JUDGMENT MUHAMMAD AFZAL CHEFMA, J.-Criminal Appeals Nos. 243 and 244 of 1065 have been filed by the State against the order acquittal of five respondents in the first appeal plus two more I the second appeal, all being Indian nationals, from charges under sections 148 and 307/149, P. P. C.
Etc. Recorded by Mr. Faiz Karim, Magistrate Section 30, Cr. P. C. Bahawalpur, vide to impugned order, dated 24th September 1964.
2. The brief facts of the case are that several cases relating to the allegations of murder. Murderous assault, abduction, illegal entry into Pakistan and possession of unlicensed arms were registered against the respondents on 14th April 1963 at Police Station Derawar, Distt. Bahawalpur on a detailed report sent by Captain Zakir Ali Zaidi (P. W. 2), of Desert Rangers, Bahawalpur. On arrest they were sent up to take their trial and having been convicted in other cases, earned an acquittal in the aforesaid two cases. The allegations against the respondents, some of whom were proclaimed offenders and carried on their predatory activities on both sides of the border, were that they had entered Pakistan after having abducted Mst. Sukhman (P. W. 16), an Indian National and Bhur Singh a landlord of the same village, and was later murdered in Pakistan. In Criminal Appeal No. 243 of 1965, the allegations are confined to their encounter with the Rangers and the police party near Toba Lasand on the 6th of April " 1963 which resulted in damage to Jeep No. 1979- B R and Unimog No. 1986 and 1987-B R.
3. In support of its case the prosecution produced as many as seventeen witnesses including Captain Zaidt the complainant, three trackers, the Inspector C. I. A., the Deputy Superintendent of Police (Rangers) and Mst. Sukhman. The prosecution story did not find favour with the learned Magistrate for the following reasons: -
(i) that the first information report was not recorded promptly ;
(ii) that the Desert Rangers assisted by the police and armed with automatic weapons had not been able to capture even one of the respondents notwithstanding five pitched encounters ;
(iii) None of the official witnesses could possibly claim having actually seen or identified the Rangers at the time of the alleged attack.
(iv) No independent witness of the locality was produced in support of the prosecution.
(v) That Mst. Sukhman who gave an eye-witness account could not be relied upon for the reason that she had been under the influence of Desert Rangers and the police, and presumably had been held out a promise to be sent back to India; and
(vi) That the statements of the witnesses were highly discrepant.
4. Having gone through the record of the case as also the impugned judgment, we do feel inclined to uphold the impugned judgment. It is well-settled that this Court would be slow tol interfere in exercise of its revisional jurisdiction in orders of acquittal unless it comes to conclusion that there has been a clear miscarriage of justice. In fact, in addition to the grounds taken by the learned Magistrate in recording a judgment of acquittal, there are certain other important considerations which also point to the same direction. In the first instance, none of the witnesses,' with whom the respondents had taken shelter and by whom they were subsequently produced, entered the witness box to show the circumstances in which the respondents were arrested. Secondly, although unlicensed arms were allegedly recovered from the respondents along with rounds of ammunition it evidence relating to these recoveries has been brought on the record of this case. In all probability the recoveries would have been exhibited in the cases registered against the respondents under the Arms Act, but we cannot import that evidence in this case so as to be read against the respondents. Again Dhan Singh a commandant of Indian post on the opposite side who had also been allegedly abducted by the respondents and succeeded in making good his escape claiming to know each one of the respondents though examined in the other case was not examined in this case. He was an important witness and should not have been omitted.
5. It was contended by the learned counsel for the State in support of his appeal that the learned trial Court had wrongly invoked its powers under section 344, Cr. P. C. By shutting out the prosecution to lead further evidence in the case and if allowed an opportunity, it would have been able to establish its case beyond doubt. Having gone through the order-sheet we are convinced that the learned Magistrate was fully justified in closing the case for the prosecution after having in vain afforded them more than a dozen opportunities in the course of a year and a half. As such) he cannot be accused of unfairness towards the prosecution which under the law cannot claim any special indulgence, as the Court B has to keep the scales even. It is well-settled that the accused have a right to a speedy trial and the Courts are not justified in granting adjournments to the prosecution indefinitely. Hami Husain v. The State (PLD 1960 Lah. 498 may be cited as an authority in point.
6. The next contention raised by the learned counsel for the State was that he facts, end circumstances of the case calls for an order of remand in the interest of justice. Having been taken through the record we cannot avoid the impression that an otherwise good case has been spoiled owing to careless and improper handling both on the part of the prosecution as also the trial Court.
The facts as revealed bear the impress of a natural version which could possibly be embellished but not fabricated. There was sufficient evidence available in the case to warrant a conviction only if properly marshalled and brought on the record. We have no doubt that some of the mistakes are capable of rectification and the lacuna could be supplied in a fresh trial, but in view of the fact that the respondents have already undergone the agony of a protracted trial- coupled with the consideration of their convictions in other connected case and award of long, and consecutive terms of imprisonments, we do not feel inclined to order a fresh trial.
7. In consequence the appeal fails and is hereby dismissed.
8. Before parting with this case, we might observe that allowing the respondent's request for personal appearance we summoned them from Jail and heard them in person. They complained that the Jail authorities had declined to forward their appeals against their conviction from Jail. The Superintendent of the Jail concerned should look into this and forward the respondent's appeals, if it has not been done so already.