' Faiz Muhammad complainant had originally filed a Criminal Petition for Special Leave to Appeal No,73 of 1992. Vide order, dated 18-10-1994, leave was granted and the same was converted into Criminal Appeal No,549 of 1994, wherein, notices were issued to Abdul Rauf and Muhammad Yaqoob, respondents on 18-10-1994. The matter remained pending for hearing on 17-11-1998 when the arguments were addressed both by learned counsel for the appellant as well as the respondents.
2. Briefly stated the facts culminating into filing of this appeal are that on the statement of Faiz Muhammad, appellant, case F.I.R. No,426 of 1989 was registered on 12-10-1989 with Police Station Nankana Sahib, District Sheikhupura for the murder of Naveed Ahmad, his brother. Nisar Ahmad was alleged to have fired a fatal shot at the back of the deceased to which he succumbed. It was further alleged that the murder was committed on the abetment and as a result of the conspiracy made by the respondents. The respondents, however, were declared innocent during the investigation and challah was submitted against only Nisar Ahmad under section 302, P.P.C. The appellant being dissatisfied with the investigation conducted in the case, filed a private complaint under section 302/109, P.P.C. Against all the three accused, namely, Niaz Ahmad, Abdur Rauf and Muhammad Yaqoob. Preliminary evidence comprising of three witnesses were recorded by the learned trial Judge and after going through the same, it was held as under:-- "I am of the view that there are sufficient grounds for proceeding against all the three respondents Nisar Ahmad, Abdur Raoof and Muhammad Yaqoob for offence under section 302 read with section 109, P.P.C."
' Hence summons were issued to the respondents for 3-6-1992. The respondents entered appearance and thereafter moved an application under section 265-K, Cr.P.C. On 8-7-1992. The learned trial Judge heard the oral arguments addressed by the parties and also entertained the written arguments in that behalf. He accepted the application vides order, dated 23-9-1992 and resultantly the complaint instituted by the appellant was filed. However, Nisar Ahmad, co-accused remained as accused and against him challah under section 302, P.P.C. Had been submitted.
4. Under section 265-K, Cr.P.C. When the application is accepted, the accused persons are deemed to have been acquitted of the charge and taking the impugned order as an order of acquittal, this petition under section 417(2), Cr.P.C. Was moved for Special Leave to Appeal which, as observed above, has been treated as appeal and is being disposed of.
5. I have heard the arguments and perused the record.
6. The learned Additional Sessions Judge in the private complaint vide order, dated 30-5-1991 had held that there were sufficient grounds for proceeding against all the respondents which included the present respondents as well and were ordered to be proceeded against under section 109, P.P.C. The order had been passed by taking into consideration the preliminary evidence adduced by the appellant in his complaint. It is true that at the time of recording preliminary evidence, the respondents were not associated with the same nor they had the opportunity to cross-examine the witnesses, but the fact remains that the learned trial Judge found prima facie material available against the respondents to proceed under section 302/109, P.P.C. It is an admitted fact that thereafter no evidence was recorded by the learned trial Judge when the application under section 265-K, Cr.P.C. Was moved. It is, therefore, argued that once the learned trial Judge himself had held that there was material against the respondents the same tantamount to hold that there existed prima facie case against the respondents under section 302/109, P.P.C. And prima facie any observation or even an order is rebuttable but the same can be rebutted only after some further evidence or material is provided to the trial Court. In the instant case, no evidence was recorded and no further material was provided to the Court. However, the attention of the learned trial Judge was drawn towards police file wherein during the investigation various observations against the prosecution had been made by the Police Officers and according to the Investigating Agency, respondents had committed no offence, therefore, they p had been exonerated. The learned trial Judge by relying upon section 172(2) went through the material collected and the opinion of the Investigating Officers. Under section 172(2), Cr.P.C. Any criminal Court has been authorized to send for the police diaries of a case under inquiry or trial and may use such diaries if some ambiguity or confusion has to be resolved but the material contained in these diaries cannot be treated as evidence. Section 265-K, Cr.P.C. When authorizes the trial Court to acquit an accused person at any stage of the case mandates that he is to take into consideration that there are no probabilities of the accused being convicted of an offence. While assessing the probabilities, the opinion of the police or the police diaries cannot be used as evidence to accept the application under section 265-K, Cr.P.C. Which according to the learned counsel, tantamount to an order of acquittal. Since section 265-K, or as the case may be section 249-A, Cr.P.C. Envisages that any order passed under these sections has the force of acquittal, the learned trial Court is under legal obligation to consider and assess the material which can be treated or accepted as evidence. Any material contained in the police file or opinion of the police, as the case may be, cannot in any manner be equated with evidence. The same cannot be even treated as material justifying acquittal of accused person.
7. In the instant case, as noted above, a judicial order had been passed by the Court itself that there was material available to proceed against the respondents. An order passed by the Court as such lies on a higher pedestal as compared to the opinion of the police if the material contained in the police file exonerating the accused person and the judicial order passed by the trial Court itself holding that there was sufficient material available, then the judicial order passed by the Court has much more sanctity and as such have prevalence over the police opinion. The learned trial Court cannot approbate and reprobate at the same time. On one hand he holds that there is sufficient material to proceed against the respondents and at the same time orders for acquittal of the respondents by negating or nullifying his own order.
' Learned counsel for the appellant has raised the plea that an order of acquittal has a sanctity and, therefore, should not be lightly interfered with. It is true that once an order of acquittal is passed, the same is not lightly to be interfered with but I cannot remain oblivious of the fact that an order of acquittal which is passed by a Court after recording entire evidence and an order passed under section 265-K or 249-A, Cr.P.C. Cannot be treated similar and identical. An order passed under section 265-K, Cr.P.C. Is based on mere probabilities, therefore, sanctity which is ordinarily attached to an order of acquittal in my view cannot be attached with strictness to the order passe(' under section 265-K, or 249-A, Cr.P.C. Which have been primarily enacted to save an accused person from malicious prosecution so that he may not have to undergo the ordeals and pangs of the trial which itself tantamounts to a kind of punishment.
' Learned counsel for the appellant has laid much emphasis on the ground that order under section 249-A or 265-K, Cr.P.C. Can be passed at any stage and in support thereof has relied upon State through Secretary, Ministry of Interior v. Ashiq All Bhutto 1993 SCM R 523; The State v. Asif Ali Zardari and another 1994 SCM R 798; Muhammad Iqbal v. Abid Hussain alias Mithu and 6 others 1994 SCM R 1928 and Alain Khan v. Swans Khan and 3 others 1996 SCM R 1742. There is no cavil with the proposition as laid down in the precedent cases both by the Honorable Supreme Court and the High Court. The very purpose of invoking jurisdiction under these sections is to save an accused person from unnecessary prosecution and abuse of process of Court or law. This jurisdiction can be exercised at any stage so long as there is proper material justifying acquittal of the accused. In the present case, the position is altogether different. The learned trial Judge has specifically held that there was material available against the respondents but without any further development in the case proceeded to exercise jurisdiction under section 265-K, Cr.P.C. With undue haste.
Although, learned counsel for the appellant has tried to impute some extra-legal consideration by making an implied reference to status and position of the respondents but in the absence of any concrete material or acceptable circumstances, I do not want to make any comment thereon, however, I would like to observe that the tendency to malign Judicial Officers in the absence of reliable evidence or material should be curbed.
In the light of foregoing discussion, this appeal is allowed and the order, dated 23-9-1992 is set aside with the consequence that the learned trial Judge will proceed with the trial by arraying the respondents as accused persons alongwith Nisar Ahmad in accordance with the dictum laid down in the case of Nur Elahi v. The State and others PLD 1966 SC 708.
' Before parting with the judgment, I would observe that any observation made or opinion expressed will not in any manner influence or prejudice the learned trial Judge, if after recording of evidence and if some other material is brought on the file, he is of the opinion that he can invoke his jurisdiction under section 265-K, Cr.P.C.