P L D 1985 Lahore 634 (PLP)

Malik Ghulam Farid for Respondents. Date of hearing :14th July, 1985. The facts giving rise to this suo motu revision under section 439, Cr. P. C., briefly, are that a case under section 302/307/34, P. P. C. was registered at P. S. Ahmadpur East on 19-8-1983 against Muhammad Ashiq, Saced Ahmad and Azim Bakhsh accused/respondents. The allegations were that they caused the death of Abdul Majid and launched murderous assault on Manzoor and Aqil P. Ws. on the same day in the area of Faizpur. The accused /respondents were injured during the occurrence and caught red-handed on the spot alongwith weapons of offence. When after the registration of the case, the police arrived at the spot, it arrested them from the spot and simultaneously recovered weapons from them. The police took into possession 6 crime empties from the spot. The Forensic Science Laboratory report is that the empties recovered from the spot were fired from the guns recovered from the accused/respondents. After investigation, the police submitted challan before the Magistrate who sent up the case to the Court of Session Bahawalpur. The case was entrusted to Additional Sessions Judge, Bahawalpur and Nazir Ahmad Qureshi, Additional Sessions Judge tried the same. He recorded the statement of 5 witnesses namely Ghazi P. W. 1, Aqil P. W. 2, Manzoor Ahmad P. W. 3, Baggu P. W. 4 and Basbir Abmad P. W. 5 and acquitted the accused, respondents under section 265-K, Cr. P. C. In his judgment he observed : "Since none of the P. Ws. including the complainant himself, supported the prosecution, therefore, in view of this situation no useful purpose could be served by recording the evidence of remaining formal witnesses. Therefore, the remaining P. Ws. have not been examined." He further observed: "None of the P. Ws. including the complainant and eye-witnesses has supported the prosecution which makes the case of no evidence. In view of the evidence on record I have come to an irresistible conclusion that it is a case of no evidence and the prosecution has failed to prove its case against the accused. I, therefore, acquit the accused under section 265-K, Cr. P. C."

2. I as an Inspection Judge of Bahawalpur District examined the ,1 cases, decided by Nazir Ahmad Qureshi, Additional Sessions Judge. I found that the learned Additional Sessions Judge had in a very hasty manner acquitted the accused/respondent under section 265-K, Cr. P. C. and that the facts stated by him in the judgment were incorrect. So, in exercise of my revisional jurisdiction, I called for the entire record of the case for the purpose of satisfying myself as to the correctness, legality or propriety of the judgment of the trial Court. On examination of the same I issued notice to the respondents. In the meantime, the mother and maternal-grandfather of Abdul Majid deceased also filed Criminal Miscellaneous No. 912 of 1985. I propose to dispose of them through single judgment.

3. Learned counsel for the State has submitted that the learned Additional Sessions Judge has acquitted the accused, respondents under section 265-K, Cr. P. C. without any legal and factual justification, inasmuch as, he has wrongly observed to his judgment that the evidence of the remaining witnesses was of formal nature and that it was a case of no evidence. Conversely, the learned counsel for the respondents maintained that since 5 witnesses of the occurrence had not supported the prosecution case against the respondents/accused, therefore, there was no probability of the accused being convicted of any offence, and as such, the learned trial Court had rightly acquitted the respondents of the charge.

4. I have considered the arguments advanced by the learned counsel for the parties with case. To prove its case the prosecution had cited as many as 21 witnesses in Kalandra-e-Shahadat. The prosecution proposed to examine 6 persons namely Ghazi P. W.

1. Aqil Khan P. W. 2, Manzoor Ahmad P. W. 3, Baggu P. W. 4, Bashir Ahmad P. W. 5 and Abdul Razzaq (not examined) as eye-witnesses of the occurrence, three persons namely Allah Yar, Muhammad Yar and Muhammad Din S. 1./S. H. O. as recovery witnesses of six crime empties from the spot and 3 shotguns from the respondents coupled with positive report of Forensic Science Laboratory. The prosecution also cited Dr. Javed Hussain Ajmi to prove the post-mortem report of the deceased and the medico-legal report relatable to the injuries of the 2 prosecution witnesses and the 3 accused/respondents. Strangely enough, the learned Additional Sessions Judge did not care to record the statements of Abdul Razzaq, the eye-witness, Allah Yar, Muhammad Yar, the witnesses of recoveries of crime empties and guns from the respondents, statement of the doctor with regard to the post-mortem., injuries of P. Ws. and the injuries of the accused, respondents which, by itself, was a strong circumstance of their presence and participation in the occurrence. The learned Additional Sessions Judge did not record the statement of Muhammad Din S. H. O. who arrested tae respondents from the spot alongwith the weapons of offence and he acquitted the respondents/accused stating in his judgment wrongly that no useful purpose could be served by recording the evidence of remaining formal witnesses and that it was a case of no evidence, although the five witnesses had been declared hostile. Since he has not recorded the statement of Abdul Razzaq, an eye-witness of the occurrence, therefore, it cannot be said that he might not have supported the prosecution. Had Abdul Razzaq, the witnesses of recovery of the weapons of offence and removal of the crime empties from the spot, the Investigating Officer and the doctor been examined, medico-legal reports relating to the accused/respondents and post-mortem report of the deceased been proved rind the Forensic Science Laboratory report tendered in evidence, the learned counsel for the respondents could not have argued that there was no probability of the respondents/accused being convicted of any offence. Furthermore, the alleged arrest of respondents was made on the spot alongwith the weapons of offence. The learned Additional Sessions Judge completely shut his eyes to the evidence which was allegedly available in the form of strong incriminating circumstances which could have been used as corroborative piece of evidence. It is really unfortunate that although the Prosecutor had not given up the remaining witnesses, more particularly, Abdul Razzaq one of the eye-witnesses, the Investigating Officer, Muhammad Yar, Ahmad Yar and Dr. Javed Hussain Ajmi, yet the trial Court did not consider it appropriate to record their statements and instead acquitted the respondents/accused in a hasty and unusual manner. For all these reasons I am of the view that the judgment of acquittal passed by the learned Additional Sessions Judge is not only illegal but also perverse.

5. For what has been stated above, the revision is accepted. The respondents are present in the Court. They were not on bail during the trial. They were released on acquittal of the charges which has been set aside today, so they shall be taken into custody forthwith.

6. It seems to me, however, that the undue haste with which Nazir Ahmad Qureshi acquitted the accused makes it desirable that he should not rehear the case and acting under section (iii) of section 526, Cr. P. C., I, of my own accord, transfer the case to the Court of learned Sessions Judge, Bahawalpur who will re-try the respondents/accused in accordance with law. The accused/respondents shall be produced before him on 16-7-1985. M. A. K. Retrial ordered.