MUMTAZ ALI MIRZA, J.- This instant Criminal Revision is directed against the order dated 12-7-1997 passed by Mr. Abdul Hameed Khattak learned Special Judge (Central) Rawalpindi whereby he discharged the petitioner Brig. (Retd.) Imtiaz Ahmad front the case registered against him vide FIR No.4 of 1994 dated 16-3-1994 registered under sections 201/409/408/471/109 PPC read with section 5(2) 47 PCA at P.S. F.I.A./S.I.U., Islamabad.
Cr.C. 343
2. The facts leading to the passing of the aforesaid order are that the petitioner moved an application under section 265-K Cr.P.C, before the learned Special Judge (Central), seeking his acquittal in the case registered against him vide the FIR afore-mentioned on the ground that neither has the prosecution produced any evidence against the petitioner in support of the charge against him nor is there any evidence at all with it to prove the said charge. Faced, thus, with the petitioner's said application under section 265-K Cr.P.C. The Investigating Officer moved an application before the learned Special Judge, Central for the discharge of the petitioner from the case. The application moved by the Investigating Officer was to the following effect:-
3. The learned Special Judge Central after hearing Mr. Umar Hayat 1 Gondal, the Investigating Officer of the case, Najabal Hussain, Inspector/SHO P.S.' I FIA/SIU, Islamabad and Mr. Nasir Ahmad Saghir, Assistant Director Legal for the State and the learned counsel for the petitioner passed an order to the following leffect: " The I.O. Umar Hayat Gondal vide his report dated 15-10-1996 recommended tile closure of case for want of sufficient evidence subject to opinion of senior Law Officer whereafter matter was examined by Mr. Feroze Shah A/D. FIA HQ Islamabad (Law Officer) who vide his report dated 10-4- 1997 also dittoed the above recommendation of the I.O. And finally vide the report of D.G. FIA dated 27-4-1997 he to finally closed the case being competent authority after agreeing with the above reports made by the' I.O. And senior law officer.
I myself have thoroughly scanned the relevant record mid am in full agreement with the above reports made by the different FIA officials. There is nothing to differ with the above reports made by tire relevant officers of the FIA.
I may also add here that both the accused made separate applications u/S. 265-K Cr.P.C, for their acquittal, the notices of which were issued to the State for today but there is hardly any need to advert to the same as legally speaking', the filing of same seems to be quite pre-mature. As a Court can proceed under section 265-K Cr.P.C, only when it takes cognizance of the case and that stage arrives only after submission of the challan in the Court but in the case in had, before that stage could reach, the I.O. Himself applied for getting discharged the accused meaning thereby, the challan is not going to be submitted against the accused persons in the Court. Hence it shall be deemed that the said application made on behalf of the accused being pre-mature/infructuous stands disposed of accordingly.For all the aforesaid reasons, I accept this application made by the I.O. And SHO for discharge of the accused persons and resultantly both the accused person Brig.
Rtd. Imtiaz Ahmad and Col. Ikram-ul-Haq are hereby discharged.:
4. Mr. Zaheer Ahmad Qadri, Advocate, learned counsel for the petitioner has questioned the legality and the propriety of the impugned order passed by the learned Special Judge Central and has raised the following contentions against the same:-
(a) that the order passed by the learned Special Judge, Central is against the express language and the mandate of section 265-K Cr.P.C, which permits the passing of an order of acquittal at any stage of the case:
(b) that the application submined by the Investigating Officer of the case for the discharge of the petitioner was for all intents and purposes the final report within the contemplation of section 173 Cr.P.C, as all the concerned officers of the Federal Investigating Agency from the Investigating Officer up to the highest in the hierarchy of the said organization i.e. Director General, were unanimously of the view that there was no evidence at all with that agency to prove the charge against the petitioner.
(c) that the framing of a formal charge was not a condition precedent for recording an order of acquittal: to that while recording the impugned order, the learned Special Judge, Central averred that having gone through the application submitted by the Investigating officer and die reports made thereon by all concerned and having scanned the entire record before him he was convinced that there was no evidence with the prosecution for proving the charge against the petitioner. The learned counsel for the petitioner submitted that after this complete examination and scanning of the record, the learned Special Judge, Central could not say that he had not taken cognizance of the case.
5. Ch. Afrasiab Khan, learned Standing Counsel for the Federal Government had also been put on'notice to assist the Court to resolve the aforesaid legal questions raised by the learned counsel for the petitioner in support of the criminal revision. Accordingly the learned Standing Counsel for the Federal Government appeared in the Court. He painly conceded the claim of the petitioner that in the peculiar circumstances of the case, application moved by the petitioner under section 265-K Cr.P.C merited to be accepted and the petitioner was entitled to an order of acquittal.
6. I have considered and evaluated the submissions made by he learned counsel for the petitioner as also the learned Standing Counsel for the Federal Government. The impugned order passed by the learned Special Judge Central whereby the petitioner was discharged from the case has also been thoroughly examined and persued.
7. A perusal of the impugned order passed by the learned Special Judge Cehtral which has been reproduced here-in-above verbatim would show that the learned Special judge Central was pursuaded to pass the impugned order for to reasons. He declined to pass an order of acquittal firstly on the ground that he had not as yet taken cognizance of the case before him and that unless he had done that he could not acquit the petitioner. The second reason which weighed with the learned Special Judge Central for not acquitting the petitioner was the non- submission of the challan by the prosecution in the case.
8. So for as the first reason give by the learned Special Judge Central is concerned, I do not feel impressed by the same. A perusal of the application submitted by the I.O., the reports of the various functionaries of the FIA from the lowest upto the highest made thereon and the order passed by the 1 dimed Special Judge Central on the said report would show that the learned Special Judge Centralhaving gone through the application submitted'by the I.O. The reports made thereon by the various officers of the FIA and to borrow the words of the Central Special Judge himself, after having scanned the entire record before him, he had come to die conclusion that there was as admitted by the prosecution no evidence whatever against the petitioner with the prosecution to prove the charge against him. This thorough examination, security and evaluation of the record of the entire case before the Seamed Special Judge Central notwithstanding, the assertion of the Seamed Special Judge central that he had not as yet taken cognizance of the case before him is something which is beyond comprehension. Having applied his conscious judicial mind to the entire gamut of facts before him, learned Special Judge Centra] could not say that this whole exercise notwithstanding he had not yet taken cognizance of the case. There is yet another aspect of this case, the application submitted by the I.O. Embody as it did not unanimous views of the lowest to the highest concerned functionaries of the FIA that there was as a matter of fact no evidence with the prosecution to prove the charge levelled against the petitioner vide FIR registered against him on 16-3-1994. This application of theI.O. And the reports made thereon by all concerned was for all intents and purposes the final report within the contemplation of section 173 Cr.P.C, and could as such legitimately be made the basis of an order of acquittal in favour of the petitioner. Formal framing of the charge for passing an order of acquittal was not a condition precedent for passing an order of acquittal. Reliance in support of this view that I take is placed on (1986 P.Cr.L.J. 1488) The State v. Sardar Muhammad Zaman Saleem Khan Durrani, (NLR 1989 Crl. 81)
Muhammad Sadiq v. Anwar Majeed and another (KLR 1989 Crl. 8) and The State v. Mir Nabi Bakhsh Khan Khosoand 4 others.
9. The learned Special Judge Centra! Also failed to notice that the application submined by the I.O.
For the discharge of the petitioner was ulteriorly motivated and actuated by bad faith for the reasons that it as been moved to wriggle out of the situation in which the prosecutor had been plunged by the application moved by the petitioner under section 265-K Cr.P.C. The petitioner had through the said application under section 265-K Cr.P.C, had sought to be acquined in the case on the ground that there was no evidence worth the name with the prosecution to prove the charge against him. This assertion of the petitioner was plainly conceded by the I.O. Vide his application seeking the discharge of the petitioner that there was in fact no evidence with the prosecution. It shall thus, be seen that the prosecution had been caught up it a situation which was factually true and incontrovertible. The case against the petitioner had been given wide publicity and had been politicized beyond all proportions. The petitioner during the period of about 3 V2 years was.
Shuttled between various Courts and literally rendered a mental wreck as a result of the physical torture and the mental anguish that he was exposed to. In this background of facts, when the petitioner made a petition under section 265-K Cr.P.C, and claimed acquittal, the prosecution came in with an application to seek the discharge of the petitioner on the ground that it had no evidence in its possession of power to prove the charge against the petitioner. To say the least, it was a callous and a cruel joke on the part of the prosecution to say so. Viewed in this perspective, I am of the considered opinion that in the face of the plain confession on the part of the prosecution that it had no evidence whatever with it to prove the charge against the petitioner, he was entitled to an order of acquittal. The order passed by the learned Special Judge Central runs counter to the express language of section 265-K Cr.P.C, which clearly permits the passing of an order of acquittal at any stage of the case. The instant Crl. Revision is accordingly accepted, order under revision is set-aside and the petitioner is ordered to be acquitted in the case registered against him vide FIR No. 4/94 dated 16-3-1994 at P.S. FIA/SIU, Islamabad under sections 201, 409, 468, 471 & 409 PPC read with section 5 Act II, 1947 (P.C.A.).