' Through this petition under section 417(2), Cr.P.C. The petitioner has assailed the judgment, dated 23-2-1994 passed by Mr. A.D. Khalid Senior Civil Judge/Magistrate Section 30, Toba Tek Singh.
2. Brief facts relevant for the decision of this petition are that the petitioner lodged F.I.R. No,158/89, dated 18-8-1989 under section 307/148/ 149, P.P.C. At Police Station Sadar, Toba Tek Singh with regard to an occurrence which took place on 13-7-1989, against five persons namely, Ashfaq (since dead) and the respondents Nos.1 to 4 herein alleging therein that when he was in Sq. No,20, Killa No,20 the respondents on account of dispute regarding one Kanal and 18 Marlas of land opened fire on him on 13-7-1989 at about 6-00 p.m. According to the petitioner, Ashfaq (since dead) and Ata Muhammad respondent No,1 armed with .12 bore guns, Hassan Ahmad respondent No,2 armed with a pistol, Amanat Ali and Irshad alias Mithoo respondents Nos.3 and 4 respectively armed with hatchets, were present in Sq. No,20. On seeing the petitioner, the respondents launched an attack on him, resorted to indiscriminate firing and it was his good luck that he did not receive any injury on his person. Besides the petitioner, Shah Muhammad P.W.2 also witnessed the occurrence. During the investigation, Rana Muhammad Yaqoob P.W.4 was appointed as Arbitrator with the consent of the parties, who deposed that the respondents were guilty. However, the police recommended for the cancellation of the case.
3. Aggrieved by the action of the police, the petitioner filed the present complaint under section 307/148/149, P.P.C. Before the Senior Civil Judge/Magistrate Section 30, Toba Tek Singh. It may be observed that during the pendency of the complaint Ashfaq died.
The learned trial Magistrate after recording the evidence of the petitioner and his witnesses acquitted the respondents by his judgment, dated 23-2-1994 mainly on the ground that the respondents were being victimized by the petitioner for ulterior motive as there existed enmity between the parties. Hence the present petition for special leave to appeal.
4. Learned counsel for the petitioner vehemently contended that from the evidence produced by the petitioner, the case against the respondents stood proved beyond any reasonable doubt and the learned trial Court on erroneous appreciation of evidence and by non-reading of certain material part of the evidence gave benefit of doubt to the respondents which has resulted into miscarriage of justice. He also submitted that the learned Magistrate in the judgment observed that the respondents made statements under section 340(2), Cr.P.C. And refuted all the incriminating circumstances of the evidence led against them whereas there is no evidence on the record to show that the accused persons ever made statements uncle' section 340(2), Cr.P.C.
Hence this lacuna is sufficient to demolish the impugned judgment and the case may be remanded to the trial Court for afresh decision in accordance with law. He has placed reliance on PLD 1985 Lah. 434, 1986 SCMR 17, 1991 PCr.LJ 443 and 1991 MLD 2459.
5. I have heard the learned counsel at length and have also perused the record with his able assistance.
6. The learned counsel has failed to give any reasonable and plausible explanation for inordinate delay in lodging the F.I.R. The occurrence took place on 13-7-1989 whereas the matter was reported to the police on 18-8-1989 and this delay remained unexplained which makes the prosecution case doubtful. No independent witness appeared to support the version of the complainant. There is no corroborative evidence available on the record either in the form of the medical evidence or in the form of recovery of crime empties at the spot, though according to the complainant the respondents resorted to indiscriminate firing. Over and above this, the A.S.P., who conducted the investigation, found all the respondents innocent. The sole legal ground on the basis of which learned counsel has argued this petition is that Rana Muhammad Yaqoob P.W.4 who was appointed as arbitrator with the consent of the parties by the Police Officer during the investigation found the respondents involved in this case, hence the Court was bound to accept the evidence of this witness though he was not an eye-witness of this occurrence.
' I have carefully examined this aspect of the case and I find that the evidence of Rana Muhammad Yaqoob P.W.4 was not admissible, as he had not witnessed the crime.
' It has come to my notice in numerous criminal cases that the police have started delegating their powers of investigation to public men by appointing them as arbitrators to adjudge the guilt or innocence of accused persons. The law does not give any power to the Investigating Officer to delegate his power of investigation to a public man under any condition. The act of the Police Officer in this case delegating the powers to Rana Muhammad Yaqoob P.W.4, though with the consent of the parties, is illegal, void, ab initio and have no legal sanctity. The evidence of this witness is contrary to the scheme, intention and scope of Qanun-e-Shahadat so it is discarded.
' I have also examined the legal objection of the learned counsel that non-examination of accused persons under section 340(2), Cr.P.C. Has materially prejudiced the prosecution case and have also gone through the case-law referred to above.
I may observe that the case-law referred to above does not support the contention of the learned counsel. The salutary principle of law on the basis of which criminal cases are decided is whenever there is doubt about the guilt of the accused, its benefit must be given to them. The Court would never come to the rescue of prosecution to fill up the lacuna appearing in the evidence of the prosecution case, as it would be against the established principles of dispensation of criminal justice. As observed earlier there was no case against the respondents and this Court would not remand the case just to give another chance to the prosecution to fill up the lacuna left in their case. The primary duty of the prosecution is that it must prove its case beyond reasonable doubt and must stand on its own legs, even the amendments made in section 340(2), Cr.P.C. Have not taken away this right of the accused.
' In these circumstances, I find no force in this petition which is dismissed in limine.