' Ghulam Hussain son of Mehdi Khan resident of Doray Dhob Kalan within the area of Police Station Chakwal, District Jhelum, was along with three others, Zawar Hussain, Yusuf and Muhammad Hussain tried before Sardar Khalid Mahmood, Assistant Commissioner, Chakwal also empowered as Magistrate Section 30, Criminal Procedure Code for the offences under section 307/459/460, P.P.C. After six witnesses were examined on the side of prosecution a formal charge for the offences under section 459/460, P.P.C. Was framed against Ghulam Hussain to which he pleaded not guilty.
The remaining three accused were discharged under section 253, Cr.P.C. Since deleted, with a cryptic order barring a tinge of arbitrariness. Precisely, the order recorded by the learned Magistrate reads as below: "A prima fade case under section 459/460, P.P.C. Is made out against Ghulam Hussain accused.
Charge to be framed accordingly. Muhammad Hussain, Zawar Hussain and Muhammad Yousaf are discharged under section 253, Cr.P.C."
Learned Magistrate was enjoined to state the reasons how a prima facie case was not made out against the remaining accused although three eye-witnesses had charged them in their statements at the trial. Prima facie case which has not been A defined anywhere means a case where charge against the accused is not groundless and there was a ground to proceed against him, Ghulam Hussain was after long-drawn proceedings extending over a period of more than 5- 1/2 years pronounced guilty and sentenced to rigorous imprisonment for seven years on both counts. The sentences were ordered to run concurrently. Ghulam Hussain has appealed to challenge his conviction and sentence.
2. It would be unnecessary to encumber this judgment with a precise detail of facts bearing on the charge against the appellant and the evidence examined in support thereof as the appeal succeeds on a short ground to be noticed presently. Suffice to say that on 30-1-1970, the appellant was produced at Police Station Chakwal by Aurangzeb (P.W.1) and other witnesses in the case. The First Information Report (Exh.PA.) lodged by Aurangzeb alleges that on the preceding night after some time `Khuftanwela' (Isha) the informant got up to urinate. He, noticed a few persons inside the room of his mother. He shouted at his brothers Mehr Khan and Sher Khan who were lying asleep in the nearby rooms and rushed inside the room of his mother. Ghulam Hussain appellant who was armed with a revolver was caught hold of by Aurangzeb. The appellant fired with the revolver but the shots went amiss. The remaining three accused were identified as Zawar Hussain, Yusuf and Muhammad Hussain. Zawar Hussain was armed with a gun, Yusuf had -a sword in his hand and Muhammad Hussain had a stick with him. Yusuf dealt an injury to Mehr Khan P.W.2 with sword in his hand. Muhammad Hussain caused an injury to Aurangzeb in the left wrist with stick in his hand. The appellant was overpowered while the remaining accused made good their escape. The revolver with bullets of which the appellant was relieved when secured by the witnesses were also produced before the Sub-Inspector. The appellant who had also sustained some injuries during the struggle, Aurangzeb and Mehr Khan (P.Ws. 1 and 2) were referred to the hospital for examination.
The remaining three accused in the case were arrested on different dates and certain recoveries were also ascribed to them. Challan was filed on 13-7-1970. Fifteen witnesses were cited in the calendar of whom six witnesses,. Namely, Aurangzeb, Mehar Khan, Fateh Muhammad, Bahadur Ali, Chaudhary Iftikhar Ahmad and Muhammad Rashid were examined by the prosecution. Bahadur Ali, Iftikhar Ahmed and Muhammad Rashid did not support the prosecution. They were declared hostile under section 154, Evidence Act and permitted to be cross-examined by the prosecutor.
Sher Khan P.W. a real brother of Aurangzeb was given up as unnecessary while Subedit Muhammad Khan and Muhammad Afzal, witnesses of recovery were given up as won over by the accused. The remaining witnesses were neither dropped by the prosecution nor examined by the learned Magistrate.
3. Learned counsel for the appellant has contended, not without force, that complete evidence had not been brought on record for a just and proper decision of the case. There is no explanation whatever why official witnesses, viz. The doctor and the police officials including Mirza Ajmal Beg, the Investigating Officer could not be examined by learned trial Magistrate. It appears that learned trial Magistrate had not evinced a befitting interest in the proceedings and wanted to get rid of the case which had been hanging fire for more than 5-1/2 years. It was argued on behalf of the appellant that omission to examine Investigating Officer had gravely prejudiced the appellant in his defence, and the conviction of the appellant was liable to be set aside on this short score. The precedent case of Muhammad Sharif v. The State reported as 1972 P Cr. L J 1259 supports this contention. Investigating Officer is not merely a formal witness. Several aspects of the case which the prosecution witnesses try to conceal from the Court can be brought out from the statement of Investigating Officer. Omission to examine the Investigating Officer puts the accused to serious handicap in defending the charge. There is, therefore, no escape from the contention that conviction of the appellant should be set aside.
4. This brings us to the question of desirability or otherwise of remitting the case for retrial. The occurrence is 8 years old. The appellant had remained in lock-up for a substantial period during the trial. He has already undergone 2 years and 3 months sentence. In the circumstances, it will not be fair to order retrial of the appellant. The judgment in Zabte Khan v. The State 1969 P Cr. L J 789 supports the above view. In that case, conviction of the accused for pretty serious offences of cheating and forgery was set aside. Order of retrial was declined for the reason that the occurrence took place 7-1/2 years ago and the appellant had remained in jail for two years. The aggregate period of detention of the appellant during trial and after his conviction by the learned Magistrate amply satisfied the demand of justice.
5. Accordingly, conviction as well as sentence of the appellant are set aside. He shall be released forthwith if not required in any other case.