This is a petition under section 435/439 of the Cr. P. C. By Rana Irshad Ahmad Khan petitioner against the statement dated 6th May, 1978 made by the Special Public Prosecutor giving up certain eye-witnesses and recovery witnesses in the case as being won over or unnecessary and closing the prosecution case and against the judgment dated 6th May, 1978 passed by the Additional Sessions Judge, Sialkot acquitting Abdul Rahim and 14 others respondents Nos. 1 to 15 of all charges under section 302/307,/323/324/148/149, P. P. C.
2. The brief facts of the case are that Abdul Rahim and 14 others, respondents 1 to 15, were sent-up to stand trial for the murder of Ahmad Khan (deceased) and for attempted murder of Rashid, Sattar, Ghulam Qadir, Abad Khan and Ashiq Hussain P. Ws. For causing hurt with sharp-edged weapons to Abdul Sattar P. W. And for voluntarily causing hurt with blunt weapons to Rashid Ahmad, Abdul Sattar, Ghulam Qadir, Irshad, Abad Khan, Ashiq Hussain, Munshi Khan and Abdul Shakoor P. Ws. And for rioting while armed with deadly weapons and being Members of an unlawful assembly.
3. The brief facts of the prosecution case as disclosed in the F. I. R. Are that about 6-7 months before the occurrence Ashiq Hussain complainant had purchased land measuring 81 kanals and 16 marlas from Mehrban for a sum of Rs. 51,820.00 and paid Rs. 2,500, under an agreement of sale.
Mehrban subsequently appointed his real brother Abdul Ghani as his general attorney to deal with the said land, who exchanged this land with the land of Muhammad Yaqub son of Nawab Din and delivered its possession to him. Ashiq Hussain complai--nant P. W. 1 and his father Munshi Khan asked Abdul Ghani respon--dent and Mehrban to honour their commitment, but they flatly refused. The complainant then lodged a civil suit in the Court of the learned Civil Judge, Daska, which was pending at the time of occurrence. A panchayat was convened, but no positive results could be obtained. Abdul Ghani respondent and Mehrban considered that they had been insulted in the panchayat. At digerwela on 9th July, 1974 another panchayat was convened at the house of one Abdul Hamid by Rana Muhammad Hanif, S. I. Of Sheikhurura. At the instigation of Rana Muhammad Hanif the accused persons, while armed with various type of weapons, launched an attack on the complainant party which resulted in the death of Ahmad Khan and injuries to the P.
Ws.
4. In the challan submitted in the Courts the names of the eight injured witnesses, namely, Ashiq Hussain, P. W. 1, Abdul Sattar, P. W.
2. Munshi Khan, P. W. 3, Ghulam Qadir P. W. 4, Irshad Khan, Abad Khan, Abdul Shakoor and Rashid Ahmad, the two independent eye-witnesses, namely, Bashir Shah and Niaz Shah, and the two recovery witnesses, namely, Talib Hussain and Shaukat Ali, were mentioned.
5. The trial began on 6th May, 1978. All the above prosecution witnesses, except Rana Abad Khan, were present. The prosecution examined Ashiq Hussain P. W. 1, Abdul Sattar P. W. 2, Munshi Khan P.
W. 3, and Ghulam Qadir P. W. 4 who were the injured eye-witnesses. Each one of them, in answer to the first few questions deposed that they could not recognise their assailants as it was dark at the time of occurrence. Each one of them was declared hostile on the request of the learned Special Public Prosecutor and allowed to be cross-examined. Each one during cross-examination denied the suggestion that he had deposed falsely because of a compromise having been effected between him and the accused party. On the very same day, the Special Public Prosecutor gave up Irshad Khan, Rana Abad Khan, Abdul Shakoor and Rashid Ahmad, the injured eye-witnesses, Bashir Shah and Niaz Shah, the independent eye-witnesses, and Talib Hussain and Shaukat Ali, the recovery witnesses, as having been won over and the other formal witnesses as unnecessary and closed the prosecution case. The learned trial Judge then recorded the statements of the accused and posted the case for orders at 1-00 p.m. The same day. Sometime after 1-00 p.m. The final judgment was announced by the trial Judge acquitting all the respondents of all the charges against them. Being aggrieved by the order of the learned trial Judge dated 6th May, 1978 permitting the prosecution to close its case and its final order of even date acquitting the respondents, the petitioner preferred a revision petition against the same, which is now before me for disposal.
6. I have heard the learned counsel fit the petitioner, the accused/ respondents and the State and have perused the record, This case was argued on a number of dates. On 10th April, 1979 the learned counsel for the petitioner made a request to amend his petition so as to also attack the interim order of the Court dated 6th May, 1978 permitting the public Prosecutor to give up a large number of witnesses and close the case. This was permitted. On 2nd May, 1979 an amended copy of the petition was filed, copies of which were delivered to the learned counsel for the accused/respondents and the State to enable them to file their replies. Thereafter, some affidavits were filed on behalf of the accused-respondents and further affidavits F/1 to F/6 were filed on behalf of the petitioner. Fresh opportunity of arguments was given to all concerned due to the amended petition having been filed, but was not availed of by anybody. On 17th June, 1979 the case was finally closed with the consent of the learned counsel for all the parties and the judg--ment was reserved.
7. The learned counsel for the petitioner, in support of his petition, made a number of submissions.
He contended that Ashiq Hussain P. W. 1, Abdul Sattar P. W. 2, Munshi Khan P. W. 3 and Ghulam Qadir P. W. 4, who had turned hostile in the case, were related to each other and had destroyed the case of the prosecution because they had been prevailed upon by Mehrban (brother of Abdul Ghani accused) etc., to resile from the case in consideration of Mehrban etc., giving up their claims to the land in dispute, which was then the subject of litigation between them. In this connection, it was submitted that Munshi Khan P. W. 3 was the father of Ashiq Hussain P. W. 1 and maternal-uncle of Abdul Sattar P. W. 2, whereas Ghulam Qadir P. W. 4 belonged to the same beradari of Munshi Khan P. W. 3 and came from the same village in India from which Munshi Khan hailed. It was pointed out that the dispute leading to the occurrence in which Ahmad Khan deceased was murdered had arisen out of Mehrban's reluctance to complete the agree--ment for sale of land effected by him in favour of Ashiq Hussain P. W. 1 and his father Munshi Khan P. W.
3. Ashiq Hussain P. W. 1 and Munshi Khan P. W. 3 had instituted a suit for possession against Mehrban and others in the Civil Court at Daska on 2nd September, 1974 which on the statement of the parties stood decreed in favour of the plaintiffs on 5th September, 1974. The copy of the plaint in the said civil suit (Annexure `L' to the petition) shows that the same was not only signed by Rana Muhammad Arshad, Advocate, on behalf of Ashiq Hussain P. W. 1 and Munshi Khan P. W. 3 but was also filed by him in Court on 2nd September, 19;
4. The copy of the Vakalatnama given by Ashiq Hussain P. W. 1 and his father Munshi Khan P. W. 3 to their Advocate to prosecute the said suit (Annexure `M' to the petition) shows that it was in favour of Rana Muhammad Arshad, Advocate, and the same is signed by him. The copy of the consent decree of the Court dated 5th September, 1974 (Annexure `K' to the petition) shows that Rana Muhammad Arshad, Advocate, was present for the plaintiffs Ashiq Hussain and Munshi Khan.
It was urged that the institution of the said suit and its compromise within a matter of days had been effected pursuant to an arrangement arrived at between Ashiq Hussain.P. W. 1 and Munshi Khan P. W. 3 with Mehrban etc., whereby the former agreed not to support the prosecution story in return for Mehrban agreeing to honour his earlier agreement for sale, which he had previously turned down and over which-the incident had occurred. It was further submit--ted that on the basis of this consent decree, mutation in favour of Ashiq Hussain P. W. 1 and Munshi Khan P. W. 3 was effected by Assistant Collector Gr. I on 14th May, 1975 (Annex. D to the petition). Later, on a fresh suit instituted by Ashiq Hussain P. W. 1 and Munsbi Khan P. W. 3 against Mehrban etc. For a declaration that they were in posses--sion of the suit land and should not be disturbed by the defendants the same was decreed on 10th October, 1977 (referred to in Annexure `C' to petition).
Against this decree Mehrban etc., preferred an appeal on 12th November, 1977 (Annexure 'G' to the petition) which again was withdrawn on compromise on 11th March, 1978 (Annexure `H' to the petition). As regards this fresh litigation, it was submitted that Mehrban etc. Had instituted this fresh suit to put pressure on Ashiq Hussain and Munshi Khan P. Ws. To carry out their compromise and that two months before the actual date fixed for the trial, the appeal was withdrawn by Mehrban etc., collusively with the respondents after the latter had agreed to stand by their earlier commitment not to support the prosecution case. As regards the proceedings that took place in the trial Court on 6th May, 1978 it was submitted that Ashiq Hussain P. W. 1, Abdul Sattar P. W. 2, Munshi Khan P. W. 3 and Ghulam Kadir P. W. 4, true to their commitment, did not support the prosecution case, that Irshad Khan, Abad Khan and Rashid Ahmad, the three injured eye- witnesses, Bashir Shah and Niaz Shah, the two independent eye-witnesses, and Taleb Husain and Shaukat Ali, the two recovery witnesses, were present in Court outside on that date ready to give evidence, that neither the learned trial Judge nor the Special Public Prosecutor enquired from them whether they were supporting the prosecution case that they were sur--prised at the conduct of the Special Public Prosecutor who gave them up as being won over, and that Rana Muhammad Arshad Khan, Advocate, who had been previously appearing for Ashiq Hussain P. W. 1 and Munshi Khan P. W. 3 in the civil litigation, had connived with the accused-respondents and the Special Public Prosecutor in prevailing upon the latter to give up all the other witnesses as won over. The learned counsel also pointed out that even assuming; though not admit--ting, that the Special Public Prosecutor had acted honestly, he had not taken care to check with these seven persons whether they were ready and prepared to support the prosecution case and had thus acted care- -lessly and with gross negligence in making the statement he did, giving up these witnesses as won over. Still further, it was also submitted, that the learned trial Judge had also acted carelessly and with gross negligence in blindly permitting the Special Public Prosecutor to give up these seven persons as won over, without first making a proper enquiry from the Special Public Prosecutor as to the circumstances and facts which had come to his knowledge to make the statement he did, or making an inquiry himself as regards whether the said seven persons were all won over and that in blindly permitting the Special Public Prosecutor to gave up these witnesses on assumptions which were false and untrue, he had permitted a grave miscarriage of justice to take place. Learned counsel for the petitioner relied upon Grindlays Bank v. P. D. Bhoda (PLD 1979 Kar.
610) and Mst. Shameem v. The State (1974 P Cr. L J Note 8 at p. 5) to stress that where a case was not presented by the Public Prosecutor in a proper manner and proper oral or documentary evidence available was not brought on the record, resulting in grave miscarriage of justice, the High Court had always set aside the acquittal and ordered a retrial to enable the prose--cution, in the public interest, to adduce all evidence to prove its case. In these circumstances, it was prayed that the order of the trial Judge dated 6th May, 1978 permitting the Special Public Prosecutor to give up the seven witnesses as won over and that of the same Judge of even date acquitting all the accused-respondents should be set aside and a retrial ordered.
8. Learned counsel for the accused-respondents and the State, who strongly opposed the petition, submitted that the Special Public Prose--cutor being in charge of the case, it was for him to decide which witness was to be produced or given up and that if he had faltered or made a mistake or acted in collusion with Rana Muhammad Arshad, Advocate, (who was acting for the complainant in the trial) the remedy lay with the petitioner on the administrative side to move the Deputy Commis--sioner or on the judicial side to move the learned Additional Sessions Judge, but the petitioner never filed any complaint with the learned Additional Sessions Judge or the Deputy Commissioner stating that the learned Special Public Prosecutor had in collusion with Rana Muhammad Arshad, Advocate, for the complainant in the trial, deceitfully made a statement giving up the seven persons referred to by the petitioner as won over and had thus practised fraud on the Court and caused a grave miscarriage of justice. It was further submitted that the petitioner could have straightaway moved a revision petition against the order of the Court dated 6th May, 1978, permitting the learned Special Public Prosecutor to give up the seven persons as won over, but since the petitioner never filed the revision petition, he had acquiesced in the matter and could not object to the same later. It was also contended that P. Ws. 1 to 4 who appeared before the Court and did,, not support the prosecution story were related to Ahmad Khan deceased and that the petitioner neither being an informant nor witness, had no locus standi to file the present petition. It was further urged that assuming the seven persons referred to by the petitioner had appeared to give evidence, in the face of the four prosecution witnesses P. Ws. 1 toy a who had appeared and stated that they had not identified the assailants, no useful purpose would be served by their testimony. Lastly, it was submitted that no miscarriage of justice had taken place and interference under section 439, Cr. P. C. Was uncalled for. In this respect Ghulam Haider v. The State and others and (1968 P Cr. L J 517) and Noor Muhammad v. Imtiaz Ahmad etc. (AIR 1942 Oudh 130) were cited.
It was, therefore, urged that no interference by this Court was called for and the petition should be dismissed.
9. This case has been argued at great length by the learned counsel for the parties and the record and the documents have been perused time and over again. It cannot be denied that Rana Irshad Ahmad Khan the present petitioner is the son of Ahmad Khan deceased who was murdered in the incident that took place on 9th July, 1974, relating to which murder the present accused- respondents were tried by the Additional Sessions Judge, Sialkot, in the Sessions Case No. 99 of 1976 and acquitted by him on 6th May, 1978. He has, therefore, locus standi f to file this petition.
From the challan filed in the said case, it also cannot be denied that the names of Ashiq Hussain P.
W. 1, Abdul Sattar P. W. 2, Munshi Khan P. W. 3, Ghulam Kadir P. W. 4, -Irshad Khan, Ahmad Khan, Abdul Shakoor and Rashid Ahmad were cited as the injured eye-witnesses of the case, that of Bashir Shah and Niaz Shah were cited as the independent witnesses and that of Talib Hussain and Shaukat Ali were cited as the recovery witnesses. From the brief facts of the case, as disclosed by Ashiq Hussain P. W. 1 in the F.I.R., which is reproduced in para. 3 above, the dispute arose over 81 kanals, 16 marlas of land which Ashiq Hussain P. W: 1 and his father Munshi Khan P. W. 3 had purchased from Mehrban (brother of Abdul Ghani accused respondent), which Abdul Ghani accused-respondent exchanged with that of another, notwithstanding Mehrban's agreement to sell the same to Ashiq Hussain P. W. 1 and Munshi Khan P. W.
3. From the documents Annexures "G" to "M" lodged by the petitioner, it is clear that immediately after the incident on 9th July, 1974, Mehrban, etc., compromised their differences relating to this disputed land with- Ashiq Hussain P.
W. 1 and Munshi Khan P. W. 3 and a suit was filed by the latter on 2nd September, 1974, which within three days was compromised, resulting in a compromise decree being passed in favour of Ashiq Hussain P. W. 1 and Munshi Khan P. W. 3 on 5th September, 1974. Later, on certain threats having been extended by Mehrban, etc., to their rights, Ashiq Hussain P. W. 1 and Munshi Khan P. W. 3 filed a declaratory suit against Mehrban, etc., regarding the same land, which was decreed in their favour an 10th October, 1977 and Mehrban's appeal against the same was dismissed on compromise on 11th March, 1978. In the first round of litigation, Rana Muhammad Arshad, Advocate, appeared for Ashiq Hussain P. W. I and Munshi Khan p. W. 3 as their attorney: It is also not disputed that Rana Muhammad Arshad Advocate, who had acted for Ashiq Hussain P. W. 1 and Munshi Khan P. W. 3 in the first round of civil litigation with Mehrban, was appearing in Sessions Case No. 99 of 1976 as counsel for Ashiq Hussain P. W. 1 complainant and was present in Court on 6th May, 1978, apparently with a view to assisting the Special Public Prosecutor in the discharge of his duties. From all these facts and documents, a reason--able inference can be drawn that Mehrban and Abdul Ghani accused respondents, in order to win over to Ashiq Hussain P. W. 1, Abdul Sattar P. W. 2, Munshi Khan P. W. 3 and Ghulam Kadir P. W. 4., arrived at a compromise with them agreeing to stand by their earlier agreement to sell the disputed 'land to Ashiq Hussain P. W. 1 and Munshi Khan P. W. 3, in exchange for these four prosecution witnesses agreeing to resile from their earlier statements and voluntarily bogging down in evidence. The fact that Munshi Khan P. W. 3 is the father of Ashiq Hussain P. W. 1 and maternal-uncle of Abdul Sattar P. W. 2, whereas Ghulam Kadir P.
W. 4 belongs to the same beradari of Munshi Khan P. W. 3 and hails from the same village in India from which Munshi Khan hailed, is not disputed by the parties. The fact that these I-our witnesses resiled from their earlier statements at the trial, supports the inference stated above, namely, that they were won over under a pre-planned conspiracy. The affidavits Annexures E/1 to E/6 and F/1 to F/6 of Irshad Khan, Abad Khan, Rashid Ahmad, Bashir Shah, Niaz Shah and Talib Hussain, which have been filed by the petitioner, clearly show that on 6th May, 1978, all these six witnesses were present outside the Court of the Additional Sessions Judge, Sialkot, that at no stage the learned Special Public Prosecutor or the learned Additional Sessions Judge enquired from them whether they were supporting the case of the prosecution, that they were wrongly given up .By the Special Public Prosecutor as won over even though they were prepared to support the prosecution case and that as witnesses to the case they were still ready and willing to support the prosecution story, In the light of these cumulative facts and circumstances and the documentary evidence placed on the record, the circumstances in which the learned Special public Prosecutor gave the statement in Court on 6th May, 1978, that these six persons and Abdul Shakoor were being given up as being won over, is not understood. 1t appears that the same was made recklessly, perhaps on the instigation of, if-not in connivance with Rana Muhammad Arshad, Advocate, for the complainant, who was present that day with him, but in any case not after making proper inquiries personally from the witnesses. The circumstances in which the learned Additional Sessions Judge permitted himself blindly to record and accept such a statement, without inquiring from the learned Special Public Prosecutor as to the material which he had taken into consideration to make such a statement or appraise himself the material so taken into consideration by the learned Special Public Prosecutor and, if needs be, to check the same, leaves much to be desired. It is true that a Public Prosecutor in every given case is in charge of the case and has a right to assess how' much evidence is necessary in order to prove that case and to determine at any stage during the trial whether the evidence brought on the record) is sufficient and whether any witnesses not so examined can safely be given up but it is of the essence of his obligation that this determination is made with care and caution and with due consideration to the evidence available and which has been or can be brought on the record to faith--fully and adequately prove the prosecution case.
The most onerous duty of a Public Prosecutor is when dealing with a witness whom he personally knows or whom he reasonably believes, from information received by him and believed to be correct, to have been won over and who may have to be given up. In such a case, it is of the utmost importance that not only the Public Prosecutor should carefully weigh and appraise the material received by him in this respect, but also as far as possible interview such a witness in his office to make sure whether the informa--tion supplied appears to be credible and can be acted upon and what is his assessm ent of the person against whom the accusation of being subborned has been made. In case of any doubt, he should seek an urgent written report from the Investigating Officer in respect of the allegations made against such a person. It is only after he has satisfied himself thoroughly from all the material available with him, including e the report of the Investigating Officer, if any, and the personal examina--tion of the witness concerned conducted by him, that reasonable grounds exist to show that the witness appears to have been won over, that he should make a statement in Court giving up such a witness as won over. As regards the duty of a Judge, before whom such a statement is made it has wrongly been assumed that the Judge must not only record such a statement but blindly accept it without demur. Nothing can be further from good sense, for though the custom appears to have originated from absence of direction, it has no basis in reason. It is not only the duty of a Judge, when such a statement is being made before him, to inquire from the Public Prosecutor as to the material he has on the basis of which such a statement is being made, but to examine such material and after satisfying himself that the statement made by a Public Prosecutor is reasonably supported by material available with him, to permit him to give a statement giving up a witness as won over. It is necessary in the interest of justice, before a prosecution witness is dubbed as won over, for the Court to be satisfied about the taint attach--ing to his status so as to exclude all possibilities of mis judgment and the disabilities that may attach to the case by his non-production, assuming he has not been won over and is otherwise prepared to support the case. If the Judge considers that the Public Prosecutor has not sufficient material with him to warrant the statement he desires to make, the Judge should call upon the Public Prosecutor either to make further inquire into the allegations received by him or to examine such a witness as a prosecution witness, if the Public Prosecutor considers that his evidence is necessary, or to give him up as unnecessary. The inherent powers which every Judge has to see that justice must be done, does not compel him to be a mere silent spectator when a statement is made before him by the Public Prosecutor giving up a witness as won over, for to do so would render him a passive agent to miscarriage of justice. It is the duty of Judge to offer proper guidance to a Public Prosecutor at proper places, not only because he has a right to oversee his working, but because he has a duty to the State and the Public to ensure that the trial is orderly and conducted in proper channels. Not very far back, the Privy Council in Adel M. El Dabbab v. Att.
Genl. Of Palestine (46 Cr. L J 394) whilst adverting to the rule of practice which grants a clear discretion to the prosecutor to decide what witnesses should be called for the prosecution, in which exercise of discretion, the Court does not normally interfere, observed that in a case where it could be shown that the prosecutor had acted with oblique motive, interference by the Court was not barred. In the instant case, not only the Special Public Prosecutor acted rather recklessly and with gross negligence in giving up a large number of witnesses as won over on 6th May, 1978, but the learned trial Judge also acted rather carelessly in permitting the said statement to be recorded without first checking the material available with the Special Public Prosecutor to justify the same.
By this recklessness acid gross negligence all the evidence available with the prosecution to prove the case was not produced before the Court, thus resulting on grave miscarriage of justice. This Court does not ordinarily interfere in revision with an order of acquittal, but in the present exceptional case, specially where the facts, circumstances and docu--ments brought on the record reasonably lead to the inference if not show that the four prosecution witnesses who appeared in Court and did not support the prosecution case, had actually been won over by the accused party under a pre-planned conspiracy to destroy the prose--cution case and that the learned Special Public Prosecutor at the instigation of, if not in connivance with, the counsel for the comp--lainant, or otherwise recklessly and with gross negligence gave up a large number of witnesses as having been won over, whereas they had not been so won over and were (and still are) ready and willing to support the prosecution case, this Court has no other alternative but to set aside the acquittal and order a retrial. In Grindlays Bank Ltd. v. P. D. Bhadha (PLD 1978 Kar. 610) where miscarriage of justice had occurred as the prosecu--tion agency bad not brought all the oral and documentary evidence on the record which was available with it and had not prosecuted the casein a proper manner and the trial Court also did not make 'any effort to bring essential facts on the record, the acquittal was .Set aside and a retrial ordered for doing substantial justice. This case is on all fours with the present. For the purposes of doing substantial justice, a retrial is necessary in the instant case.
10. For the foregoing reasons, this petition is accepted. Both the intermediary order and the final judgment dated 6th May, 1978, passed by the learned Additional Sessions Judge, Sialkot, are set aside. The acquittal of the accused-respondents is set aside and a retrial is ordered. The case is remanded to be tried afresh, but shall not be entrusted to the same Judge who acquitted the present accused-respondents. Like--wise, the prosecution shall not be entrusted to the learned Special Public prosecutor who conducted the present case.