This revision petition is directed against the order dated 18-2-1978 acquitting the respondents of the charge under sections 302, 307, 148, 149, P. P. C. The learned District Magistrate's refusal to file State appeal against the order of acquittal was conveyed vide Memo. No. RDM/AR-5/11030, dated 6-6-1978 and thereafter the present revision petition was filed on 3-7-1978 by the complainant and record was called by this Court vide order dated 3-12-1978. The revision petition, as a record case.
Was fixed for bearing on 18-1-1983. When it was adjourned to 22-1-1983 and then on 2-2-1983, it was admitted to hearing. By a separate order of the same date, the Registrar of this Court was asked to report as to why revision petition was not fixed for hearing for all these years and why the record was not made available. This matter is being looked into on the administrative side. With regard to the merits, I have heard the learned counsel for the parties as well as the learned Assistant Advocate-General.
2. The facts necessary for disposal of this petition briefly stated are the a case under sections 302, 307, 148 and 149, P. P. C. Was registered against the respondents vide F. I. R. No. 148 dated 20-4-1975 on the statement of Mst. Naseem Akhtar complainant with Police Station Mughalpura, Lahore, for having caused the death of Muhammad Amjad son of the complainant, In the F. I. R., eye-witnesses named were Mst. Naseem Akhtar complainant and Muhammad Safdar son of the complainant and brother of the deceased.
Both these eye-witnesses also received injuries in the incident in which Muhammad Amjad lost his life. The challan was submitted against all the accused named in the F. I. R. (the present respondents), in the Court of the Committing Magistrate. He then recorded statements of some of the prosecution witnesses and on 22-12-1975 Mst. Naseem Akhtar complainant submitted an application intimating her new and changed address for the purposes of service of the process of the Court. This application was admittedly brought on record and a mention of submission of the aforesaid application was also made on 22-12-1975 in the order sheet. The commitment proceedings were then adjourned to 5-1-1976 on which date it was noted that under the Law Reforms Ordinance, 1975, proceedings before the Committing Magistrate are not to be proceeded with. The learned Magistrate, therefore, directed that the case be sent to the Sessions Court and the accused were also directed to appear before the Sessions Court on 19-1-1976. Thereafter, the challan case was fixed before the learned Additional Sessions Judge, Lahore, for the first time on 1- 11-1977, when it was directed that the accused be summoned for 15-11-1977. All the accused appeared on 10-12-1977 and on this date they were supplied, under section 265-C, Cr. P. C. The copies of the statements of witnesses and other documents. The accused were charge sheeted on 8-1-1978 and the evidence for the prosecution was then fixed for 26-1-1978. On this date the Presiding Officer was on leave and so the trial was adjourned to 1-2-1978. On this date three witnesses were examined and the trial was adjourned to 18-2-1978 as the report regarding service of rest of the witnesses was not received. On 18-2-1978, statement of Muhammad Sadiq, Foot Constable, to the effect that Mst. Naseem Akhtar and Muhammad Safdar P. Ws. Were not traceable and their whereabouts are not known and that they have left the country, was recorded. He proved summons (Exh. P. W. 4/A) and his report on the summons was exhibited as Exh. P.W. 4/B. The Assistant Public Prosecutor, conducting the case on behalf of the State making the statement, that all the eye-witnesses have resiled, closed the prosecution evidence. In these circumstances, the trial Court on the same day, passed the order of acquittal.
3. It appears appropriate to note the following salient facts before examination of the submission of the parties on merits. These are that in the F. I. R. Lodged by the complainant only two persons were named as eye--witnesses i.e. The complainant and her son Muhammad Safdar but from the perusal of the statements, recorded under section 161, Cr. P. C., of Rafiq Ahmad, Maqsood Ahmad and Muhammad Siddiq P. Ws. The copies of which were produced by the learned counsel for the respondents, it appears that these P. Ws. Also claimed to have witnessed the occurrence. The second important fact to be noted is that the summons to Mst. Naseem Akhtar and Muhammad Safdar P. Ws. Were issued on their former address and not on their uha aged address despite the fact that the application regarding change of address was available on the record. Next, the report made by the Foot Constable was that according to his enquiries the aforesaid two P. Ws., the real eye-witnesses, had left the country. The application of change of address dated 22-121975 is at page.
191. This also bears the endorsement of the Prosecuting Sub-Inspector that the new address may also be noted on the file. The report (Exh. P. W. 4/B) made on the summons (Exh. P. W.4/A) was purportedly signed by one Abid Hussain without disclosing any basis, whatsoever, for knowing the information that he conveyed to the Process Server regarding sale of the house and departure to some foreign land by the said eye-witnesses.
4. Coming to the merits, learned counsel for the petitioner argued that in fact trial in accordance with the law was not held by the trial Court and that the statement of the Assistant Public Prosecutor was either male fide or was made in complete ignorance of the facts apparent from the record itself. According to learned counsel the report on the summons was procured one and the fact that the report was procured one, would have been found out easily had the trial Court cared to go through the record. On the basis of the above, he argued that the impugned order of acquittal is illegal, arbitrary and unwarranted in law.
5. Learned counsel for the respondents on the other hand submitted that (i) the policy of law is not to order retrial after a lapse of eight years of the registration of the case and five years of the date of acquittal. Reliance was placed on Phulail Khan v. The State (1972 SCMR 95) and Liaqat All v. The State (PLD 1.982 Lab. 539) and Allah Rakhio Khan v. Mohkumuddin and 2 others (1977 P Cr. L J 14);
(ii) though the application intimating the changed address was submitted yet the relevant column of the calendar was not amended so as to record the new address, and as the petitioner failed to prosecute the case diligently either before the trial Court or before this Court, this indolent conduct coupled with long delay disentitles the petitioner to invoke discretionary revisional jurisdiction; (iii) the Court acted rightly in relying on the report of the Process Server Muhammad Siddiq F. C. (P. W.
4) and (iv) that even otherwise there is no probability of the trial culminating to conviction of the respondents as the three prosecution witnesses namely Muhammad Siddiq, Rafiq Ahmad and Maqsood Ahmad have already turned resiled and the medical evidence on record is in conflict with the prosecution version contained in the first information report. Learned counsel for the respondents submitted that instructions of the then learned Chief Justice issued at the time of the trial were that the Sessions Cases are not to be adjourned on account of absence of prosecution witnesses, and so the learned Additional Sessions Judge had no alternative but to acquit the respondents. In this respect, reference was made to D. O. No. 659/RHC, dated 22-10-1978, addressed to the District and Sessions Judges wherein after making note of the fact that a murder case, which should ordinarily is to be disposed of within a couple of days, takes six months and in some cases even more than that due to frivolous adjournments allowed mostly at the behest of the prosecution, it was stated that "The Chief Justice has, therefore, been pleased to order that from the Ist of January, 1979, no sessions case shall be adjourned merely on account of the absence of the prosecution witnesses and that his Lordship the Chief Justice expects that these instructions shall be strictly followed, firstly, refuge cannot be taken under this D. O. For not complying with the provisions of the law; secondly, the learned Chief Justice nowhere ordered that attendance of the prosecution witnesses is not to be procured and or that the reports as to the non-availability of the witnesses are to be accepted blindly and, thirdly, this D.O. Cannot be even referred to for the purposes of this case as it was issued on 22-10-1.978 whereas the trial in this case was completed and the respondents were acquitted on 18-2-1978. As regard the alleged indolent conduct of the complainant on account of non-appearance on her own before the Sessions Court, it will be seen that she had appeared before the Committing Magistrate who then in view of the change in law ordered to send the case to the Sessions Court and for almost 2 years no date for the trial of the case was then fixed. Again, when the trial commenced, admittedly, no notice on the changed address, in respect of which due intimation had already been given, was sent to the petitioner o her son. No fault thus can be found on account of failure to appear before the Sessions Court. The petitioner on coming to know of the order of acquittal, moved firstly the District Magistrate and then on refusal made, the High Court. No doubt, the revision was not fixed for hearing due to non-availability of the record but the petitioner complainant cannot be held responsible for non-disposal of the revision petition for all these years. The act of commission or omission of the officials of the Court or the Court itself cannot be allowed to prejudice the cause of a party or can be set as a ground for defeating the ends of justice. This brings me to the plea of delay advanced by the learned counsel for the respondents. The delay involved and its offence is to be judged in the context of the facts of each case. In tae instant case, acquittal was ordered taking the view that the case was of no evidence as the eye-witnesses who had appeared had turned hostile and P. Vg's., namely, Msr. Naseem Akhtar and Muhammad Safdar were reported to have left the country and the remaining prosecution witnesses were given up by the Public Prosecutor. The case was considered to be a case of no evidence though admittedly according to F. I. R. Mst. Naseem Akhtar and, Muhammad Safdar P. Ws. Were the only eye-witnesses. The summons were admittedly issued to them giving their previous address B despite the fact that their changed address was available on the record. In these circumstances, it has to be taken that no real effort was made to summon these eye-witnesses, so the process issued giving their previous address cannot be treated as proper and valid process. Had the A. P. P. Been conscious of the above, he would not have given up the remaining witnesses including the witnesses of recovery and medical evidence and the trial Court would not have acted upon the statement made by the learned A. P. P. The irresistible conclusion, therefore, is that a proper trial was not held at all. The delay in the aforenoted circumstances and context is altogether without significance. Moreover, the view that time is of the essence of the competency of a criminal prosecution has not been accepted as of universal application. Limitation does not apply to criminal prosecution and it is also inappropriate to examine question of delay through the actions of the Government, or the 15rosecution authorities, as if they gave rise to equities, on the same footing as in a civil matter inter partes. Every prosecution for a criminal offence is to be deemed to have been commenced and continued in the public interest, as a duty of the State. It can only be in a very rare case that a superior Court acting under its inherent power "to prevent abuse of the process of any Court or otherwise to secure the end of justice", would deem it appropriate to act so as to place an alleged offence outside the operation of the criminal law on incidental grounds such as that of delay, or for any reasons other than reasons going to the question whether the allegation is sufficient to constitute an accusation of an offence in law". See M. S. Khawaja v. The State (PLD 1965 SC 287). It will, therefore, be seen that delay per se cannot be allowed to operate so as to place an alleged offence outside the operation of the criminal law though every effort is to be made to administer criminal justice expeditiously and within reasonable time. At this stage the precedents cited by the learned counsel for the respondents may be examined. In all the three precedents relied upon by the learned counsel for the respondents, the grievance was not that the trial was not held in accordance with law or that the report as to the non-availability of certain witnesses was false or procured one. On the other hand, in all these cases, after full-fledged trial, some of the accused were acquitted and the others were convicted. Learned Judges of the Supreme Court in the case of Shah Wali v. The State recorded the observations that ---We feel that he should not be retried, having regard to the considerable time that has intervened since the date of occurrence, i.e. The 4th August, 1966, as well as since date of his acquittal by the trial Court, i.e. 13th December, 1967 and also in view of the fact that he has been in custody under the shadow of impending retrial on the murder charge for about four years. Besides it is not unlikely that the witnesses may not be available and the retrial may turn out to be as exercise in futility.--- The learned Judges also noted the observations of the trial Court that Shah Wali was implicated for his relationship with Phulail Khan. In the Lahore case of Liaqat Ali the revision against acquittal, which was still at the motion stage, was dismissed alongwith the appeal of the convict, observing that even if after admission of the revision it is accepted the case will have to be remanded for retrial and that we are not in favour of the retrial of the case after five years. The acquitted accused in this case was attributed Japhha and the finding was that it was proved that Ghulam Nabi and Muhammad Ilyas, acquitted accused, have been falsely implicated for the murder of Abdul Ghafoor. In the Karachi case of Allah Rakhio Khan, the retrial was not ordered after a lapse of 10 years observing that the High Court cannot interfere simply because different conclusions might have been reached on the same evidence and that the impugned judgment was otherwise well- reasoned and can neither be considered perverse nor it can be said that the conclusions reached are erroneous and not in accordance with the recorded facts. It was further noted in this case that two of the three culprits were already dead and only one of the accused was alive. These precedents, therefore, do not apply to the facts of the instant case. On the other hand, in Mazharul Haq v. Ishaque Sardar and IS others (PLD 1962 SC 480) Supreme Court after more than four years since commission of crime, sent back the case to the Court of Sessions. Again, in Allah Bakhsh v.
Shammi and others (PLD 1980 SC 225) retrial was ordered.
Learned Assistant Advocate-General stated that be had checked the High Court record of Criminal Revision No. 630 of 1971 of Allah Bakhsh and in this case retrial was ordered after eleven years as the date of occurrence was the right between 2nd and 3rd March, 1969. This further fortifies the view taken by me that delay alone cannot be made a basis for placing an alleged offence or the offender outside the operation of the l criminal law. The next submission of the learned counsel for the petitioner was that the retrial would bean exercise in futility as three witnesses have already resiled and the medical evidence also does not support the prosecution version narrated in the F. I.
R. This assertion cannot be gone into at this stage as in the instant case, proper trial was not held. It is for the trial Court to assess the evidence to be produced before it in accordance with law and as to the sufficiency of the evidence attention may be invited to the view taken in Allah Bakhsh's case as the learned Judges of the E Supreme Court observed in the said case that even in murder case, conviction can be based on the testimony of a single witness if the Court is satisfied that he is reliable. In other words, the emphasis is on the quality o evidence and not on its quantity. The eye- witnesses named in the F. I. R. Are available and are yet to be examined. Their evidence alongwith the evidence of other witnesses, who were given up by the A. P. P. On wrong assumption, has yet to be recorded and considered.
6. For the reasons given above, I accept this revision petition, set aside the acquittal of the respondents, and order their retrial. All the respondents are on bail. They are directed to appear before the Sessions Judge, concerned, as and when required to do so to face the trial. I, however, leave it to the Court concerned to decide whether they should continue to remain on bail during the trial or be taken into custody.
7. The record of the case shall be sent back to the Sessions Judge immediately who will either himself hold the trial expeditiously or will entrust it to some learned Additional Sessions Judge for the purpose.