P L D 2013 Balochistan 39
Before Qazi Faez Isa, C.J. and Mrs. Syeda Tahira Safdar, J
THE STATE through Assistant Advocate -General, Ex -Officio and Public Prosecutor
Balochistan, Quetta ---Appellant
Versus
ABDUL WADOOD ---Respondent
Criminal Acquittal Appeal No.352 of 2002, decided on 4th December, 2012.
(a) Suppression of Terrorist Activities (Special Courts) Act (XV of 1975) ---
----S. 7---Anti-Terrorism Act (XXVII of 1997), Ss.18 & 25 ---Criminal Procedure Code (V of
1898), S.492 ---Appeal ---Assistant Advocate General ---Locus standi to file appeal ---Scope ---
Objection was raised to maintainability of appeal on the ground that appeal filed by Assistant
Advocate General was not filed by competent person ---Validity ---At the relevant time Advoca te
General and Assistant Advocate General were conducting cases on behalf of the State before
High Court, therefore, it was presumed that Assistant Advocate General was duly empowered to
file appeal ---Objection was overruled in circumstances.
(b) Crimina l Procedure Code (V of 1898) ---
----S. 265 -K---Power of court to acquit accused at any stage ---Discretion ---Scope ---Discretion is
surely available with court before whom case is pending for adjudication but same is to be
exercised with due care and cauti on and within the parameters provided under S.265 -K, Cr.P.C.
(c) Criminal Procedure Code (V of 1898) ---
----S. 265 -K---Acquittal of accused ---Principle ---Determining factor for acquittal is non -
existence of any probability that accused can be convicte d of any offence ---Exercise of
discretion under S.265 -K, Cr.P.C. must be based on reasons, which are to be recorded by court
on the basis of material available on record.
(d) Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979) ---
----S. 17(3) ---Suppression of Terrorist Activities (Special Courts) Act (XV of 1975), S.7 ---
Criminal Procedure Code (V of 1898), S.265 -K---Acquittal ---Proceedings at final stage ---
Sufficient evidence available ---Accused was acquitted under S.265 -K, Cr.P.C. by Trial Court ---
Validity ---Presence of sufficient evidence, coupled with the fact that proceedings were at final
stage ---Trial Court should not have acquitted accused while exercising powers under S.265 -K,
Cr.P.C. and instead should have concluded procee dings after examining accused, and recording
evidence in defence, and decided the case on merits ---Premature acquittal of accused did not
create double presumption of innocence in his favour, which needed consideration while dealing
with acquittal secured after judgment on merits and not one based on acquittal in intermediary
stage under S.265 -K, Cr.P.C. ---Trial Court was not justified in accepting application under
S.265 -K, Cr.P.C. and recording pre -mature acquittal in favour of accused ---High Court set as ide
order of acquittal passed by Trial Court and remanded the case to Trial Court for decision on
merits ---Appeal was allowed accordingly.
The State v. Raja Abdul Rehman 2005 SCMR 1544 and The State v. Azam Malik PLD
2005 SC 686 ref.
Liaquat Ali for the State.
Syed Ayaz Zahoor for Respondent.
Date of hearing: 14th June, 2012.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, J. ---This appeal was preferred against the judgment
dated 20th June 2001, of the Sessions Judge/Special Judge, Suppression of Terro rists Activities
(STA), Quetta, whereby the accused/respondent Abdul Wadood son of Mir Ahmed Nawaz was
acquitted of the charge, on acceptance of his application filed under section 265 -K Criminal
Procedure Code (Cr.P.C.). The acquittal order was challenged on grounds that there was
sufficient evidence available on the record to connect the respondent/accused with commission
of the offence. Further, the requirement of section 8 of the Suppression of Terrorists Activities
(Special Courts) Act, 1975, (hereinaf ter referred as Act. 1975), which placed burden on the
accused person to establish his innocence, was not adhered to, thus an illegality was committed
which needs reconsideration of the matter. Furthermore, in view of the fact that sufficient
evidence was available on record, therefore the acquittal of the respondent in pre -mature stage
was unwarranted. Furthermore, the provisions of section 265 -K. Cr.P.C were not attracted in the
instant case. Therefore, due to misapplication of law, misexercise of discret ion, and
misappreciation of evidence prejudiced the case of the prosecution. Further, the statements of the
prosecution witnesses Tanveer Qureshi, and Syed Kaleem Imam were discarded only for the
reason of delay in recording of their statements under secti on 161 Cr.P.C, which was a
misconception of law on part of the trial court. It was prayed that the impugned judgment be set
aside, and the respondent/accused be convicted for the offence punishable under section 17(3)
Offences Against Property (Enforcement of Hadood) Ordinance, 1979 (hereinafter referred as
the Ordinance VI of 1979).
2. The brief facts of the cease were that pursuant to F.I.R. No.196 of 1998 Police Station
Civil Lines, Quetta dated 21st December 1998, occurrence of an incident was reporte d, whereby
several persons, under the command of the present respondent Abdul Wadood, formed an
unlawful assembly armed with deadly weapons. in furtherance of their common intention,
entered the premises of the Civil Hospital, Quetta, to secure the release of two accused persons
namely Muhammad Ameen, and Abdul Rasool, who were under treatment in the hospital when
they were in legal custody. It was reported that during course the accused persons snatched
official arms, and ammunition from the police personn el, present on duty at the Hospital ward.
They also detained the police personnel, on duty Doctors, and staff of the hospital, and under
treatment patients with show of arms. While making firing they succeeded to escape from the
site along with the said un der treatment prisoners. The record disclosed that the incident
consisted of a chain of events, therefore, eight separate cases were prepared with distinct
offences as an outshoot of the same F.I.R. The instant case pertains to commission of the offence
of Harabah punishable under section 17(3) Offences Against Property (Enforcement of Hadood)
Ordinance, 1979. The respondent was charged for the offence on 29th November 2000 as under:
"That you along with absconding accused in furtherance of common intent ion on 21 -12-
1998 at 8 -45 p.m. formed an unlawful assembly armed with deadly weapons illegally entered in
Civil Hospital, Quetta with intention to commit some offence and on resistance of police you
snatched 38 bore revolver with 9 cartridges from Yawar Ab bas, one revolver with six rounds
from Ahmed Bakhsh, one Kalashnikov with 30 rounds from Syed Noor Constable and removed
accused Abdul Rasool and Amin from police custody and snatched away one SMG from
constable Amin with 30 round, one SMG with 30 rounds f rom Muhammad Yaqoob, who
reached at the place of incident on getting information. and thereby committed the ( -) an offence
punishable under section 17(3) of Offences Against Property (Enforcement of Hadood)
Ordinance, 1979, within the cognizance of this co urt."
3. The respondent/accused denied the charge, and claimed trial. Consequent thereon the
prosecution produced eighteen witnesses, and their statements were recorded. But, at this stage
an application under section 265 -K, Cr.P.C. was filed by the resp ondent/accused seeking his
premature acquittal. The trial court accepted the application, and acquitted the
respondent/accused of the charge through the impugned judgment dated 20th June 2001. The
instant appeal seeks the setting aside of the impugned lodg ment, and further to convert the
acquittal into a conviction.
4. The learned counsel for the respondent/accused objected to the maintainability of the
appeal before this court. He stated that the jurisdiction vests with the Federal Shariat Court due
to the fact that the charge was framed for an offence punishable under Ordinance, VI of 1979.
The learned counsel referred to section 24(1) of the Ordinance, VI of 1979. He further argued
that the instant appeal was filed beyond the stipulated period of thirty (30) days, therefore, it is
time barred as it was filed with a delay of more than a year, that too, without any application or
condonation of delay. The learned counsel also objected to the competency of the Assistant
Advocate General, under whose signatu re instant appeal had been filed, and that the appeal must
be accompanied with the Notification disclosing his appointment as Public Prosecutor, but, no
such Notification was filed. The learned counsel concluded that as the appeal being filed
incompetently , therefore, deserved dismissal. As far as merits of the case were concerned, the
learned counsel contended that none of the prosecution witnesses had deposed against the
respondent/accused, nor implicated him in the commission of the offence. Further, the evidence
of the prosecution was full of contradictions, and variations, therefore, it become doubtful, and
cannot be relied upon. The learned counsel concluded that in a case of acquittal there was always
a double presumption of innocence attached to the acquittal of an accused person; therefore, the
appellant was to establish his case free from all doubts, on basis of specific evidence, but it was
missing, in the instant case.
5. The learned counsel appearing for the State was in agreement with the prop osition of the
learned counsel for the respondent that the jurisdiction lies with the Federal Shariat Court, but
requested that instead of returning it, the appeal be sent to the concerned court having
jurisdiction in the matter for further proceedings. It was further his contention that though the
appeal was filed under the signature of the Assistant Advocate General, but he was very much
competent to file an acquittal appeal, as the office he held was covered by the term "Public
Prosecutor".
6. The peru sal of the case file reveals that on filing of this appeal it was noted down in the order
sheet dated 2nd August 2006 by our learned predecessors that:
"----- It may be noted that F.I.R. was registered under section 17(3) Offences Against
Property (Enforcement of Hadood) Ordinance, 1979 and case was tried and decided by the
learned Sessions Judge. Record does not reflect that the matter was ever tried under the Act or
any order was passed by a Special Judge for which purpose the appeal was withdrawn and filed
before this Court, thus notice be issued to learned A.G. to argue and explain the position about
maintainability of the appeal on a date fixed by the office."
7. That through order dated 30th June 2011, this Court decided the issue, and held t hat as
the matter was proceeded by the Special Judge acting under the provisions of the Suppression of
the Terrorists Activities (Special Courts) Act, 1975, therefore, irrespective of the fact whether it
resulted in a conviction, or an acquittal the judgme nt shall be appealable before a High Court.
While deciding the issue, reliance was placed upon section 7 of the Act, 1975, which is very
much clear to the effect. Therefore, the appeal was held to be maintainable before this court.
8. In addition thereto certain facts appeared from the perusal of the case file that initially the
appeal was filed before the Federal Shariat Court, but it was returned vide order dated 21st
November 2002 to the advocate for the State, to file the same before the proper Forum. In
compliance thereof the instant appeal was filed before High Court. In presence of these facts the
counsel for the respondents were not justified to raise objection on jurisdiction of this court, and
to question the maintainability of the instant appeal . Therefore no further findings arc required in
the matter to this extent.
9. The rejection of the instant appeal was also sought contending that it was filed by an
unauthorized person. It was objected that as no notification about the appointment of Pub lic
Prosecutor was filed with the memo of appeal; therefore, the Assistant Advocate General was not
competent to file instant appeal under his signature. The reply of learned State Counsel was only
to the effect that the Assistant Advocate General was empo wered to file the appeal.
10. Sections 492 and 493, Cr.P.C describes the power of the Provincial Government for
appointment of Public Prosecutor for purpose of proceeding with the cases. The matter in hand is
an appeal in case of acquittal filed under th e provisions of section 7 of the Suppression of
Terrorist Activities Act, 1975, whereby an order dated 20th June 2001 had been challenged.
Therefore, the appeal was required to be filed under section 25 of the Anti -Terrorism Act, 1997,
which was in the fil ed. Section 18 of the Anti -Terrorism Act, 1997 describes the Public
Prosecutor for proceeding with the cases before Anti Terrorism Court, High Court, or Supreme
Court. Subsection (2) of the Section describes the Public Prosecutor so appointed to be the sam e
as the Public Prosecutor appointed under section 492, Cr.P.C. Section 25 sub -section (4)
empowers the Advocate General to file an appeal against an order of acquittal, within a period of
thirty days but subject to appointment as Public Prosecutor. In cas e in hand the appeal was filed
under the signature of the Assistant Advocate General, included within the ambit of Advocate
General. Though there was negligence on the part of the office of the Advocate General by not
placing on record the order to the eff ect with the memo of appeal, but, the appeal in hand cannot
be dismissed on this ground alone. The appeal remained pending for a considerable time, and at
the relevant time the Advocate General, Assistant Advocate General were conducting cases on
behalf of the State before this Court. Therefore, it can safely be presumed that he was duly
empowered. Therefore. the objection is over ruled.
11. The second objection on maintainability of the instant appeal pertains to filing, of the
appeal beyond the provide d period. The instant appeal was filed against an order of acquittal
made on 20th June, 2001. Section 25 Anti -Terrorism Act, 1997 describes the time, and the
procedure for filing of an appeal in case of an acquittal. Thirty days' time is provided in
subsec tion (4) of the Section for filing, an appeal against an order of acquittal. In the case in hand
the judgment dated 20th June, 2001 was assailed, but the appeal was filed on 19th December,
2002. i.e. after a lapse of more then one year. However, as mention ed hereinabove initially an
appeal against the impugned judgment was filed before the Federal Shariat Court, which was
numbered as Criminal Appeal No.55/Q of 2001, and it remained pending, and it was returned to
the appellant vide order dated 21st November , 2002. Consequent thereupon, the instant appeal
was filed on 19th December, 2002 before this Court. The time is to be counted from the date of
the judgment, but before approaching this court the forum of Shariat Court was moved, and upon
the appeal's retu rn the instant appeal was filed, which was within the stipulated thirty (30) days.
Moreover, the appeal was admitted for regular hearing vide order dated 12th June, 2003 without
any objection as to limitation, and has remained pending for a long period the refore, it needs
decision on merits. Under the circumstances, the objection pertaining to the appeal being time
barred is hereby overruled.
12. We now revert to the merits of the case. The involvement of the respondent in
commission of the offences had t o be evaluated keeping in view the material on record the
perusal of the record reveals that the respondent/ accused was specifically nominated in the
F.I.R. No.196 of 1998, lodged at Police Station Civil Lines, Quetta, as is apparent from its
contents. Th e charge framed against the accused was for the offence of Harabah punishable
under section 17(3) of the Offences Against Property (Enforcement of Hadood) Ordinance, 1979.
The case as made out by the prosecution, not only named the present respondent but a lso named
several other persons being involved in the commission of the offence, with further specification
of their respective roles. The prosecution further asserted apprehending three of the named
persons from the site soon after commission of the offen ce. These three persons namely Tanveer
Ahmed, Ali Ahmed, and Rehmatullah along with co -accused Bashir Ahmed were tried, and
convicted for the offence punishable under section 149, P.P.C. vide judgment dated 15th August,
2000 of Sessions Judge (Adhoc), Quet ta. The present respondent was initially declared
absconder, on his arrest the case was challaned to his extent, but, he was acquitted. The fact that
the findings were not recorded on merits in case of the respondent on the completion of the trial,
is an a dmitted feature of the case. Rather, a premature acquittal was recorded in his favour by
accepting the application submitted within the provisions of section 265 -K, Cr.P.C.
13. The said application was filed with the contention that the identification of the
accused/present respondent was doubtful, but this doubt could only be removed by holding of
identification parade after arrest of the respondent. However, no identification parade was held.
It was further asserted that two of the prosecution witnesses namely P.W.2 Nisar Kazim Kazmi
P.W.15 Abdul Majeed though described as eye witnesses, but they were declared hostile, and the
remaining independent witnesses failed to connect him (the respondent) with the commission of
the offence. Furthermore, the state ments of P.W.9 & P.W.10 under section 161, Cr.P.C. were
recorded with a delay of two years, without any explanation, therefore, their courts' statements
were stated to be worthless, and liable to be discarded. The acquittal was also claimed on the
ground t hat the persons from whom arms and ammunition were snatched, when appeared before
the court were unable to identify him (the present respondent) as being the real culprit, as the
persons had their faces covered, therefore, they could not be identified. It was contended that
since the nominated persons had already been exonerated by the witnesses and only formal
witnesses remained to be produced, therefore, there remained no possibility of a conviction of
the respondent in the instant case, and his acquittal was prayed.
14. The perusal of the case file reveals that one of the co -accused namely Aminullah Khan
was also acquitted of the charge through order dated 23rd April, 2001, by the trial court, while
accepting an application of same nature filed by said accused person. However, the case of the
respondent. and that of co -accused Aminullah were distinct, and have to dealt independently.
15. The trial court while deciding the fate of the application filed under section 265 -K,
Cr.P.C. held that only P.W.2 & P.W.3 tried to implicate the accused (respondent) in the
commission of the alleged offence. Further, the statements of P.W.9 & P.W.10 were of no
importance, as they were neither examined by the prosecution during trial before the court of
Sessions Judge ( Adhoc). Quetta, nor their statements were recorded under section 161, Cr.P.C. in
time. It was further held that the respondent was not properly identified at the site, as the
prosecution witnesses described either it to be dark at the site at the relevant time, or the culprits
were with muffled faces. Further, the delay in recording of the statements of P.W.9 & P.W.10
within the meaning of section 161, Cr.P.C. was not explained. The trial court also noted several
contradictions and improvements in the state ments of the witnesses, thereby concluded that the
majority of the eye witnesses failed to implicate the accused in the commission of the offence.
Therefore, in the absence of direct evidence to the effect that either he respondent/ accused)
himself, or on his command any of his companions snatched official weapons from the police
personnel, the case of the prosecution remained unproved. The trial court concluded that as the
co-accused Tanveer Ahmed, Bashir Ahmed, Ali Ahmed and Rehmatullah, though arrested from
the site, and faced trial, but were acquitted by the Sessions Judge (Adhoc), Quetta therefore, in
similar situation, and on same set of evidence the accused/respondent also deserves for the same
treatment. Consequent thereof the trial court recorded a cquittal in favour of the
respondent/accused.
16. The trial court exercised powers under section 265 -K, Cr.P.C. and passed the impugned
order. Therefore. the reproduction of the said Section will be beneficial:
"265 -K. Power of Court to acquit accused at any stage. --Nothing in this Chapter shall be
deemed to prevent a Court from acquitting an accused at any stage of the case; if after hearing
the prosecutor and the accused and for reasons to be recorded, it considers that there is no
probability of the accused being convicted of any offence."
17. From a perusal of the Section it is clear that a court is empowered to pass an order of
acquittal in favour of an accused person without waiting for finalization of any proceedings, as it
uses the words at an y stage of the case. However, there are few pre -requisites before exercise of
such powers. Firstly hearing the prosecutor and the accused person, secondly the decision arrived
at must be with reasons, and thirdly there is no probability of the accused bein g convicted of any
offence. Though a discretion is surely available with a court before whom the case is pending for
adjudication, but, this discretion is to be exercised with due care, and caution, and within the
parameters provided in the said section. F urther, the existence of a right in favour of an accused
person, must not result in deprivation of the prosecution, from having an opportunity to produce
evidence to establish its case. Therefore, in such cases the determining factor will be the non -
existe nce of any probability that an accused can be convicted of any offence. In addition thereto
this exercise of discretion under the Section must based on reasons, which are to be recorded by
the court on the basis of the material available on the record. The case in hand is to be assessed,
and legality or illegality of the impugned order is to be determined, on the basis of these
parameters.
18. Before evaluating the material on record it will be beneficial to take guidance from
verdict of the Honorable Supreme Court with reference to premature acquittal in case titled as
The State v. Raja Abdul Rehman reported in 2005 SCMR 1544. it was held by their lordships
that:
"there can be no dispute that an application under section 249 -A Cr.P.C. can be filed,
taken up for hearing and decided at any time or stage of the proceedings and the words "at any
stage" denote that the application under section 249 -A, Cr.P.C. can be filed even before
prosecution evidence had been recorded or while the exercise of recordin g of evidence is going
or when the exercise is over. 1t is, however, to be noted that though there is no bar for an
accused person to file application under section 249 -A, Cr.P.C. at any stage of the proceedings of
the case yet the facts and circumstances of the prosecution case will have to be kept in mind and
considered in deciding the viability or feasibility of filing an application at any particular stage.
The special or peculiar facts and circumstances of a prosecution case may not warrant filing of
an application at a stage when the entire prosecution evidence had been recorded and the case
was fixed for recording of statement of the accused under section 342, Cr.P.C. This Court in the
cases of Bashir Ahmad v. Zafar ul Islam PLD 2004 SC 298 and Muhamm ad Sharif v. The State
and another PLD 1999 SC 1063 (supra) did not approve decision of criminal cases on an
application under section 249 -A, Cr.P.C. or such allied or similar provisions of law, namely,
section 265 -K, Cr.P.C. and observed that usually a cr iminal case should be allotted to be
disposed of on merits after recording of the prosecution evidence, statement of the accused under
section 342, Cr.P.C., recording of statement of accused under section 340(2), Cr.P.C. if so
desired by the accused person s and hearing the arguments of the counsel of the parties and that
the provisions of section 249 -4, section 265 -K and section 561 -A of the Cr.P.C. should not
normally be pressed into action for decision of fate of a criminal case."
A complete guideline is provided by their lordships for exercise of powers under sections
249-A, 265 -K and 561 -A, Cr P.C. In view of the same a decision of acquittal is to be made in
rare cases under the mentioned sections, instead making decision on merits is to be preferred.
The learned judges further held:
"18. It will not be out of place to mention that in appeal or revisional proceedings, the
order of acquittal of the accused under section 249 -A or section 265 -K of the Cr.P.C. would not
have the same sanctity as orders of acquittal on merits. Consequently, the principles which are to
be observed and applied in setting aside concurrent findings of acquitted or the principle relating
to the presumption of double innocence when an accused is acquitted after a full fledged i nquiry
and trial to acquittals under section 249 -A, Cr.P.C. would not be applicable."
In case titled as The State v. Azam Malik reported in PLD 2005 SC 686, it was held by
the honorable Supreme Court that:
"There were serious allegations that there w as tampering/ overwriting/cutting of the
relevant register of bills of entry, the matter was inquired into at the departmental level and the
allegations were found to be correct. Ex facie there was documentary, oral and circumstantial
evidence to prove the charges. In the face of this material the Trial Court could not have invoked
section 265 -K, Cr.P.C. and acquit the respondents."
Keeping in view the guidelines as provided, the effect of the order of acquittal made
under the provisions of section 265 -K, Cr.P.C, the material on record, and the reasons assigned
for acquittal are to be seen, and findings are to be recorded.
19. In the instant case eighteen witnesses appeared and got recorded their statements as
prosecution witnesses (P.Ws.). Out of them P.W.2 to P.W.16 were described as eye -witnesses of
the occasion. The perusal of their statements revealed that while appearing before the court all of
them affirmed occurrence of the incident. But, except P.W.2, P.W.3, P.W.9 and P.W.10 the
remaining witnes ses refused to identify the accused/respondent before the court, and doubted
about his (accused/ respondent's) presence at the site. Some of these witnesses described the
reason for not identifying the present respondent at the site, as the culprits were e ither veiled, or
it was dark at the relevant time being night hours. But as far as prosecution witnesses Nos.1, 3, 9
and 10 were concerned they not only asserted presence of the respondent/ accused at the site at
relevant time, but, with an assertion to id entify him at the site. They (witnesses) also identified
him before the court. Further, these witnesses specifically deposed about involvement of the
respondent/accused in the commission of the offence, with further assertion that the series of the
acts we re committed on the instigation, and supervision of the respondent/ accused by the co -
accused persons being his accomplices. In addition thereto P.W.13 Tasleem Hassan ASI and
P.W.16 Shabban Ali IP though not identified the respondent/accused in the court, but, presence
of the respondent/accused at the site was asserted. Further, both the witnesses described co -
accused as men of Wadood Raisani, the present respondent. The statement of these fifteen
witnesses cannot be brushed aside. Further, in addition to t he direct evidence in shape of eye -
witnesses, circumstantial evidence was also available on record. Because none of the prosecution
witnesses denied occurrence of the incident. Even this occurrence was not denied, nor the
presence of the witnesses at the s ite at the relevant time was disputed in defence. Therefore, the
depositions made by the witnesses, with identification of the accused persons at site, and in the
court cannot be overlooked.
20. Furthermore, the trial court while assessing the material b efore it discarded the evidence
of P.W.9 Kaleem Imam, and P.W.10 Tanveer Qureshi, both of them described as eye -witnesses,
only on the ground that their statements under section 161, Cr.P.C. were recorded by the police
with a delay of more then two (02) ye ars. The delay in recording of statements cannot become
the sole ground for rejecting evidence of two eye -witnesses, as no time limit is provided in
section 161, Cr.P.C. Rather this Section only mentions about the examination of any person
during the cours e of investigation, who is supposed to be acquainted with the facts, by a police
officer while investigating the matter. Therefore, the delay in recording of the statement of a
prosecution witness under this section by itself is not a sufficient ground to make the evidence,
so collected out of consideration. Rather, it will be the accompanying circumstances, which may
provide a ground for non -acceptance of such statement in evidence, if the delay so occurred is
based on mala fides to fill up the lacuna or t here was an effort to falsely implicate a person in the
commission of the offence, not nominated in initial report, which can effect admissibility of the
evidence, create suspicion in credibility of the witness, and diminish its evidentiary value. The
delay in recording of statements of witnesses, under section 161, Cr.P.C, is not fatal in each case,
rather the facts, and circumstances are to be considered in each case. In the facts, and
circumstances of the instant case the trial court was not justified in not believing the statements
of P.W.9 and P.W.10 only on the ground of delay in recording of their statements under section
161, Cr.P.C. because, from the material on record, their presence at the site, and their
participation in the operation carried out by the Police Authorities was not a disputed fact.
21 . But, this was not the case with the prosecution witness No.2 (P.W.2) Nisar Kazim Kazmi
and P.W.3 Ahmed Bakhsh, because their statements under section 161, Cr.P.C. were recorded
without any delay. B oth the witnesses not only fully, implicated the respondent/accused in the
commission of the offence, and stated that he was the main culprit, but, they also identified him
specifically. Despite their specific statements, the trial court failed to consider their testimony
and did not distinguish them from P.W.9 and P.W.10. The same was the case with the remaining
witnesses too. As mentioned hereinabove the presence of these witnesses at the site was denied.
Therefore, the evidentiary value of the statements of these witnesses were to be considered,
while arriving at a decision. Unfortunately the trial court simply disbelieved their statements in
contravention of law, and justice.
22. From the perusal of the record it was further observed that there were co nstant requests
for declaring the remaining witnesses as hostile, during process of recording of their statements
before the trial court. But, on most of the occasions the request so made was turned down by the
trial court, with the reason that no previous statements of these witnesses were recorded during
the course of investigation. The trial court seemed to be under some misconception. Article 150
of the Qanun -c-Shahadat Order, 1984, allow a party to put questions to his own witnesses, which
might be put in cross -examination by the adverse party. However, there is no requirement that
existence of a previously recorded statement is mandatory. Rather, the only determinative factor
is that the evidence given by the witness is unfavourable to the party callin g him, or it is contrary
to the evidence which is expected from such witness. The trial court failed to consider the same
before declining the request made by the counsel for the State, thereby committed an error. The
trial court further failed to realize the legal proposition that declaring a witness as hostile does
not mean that reliance cannot he placed on his evidence. Therefore, merely because a witness has
been declared as hostile, his evidence cannot be brushed aside. Rather its evidentiary value is to
be assessed as per relevant provisions of law. However, there was a complete failure on the part
of the trial court in the observance of this legal formality, which resulted in an erroneous
decision.
23. From the material on record it is evident that nearly all of the prosecution witnesses cited
in the calendar of witnesses appeared before the court, and there was sufficient material before
the court on basis of which there was a probability that the accused person/the respondent may
have been convicte d for the offence alleged against him. Therefore, his premature acquittal was
not justified in the circumstances. Further, though the trial court discussed the evidence at length
but it failed to record findings in respect of the charge against the accused person/respondent. It
seems that the trial court. while deciding applications of the same nature moved in connected
cases, discussed the material in context to the said eases, but the instant case pertaining to the
offence under section 17(3) Offences Aga inst Property (Enforcement of Hadood) Ordinance,
1979, was very briefly discussed, and acquitted the accused/ respondent, which was not proper.
The trial court should have distinctly deal with the instant case, and decide it.
24. In view of above mention ed facts, the presence of sufficient evidence, coupled with the
fact that the proceedings were at final stages, the trial court should not have acquitted the
accused/respondent while exercising powers under section 265 -K, Cr.P.C, and instead should
have co ncluded the proceedings, and after examining the accused, and recording, evidence in
defence, made a decision on merits of the case. The Honorable Supreme in the Court in the case
of State v. Raja Abdul Rehman (supra) held "that same sanctity cannot be acc orded to the
acquittal at intermediary stages, such as under section 249 -A or 265 -K, Cr.P.C, as available for
those recorded and based on full fledged evidence". The premature acquittal of the respondent
accused therefore, does not create the double presum ption of innocence in his favour, which
needs consideration while dealing with an acquittal secured after a judgment on merits, and not
one based on an acquittal at intermediary stage under section 265 -K, Cr.P.C.
25. In view of the above discussion, the trial court was not justified in accepting the
application under section 265 -K, Cr.P.C. and recording premature acquittal in favour of the
respondent. Resultantly the impugned order is not sustainable. The impugned orde r dated 20th
June, 2001 of Sessions Judge/Special Judge, STA, Quetta is hereby set aside. The case is deemed
to be pending before the trial court which is directed to proceed with the matter strictly in
accordance with law. Since this is an old matter, the refore, the trial court is directed to proceed,
expeditiously and complete the proceedings preferably within a period of three months from the
date of receipt of this order.
The appeal is partly allowed in above terms.
MH/15/Bal. Case remanded.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.