Summary: Acquittal granted----Background: The case concerns the appeal against the acquittal of several individuals charged with the murder of a man. The incident occurred when the victim was shot while sleeping at his home. The widow of the deceased initially lodged an FIR against unknown persons. During the investigation, the widow and two other individuals were arrested. The widow and one of the arrested individuals confessed to committing an illicit act but denied involvement in the murder, attributing the crime to the third person. The trial court acquitted all the accused, leading to the filing of this appeal by the legal heirs of the deceased. ----Issues: 1- Whether the trial court erred in acquitting the accused based on the evidence presented. 2- Whether the confessional statements of two of the accused were admissible and sufficient to support a conviction. 3- Whether the evidence, including witness testimony and recovered items, was credible and sufficient to overturn the acquittal. ----Holding/Reasoning/Outcome: --Witness Testimony: The court found the key witness's testimony unreliable due to significant delays in recording statements and potential tutoring by relatives. The witness did not directly observe the murder, weakening the credibility of the testimony. --Confessional Statements: The court determined that the confessional statements were improperly recorded, lacking the necessary procedural safeguards, such as sufficient time for reflection and proper custody handling. The statements were exculpatory regarding the murder and could not be used against the third accused. --Recovery of Evidence: The court held that the recovered items, including a pistol and a torn shirt, were insufficient to link the accused to the crime, especially in the absence of direct evidence or corroboration. --Medical Evidence: While the medical evidence confirmed the cause of death, it did not identify the perpetrator, rendering it ineffective as corroborative evidence. The court upheld the trial court's decision, concluding that the acquittal was based on a proper appreciation of the evidence and did not warrant interference. The appeal was dismissed for lacking merit. ----Citations/Precedents: Mst. Anwar Begum vs. Akhtar alias Kaka and Two Others (2017 SCMR 1710) Azhar Mehmood and Others vs. The State (2017 SCMR 135) Zeeshan Afzal alias Shani and Another vs. The State and Another (2013 SCMR 1602) The State and Others vs. Abdul Khaliq and Others (PLD 2011 SC 554) Nazar Hussain vs. The State (PLD 1985 SC 11) Hayat Bakhsh and Others vs. The State (PLD 1981 SC 265) Ikramullah and Others vs. The State (2015 SCMR 1002) Hashim Qasim and Another vs. The State (2017 SCMR 986) Muhammad Ismail and Others vs. The State (2017 SCMR 898) Azeem Khan and Another vs. Mujahid Khan and Others (2016 SCMR 274) Asif Mehmood vs. The State (2005 SCMR 515) Mushtaq Hussain vs. The State (2012 SCMR 109)

Summary: Acquittal granted----Background: The case involves an appeal against the acquittal of several individuals charged with the abduction and rape of a woman. The appellant, the father of the alleged victim, filed the appeal after the trial court acquitted the accused, who were charged under sections 10 and 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. The allegations arose after the woman, who was married to another man, was purportedly abducted by one of the accused, leading to the lodging of an FIR by her father. ----Issues: 1- Whether the trial court erred in acquitting the respondents based on the evidence presented. 2- Whether the delay in lodging the FIR adversely affected the prosecution's case. 3- Whether the confessional statement made by the alleged victim was admissible and credible. 4- Whether the evidence, including medical examinations and witness testimony, was sufficient to overturn the acquittal. ----Holding/Reasoning/Outcome: --Delay in FIR: The court noted that the delay of seven days in lodging the FIR without a plausible explanation created suspicion and undermined the prosecution's case, citing recent Supreme Court precedent that such delays can be fatal to the prosecution. --Witness Testimony: The court found the testimony of key witnesses, including the alleged victim and her husband, inconsistent and lacking credibility. The alleged victim's late statement before the Lahore High Court, deviating from her earlier statements, further weakened the prosecution's case. --Confessional Statement: The court considered the confessional statement of the alleged victim, where she initially claimed to have married one of the accused willingly. This statement, recorded under Section 164 Cr.P.C., was deemed unreliable due to inconsistencies and improvements made in subsequent statements. --Medical Evidence: The medical examination indicated that the alleged victim was habitual to intercourse, but this alone was insufficient to establish the occurrence of rape or abduction. --Acquittal Standards: The court emphasized that the standard for overturning an acquittal is high, requiring proof that the trial court's judgment was perverse or based on a misreading of evidence. In this case, the trial court's findings were neither arbitrary nor unreasonable. The appeal was dismissed, and the acquittal was upheld due to the failure of the prosecution to prove the case beyond a reasonable doubt. ----Citations/Precedents: Muhammad Siddique vs. The State and others (2019 SCMR 1048) Ghulam Sikandar and another Vs. Mamaraz Khan and others (PLD 1985 Supreme Court 11) Azhar Ali Vs. The State (PLD 2010 SC 632) Muhammad Mansha vs. The State (2018 SCMR 772) Mst. Salma Bibi Vs. Niaz alias Billa and 2 others (2011 PCr.LJ 856) The State Vs Tanveer-Ul-Hassan and 5 others (2009 PCr.LJ 199) These precedents emphasized the high threshold for overturning acquittals, particularly when the prosecution's case is marred by inconsistencies, delays, and lack of credible evidence.

Summary: Acquittal granted----Background: The petitioner challenged the sentence awarded to the respondent by the trial court, which convicted the respondent under Section 377 of the Pakistan Penal Code (PPC) for committing sodomy. The respondent was sentenced to 10 years of rigorous imprisonment and fined Rs. 25,000. The trial court acquitted the respondent of charges under Section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. The petitioner sought the enhancement of the respondent’s sentence. ----Issues: 1- Whether the sentence awarded to the respondent under Section 377 of the PPC was sufficient and appropriate. 2- Whether the respondent’s acquittal under Section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, and the acquittal of the co-accused, Abdul Ghani, was justified. ----Holding/Reasoning/Outcome: --Quantum of Sentence: The court noted that Section 377 of the PPC provides two possible sentences: life imprisonment or imprisonment for a term not less than two years and not more than 10 years. The court emphasized that sentencing is not a mechanical exercise and must be fair, reasonable, and commensurate with the gravity of the crime. --Mitigating Circumstances: The court acknowledged that while some doubt was cast on the prosecution’s case, it was not sufficient to warrant an acquittal. The respondent was a first-time offender and had already served his full sentence. Additionally, there was no evidence that the respondent had engaged in similar activities before or after the incident. --Acquittal of Co-Accused: The court found that the acquittal of Abdul Ghani, the co-accused who allegedly guarded the room during the crime, was justified. The court noted that it was unlikely that a mature younger brother would facilitate such an offense. --Enhancement of Sentence: The court held that enhancing the sentence at this stage would be unfair and unjust, considering the circumstances and the fact that the respondent had served his full sentence. The revision petition was dismissed, and the sentence awarded to the respondent was upheld as just and appropriate. ---Citations/Precedents: MUHAMMAD JUMAN v. The STATE and others (2018 SCMR 318) HAMID MAHMOOD and another v. The STATE (2013 SCMR 1314) DADULLAH and another v. The STATE (2015 SCMR 856) MUHAMMAD MUSHTAQ (2017 SCMR 1995) GHULAM MOHY-UD-DIN alias HAJI BABU & others (PLJ 2014 SC 1004) MUHAMMAD AKHTAR v. MUHAMMAD SHAFIQUE and another (1986 SCMR 533) MUHAMMAD YAQOOB and 3 others v. THE STATE and 4 others (1991 P.Cr.L.J. 564 (FSC)) ABDUL HAQ v. MUHAMMAD AMIN alias MANNA and others (2004 SCMR 810) AMIR KHAN and others v. THE STATE and others (2002 SCMR 403) Haji TAHIR HUSSAIN v. SQLAIN and others (2008 SCMR 817)

Summary: Background: This case involves an appeal against the acquittal of respondents who were accused of committing a murder during an armed assault on a truck in Karak. The incident occurred on November 13, 1998, when armed assailants fired on a truck, resulting in the death of Amir Janan and injuries to Hazrat Wali. The appellants, Niaz Muhammad and Hazrat Wali, challenged the acquittal of the respondents, claiming errors in the trial court's judgment. ----Issues: 1- Whether the trial court erred in acquitting the respondents despite the testimony of the injured witness and other circumstantial evidence. 2- Whether the identification parade and recovery of weapons were conducted in accordance with legal standards and could be considered reliable evidence. ----Holding/Reasoning/Outcome: --Identification and Testimony Issues: The court noted that the testimony of the injured witness, Hazrat Wali, and the complainant, Roshaan Badshah, lacked credibility. Both witnesses initially failed to identify the assailants and only later named the respondents in supplementary statements. The court found the identification parade flawed due to procedural lapses, including delayed conduct and failure to assign specific roles to the accused during the identification process. --Circumstantial Evidence: The recovery of weapons and empty shells from the crime scene was found to be questionable. The court observed inconsistencies in the handling and examination of the evidence, including delayed submission to the Forensic Science Laboratory (FSL) and manipulation of evidence to match the recovered weapon with the crime scene. --Medical and Corroborative Evidence: The court ruled that medical evidence and FSL reports, while confirming the nature of the injuries, could not independently establish the identity of the assailants. As the case primarily relied on identification and circumstantial evidence, the medical findings were deemed inconsequential. --Acquittal Affirmed: The court upheld the trial court's acquittal of the respondents, stating that the prosecution failed to prove the case beyond a reasonable doubt. The court emphasized that the findings of the trial court were based on proper appreciation of evidence and did not warrant interference. The appeal was dismissed, and the respondents' presumption of innocence was maintained. ----Citations/Precedents: Nazir Ahmed v. Muhammad Iqbal and Another (2011 SCMR 527): Injuries to a witness indicate presence at the crime scene but do not affirm credibility or truthfulness. Muhammad Asif v. The State (2017 SCMR 486): Delayed recording of witness statements impairs evidentiary value. Kashif Ali v. The Judge, Anti-Terrorism Court No. II Lahore and Others (PLD 2016 SC 951): Supplementary statements for implicating accused persons are disfavored. Azhar Mehmood and Others v. The State (2017 SCMR 135): Identification parades must follow strict procedural guidelines to be considered valid. Muhammad Farooq and Another v. The State (2017 SCMR 986): Recovery of crime weapons must be corroborated with unimpeachable evidence to be considered reliable. The court's decision highlights the importance of strict adherence to legal procedures in criminal cases, particularly in the handling of evidence and witness identification.

Summary: Background: The appellant, Mst. Nazli Sardar, filed an appeal against the acquittal of the respondents by the Trial Court in a case involving alleged illegal occupation, theft, and housebreaking. The case originated from an FIR lodged by Arbab Akbar Hayat, who claimed that the respondents had forcibly entered and occupied a house belonging to Mst. Nazli Sardar, who was abroad at the time. The FIR also mentioned the theft of cash and valuable household items. The Trial Court acquitted the respondents under Section 249-A of the Code of Criminal Procedure, leading to the appeal by Mst. Nazli Sardar. ----Issues: 1- Whether the Trial Court erred in acquitting the respondents despite the evidence presented by the prosecution. 2- Whether the Trial Court correctly applied Section 249-A of the Code of Criminal Procedure in acquitting the respondents at an early stage. ----Holding/Reasoning/Outcome: --Lack of Direct Evidence: The court found that the prosecution failed to present direct evidence connecting the respondents to the alleged crimes. The primary witnesses, Mst. Nazli Sardar and Arbab Akbar Hayat, focused more on establishing ownership of the house rather than proving the criminal charges. The key witnesses, including a servant and a security guard, were not produced in court, weakening the prosecution's case. --Hearsay and Credibility Issues: The testimony of Mst. Nazli Sardar was deemed based on hearsay, as she was not present during the alleged incident. The court noted that her testimony and the documents she presented were more relevant to ongoing civil disputes over the house rather than the criminal charges at hand. --Exercise of Section 249-A: The court upheld the Trial Court's decision to acquit the respondents under Section 249-A of the Code of Criminal Procedure. It reasoned that the prosecution's case lacked sufficient evidence to secure a conviction, and proceeding with the trial would have been futile. The court emphasized that Section 249-A allows for acquittal at any stage of the trial if the charges are groundless or if there is no probability of conviction. --No Probability of Conviction: The court concluded that the evidence presented, even if taken at face value, was insufficient to convict the respondents. The court also considered that the remaining witnesses and evidence would not materially change the outcome, thus justifying the Trial Court's decision to acquit. ----Citations/Precedents: Lal Khan v. The State (2006 SCMR 1846): Non-production of key witnesses can lead to an inference that their testimony would not support the prosecution's case. The State through Secretary, Ministry of Interior v. Ashiq Ali Bhutto (1993 SCMR 523): Section 249-A allows for acquittal at any stage if charges are groundless or if there is no probability of conviction. Bashir Ahmad v. Additional Sessions Judge, Faisalabad and Four Others (PLD 2010 SC 661): Emphasized the powers of the court under Section 249-A to acquit an accused when it is clear that the prosecution's case cannot lead to a conviction. The appeal against the acquittal of the respondents was dismissed, and the Trial Court's decision was upheld as being in accordance with the law.

Summary: Acquittal granted----Background: The appellant, was convicted by the 2nd Additional Sessions Judge, Badin, for the murder of Akbar and sentenced to life imprisonment under Section 302(b) of the Pakistan Penal Code (PPC). The case originated from FIR No. 42/2014, which alleged that Liaquat Ali, along with others, killed Akbar due to an existing enmity. The conviction was challenged on the grounds of insufficient evidence, improper identification, and undue delay in filing the FIR. -----Issues: 1- Whether the delayed FIR and subsequent supplementary statements weaken the prosecution's case against the appellant. 2- Whether the identification parade conducted for Liaquat Ali was legally valid and reliable. 3- Whether the appellant's conviction could stand despite the acquittal of co-accused on the same evidence. 4- Whether the principle of "Falsus in uno, falsus in omnibus" (false in one thing, false in everything) should be applied to the witnesses' testimonies. -----Holding/Reasoning/Outcome: --Delayed FIR and Supplementary Statements: The court observed that the FIR was lodged after a significant delay of 39 hours and 30 minutes, during which time the complainant could have fabricated or manipulated the story. The supplementary statement recorded later also implicated Liaquat Ali, but the court found it unreliable as it was made ten days after the incident, and no plausible explanation for the delay was provided. This delay, coupled with the inconsistent statements, cast serious doubt on the prosecution's case. --Identification Parade: The identification parade was found to be flawed. The court noted that Liaquat Ali was already known to the complainant, making the identification parade unnecessary and legally questionable. Furthermore, the parade was conducted 14 days after the arrest, without any explanation for the delay, and it was carried out jointly with other suspects, which further reduced its evidentiary value. --Acquittal of Co-Accused: The court highlighted that five other co-accused were acquitted based on the same evidence that was used to convict Liaquat Ali. The court reasoned that the evidence, which was insufficient to convict the co-accused, could not be sufficient to convict Liaquat Ali either. The inconsistency in applying the same set of evidence to different accused undermined the credibility of the prosecution's case. --Application of "Falsus in uno, falsus in omnibus": The court applied the principle of "Falsus in uno, falsus in omnibus," recently endorsed by the Supreme Court of Pakistan, which mandates that if a witness is found to be lying about one material aspect, their entire testimony should be disregarded. Given the discrepancies and contradictions in the witnesses' statements, the court found the testimonies unreliable and dismissed them entirely. The appeal was accepted, the conviction of Liaquat Ali was set aside, and he was acquitted of all charges. The court ordered his immediate release, provided he was not required in any other criminal case. The appeal for suspension of the sentence became infructuous and was not pressed further. -----Citations/Precedents: Tariq Pervaiz v. The State (1995 SCMR 1345) Muhammad Ilyas v. The State (1997 SCMR 25) Ghulam Qadir v. The State (2008 SCMR 1221) Hashim Qasim v. The State (2017 SCMR 986) Ziaullah @ Jajj v. The State (2008 SCMR 1210) Akhtar Ali and others v. The State (2008 SCMR 06) Muhammad Afzal v. The State (2017 SCMR 1645) Munir Ahmad and another v. The State and another (2019 SCMR 79) These cases reinforced the principles applied in deciding this appeal, particularly regarding delayed FIRs, flawed identification processes, and the importance of consistent evidence when convicting accused persons.

Summary: Background: The case involved a nighttime armed intrusion into a house where the intruders allegedly assaulted the inhabitants and robbed the household. The accused were charged under Section 17(3) of The Offences Against Property (Enforcement of Hudood) Ordinance, 1979, and Sections 397, 398, and 457 of the Pakistan Penal Code. The trial court acquitted the accused, leading the prosecution to file an appeal challenging the acquittal. ----Issues: 1- Was the evidence presented by the prosecution sufficient to convict the accused? 2- Was the trial court's acquittal of the accused justified based on the evidence provided? 3- Was the identification of the accused by the witnesses credible? 4- Did the legal standards for overturning an acquittal justify intervention in this case? ----Holding/Reasoning/Outcome: --Insufficient Evidence: The appellate court found that the prosecution's evidence, including witness testimonies, lacked credibility and failed to sufficiently establish the guilt of the accused. The court highlighted inconsistencies in the witnesses' accounts and noted that the identification of the accused was based on vague and unreliable methods, such as recognizing them by their nose, hair, or voice, which lacked corroboration. --Improper Identification: The identification process was flawed and lacked proper procedures. The court stressed that identification of the accused in poor lighting conditions, as claimed by the witnesses, was not reliable. The court emphasized the necessity of clear and credible identification, which was absent in this case. --Medical Evidence: The court dismissed the prosecution's reliance on medical evidence, stating that while it confirmed the injuries, it did not establish who inflicted them. The court reiterated that medical evidence alone cannot prove the identity of the attackers. --Legal Standard for Acquittal: The court upheld the trial court's acquittal, reiterating the principle that overturning an acquittal requires showing that the trial court's findings were perverse or shockingly unreasonable. The appellate court found that the trial court had reasonably evaluated the evidence and concluded that the prosecution failed to prove the accused's guilt beyond a reasonable doubt. ----Citations/Precedents: Ghulam Sikandar v. Mamaraz Khan (PLD 1985 SC 11) Rahimullah Jan v. Kashif (PLD 2008 SC 298) Muhammad Tasawer v. Hafiz Zulkarnain (PLD 2009 SC 53) Muhammad Zaman v. The State (2014 SCMR 749)

Summary: Background: The appellant was convicted by the Trial Court under Section 396 of the Pakistan Penal Code for his involvement in a robbery and murder case. The incident occurred on June 5, 2008, when five armed individuals attempted to rob the complainant's vehicle. The appellant was accused of firing a fatal shot that killed the complainant's nephew. The appellant was sentenced to pay a fine and undergo rigorous imprisonment. He appealed the decision, challenging the conviction and the legal process. ----Issues: 1- Whether the identification of the appellant as the assailant was reliable and conducted according to legal standards. 2- Whether the recovery of the weapon from the appellant and the positive forensic report were sufficient to uphold the conviction. 3- Whether the delay in recording the witness statements and the lack of an identification parade affected the credibility of the prosecution's case. 4- Whether the evidence presented, including medical and ballistic reports, was consistent with the prosecution's narrative. ----Holding/Reasoning/Outcome: --Identification of the Appellant: The court found that the identification of the appellant was flawed. The complainant and a witness claimed to have identified the appellant in the headlights of their vehicle, but no identification parade was conducted, and no description of the assailants was provided at the time of the FIR. The court noted that identification in court without prior identification procedures is unreliable. --Recovery of Weapon: The recovery of a Kalashnikov from the appellant was deemed unreliable due to the circumstances of the recovery. The court highlighted that the weapon and the empty shell from the crime scene were sent together for forensic analysis, a practice that raises suspicions of manipulation. The positive forensic report, therefore, could not be relied upon to convict the appellant. --Delay in Recording Statements: The court observed that the witness statements were recorded two days after the incident without justification for the delay. This, combined with the belated recording of statements under Section 164 of the Code, diminished the credibility of the witnesses and raised doubts about the authenticity of their testimonies. --Inconsistencies in Evidence: The medical evidence did not align with the witness accounts. The injuries sustained by the deceased were inconsistent with the narrative provided by the witnesses, further undermining the prosecution's case. --Acquittal: The court held that the prosecution failed to prove the case beyond a reasonable doubt. The appellant's conviction was based on unreliable identification, flawed recovery of the weapon, and inconsistencies in the evidence. As a result, the court set aside the conviction and acquitted the appellant. ----Citations/Precedents: Javed Khan alias Bacha and Another vs. The State and Another (2017 SCMR 524) Muhammad Asif vs. The State (2017 SCMR 486) Akhtar Ali and Others vs. The State (2008 SCMR 6) Kashif Ali vs. The Judge, Anti-Terrorism Court No.II, Lahore and Others (PLD 2016 Supreme Court 951) Ali Khan vs. The State (1999 SCJ 502) Muhammad Farooq and Another vs. The State (2006 SCMR 1707) Mushtaq and 3 Others vs. The State (PLD 2008 Supreme Court 1) Ali Sher and Others vs. The State (2008 SCMR 707) Hashim Qasim and Another vs. The State (2017 SCMR 986) Majeed alias Majeedi and Others vs. The State and Others (2019 SCMR 301

Summary: Acquittal granted----Background: The appellant filed a criminal appeal under Section 417 of the Criminal Procedure Code (Cr.P.C.) against the acquittal of the respondents by the Additional Sessions Judge, Karak. The case originated from an FIR registered on 15.05.2002, in which the appellant alleged that the respondents had forcibly abducted his niece, Mst. Khalida Nazia, at gunpoint. The trial court acquitted the respondents, leading the appellant to seek a reversal of the acquittal and a conviction of the respondents. ----Issues: 1- Whether the acquittal of the respondents by the trial court was justified based on the evidence presented. 2- Whether the prosecution's case, supported by the statements of the complainant and the prosecutrix, was sufficient to prove the charges beyond a reasonable doubt. 3- Whether the trial court erred in its interpretation and application of the law, particularly in considering the repudiation of marriage and the reliability of the prosecutrix's statements. ----Holding/Reasoning/Outcome: The court upheld the acquittal of the respondents, finding that the trial court's judgment was well-reasoned and based on a thorough evaluation of the evidence. The trial court had identified significant inconsistencies in the statements of the prosecutrix, who gave contradictory accounts at different stages of the proceedings. The court noted that the prosecutrix's testimony was inconsistent and did not inspire confidence. Her varying statements—one denying abduction and another later supporting the charge—undermined the credibility of the prosecution's case. The court emphasized the principle that when two views are possible, the view favoring the accused should be preferred, especially in cases where the prosecution fails to prove the charges beyond a reasonable doubt. The court concluded that the evidence presented by the prosecution was insufficient to warrant a conviction. The acquittal was therefore upheld, and the appeal was dismissed. ----Citations/Precedents: PLD 1994 SC 31 2010 SCMR 1592 2017 SCMR 633

Summary: Background: The appellants were convicted by the Additional Sessions Judge/Judge, Model Criminal Trial Court, Swabi, for offenses under Sections 302(b) and 394 of the Pakistan Penal Code (PPC). The conviction stemmed from a murder committed during the course of a robbery. Sajjadullah was sentenced to life imprisonment and Aminullah to 15 years of imprisonment, both with additional fines and compensation to the legal heirs of the deceased. The appellants challenged the convictions, seeking acquittal, while the complainant filed a revision for enhancement of the sentences. ----Issues: 1- Whether the trial court's framing of the charge and its judgment complied with the legal requirements under Sections 223, 367, and 225 of the Code of Criminal Procedure (CrPC). 2- Whether the trial court's failure to specify the roles of each appellant and the mitigating circumstances led to a miscarriage of justice. ----Holding/Reasoning/Outcome: The court found that the trial court had not adhered to the legal requirements for framing the charge, particularly under Sections 221, 222, and 223 of the CrPC. The charge did not specify the individual roles of the appellants in the crime, leading to potential prejudice against the defense. Additionally, the judgment failed to comply with the mandatory requirements of Section 367 of the CrPC, which necessitates that a judgment must contain points for determination and reasons for the decision. The trial court did not provide reasons for awarding lesser sentences, making the judgment legally deficient. Given the concessions by both parties regarding these legal flaws, the court set aside the impugned judgment and remanded the case to the trial court for a de novo trial. The trial court was instructed to reframe the charge in accordance with the law and render a new judgment within 40 days. ----Citations/Precedents: Murad Baloch vs. The State (2011 SCMR 1417) Farrukh Sayyar and 2 Others vs. Chairman, NAB Islamabad and Others (2004 SCMR 1) Sahib Khan and 4 Others vs. The State and Others (1997 SCMR 871) The appeals were disposed of by setting aside the trial court's judgment, and the criminal revision for enhancement of sentences was dismissed as infructuous.