Muhammad Qasim Khan, J.--Through this appeal the appellant Lal Khan who is complainant of case FIR No, 1/1993 under Section 302/34 PPC registered at Police Station Saura, Tribal Area, Tehsil Taunsa, District Dera Ghazi Khan, has assailed the judgment dated 16.04.1996 passed by learned Additional Session Judge, Taunsa Sharif, whereby respondents (Maulidad, Aman Ullah and Mehrab Khan) have been acquitted of the charges against them in the above FIR.
2. Briefly the facts of the case are that, Lal Khan appellant/complainant got lodged the above FIR (Ex.PA) on 24.02.1993 at 6.30 a.m. to the effect that on the fateful day and time he went to Sakandi for usual work, where his paternal uncle Muhammad son of Malang also reached to look after the crop and houses. Meanwhile, Mehrab Khan, Aman Ullah and Maulidad while armed proceeded towards Jarrhu-Marrh. It is further alleged that uncle of the complainant namely Muhammad also left for home in the noon, when he reached Thangwani-Khorrh, the accused/respondents took up a bunker from Jarrhu-Marrh Sar and made about 15/16 fires at Muhammad with the intention to commit his murder. The complainant rushed to the spot and saw the accused escaping after abandoning their bunkers at MarrhSar. Aman Ullah and Mauli Dad accused/respondents ran towards Sakandi, whereas, Mehrab Khan accused/respondent decamped toward South to his house. Muhammad received bullet shot which pierced through his lower part' of the spinal cord.
The complainant took his uncle Muhammad towards the bus-stop after picking him up. From there he boarded the victim on a motor bus and reached Sakharchur Barthi. However, during transit at about 9.00 a.m. the injured Muhammad succumbed to the injuries therefore, the complainant returned back and got lodged the FIR. It was further alleged in the FIR that Esa son of Meva, Braham son of Ahmadan, Haji Muhammadan son of Budha, Azeez son of Chakar Chaakrani and Easu Shah son of Ameer Shah also witnessed the occurrence and identified the accused person.
The motive was alleged to be that Muhammad (deceased) had murdered Saeen Daad brother of Mauli Dad (accused), a few years back and murder of Muhammad was result of said vengeance.
3. Muhammad Hashim Khan Dafedar (PW-2) recorded the FIR and inspected the spot, examined the dead body of Muhammad, prepared injury statement Ex.PD and seized the last worn cloths of deceased (not produced in Court) Ex.PE. Thereafter, PW-2 reached the place of occurrence, took fifteen crime empties from the spot (not produced in Court), prepared un-scaled site plan Ex.PB, recorded statements, of the witnesses under Section 161, Cr.P.C., Mauli Dad accused/respondent surrendered before him on 02.03.1993 and produced rifle Ex.P-3, taken into possession vide memo.
Ex.PF. Then the investigation was taken over by Jamedar Ghulam Qadir Khan PW-3. Aman Ullah accused/respondent surrendered before him on 21.3.1993 and produced rifle P-4 taken into possession vide memo. Ex.PG. Ultimately, report under Section 173, Cr.P.C., was submitted.
4. The accused/respondents were charge sheeted, to which they pleaded innocence and claimed to be tried. During trial the prosecution examined Hashim Khan and Jamedar Ghulam Qadir Khan Investigating Officers as PW-2 and PW-3 respectively, Musa PW-4 deposed production of rifle by Aman Ullah, PW-5 Shah Ali, PW-6 Aziz, Esa Khan PW-7 and Lal Khan PW-8 deposed about the ocular account of the occurrence. On close of prosecution case accused/respondents were examined under Section 342, Cr.P.C., however, they preferred not to produce any evidence in defence.
Ultimately, the learned trial Court vide the impugned judgment recorded acquittal of all the three accused/respondents.
5. It is argued by learned counsel for the appellant/complainant that in the light of Criminal Law (Special Provisions) Ordinance (II of 1968) only the Deputy Commissioner, a Tehsildar or a Naib Tehsildar had jurisdiction to take cognizance of the offence covered by the above Ordinance and the matter with regard to question of guilt or innocence was to be referred to the Tribunal constituted under the Ordinance, ibid. According to the learned counsel, in this case the FIR was registered on 24.02.1993 and at that time Criminal Law (Special Provisions) Ordinance (II of 1968) was in the filed. Further argued that although in the case "Government of Balochistan through Additional Chief Secretary versus Azizullah Memon and 16 others" (PLD 1993 SC 341) the said.
Ordinance was repealed, but in the light of Article 234 of the Constitution Islamic Republic of Pakistan, 1973 read with General Clauses Act, jurisdiction to try the instant case was only with the Tribunal constituted under the Ordinance, ibid, therefore, on this score alone the impugned judgment is not sustainable, as such, the same be set-aside and case be remanded. The learned counsel's contention is that since in this Article not only the word "repeal" but also the expression "deemed to have been repealed" has been used, the word "void" in Article 6 will have the same meaning as "deemed to have been repealed" and any action taken under a law, which becomes void by virtue of Article 6, will have the effect contemplated by Article 250. In support of his arguments the learned counsel placed reliance on the case "Sona and another versus The State Etc" (PLD 1990 SC 264).
6. On merits, it has been argued by the learned counsel that matter was immediately reported to the police and the FIR was lodged with promptness and during the trial the prosecution had fully proved its case by tendering evidence on the point of motive, extra judicial confession, dying declaration and the recoveries, but the learned trial Court did not properly appreciate the prosecution evidence and recorded acquittal of the respondents on surmises and conjectures. The learned counsel for the appellant further contended that all the 'witnesses were natural witnesses and they had fully implicated the accused respondents in the commission of the offence, whereas, some alleged lacunas left by the Investigating Officers during the course of investigation could no be used to extend its benefit to the accused persons, against whom otherwise sufficient evidence had come on the record. The learned counsel concluded his arguments by contending that grave injustice has been done to the appellant/complainant by acquittal of the respondents, therefore, the impugned judgment of acquittal be set-aside and the case be remanded for its trial afresh.
7. The learned Deputy Prosecutor General assisted by learned counsel for the complainant opposed this criminal appeal by arguing that the learned Additional Sessions Judge rightly assumed the jurisdiction and concluded the trial as Criminal Law (Special Provisions) Ordinance (II of 1968) was not in the filed. The learned counsel for the complainant relied on the case "Purshotam Singh versus Narain Singh and State of Rajasthan" (AIR 1955 Rajasthan 203) and "Government of Balochistan through Additional Chief Secretary versus Azizullah Memon and 16 others" (PLD 1993 SC 341). Further argued that the case was registered way back on 24.2.1993, impugned judgment of acquittal was passed on 16.4.1996 and the respondents are facing the agonies for the last more than eighteen years, which by itself is a punishment. The learned counsel for the complainant added that all the witnesses were interest witnesses and the learned trial Court has passed the judgment of acquittal on valid and legal grounds as the prosecution had failed to produce the crime empties alleged recovered from the spot before the learned trial Court and furthermore the crime weapons allegedly recovered from the accused were not sent to the office of Forensic Science Expert. The learned counsel for the complainant next argued that the evidence of dying declaration was subsequently prepared by the prosecution to get support and the same was very rightly disbelieved by the learned trial Court. The learned counsel therefore, argued that appeal merits dismissal.
8. We have heard the arguments of learned counsel for the parties at a considerable length and perused the available record with their assistance.
9. As per impugned judgment passed by learned Additional Sessions Judge, report under Section 173, Cr.P.C. was submitted on 2.05.1993 and the Tribunal was constituted by the Deputy Commissioner on 17.5.1993 under Criminal Law (Special Provisions) Ordinance (II of 1968), the matter remained pending for conclusion of the trial before the Tribunal when vide order dated 17.1.1994 the President of the Tribunal/ Political Assistant referred the file to Deputy Commissioner in the light of Notification No, SO(J-III)4-16/94 dated 11.1.1994 on the ground that the Tribunal had no jurisdiction to decide the case and Deputy Commissioner/District Magistrate vide order dated 25.10.1994 sent up the case to the Court of Sessions in the light of above mentioned Notification and the judgment of the Hon'ble Supreme Court f Pakistan (PLD 1993 SC 341) and tater-on the case was trusted to learned Additional Sessions Judge who concluded the trial and acquitted the respondents vide the impugned judgment. The Hon'ble Supreme court of Pakistan in the case "GOVERNMENT OF BALOCHISTAN through Additional Chief Secretary versus AZIZULLAH MEMON and 6 others" (PLD 1993 SC 341), held as under: "In these circumstances, as Ordinance II of 1968 is declared to be void being in conflict with Articles 9, 25, 175 and 203 of the Constitution, the question arises what further relief should be granted in the absence of Ordinance II of 1968 there should be some valid law to hold the filed. It has been admitted that District Judges and Civil Judges are functioning in every district. In cases of violation of fundamental lights the Superior Courts are empowered to issue direction to the Federal Government or the Provincial Governments to bring the law in conformity with fundamental lights and/or enforce law and issue notification in that regard. The State as defined in Article 7 is bound to discharge its Constitutional obligations. In case of failure even the legislature and executive can be directed to initiate legislative measures to bring law in conformity with the fundamental rights.
In these circumstances, while maintaining the impugned judgments we dismiss the anneals, declare Ordinance, 1968 as void being in conflict with Articles 9, 25, 175 and 203 of the Constitution...."
The learned counsel for the appellant was mainly of the view that as the above Ordinance II of 1968 had been repealed, therefore, all the proceedings pending must have been conducted in the light of Article 64 of the Constitution of Islamic Republic of Pakistan, 1973 read with Clauses Act. We are afraid the word "void" cannot be equated with the word "repeal". The word "void" is used when total lack of existence is intended to be conveyed. (Law Terms & Phrases by Sardar Muhammad Iqbal Khan Mokal). Acts which are void and Acts repealed re not the same, they have entirely different meaning. Further the word "void" has been defined in Black's Law Dictionary (Sixth Edition), s "An instrument or transaction which is wholly ineffective, inoperative, and incapable of ratification and which thus has no force or effect so that nothing can cure it". In the instant case the Hon'ble Supreme Court of Pakistan declared Criminal Law (Special Provisions) Ordinance (II of 1968) as void, hence from the date of the judgment i,e, 10.04.1993 the said Ordinance ceased to be in force and no proceedings could be initiated or continued after the date of passing of the said judgment.
Although in case when Acts or Ordinances are repealed, there is saving clause under Article 264 of the Constitution of Islamic Republic of Pakistan and Section 6 of the General Clauses Act, but the word "void" could not be equated with the word "repealed" and no saving clause in the Constitution or any other law exists when an Act/Ordinance is declared as "void". The relevant extract from the case "Tamizuddin Ahmed versus The Government of East Pakistan" (PLD 1964 DACCA 795), is reproduced as under:-- "The learned counsel's contention is that since in this Article not only the word "repeal" but also the expression "deemed to have been repealed" has been used, the word "void" in Article 6 will have the same meaning as "deemed to have been repealed" and any action taken under a law, which becomes void by virtue of Article 6, will have the effect contemplated, by Article 250. The meaning of the word "void" is "null and void; ineffectual; nugatory; having no legal force or biding effect; unable in law to support the purpose for-which it was intended; nugatory and ineffectual so that nothing can cure it; not valid." It will be seen that the framers of the Constitution have used the expression "repeal" "deemed to have been repealed" and "void" in different Articles. For the purposes of illustration, reference may be made to Articles 224, 29 and 6. In our view, these expressions cannot be taken to have been intended to convey the same meaning nor can the consequences that follow such happening be taken to be identical. If that were the intention, nothing stood in the way to include the word "void" in Article 250 as well. We are not to read in the Article what is npt there. Our function is not to legislate. We are, therefore, of the view that Article 250 has no application to the present case."
It may be clarified here that Article 6 used in the above reproduced paragraph has been taken from the Constitution of Pakistan, 1962, which is now been replaced by Article 8 of the Constitution of Islamic Republic of Pakistan, 1973, whereas, Article 250 referred in the above paragraph is no govern by Article 264 of the Constitution of Islamic Republic of Pakistan, 1973.
10. As discussed above Criminal Law (Special Provisions) Ordinance, (II of 1968) (sic) and by Hon'able Supreme Court of Pakistan in the case "Government of Balochistan through Additional Chief Secretary versus Azizullah Memon and 16 others" (PLD 1993 SC 341), hence, the said Ordinance cannot be said to be in the field on the date when the impugned judgment of acquittal was passed by the learned Additional Sessions Judge, therefore, we see no illegality in the assumption of jurisdiction by the ordinary Court i,e, Court of Sessions and the legal question raised by learned counsel for the appellant is answered in the negative.
11.So far as the merits of the case are concerned, it has been observed that although it was the case of the prosecution that Investigating Officer had collected crime empties from the spot which were also taken into possession through respective recovery memos., but such crime empties were not produced before the Court during the trial. Furthermore, according to the Investigating Officers the accused/ respondents had produced before him their respective crime weapons i,e, Rifles which were taken into possession vide memo. Ex.P-3 and Ex.P-4 but the crime empties or even these crime weapons were not sent to the office of Forensic Science Laboratories for matching or to know about the workability of the crime weapons. In these circumstances the learned trial Court very rightly placed reliance on the case 'Muhammad Ali versus Muhammad Farooq and 5 others"
(1989 SCM R 1099) to observe that in the absence of report of Forensic Science Laboratory, such recoveries could no be used as corroborative piece of evidence.
12. So far as the evidence of alleged Extra Judicial Confession is concerned, according to the prosecution witnesses themselves the alleged extra judicial confession was made by Aman Ullah and Mauli Dad accused simultaneously, therefore, such joint confession was inadmissible in evidence and furthermore, in the FIR there is not a single word on this aspect of the case that accused had also confessed their guilt. As regards the alleged dying declaration, such evidence could only be believed when it comes through the mouth of independent and uninterested witnesses whose credibility and impartiality is otherwise, not questioned, but in the instant case no such independent witness has come forward to lend corroboration to this piece of evidence. The FIR is silent with regard to the dying declaration, which creates doubt on the prosecution story and it appears that the same has been developed later-on. Similarly, Esa Khan PW-7 as well as Lal Khan PW-8 both admitted that Muhammad deceased was their paternal uncle, therefore, the factum of their deep interest in the case was further strengthened by their statement before the Court and in this regard relevant portion from the judgment of the learned trial Court is reproduced hereunder:- - "It was admitted by PW-7 Easa Khan at the opening of his cross-examination that the deceased Muhammad was his real paternal uncle. PW-8 Laal Khan admitted within the FIR Ex.PA that the deceased Muhammad was his real paternal uncle. And as indicated earlier, the sufferance of rigorous imprisonment for a period of fourteen years regarding the murder of Saeendaad by the deceased Muhammad gave a strong reason to PW-7 Easa and PW-8 Laal Khan to become partisan witnesses against the three accused who were all closely related to the aforesaid that Saeendad. PW-7 Easa Khan, in the first instance, falsely deposed in its cross-examination that he had stated before Hashem Khan Dafedar and Jamedar Ghulam Qadir Khan to have learnt it from Muhammad deceased that he had been injured by Mehrab, Aman Ullah and Maulidad only because the deceased Muhammad had murdered Saeendaad some-time back; and that that Saeendad was real brother of Maulidad. When confronted with Ex.DB, it was discovered that the whole event of dying declaration was altogether missing from the contents of Ex.DB which it was Easa's statement recorded under Section 161 of the, Cr.P.C.".
Therefore, statements of such interested as well as chance witnesses could not be believed to record conviction on a capital charge, in the absence of any independent and uninterested corroboration.
13. For what has been discussed above, we see no misreading or on-reading of evidence nor the impugned judgment of acquittal suffers om any other legal infirmity. The Hon'ble Supreme Court of Pakistan the cases reported in "Sikandar Hayat versus Muhammad Nawaz and others" (P.L.J 1995 S.C. 351) and 'Muhammad Iqbal versus Abid Hussain alias Mithu and 6 others" (1994 S.C.M.R 1928), while setting the guidelines about interference in the acquittal orders held that since after earning acquittal the accused gather a double presumption of innocence and no interference can be made unless grounds for acquittal was not supported by evidence, conclusion recorded for acquittal was such that a prudent man conceivably read the same, the judgment was perverse, reasons are artificial and grave miscarriage is done by recording of acquittal. It is also settled that once an acquittal is recorded, ugh concession cannot be withdrawn merely on the ground that analysis or reevaluation of the same evidence may result into some other inference qua the conviction of the accused. Reliance is placed on the case reported in "THE STATE versus MUHAMMAD SHARIF and hers" (1995 P.S.0 (Cr1) 419). Even otherwise the accused respondents e lynching with this litigation since 1993 despite their acquittal judgment rendered in 1996 and this protracted litigation by itself is not less than a punishment. Be that as it may be, this appeal fails and is accordingly dismissed.