' This revision petition has been filed to call in question the order, dated 21st of February, 1984, passed by the learned Additional Sessions Judge, Lahore, acquitting the respondents under section 265-K, Cr.P.C. The perusal of the order shows, that on th.e said day the statement of two witnesses was recorded and the rest of the witnesses were given up by the Deputy District Attorney, thereafter an application under section 265-K, was moved on which a notice to the State was issued on the same day and after hearing the arguments, the learned Additional Sessions Judge acquitted the respondents on the same day.
2. The brief facts of the case are, that vide F.I.R. No,298, dated 18th of October, 1983, lodged at the Police Station, Krishan Nagar, a case under section 302 read with section 34 of the Pakistan Penal Code was registered against the respondents for the murder of Zulfigar alias Zulquarnan. The F.I.R.
Was lodged by Shamim Akhtar P.W.1, the widow of the deceased. In the F.I.R. It was stated by the complainant, that she was married to the deceased six/seven. Years before the occurrence and about a year ago she had shifted to Lahore from Boora Wala alongwith her deceased husband who was plying a rickshaw. On the fateful day at about 2-00 p.m. The complainant and her deceased husband were present in their house in the first floor, while their female child aged four/five years was playing on the road. The complainant came down to fetch the child and on the road near the house in a Suzuki Pickup. Abdur Rehman alias Gogi and Barkat Ali, respondents were sitting. They both after seeing the complainant started blowing the horn and also cut jokes with her.
The complainant after reprimanding the respondents on account of their behaviour ascended the first floor of the house with her child. The deceased inquired from the complainant, on which she complained against the conduct of the respondents Abdul Rehman and Barkat Ali, whereupon the deceased came down in the Bazar and asked Barkat Ali, respondent as to why they had cut jokes with his wife and why were they blowing horn in front of their house. It was alleged, that the respondents quarrelled with the deceased and while leaving threatened the deceased to teach him lesson. It was further alleged, that at about 3-30 p.m. While the complainant and Nasar a brother of the deceased were present in the house, while the deceased as standing in the door of his house in the Bazar, suddenly hue and cry was raised, the complainant was attracted towards the Bazar and she saw, that the respondents Abdul Rehman and Barkat All armed with daggers and Muhammad Ali, respondent, the real brother of Barkat Ali riding on a motor-cycle armed with a dagger confronted the deceased. The deceased with a view to save his life took to his heels. The complainant and Nasar, the brother of the deceased came down in Bazar and called for help and they saw, that at some distance the deceased was overpowered by the respondents and Muhammad All inflicted first below on the left flank, Barkat Ali inflicted second blow on the right thigh of the deceased. The third blow was inflicted by Abdul Rehman, respondent on the left hip of the deceased, whereupon the deceased fell down. The deceased also received injuries on his left cheek and the finger of the left hand. The hue and cry raised by the complainant attracted Haji Muhammad Mushtaq and Sultan Khan, eye-witesses and in the meanwhile, the respondents escaped from the scene with their respective weapons. The deceased was taken to the hospital where he succumbed to the injuries. Muhammad All respondent and Abdul Rehman, respondent were arrested on 21-10-1983 while Barkat Ali, respondent was arrested on 25-10-1983. Muhammad Ali and Abdul Rehman after their. Arrest led to the recovery of the blood-stained daggers. These daggers were sent to the Chemical Examiner and they were found stained with human blood.
Cohallan was submitted in Court and Ch. Iftikhar Hussain, Additional Sessions Judge was entrusted with the trial of the case. On 15th of February, 1984 charge tinder section 302, P.P.C. Was framed against the respondents which was denied by the respondents. On 18-2-1984, the learned Additional Sessions Judge was on leave and, therefore, the case was adjourned to 20th of February, 1984 for recording the statement of prosecution witnesses who were bound down for the said date.
On 20th of February, 1984 Muhammad Munir and Shakar Hassan were present, but Nasar, the petitioner in this revision petition, an eye-witness was not present and according to the learned Additional Sessions Judge the report on the summons sent to him indicated that he was not available at his house. This observation made by the learned Additional Sessions Judge was against the record. The report indicated, that Nasar had gone to Faisalabad. Another notice was sent to Nasar for appearing in the Court on 16-2-1984. The report on the summon again indicated, that he was still in Faisalabad and had not returned. Once again for 20-2-1984 another summon was sent for calling upon Nasar to appear in the Court and it was again reported, that he was in Faisalabad. The process-server also indicated, that Nasar was deliberately avoiding the service of the summons and it was suggested by the process-server, that his warrants of arrest should be issued. Accordingly on 20-2-1984 non-bailable warrants of arrest of Nasar were issued to arrest and produce him in the Court on the next day i.e. 21-2-1984. Abdul Shakoor, constable was entrusted with the execution of the non-bailable warrants of arrest and he reported, that Nasar was some where in Lahore living with his relatives in Balal Ganj. The constable also reported that he had also gone to Balal Ganj, but he was informed, that Nasar had gone back to Boorewala.
Constable also reported, that on account of paucity of time he could not go to Boorewala to execute the warrants of arrest and thus requested the Court to fix another date, so that the non- bailable warrants could be executed. I have anxiously considered the report of the constable entrusted with the duty to execute the non-bailable warrants. This non-bailable warrant was issued to be executed at Boorewala. The constable did not proceed to Boorewala. In my view, the report is false and the story of his visit to Balal Ganj seems to be fabricated.
3. During the course of trial, the statements of five witnesses were recorded. Mst. Shamim Akhtar, widow of the deceased and the complainant who lodged the F.I.R. Entered the witness-box as P.W.1 and refused to support the prosecution and, thus, he was declared hostile. Similarly, Sultan P.W.2 and Haji Muhammad Mushtaq the other two eye-witnesses also refused to support the prosecution and, thus they were also declared hostile. Similarly, Muhammad Munir P.W.4 and Shakar Hassan, P.W.5, the recovery witnesses also declined to support the prosecution and they too were declared hostile. After seeing such state of affairs, the D.D.A. Gave up the rest of the witnesses, and soon thereafter application under section 265-K was moved on the same day and consequently the respondents were acquitted as stated earlier.
4. The learned counsel for the petitioner, namely, Ch. Muhammad Ashraf Azeem, has seriously objected to the conduct of the Deputy District Attorney as well the haste in which the Court below acquitted the respondents. It was argued, that. The Additional Sessions Judge without caring to examine as to whether the solitary remaining eye-witness, namely, Nasar, petitioner has been served or not, proceeded to close the case. It is further contended by the learned counsel, that the Deputy District Attorney had no means to know, whether the petitioner would refuse or support the prosecution and, therefore, the Deputy District Attorney was not justified in the eye of law to give up the petition as an eye-witness. It was also argued before me, that it was incumbent upon the learned trial Court to have seen the report of Abdul Shakoor, Constable, who was entrusted with the duty to execute the warrants of arrest. All these contentions in my view have force. As already observed by me, Abdul Shakoor, Constable was delivered the non-bailable warrents of arrest of the petitioner on 20th of February, 1984, for the arrest and production of the petitioner on the next day.
It is strange, that the aforesaid constable did not proceed to Boorewala, but went to Balal Ganj. It is not known, that what were the basis or reasons for Abdul Shakoor, Constable to have gone to Balal Ganj. I have no hesitation to observe, that this was a bogus report. I must observe, that the learned trial Judge and the Deputy Attorney, both failed to perform their duties as enjoined by law. It was imperative for the trial Court to have summoned or to procure the attendance of the petitioner, an important eye-witness, who was present at the scene occurrence. The learned trial Court and the Deputy District Attorney ought to borne in mind, that it was a murder case in which the loss of precious human life was involved. Of course there is no doubt, that all the eye-witnesses had been won over because of compromise through money, but nevertheless this would not absolve the Deputy District Attorney and the trial Court to procure the attendance of the petitioner.
6. In support of his contentions, the learned counsel has placed reliance upon two judgments reported as Rana Irshad Ahmad Khan v. Abdul Rahim and others 1979 P Cr. L J 685 and The State v.
Ashiq Muhammad and others PLD 1985 Lah.
634. Both these judgments also deal with the subject and respectfully following them, I would hold, that the acquittal of the respondents in this case was based upon haste, and is not warranted by law.
6. Mr. Arif Iqbal Hussain Bhatti, Advocate for the respondents vehemently argued before me, that even if the statement of the petitioner was recorded still conviction could not be brought home to the respondents. I am afraid, that in exercise of revisional jurisdiction it is not my function to anticipate the course of action which would be adopted by the, trial Court. Suffice it would be to mention, that the norms of law regulating the dispensation of justice on the criminal side should be adhered to regardless of the consequences. Accordingly, I hereby set aside the order delivered by the learned Additional Sessions Judge, Lahore, dated 21st February, 1984, whereby the respondents were acquitted under section 265-K, Cr.P.C. This case is remanded to the learned Sessions Judge, Lahore, who shall either try the respondents himself, or to entrust this case to some other Additional Sessions Judge, who shall record the statement of the petitioner and then to decide the case on merits. It is further pertinent to mention, that this is an old case and accordingly, I would direct, that the Court entrusted with the trial shall proceed expeditiously.
7. The respondents, namely, Barkat Ali, Abdul Rehman and Muhammad All are present and have surrendered before me and it is prayed, that since they have been acquitted, therefore, they should be admitted to bail. In the peculiar circumstances of the case, I am inclined to admit them to bail provided they furnish security in the sum of Rs,25,000 (Rupees twenty-five thousand only) each with one surety each in the like amount to the satisfaction of the Assistant Commissioner/Duty Magistrate, Lahore.
' With these observations the petition is allowed.