' On the report of Raja Ali Asghar, the complainant, a case vide F.I.R. No,124 of 1989, dated 12-5-1989, was registered at Police Station, South Cantt., Lahore, against seven persons, namely Maqsood, Tahir, Tariq, Azam, Rafique, Ghaffar and Nasir, under sections 307, 148 and 149 of the Pakistan Penal Code. According to the complainant about 2-3 days prior to the occurrence, the womenfolk of the parties had an altercation whereupon respectables of the Mohallah got the matter resolved. But on the 10th May, 1989, at about 8-30 p.m. While he was coming back to his house after making certain purchases and at that time his two brothers-in-law, namely Muhammad Nawaz and Muhammad Altaf were having certain discussion in front of his house, all of a sudden Maqsood armed with hatchet, Thhir armed with spade, Tariq, Rafique and Ghaffar armed with Lathis, Azam armed with knife and Nasir empty-handed came there raising Lalkaras. Maqsood gave a blow to Muhammad Nawaz with his hatchet at the back of his head, Tahir caused head injury to Muhammad Nawaz with his spade. Tariq also caused an injury at his left arm with his Lathi. Azam injured the complainant through his knife. The complainant's son Ali Ansar and his brother-in-law Altaf who came forward to rescue him were also attacked. Rafique caused an injury to Muhammad Altaf with his Lathi. Similarly, Ghaffar attacked complainant's son with his Lathi, while Nasir caused injury with his fists. The complainant raised hue and cry upon which Muhammad Latif son of Fazal Dad and his wife Mst. Nazeeran Begum came at the spot and saw the whole incident. The accused-assailants thereupon decamped away.
2. During the investigation, the police four Abdul. Ghaffar, Muhammad Rafique and Azam as innocent, while the remaining accused were charged to stand trial before the Magistrate (with powers of section 30, Cr.P.C.), Cantonment Lahore. Four witnesses, namely Raja Ali Asghar, the complainant and three injured, namely Muhammad Nawaz, Muhammad Altaf and Raja Ali Ansar appeared as P.W.1, P.W.2, P.W.3 and P.W.4 respectively. The remaining two witnesses Muhammad .Latif and complainant's wife Mst. Nazeeran Begum were yet to be examined. In addition thereof prosecution had yet to examine Mushtaq Ahmad; Abdul Hameed and Naseer Ullah, Constables, Dr. Muhammad Aslam, C.M.O., General Hospital, Lahore, and Dr. Major Ahmad Hassan, C.M.H., Lahore, who had examined the injured and Khadim Hussain, A.S.-I., Police Station Lahore Cantonment.
3. In the meanwhile, the accused moved an application under section 249-A, Cr.P.C. For their acquittal on the grounds that the prosecution had failed to produce the remaining witnesses in the Court, the four witnesses examined by the Court were inter-related and on the basis of the statements of these four witnesses, there was no likelihood of the conviction of the accused. The learned Magistrate by his order, dated 7-1-1992, accepted the application and held that the prosecution had not proved the guilt of the accused and that giving any more opportunity to the prosecution would be a wastage of time and thus, he acquitted the accused. The present appeal has, therefore, been filed on behalf of the State assailing the aforesaid order of the learned Magistrate, mainly on the ground that the prosecution witnesses were not summoned by the Court nor the Court had given any consideration to the statements of the eye-witnesses and the injured and had disposed of the case summarily.
4. I have heard .The parties at length. On behalf of the State and the complainant, it was contended that the proper opportunity of producing evidence by the prosecution was not given nor the learned Magistrate had taken into consideration the medical reports tendered by the doctors who examined the injured and were present on the record. It was also contended by Rai Bashir Ahmad, Advocate, learned counsel for the complainant, that mere relationship of the prosecution witnesses with the complainant does not per se make the prosecution version false and fabricated, particularly when they were injured during the occurrence which took place in front of the house of the complainant. In support of his contentions, the learned counsel referred to Rehman v. The State PLD 1988 Lah. 643 and Muhammad Juman v. The State 1992 PCr.LJ 1922.Wherein it was held that mere relationship with the deceased, the testimony of eye-witnesses and natural witnesses of the occurrence cannot be ignored.
5. Sh. Muhammad Asad Ullah, Advocate, appearing on behalf of the respondents (acquitted accused) contended that Muhammad Nawaz P.W.2 and Altaf P.W.3 were brothers-in-law of the complainant (P.W.1), while P.W.4 was the real son of the complainant. Similarly, the other two eye- witnesses, namely Muhammad Latif and Mst. Nazeeran Begum were the nephew and wife of the complainant respectively. He was, therefore, of the view that no reliance could be placed on the averments of these witnesses being interested persons. According to him, the incident took place in the open Ba.Zar, but no independent witness of the locality was cited in the array of witnesses. He also contended that three accused of the occurrence, namely Abdul Ghaffar, Muhammad Rafique and Muhammad Azam against whom specific roles were attributed in the F.I.R. Have already been discharged as they were found innocent by the police and consequently, the whole prosecution story proves to be false and fabricated. Learned counsel for the respondents was also of the view that, since the trial Magistrate had acquitted the accused after taking into consideration all the pros and cons of the case, it does not deem desirable to interfere in the findings of acquittal recorded by the Trial Court. In support of his contentions, the learned counsel also referred to Sultan Ahmed v. Ghulam Raza and others 1995 SCMR 664 and Muhammad Ali and others v. The State and others 1995 SCMR 231, wherein the Supreme Court had not interfered in the findings of the acquittal recorded by the High Court. Learned counsel also referred to Aftab Ahmad and others v. The State PLD 1989 Lah. 520, wherein the High Court had not remanded the case for re-trial as the matter related to the year 1980 and the parties had undergone the ordeal of protracted trial for nine years.
6. It is, however, clear that in Aftab Ahmad's case the parties had also entered into a compromise and on that basis the learned Judge did not remand the case for re-trial. The other two cases referred to above by the learned counsel for the respondents are also distinguishable as in both the cases, the findings of acquittal were recorded after due appreciation of the evidence. None of these cases relate to acquittal during the pendency of the trial under the provisions of section 249- A, Cr.P.C. In the present case, however, it is clear from the record that after framing the charge on the 31st October, 1989 the case had been adjourned for over 25 times, but several adjournments were allowed because of absence of one or other of the accused who were on bail. It is also to be seen that except two witnesses, namely Muhammad Lati,f and Mst. Nazeeran Begum the other witnesses to be produced by the prosecution were all Government functionaries including two doctors. The Trial Court was. Fully empowered under the law to cause production of witnesses by adopting legal coercive measures. No such measure appears to had been initiated by the learned trial Magistrate.
7. Under section 249-A of the Code of Criminal Procedure, a Magistrate can acquit an accused at any stage of the case, if after hearing the prosecutor and the accused, he considers that the charge is groundless or there is no probability of the accused being convicted of any offence. In this context, learned counsel for the complainant contended that as is, apparent from the record, the learned trial Magistrate had not heard the parties. There is quite a force in' these contentions as on 4-1-1992, the learned trial Magistrate had obtained written arguments from the learned counsel for the accused-respondents and had passed the acquittal, order on the 7th January, 1992, without hearing the prosecution side. Even on this score the order of the learned trial Magistrate is not sustainable.
8. From the impugned order, it also appears that while acquitting the accused the learned trial Magistrate was motivated simply because of close relationship with the complainant. He was, thus, of the view that the statements of four witnesses examined by the prosecution were not worthy of any credence. Since the complainant, his son and his brothers-in-law were allegedly injured by the respondents, prima facie, they were all very natural witnesses and their testimonies could not be brushed aside summarily simply because of their relationship with each other. The acquittal order, therefore, was not passed after due appreciation of the evidence.
9. It view thereof, the impugned order of the learned trial Magistrate, dated 7-1-1992 cannot be upheld. The same is accordingly set aside and the case is remanded to the Trial Court for fresh adjudication after examining the remaining witnesses. The prosecution shall make all efforts for production of the evidence so that the 'trial is not unnecessarily delayed. The learned trial Magistrate will, however, be at liberty to close the evidence if the prosecution fails to discharge its obligation within the reasonable time allowed by the Court. The appeal is accepted accordingly.