.C., or as to whether the acquittal was otherwise supported by

cogent and justifiable reasons derived from the evidence already

recorded during trial by applying judicial mind. In essence, we aim to

assess as to whether the findings of the learned trial Court would

amount to thwarting the prosecution including the complainant or

constitute an interference with the ordinary and fair dispensation of

justice.

6. The record would show that that prior to the filing of the subject

application, the prosecution had already examined six prosecution

witnesses before the learned trial Court including the complainant

Habib-ur-Rahman, father of deceased (PW-3) and Mst. Bakht Bina, the

mother of the deceased (PW-4). All these were cross-examined by the

defence at length. It was admitted by both PW-3 and PW-4 that they

are not eye-witnesses to the occurrence. More-so, it also appears that

the complainant (PW-3) and his wife (PW-4) have nominated the

respondent/ accused for the alleged offence after a delay of 14 days,

regarding which, no plausible explanation has been offered by the

prosecution. Regarding the alleged motive, no reliance and

convincing evidence was brought on record. In addition to that the

lady Dr. Bushra Fazal Wahab, who was examined as PW-2, during her

cross-examination, categorically stated that no signs of injury were

found on the body of the deceased, thus, in such circumstances, the nature of death of the deceased as to whether it was a case of

homicide or suicide is still a mystery. It was also noted by the learned

trial Court in the impugned judgment that even if the remaining

prosecution evidence is recorded even then there would still be no

likelihood of conviction of the accused and as such it will be a futile

exercise. On our own careful scanning of the available record

especially the prosecution evidence already recorded including that

of the star prosecution witnesses (PW-3 and PW-4), we would also

concur with the said observation of the learned trial Court. It also

transpires from the impugned judgment if read in juxtaposition with

the already recorded evidence on file that the learned trial Court has

not only considered the application submitted by the prosecution but

has also given due weight to the evidence available on record. It is

worth mentioning that the findings recorded in the impugned

judgment by the learned trial Court are based on the provisions of

section 265-K Cr.P.C., which empowers the Court to acquit an accused

at any stage of the proceedings if it is of the opinion that even if the

remaining evidence is brought on record, the result still would be

acquittal. This power may also be exercised suo motu by the trial

Court in appropriate circumstances without application by the

accused. Section 265-K Cr.P.C., for ready reference, is reproduced as

under:

"265-K. Power of Court to acquit accused at any stage: Nothing in

this Chapter shall be deemed to prevent a Court from acquitting

an accused at any stage of the case, if, after hearing the

prosecutor and the accused and for reasons to be recorded, it

considers that there is no probability of the accused being

convicted of any offence."

Thus, in the circumstances of the case, proceeding further with the

trial of the respondent/ accused would be nothing but a futile exercise

as well as the wastage of precious time of the Court. Reliance is placed

on "Juma Khan v. Zarif and another" (2023 PCr.LJ 693 Peshawar)

wherein acquittal of accused under Section 265-K, Cr.P.C was

maintained by this Court by holding that:

"Adverting to other questions, it appears from perusal of section

265-K, Cr.P.C. that the court has got ample power to acquit the

accused even if witnesses are not examined. Provisions of

section 265-K, Cr.P.C. are meant to prevent the rigorous of a

protracted trial, when it is apparent from the record that there

is no probability of the accused being convicted of the offence

and further proceedings if allowed to continue would be an

abuse of the process of the court." 7. Even otherwise, in light of the above-discussed prosecution

evidence, it appears from the impugned findings that the powers

under section 265-K Cr.P.C. have been exercised by the learned trial

Court judicially because the accused has not merely been discharged

but acquitted after framing of charge and recording necessary

evidence, therefore, the impugned decision regarding the acquittal of

the accused, in our firm view, is in line with the principles of law

under section 265-K Cr.P.C. and the same has caused no miscarriage of

justice, in the circumstances. Irrespective of the procedural

irregularity pertaining to the withdrawal application under section

494 Cr.P.C., we are not inclined to remand the case to the learned trial

Court, as doing so would just result in wastage of the precious time of

the Court and the parties as well. We find no ground to reverse the

impugned judgment in the interest of justice.

8. In light of the above, the learned trial Court has rightly evaluated

the material on record especially the already prosecution evidence of

the star witnesses in the case, thus, this appeal, being devoid of any

merit, is hereby dismissed.

JK/182/P Appeal dismissed.