1. ' AMIRUL-MULK-MENGAL, CJ.--- By this judgment we intend to dispose of Criminal Acquittal Appeal No,167 of 1997 as well as Suo Moto Reference No,7 of 1997.
2. Facts briefly stated are that on 19-10-1996 one Pir Bakhsh lodged a report with Dera Allahyar Police Station which was registered as F.I.R. No,159 of 1996 in which he informed that after taking his meals at night he went to bed. However, he woke up on hearing gunshot reports at about 1-30 a.m.
2. He came out of his room and saw his nephew Shah Bakhsh having a single barrel shotgun. He informed the first informant that he had killed his wife Mst. Izzat and Rahim Khoso on seeing them in a compromising position. In the meanwhile one Masoo and Nawab who were neighbours reached the spot. They went and saw dead bodies of Mst. Izzat and Rahim Khoso which were lying in the pool of blood. They informed the relatives of deceased persons and then lodged the report.
3. ' On such information the police registered the case and proceeded to the spot. Accused was arrested and according to prosecution he, produced the shotgun which was taken into possession by the police. Police also recovered 4 empty cartridges of shotgun from the place of incident. The police prepared the sketch of Wardat show the dead bodies lying in the house of accused.
4. ' After usual investigation challan was put up and accused was tried by Additional Sessions Judge, Dera Allahyar. The trial Court examined P.W.1 Pir Baldish who, however, resiled from his previous statement and was declared hostile by the Court on the request of the District Attorney. He was subjected to cross-examination and F.I.R. Was confronted which had been signed by him. Similarly P.W.2 Masoo's statement was recorded. He also resiled from his previous statement. P.W.3 Nawab was examined by the trial Court. He stated that he was sleeping in the house when he heard gunshot reports at about 1-00 or 1-30 a.m. Towards the house of accused Shah Bakhsh. He woke up and proceeded to the place of Wardat. He saw dead bodies of Mst. Izzat and Rahim Khoso lying there. He saw Pir Bakhsh and Masoo who were standing at the spot. P.W.4 Ali Dost deposed that he was posted at Police Station Dera Allahyar when the incident took place. He is recovery witness to the articles which he has mentioned in his statement. P.W.5 Muhammad Boota stated that he was on general duty and after receiving the report he alongwith other police officials namely Essa Jan, S.-I. And Jan Muhammad, A.S.-I. Went to the village of Pir Bakhsh Jhakrani. He saw the dead bodies of Rahim Khoso and Izzat Khatoon on the spot which were despatched for post-mortem examination to Civil Hospital Dera Allahyar. On the pointation of Pir Bakhsh the scene of incident was inspected and memo of site inspection was prepared. The empties were taken into possession and sent to Ballistic Expert for his opinion. The gun was also recovered from the accused person.
5. ' In the meanwhile an application has been moved under section 265-K, Cr.P.C. By the accused mainly on the ground that all the important eyewitnesses have since been examined and there is no likelihood of his being convicted on the basis of remaining evidence, therefore, a request was made to the Court for his acquittal. A notice was given to the State and then vide impugned order, dated 25-3-1997 the trial Court acquitted the accused mainly on the ground that there was nothing on record to connect the accused with the charge of murder. It was observed that all the three material eye-witnesses have not supported the case and have exonerated the accused. Only two police officials who were formal witnesses were left to be examined. Therefore, there was no likelihood that the prosecution case could be improved resulting in the conviction of accused. In the circumstances the application was granted and accused was ordered to be acquitted.
6. ' When this order was examined by the Inspection Judge suo moto action was taken for calling of the record of the case for perusal. It was though a fit case in which the High Court should exercise its revisional jurisdiction. ' The matter was taken on judicial side and fixed before Division Bench.
7. Notice was issued to accused Shah Bakhsh.
8. ' During this period learned Advocate-General also filed an appeal against acquittal which was taken up today alongwith suo moto reference.
9. ' Heard Advocate-General, Balochistan and Shah Bakhsh in person.
10. ' Accused Shah Bakhsh was given an opportunity to engage a counsel of his choice but he stated that he being a poor person cannot afford to engage a counsel. It may be pointed out that he had already engaged a counsel during trial and that he was then heard in person.
11. ' We have heard learned Advocate-General and accused Shah Bakhsh. We have also perused the record. The main challenge to the acquittal order is that there were still important and material witnesses which could connect the accused with the commission of the offence. However, without recording their statements, learned trial Court in fact acted in a hasty manner by acquitting the accused. The Advocate-General urged that circumstantial evidence in this case was as important as the ocular version. If the witness is turned hostile, the trial Court was under legal obligation to have recorded the remaining evidence which was not only material but otherwise prima facie admissible in evidence and relevant to prove the charge. In this respect learned Advocate-General submitted that dead bodies were found in the house of accused at mid night. The postmortem report was still awaited. The Investigating Officer could produce the Ballistic Expert report which was important piece of evidence on record. According to Advocate-General said report otherwise is positive but could be produced either by the Ballistic Expert or the Investigating Officer.
12. We have perused the impugned order and we found that learned Trial Court mainly relied on the ocular testimony and after when the eye-witnesses resiled from their previous statements the Trial Court promptly acquitted the accused without recording statements of material witnesses like Investigating Officer who could conveniently produce Ballistic Expert report. The medical evidence has also not come on record and Ballistic Expert could be examined by the prosecution. It may be observed that it is not always the eye-witnesses whose statements could be made sole basis for conviction. There may be cases where circumstantial evidence is regarded as sufficient basis for conviction. The discretion exercised by the Trial Court in acquitting the accused at a stage of trial when important witnesses were yet to be examined was not legal. The only reason assigned by the Trial Court was that the remaining witnesses were totally unimportant and could not bring home the charge. We are afraid that we cannot concur with such conclusion. However, we abstain from making any observation as regards circumstantial evidence so that none of the parties should be prejudiced. Anyhow we have seen the statement of Investigating Officer, the report of Ballistic Expert etc. Which are otherwise relevant and which might form basis for coming to a just decision.
13. ' Another ground for interference according to our calculated view is that there must be reasons which should be logical and convincing for acquitting the accused at any stage of the case if after hearing the prosecution and the accused it is considered that there is no probability of the accused being convicted of any offence. Those reasons if not in detail must be mentioned concisely. Here in the acquittal order the learned Trial Court has not referred to the gist of evidence of the remaining witnesses in order to see that their testimony would be of no avail to the prosecution.'
14. ' We are conscious of the fact that in powers under section 265-K, Cr.P.C. The Trial Court may acquit an accused in order to avoid undue delay which fact would be in consonance with intention and object of this section but such exercise is always conditional and can be invoked only if the Court considers that there was no probability of the accused being convicted of any offence. Here we have already outlined the remaining evidence. In the peculiar circumstances of the present case certain facts are very conspicuous, like the two dead bodies which were found by the witnesses in the house of accused in the early hours and producing the gun by the accused, the empties recovered from the spot etc. For all such reasons we are inclined to accept the appeal and remand the case to the Trial Court for completing evidence of the remaining witnesss. The Trial Court is directed to expeditiously examine the remaining evidence and pass order in accordance with law after taking into consideration the entire evidence on record. Resultantly, the impugned order, dated 25-3-1997 is set aside.
15. ' Shah Bakhsh accused is present. He shall produce security in the sum of Rs,50,000 (Rupees fifty thousand) with two solvent sureties of Rs,25,000 (Rupees twenty-five thousand) each and P.R. Of like amount to the satisfaction of the Trial Court. The security can be given before the Trial Court at Dera Allahyar. However, in the meanwhile, the accused will be taken into custody to be produced before the Trial Court on 4th of August, 1997. He shall be released by the Trial Court if he produces security as mentioned hereinabove. The Trial Court shall conclude the remaining evidence as soon as possible.
16. ' To suo moto reference and, appeal are accordingly disposed of in the above terms.
17. ' The record be returned forthwith to the Trial Court.
18. ' The above are the reasons for our short order of even date.