1988 P Cr (PLP)

Sardar Faiz Muhammad Khan Khosa for Respondents. Syed Murtaza Ali Zaidi for the Complainant. Date of hearing: 18th April, 1988. This revision petition is directed against the order dated 9‑12‑1982 delivered by the learned Additional Sessions Judge Rajanpur, whereby, he acquitted the respondents under section 265‑K Cr.P.C.

2. Brief facts giving rise to the institution of this revision petition are, that vide F.I.R. No.200 dated 29‑7‑1980 Police Station Rojhan registered a case under section 302 read with section 34 P.P.C. against Yaqub, Zaffar, Farooq and Gawa. According to the complainant on the fateful day, when he alongwith his nephew Manu was irrigating their field, four respondents armed with Sotis came to the scene of occurrence and attacked the deceased. It is alleged that the deceased snatched the stick from Farooq and caused injury to Zaffar in his self‑defence. Yaqub respondent gave stick blows on the head of ManU, who fell down on the ground and, thereafter, all the four respondents caused injuries to Manu while he was lying on the ground. According to the complainant, hue and cry raised by him attracted Niaz Ahmad and Zahoor Ahmad who also reached the place of occur rence.

3. Motive for the commission of crime was that the cattleheads of the respondents had damaged the crop of Manu deceased a day earlier, which led to the exchange of hot words, therefore, the respondents to avenge the insult had launched an attack. Initially, the case was registered under section 307 P.P.C. but after the death of the deceased Manu, it was altered into one under section 302, P.P.C. The learned Additional Sessions Judge Muhammad Aslam Sumro became seized of the case. On 18‑7‑1982 Gawa and Zaffar appeared before the learned Additional Sessions Judge in police custody, therefore, the remaining two accused were summoned for 16‑9‑1982. On the said date all the four respondents appeared and it was noticed, that the copies of the documents had already been delivered to all the accused as far back in February, 1982. 12‑10‑1982 was fixed for holding the trial. On the said date, statements of Dr. Shabbir Hussain and Ghulam Hussain HC were recorded. Remaining witnesses were summoned for 17‑11‑1982. The counsel for the complainant appeared and undertook to produce the eye‑witnesses on the date to be fixed by the Court for their examination. On 17‑11‑1982, statement of Patwari was recorded and a dispenser also appeared in the witness‑box and produced a register. The learned Additional Sessions Judge addressed a letter to the SP Rajanpur directing him to produce the witnesses in Court on 7‑12‑1982. On the said date, supplementary statement of Dr. Shabbir was recorded and Kadu one of the witnesses appeared, but he was given up by the prosecution. It may be stated here that in response to the letter addressed by the learned Additional Sessions Judge to SP Rajanpur for the production of witnesses, Ghulam Jillani ASI was directed to effect the service of the eye‑witnesses. Record of the case shows that it was reported that the said witnesses were working near Quetta in the Sui gas Company. One constable appeared before the learned Additional Sessions Judge and made the statement, that the witnesses are deliberately avoiding to appear in the Court. The learned Additional Sessions Judge while writing his order observed that Ghulam Jillani ASI appeared who stated that the witnesses were concealing themselves and were avoiding to appear in the Court. Obviously, this amounts to misreading of the record, inasmuch as, Ghulam Jillani had not appeared but a constable had appeared who stated that the witnesses were avoiding to appear, and the said statement was also erroneous, inasmuch as written reports on the summons reveal that the witnesses had gone in connection with their employment to a place near Quetta where they were working in Sui gas Company. The learned Additional Sessions Judge hastily proceeded to close the evidence of the prosecution case. It is also interesting to note, that the learned Additional Sessions Judge has further observed that warrants bear the report that the witnesses could not be arrested. whereas, to the contrary, record establishes that the witnesses were not available and had gone out of the village in connection with their employment. The learned Additional Sessions Judge held that the witnesses were avoiding to appear, thus acquitted the respondents under sectiom265‑K Cr.P.C.

4. I have perused the entire record of the case and also summons warrants and the reports thereon. Unfortunately, there is no material justifying the findings arrived at by the learned Additional Sessions Judge. It is further noteworthy to mention that the complainant was also in jail at the relevant time as under trial prisoner. The learned Additional Sessions Judge ought to have seen the difficulties in the way of the prosecution to produce the evidence. Disposal of murder cases in such a slip shod manner is not warranted by law. In the absence of any material on the record to hold that the witnesses were deliberately avoiding to appear in Court, the acquittal under section 265‑K, Cr.P.C., is perverse and has caused miscarriage of justice. Accordingly, I have no hesitation to set aside the orders dated 9‑12‑1982 delivered by the learned Additional Sessions Judge acquitting the respondents under section 265‑K, Cr.P.C. This case shall now be remanded to the learned Sessions Judge Rajanpur who shall hold the trial, so that the same is concluded within a period of six months. With these observations this petition is allowed. S.A./N‑131/L Case remanded.