' In this criminal revision petition the judgment dated 23-5-1990 of the learned Sessions Judge, Karak has been called into question whereby he had acquitted the respondents 1 to 5 under section 265-K, Cr.P.C.
2. Complainant Chambail Gul took the dead body of his brother Awal Samir in Police Station Teri on 9-6-1989 at 0915 hours and reported that the deceased had been done to death by accused Imam Gul; Khuzad Gul, Sherin Gul, Janat Mir, Noor Hamid and Amanullah by fire-arms in furtherance of their common object at 08-00 hours within the limits of village Mastu Kanday on account of previous blood feud and also attempted at the life of the complainant. The report was incorporated in F.I.R. No,94 of the same police station at 0945 hours. It is also recorded in the F.I.R.
That the deceased was employed in a foreign country and was returning home and the occurrence took place when he and the complainant were proceeding on foot to their village.
3. Accused Amanullah Jan was declared a proclaimed offender and proceeded against under section 512, Cr.P.C. Whereas the other accused, who are respondents 1 to 5 herein, were sent up for trial before the learned Sessions Judge, Karak, who charged them under section 302/307/148/149, P.P.C. To which they pleaded not guilty and claimed trial. The learned trial Judge recorded the testimony of 6 prosecution witnesses, out of whom PW-4 Chambail Gul complainant and PW-5 Niaz Farooq are eye-witnesses of the occurrence. The learned trial Judge had still to record the testimony of the doctor and the Investigating Officer but he acquitted the accused under section 265-K, Cr.P.C. After evaluating the testimony produced before him and especially noting the weaknesses of the ocular evidence. The learned District Magistrate, Karak declined to file appeal against the order of acquital whereupon the complainant has come up to this Court with the criminal revision petition in hand.
4. The main points of the occurrence and the evidence produced thereon are that the complainant party had received information that the deceased Awal Samir was coming back to Pakistan and an evening before the occurrence the complainant had gone to Kohat to receive him and to accompany him to the village in order to protect him as they had previous blood feud enmity; that on the day of occurrence the complainant and the deceased both were proceeding towards their village early in the morning and when they arrived at the spot near about the time of occurrence, they were confronted by all the 6 accused who started firing indiscriminately from north and south and murdered Awal Samir at the spot but the complainant escaped unhurt and ran away to his house where he disclosed the occurrence to his relatives; that the deceased was a proclaimed offender in a murder case; and that the accused had used weapons of 7.62 bore and 31 empties of such weapon had been recovered from the spot at the places where the accused were alleged to be standing at the time of occurrence. It was also stated by PW-4 complainant Chambail Gul that in all 40 bullets were fired.
5. The learned trial Judge while evaluating the testimony of the eyewitnesses noted many contradictions and improvements in the prosecution story. He noted that the time of occurrence reported in the F.I.R. Was 8-00 a.m. But according to the deposition of both the eye-witnesses it was about 7-30 a.m. When the occurrence took place. The learned trial Judge also noted that the eyewitnesses had failed to produce any convincing evidence to show that they had advance knowledge of the arrival of the deceased in Pakistan and in Kohat a day earlier and the complainant had gone to Kohat to receive him. Actually no cogent evidence was brought on record to prove this allegation. The learned trial Judge came to the conclusion that the family of the deceased had no foreknowledge of the arrival of the deceased in Kohat and that the complainant was not with him when the occurrence took place. The learned trial Judge also noted that there were some material contradictions between the ocular testimony and the post mortem report inasmuch as the latter did not corroborate the former about the place of the assailants at the time of occurrence. The occurrence took place near the village but besides the complainant and PW-5 Niaz Farooq, who is son of the deceased, no other independent witness could be produced. Even otherwise the presence of the son of the deceased at the spot at the time of occurrence has not been established for the reason that he was neither accompanying the complainant and his father nor he had actually seen the occurrence because he allegedly went to the spot after hearing the report of fireshots. This circumstance would definetly prove that he was not an eye-witness of the occurrence. From the evidence produced it was established beyond any reasonable doubt that the complainant was also not accompanying the deceased at the time of occurrence and he also arrived at the spot after it had occurred. His non-presence at the spot is also proved from the fact that according to his own testimony 40 rounds were fired and he and the deceased were walking together but he was not hit even by one bullet. From the aforesaid circumstances the learned trial Judge came to the conclusion that there was no probability of the accused being convicted of any offence even if he had recorded the testimony of the doctor and the Investigating Officer.
5-A. The learned counsel for the petitioner has brought to our notice the case of State v. Mir Nabi Bakhsh Khoso and others (1986 P Cr. L J 1130), wherein the order of acquittal recorded by the Sessions Judge, Sibi Division, Camp at Jhatpat under section 265-K, Cr.P.C. Was set aside by the Balochistan High Court and trial of the respondents was ordered. However, the perusal of the judgment of this case will show that the learned Sessions Judge had recorded the order of acquittal without framing charge, without taking into consideration material on record and without providing an opportunity to prosecution to produce evidence, particularly, when there was no delay on the part of prosecution and hardly 8 months had expired from first date of appearance of order of acquittal and the said order was set aside and case was remanded to the trial Court for retrial. Whereas on the contrary in the case in hand it shall be seen that all the material prosecution evidence had been recorded after framing the charge and recording the plea of not guilty of the respondents and only 2 formal witnesses had to be examined whose evidence would not have in any way advanced the case of the prosecution. The learned counsel for the petitioner has also contended that the learned trial Judge had not heard the Prosecutor before making the order of acquittal and that he had also not recorded complete evidence. He has also contended that sufficient evidence was produced to connect the respondents with the commission of the offence and that the learned trial Judge had acquitted them on conjectures. In support of his contentions he has relied upon the case of State v. Ashiq Mohammad and others (PLD 1985 Lahore 634) wherein it was held that the judgment of acquittal under section 265-K, Cr.P.C. Was not only illegal but also perverse where the trial Judge had acquitted the accused under the aforesaid provision without recording statements of an eye-witness, recovery witness and of doctor regarding post-mortem and the accused also having injuries which by itself was a strong circumstance of their presence and participation in occurrence and the High Court after examining entire record issued sou motu notice to the accused. The learned counsel also relied upon the case of Gawa and 3 others v. The State and another (1989 SCMR 1257) where for non- production of eye-witnesses the accused was acquitted under section 265-K, Cr.P.C. By the trial Judge but the High Court had accepted the revision petition and had remanded the case back to the trial Judge for fresh trial after procuring presence of the eye-witnesses and leave to appeal against the judgment of the High Court was refused by the Supreme Court. However, it shall be seen that the circumstances of the aforesaid reported cases are quite different from the circumstances of the case in hand. In the reported cases the trial Judges had not examined the eye-witnesses or had failed to procure their attendance in Court and had made the order under section 265-K, Cr.P.C. On the contrary in the case in hand the learned trial Judge had recorded the entire ocular evidence produced in the case and after evaluating the same and after noting inherent weaknesses of the same and material contradictions inter se the eye-witnesses, had come to the conclusion that the State had failed to produce evidence of the nature which could end in the conviction of the respondents. Except the testimony of the doctor who had only to prove the post mortem report and the Investigating Officer, who had only to depose about the investigation carried out by him, no evidence of any important nature was left or was excluded from consideration.
6. The provisions of section 265-K, Cr.P.C. Have been inserted to prevent the rigors of a prolonged trial when it is apparent from the record that there is no probability of the accused being convicted of any offence. In so far as the contention that no notice was given to the Prosecutor before making the impugned judgment is concerned, the very first paragraph of the impugned judgment would clearly indicate that the Prosecutor was present in Court and in his presence the impugned judgment was made by the learned trial Judge. It can, therefore, be concluded that the learned trial Judge had called upon the Prosecutor to state the case of the State to support the claim for conviction of the respondents. No useful purpose would have been served if the learned trial Judge had continued with the proceedings and had recorded the medical evidence and the testimony about investigation. Actually the ocular testimony had established that the deceased was proceeding alone towards his village and he was not accompanied by either the complainant or his own son when he was done to death. It was an unwitnessed occurrence. As such, the respondents could not be convicted on the strength of the testimony of both the alleged eye- witnesses because their presence at the spot at the time of occurrence was not proved.
7. For the aforesaid reasons I hold that the impugned judgment of the learned trial Judge was most appropriate in the circumstances and no reason was offered to disagree with the same. Finding no merit in the revision petition, I will dismiss the same.