' JUSTICE RAJA AFRASIAB KHAN (MEMBER)--- Mazhar Hussain alias Tibbi son of Jaffar Hussain, Naeem Haider son of Ghulam Haider, Ifran Maqbool son of Maqbool Rubani and Wajid Umar alias Gogi son of Umer Draz were challaned under section 302/460/392/34, P.P.C. Read with Article 20 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 vide F.I.R. No,3/91 dated 3- 1-1991. They were produced before the learned Special Court for Speedy Trials-I, Lahore to face trial under the aforesaid charges. Learned Judge did not frame any charge against them. It appears that he took an action under section 265-D, Cr.P.C. Thereby observing that there were no reasonable grounds to proceed with the trial against the respondents-accused. The learned Judge, therefore, acquitted the respondents on 14-3-1992.
2. The State feeling aggrieved of the judgment referred to above, instituted this appeal against the acquittal of the respondents, which shall be disposed of through this judgment.
3. Shortly mentioned, the facts of the case are that on 3-1-1991 at about 8-30 p.m. An unfortunate occurrence of murder and other offences took place in the house of the complainant, 23-Race Course Road, Lahore. As per the allegations, Ghulam Mustafa, father of Sher Afghan complainant, Mst Raheela daughter of Ghulam Mustafa, Mst. Asia and Azeem, wife and son of the complainant respectively were present in their house at the time of occurrence. At about 9-30 p.m. Sher Afghan complainant came back to his house, he found that the main gate of his house was open and that the door of the residential room was chained from outside. When he entered the room, he found his father Haji Ghulam Mustafa lying unconscious on the ground. His wife Mst. Asia, son Azim and his sister Mst. Raheela and other children of the house were present. Mst. Asia disclosed to the complainant that they were watching T.V. Programme at 8-30 p.m. And that the doors of the house were open. Suddenly four unknown culprits while armed with Klashnikovs entered their room. One robber had covered his face. They issued threats and asked for handing over the keys of the safe to them, which were handed over to them by Ghulam Mustafa. The Almirah was opened and golden ornaments of the value of Rs20,000 were removed by the culprits. They also directed them to hand them over whatever cash they had with them. They were told that they had no cash with them whereupon Mst. Asia and Ghulam Mustafa were given beating and were again subjected to serious threats. They were detained in one of the rooms of their house. Thereafter the accused left the place with the looted property. An information about the occurrence was conveyed to the Police Station Race Course, Lahore on telephone. On receipt of the information, Mushtaq Ahmad, S.I.
Reached the spot. He recorded the statement of the complainant. Ghulam Mustafa father of the complainant was taken to the Service Hospital, Lahore, where the doctors on duty reported that he had died.
4. Before the commencement of the trial, an application was moved by Wajid Umar accused under section 265-K, Cr.P.C. For his acquittal on the ground that there was absolutely no incriminating material available on the record to connect him with the commission of the crime. This application was also adopted by the remaining three accused for their acquittal as well The learned Judge observed that admittedly no identification parade of the accused was ever held in jail after they were taken into custody by the police. He proceeded to say that no recovery of any weapon or any property was effected by the Investigating Agency to justify the trial against them. Learned Judge noted that Mazhar Hussain, Naeem Haider and Ifran Maqbool accused were taken into custody by the police on 21-1-1991 in connection with the recovery of some illicit arms. The fourth accused Wajid Umar alias Gogi was arrested by the police of Police Station Sadar Kasur on 17-9-1991.
Supplementary statements of the eye-witnesses were recorded by the Investigating Officer on 10- 2-1991 which involved the respondents Nos.1 to 4 in the commission of the crime.
5. S.M. Nazim, learned counsel for the State-appellant contends with vehemence that there was absolutely no justification for the learned trial Judge to acquit the respondent without framing any charge against them. He argues that the prosecution was deprived of its right to lead evidence against the respondents which evidence was available on record. Learned counsel maintains that there was no law under which the prosecution could be stifled at its very start when there was sufficient evidence available against the accused.
6. Mr. Ghulam Bari Saleemi, and Mr. Arif Iqbal Hussain Bhatti, learned counsel for the respondents, defended the judgment of the acquittal of their clients, having been recorded by the learned trial Judge. They argued that this was a case of no evidence inasmuch as the learned Judge was justified in not framing any charge against them because there was no reliable evidence available against them on the record.
7. We have heard the learned counsel for the parties and have perused the record. We have been persuaded successfully by the learned counsel for the appellant to hold that it was the right of the prosecution to have an opportunity A to lead evidence against the respondents. The prosecution, therefore, cannot be deprived of its right to do so. It, therefore, follows that the prosecution had to be given an opportunity to lead its evidence to show how the eye-witnesses could be able to identify the accused while they committed offences inside the house. At any rate, the witnesses could also claim to identify the real culprits who committed the offences in their presence. Be that as it may, in our considered view, section 265-D, Cr.P.C. Is not attracted to the facts and circumstances of this case inasmuch as there were definitely grounds for proceeding further with the trial of the accused because according to the, allegations of the prosecution, the culprits were identified by the eye-witnesses, when offences were being committed by them in their house. It is however, evident that the order of acquittal was passed by the learned trial Judge under section 265-K, Cr.P.C. In order to attract the aforesaid provisions, it was necessary for the learned Judge to have recorded reasons for acquittal of the accused. In our view there are no such strong reasons available in the impugned judgment to justify the acquittal of the respondents. One of the reasons mentioned in the impugned judgment was that in the case diary there was nothing to disclose that any Police Officer during investigation recorded the statements of the people including the eye- witnesses to show that they approached the Police Officers asking them for holding an identification parade of the culprits. The case diaries, in our view, cannot be relied upon inasmuch as they are not substantive piece of evidence. This being so, the impugned judgment, dated 14-3- 1992, acquitting the respondents Nos.1 to 4 from the charges against them is certainly deficient in reasons. It therefore, is set aside. In the result, the case is remanded to the learned Judge Special Court for Speedy Trials-I, Lahore for holding trial against the accused/respondents Nos.1 to 4 in accordance with law. Whatever has been said above, shall not affect the merits of the trial.
' (Sd.)
' Member ' JUSTICE SAAD SAOOD JAN, (CHAIRMAN)--- In acquitting the respondents the learned trial Court was influenced mainly by the considerations that after their arrests no identification parade was arranged and that there was no mention in the police diaries that any Police Officer of Police Station Ichhra had made a statement to the effect that the eye-witnesses had approached the police station for the respondents being shown to them or had made any identification. I am not persuaded that these circumstances were weighty enough to stop the trial even before it began. It is true that prior to the submission of the challan in Court the Investigating Officer did not arrange for any identification parade. On account of his lapse in this regard a serious question would have no doubt arisen at the trial if, on the basis of testimony of the eye-witnesses as supported by other evidence, the identity of those who took part in the occurrence had been satisfactorily established; but then this question could only have been answered after the prosecution had led its entire evidence. By stopping the trial the learned Trial Court pre-empted the answer and that too at a stage when there was hardly any material before it.
' I do not attach any importance to the fact that the police diaries were silent with respect to the visit of the eye-witnesses at the police station for the purpose of identifying the culprits. It is to be noticed that in the event the trial had been allowed to continue and despite the testimony of the eye-witnesses and the supporting evidence, the Court came to the conclusion. That the identity of the culprits had not been satisfactorily established, it would have been the end of the matter. But if, on the other hand, it found that the evidence brought on the record was reliable enough to establish the identity of the culprits it would have been immaterial whether or not the police diaries mentioned the visit of the eye-witnesses to the police station.
' In the circumstances I agree with my learned brother that the learned trial Court acted in haste in acquitting the respondents on the grounds which found favour with it. Accordingly, 1 support the order made by my learned brother.