MUHAMMAD BASHIR JEHANGIRI, J.- The accused-petitioners seek leave to appeal under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973 against the judgment dated 23-2- 1997 whereby a learned Judge in Chambers of the Lahore High Court, set aside the order of acquittal dated 25.11.1989 of the accused-petitioners passed by the learned Sessions Judge, Okara from the charges under Sections 302/307 and 109 read with Section 34, PPC and retrial of the accused-petitioners was ordered.
2. The relevant facts necessary for the present controversy are the Nazir Ahmad complainant lodged a report under Sections 302/307 and 109 read with Section 34, PPC alleging therein the murder of Abdul Jabbar at the hands of Khushi Muhammad and Muhammad Mansha petitioners and an effective attempt on the life of Muhammad Sharif PW and indiscriminate firing by the accused-petitioners at the complainant party." The occurrence took place on 15.7.1985 at 7.30 p.m.
In the evening in the area of Giak No. 3/14-L at a distance of three miles from Police Station Kassowal, District Sahiwal. The motive set up in the FIR was a land dispute between the parties over which the complainant party was raising construction.
3. After necessary investigation, accused-petitioners were sent up for trial to the Court of learned Sessions Judge, Sahiwal on or around 19.2.1987. It appears that the complainant party was alleged to have been perusing a course of delaying the conclusion of the trial so much so that at one stage when the eye-witnesses were present in the Trial Court, they had declined to be examined in the witness-box' inasmuch as their defence counsel, Mr. Rafique Ahmad Bajwa, was not available and had been away to the Multan Bench of the Lahore High Court in connection with his professional engagement. Earlier, the prosecution, however, examined some formal witnesses. The complainant party is stated to have been perusing delaying tactics by seeking transfer of the case from one Court to another. The record further discloses that the learned Sessions Judge who had recorded the order of the acquittal of the accused-petitioners had observed that earlier learned Additional Sessions Judge-II, Okara, had already closed the evidence of Fateh Muhammad and Bashir Ahmad PWs vide order dated 24.4.1989 "but for the sake of justice, the learned Sessions Judge gave them an opportunity to make statement in this case, but they were not prepared to avail of this opportunity." adopted the course of action contained in paras 6 and 7 of the impugned judgment of the learned Sessions Judge which reads as under:- "6. As these PWs 6 to 9 have refused to give statements on oath, so prima facie they can be proceeded under section 179, PPC. But I do not want to take any action except to close their evidence and thus the prosecution evidence is hereby closed to their extent.
"7. On the basis of my above findings, the accused are hereby acquitted from the above charges under section 265-K, Cr.P.C, without recording the remaining evidence which is of formal nature, because after going through the evidence on record and hearing the learned prosecutor and defence counsel, I find that there is no probability of the accused of being convicted of any offence in this case for lack of any ocular evidence and evidence relating to recoveries of crime weapons.
The accused are present in the Court on bail, their bail bonds are cancelled and sureties discharged. The crime weapons taken into possession vide memo, dated 8.8.1985 stand confiscated in favour of the State alongwith the crime empties taken into possession on 16.7.1985.
The last worn clothes of the deceased taken into possession vide memo. Ex.PA, and sleeper and softi chappal recovered from the place of occurrence shall be destroyed, alongwith the parcel of blood-stained earth, after the period of appeal, or revision if any".
5. The Public Prosecutor Punjab, feeling aggrieved of the- impugned order of acquittal filed on 24.5.1990 Crl. Appeal No. 355 of 1990.
6. Mr. Aftab Farrukh, learned Sr. ASC for the petitioners, has invited our attention to the copies of the two order-sheets dated 2.10.1991 and 21.10.1991 from the record of Crl. Appeal No. 355 of 1990 and pointed out that on 2.10.1991 "the learned Advocate-General has sought adjournment to seek further instructions from the Government/Law -Secretary making the statement that inspite of his advice to the contrary, he has been asked to pray for a verdict by the Court". The learned Division Bench, however, had observed that "it would not be proper to announce the verdict without hearing somnebody on the appellants side who really was directed to personally appear and argue the matter on 21.10.1991. In these circumstances on 21.10.1991, according to the learned counsel, the " Learned Advocate-General withdrew the State Appeal on instructions from : the Government. It appears that order of acquittal recorded by the learned j Sessions Judge dated 25.11.1989 was challenged by the complainant by filing Criminal Revision Petition No. 65 of 1992.
7. After hearing the learned counsel for the parties, the learned j Judge in Chambers of the Lahore High Court passed the impugned order on 23.2.1997 which is to the following effect:- "Learned Trial Court by holding that there was no evidence in - the case proceeded to record acquittal of the accused. Prior to that the medical evidence, and testimony of certain other witnesses stood recorded. The reason given by the learned Trial Court that eye-witnesses had refused to make statements was considered out of context. The refusal of witnesses to make statements was for the reason that learned counsel was not ) available. Therefore, it could not have been said that evidence was not available and the accused could not have been acquitted u/S. 265-K, Cr.P.C. The scope of provisions of Section 265-K, Cr.P.C, is altogether different. It can be invoked in cases where the evidence is inadequate and insufficient and there is no likelihood of conviction of the accused. But where evidence is available and is likely to prove the prosecution case it cannot be held that charge against the accused was groundless. For holding a charge to be groundless the only criterion is lack of sufficiently incriminating evidence. In the present case the witnesses had expressed their inability to make their statements on account of absence of their learned counsel privately engaged by them. The learned Trial Court could have postponed the hearing for a day or for a few days in that situation. No doubt a State case is conducted by a public prosecutor but where a private counsel is permitted to assist the public prosecutor but where a private counsel is permitted to assist the public 7 prosecutor and he has been appearing for the complainant party, the complainant party has a right to be represented by a counsel privately engaged by him. In the facts and circumstances of this case, there was no jursidiction for recording acquittal of the.
All the prosecution witnesses sought to be examined by the prosecution at the trial were not in attendance. One of the witness had gone abroad and there was no material brought on record by the Trial Court that said witness was not to be available for appearing as witness in near future and other witness was also not served for that date. The Trial Court was under an obligation to have examined all the witnesses and thereafter could have after evaluating the material so collected passed an appropriate order in the matter. The manner in which the jurisdiction was exercised by the learned Trial Court was wholly unprecedented and order of acquittal was not justified on any cannon of law of equity."
In this view of the matter, the order of the acquittal of the petitioners was set aside and the case was remanded to the learned Sessions Judge, Sahiwal, with the direction to either hold the trial himself or may entrust the matter to an Additional Sessions Judge working under him. Further that the learned Trial Court may proceed with the Trial "from the stage it was when the order dated 25.11.1989 was passed or may record entire evidence afresh if any of the parties so desired". Hence this petition for leave to appeal.
8. Mr. Aftab Farrukh, learned Sr. ASC for the petitioners contended, firstly, that the occurrence had taken place on 15.7.1985 but the petitioners were acquitted on 25.11.1989 whereas the Crl. Revision Petition was filed by the complainant in the High Court nearly two years later, therefore, the accused-petitioner had earned valuable right. It is a settled law that revision petitions in the criminal cases can be normally filed within 90 days but it is not an absolute rule. Primary function of Court is to do complete justice and not to allow lapses on the part of any one of the parties to perpetuate injustice. Redress by way of revision can, therefore, be condoned if the interest of justice so demands. This statement of law may not, however, be extended to ignore even the rule of diligence in filing a revision petition against an order passed on the criminal side. The discretion in entertainment of such a revision petition, like any other discretion, is to be exercised judiciously and keeping in view the principles of natural justice.
9. Raja Muhammad Anwar, learned Sr. ASC, representing the complainant-respondent, has rightly relied upon the precedent of M.S. Khawaja v. The State (PLD 1965 SC 287) to contend that the view that the the is of the essence for the competency of a criminal prosecution cannot be accepted as of universal application. According to him, limitation does not apply to criminal prosecution and it is also inappropriate to examine question of delay through the actions of the Government, or the prosecution authorities, as if they gave rise to equities, on the same footing as in a civil matter inter parties.
10. In the circumstances of the instant case, the appeal filed by the State against the acquittal of the accused-petitioners had initially pacified the complainant-respondent to have not taken recourse to the revisional jurisdiction of the High Court. When this appeal was withdrawn by the learned Advocate-General, obviously the complainant-respondent felt aggrieved and having no remedy had rightly availed of right of revision even after two years. In the instant case, it was an order of acquittal on the ground of delay on the part of the prosecution witnesses. Such an order was palpably wrong to have been passed under Section 265-K, Cr.P.C. Under Section 265-K, Cr.P.C., the Trial Court is no doubt empowered to acquit the accused at any stage but that can only be done when after hearing the prosecution and the accused, it considers that there is no possibility of the accused being convicted of and evidence. (Underlining is ours to provide emphasis). For the purpose of ascertaining a question whether there was any material against the accused for invocation of Section 265-K, Cr.P.C., statements of witnesses reported under Section 164, Cr.P.C, or those recorded during the trial could be looked into and be treated at par with police statements under Section 161, Cr.P.C. But then this must be done on proper appreciation of evidence. In the instant case, the impugned order of acquittal was not passed by the Trial Court on examining the evidence that had come on the record but because the complainant had adopted delaying tactics. Now this ground is absolutely not covered by ingredients of Section 265-K, Cr.P.C.
11. The learned counsel for the petitioners then maintained that the learned Single Judge of the High Court failed to take note of the main consideration weighing with the learned Trial Court i.e. Abuse of process of the law and the conduct of the complainant party in attempting to defeat two separate orders of the High Court dated 2.10.1991 and 21.10.1991 culminating in dismissal of appeal "having been withdrawn".
12. We regret to express our inability to accept this contention. No doubt the eye-witnesses of the occurrence had declined to be examined in the case in the absence of their counsel. But then as rightly pointed out by the learned Single Judge of the High Court that the learned Trial Judge could adjourn the case for a day or two and direct the PWs to be examined after giving them the last chance. The impression that the learned counsel for the prosecution should have taken care to be present on the date of hearing was not warranted in that it was not within the control of the PWs. It is a pity that some senior counsel accept new briefs at the cost of the old cases but then the litigants are not capable of controlling it in any way. The litigants are at the mercy of such counsel and, therefore, they should not be made to suffer for the professional lapses of their counsel, moreso when it is a case of murder trial.
13. We are conscious of the broad proposition of great importance which is attached to the non- production of an important witness by the prosecution in a criminal case, when there is no satisfactory reason for non- production is established but that by itself, as observed earlier, in the context of the role of the counsel in such like cases would not justify the acquittal of an accused particularly in a criminal case involving capital charge.
14. In the circumstances of the case, the learned Judge in Chambers of the High Court was, therefore, right to have exercised the revisional jurisdiction and set aside the order of acquittal of the accused-petitioners and remanded the case to the learned Sessions Judge, Sahiwal.
15. We are, therefore, inclined to maintain the impugned order of retrial of the accused petitioners.
The learned Sessions Judge, Sahiwal, shall conclude the trial within a month on receipt of the file, a course which has already been ordered to be adopted by the High Court. The learned counsel for the parties shall also make themselves available on each and every adjourned hearing to enable the learned Trial Judge to conclude the trial within the stipulated period.
16. The Office is directed to ensure the despatch of the record of the learned Sessions Judge, Sahiwal, well' in the and also despatch the record of the Trial Court expeditiously.
17. The petition, having no merit, is dismissed with the above observations.