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Criminal Acquittal Appeal No.8 of 1982, decided on 27th November, 1985.
‑‑‑Ss. 265‑K & 417‑‑Expression "at any stage of case" employed in S. 265‑K, Criminal Procedure Code, held, was susceptible to a very wide connotation‑‑Expression would include even a stage prior to framing of charge or recording of any evidence.‑‑[Interpretation of statutes].
Tariq Mehmood v. The State and another P L D 1962 W.P. Lab. 939; Jabed Ali v. Joynal Mridha and 2 others P, L D 1968 Dacca 698; S. Zahoor Ahmed and another v. The Chartered Bank Limited, Karachi and another P L D 1970 Kar. 779 and Syed Mushtaq Hussain Shah Bokhari v. The State and another P L D 1981 S C 573 rel.
‑‑‑S. 265‑K‑‑Order of acquittal‑‑Evidence‑‑Recording of evidence before passing order of acquittal under S.265‑K, Cr.P.C., held, although not requirement of law, yet S.265‑K, Cr.P.C. could not 6e pressed into service to stifle or to throttle prosecution.
‑‑‑S. 265‑K‑‑Acquittal‑‑Parties to litigation, held, should be given fair opportunity to place their respective cases Both state or private complainant as well as accused were entitled to have a fair opportunity and not only accused‑‑Court, was bound to record reasons for concluding that there was no probability of accused being convicted of any offence‑ Such conclusion should be based not on fanciful or imaginary reasons but should be founded on basis of material available on record.
‑‑‑S. 265‑K‑‑Acquittal‑‑Powers under S.265‑K, Criminal Procedure Code, held, were not intended to be exercised arbitrarily and capriciously without providing an opportunity to State or to complainant to produce prosecution witnesses.
Mst. Shedan and others v. The State P L D 1983 Lab. 71; Ghazi Sultan and others v. Abdul Satter 1984 P Cr. L J Lab. 2350; the State v. Ashiq Muhammad and others, P L D 1985 Lab. 634 and Malik Muhammad Ibrahim v The State and 4 others 1985 P Cr. L J Kar. 929 rel.
‑‑‑S. 265‑K‑‑Appreciation of evidence‑‑Witness, a police officer‑‑A police officer held, was as good a witness as any other private person provided his statement inspired confidence and contained truth.‑‑[Witness].
Muhammad Khurshid v. The State P L D 1960 W.P. Lah. 1202 and Qasim and others v. The State P L D 1967 Kar. 233 rel.
‑‑‑Ss. 164(1‑A) & 265‑K‑‑Acquittal‑‑Evidence‑‑Accused, held was entitled to a notice and an opportunity to cross‑examine witnesses if statement under S.164 Cr.P.C. was to be treated as substantive piece of evidence.
Muhammad Shafique v. The State P L D 1977 S C (AJ&K) 1; Muhammad Ismail v. The State 1985 P Cr. L J 713; Ghulam Muhammad v The State 1985 P Cr. L J 829 and Abdul Hakeem and another v . The State P L D 1982 Kar. 975 ref
‑‑‑Ss. 164 & 265‑K‑‑Acquittal‑‑Evidence‑‑For purpose of ascertaining question whether there was any material against accused for deciding application under S.265‑K, Criminal Procedure Code, statements of witnesses in terms of section 164, Criminal Procedure Code, held, could be looked into and be treated at par with police statement under S.161, Criminal Procedure Code.
Maula Bakhsh and 8 others v. The State and 2 others, 1977 SCMR 292 rel.
-------Ss. 164, 265‑K & 417‑‑Acquittal‑‑Evidence‑‑Question whether statements of witnesses would be admissible under S.265‑K, Criminal Procedure Code, or whether their statements if made before trial Court should be relied upon, held, was an issue for decision before trial Court.
Mauls Bakhsh and 8 others v. The State and 2 others 1977 SCMR 292 rel.
Din Muhammad v. Muhammad Sharif and another 1979 PCr.LJ 59 and Ghulam Habib v. The State 1980 P Cr. L J Kar. 754 ref.
‑‑‑Ss. 265‑K & 417‑‑Appeal against acquittal‑‑Evidence‑‑Trial Court acquitting accused under S.265‑K, Criminal Procedure Code, without framing charge, without taking into consideration material on record and without providing an opportunity to prosecution to produce evidence, particularly, when there was no delay on part of prosecution and hardy eight months had expired from first date of appearance‑‑Acquittal set aside and case remanded to trial Court for retrial.
‑‑‑S. 265‑K‑‑Acquittal‑‑Trial Judge, using word 'discharge' while acquitting accused under S.265‑K, Criminal Procedure Code, held, there could not be any discharge under S.265‑K, Criminal Procedure Code, but it could only be an acquittal, yet employing of wrong word, held, would not render order of trial Judge Illegal if otherwise it was valid.
‑‑‑S. 265‑K‑‑Appeal against acquittal‑‑Co‑accused not impleaded as respondent in appeal against acquittal due to oversight and because fact that in certified copy of order in title, his name was not mentioned‑ ‑Co‑accused having not been made a party, his retrial, held, could trot be ordered.
Ch. Muhammad Yousuf A.A.‑G for the State.
Messrs Yahya Bakhtiar and S.A.M. Qadri for Respondents.
Date of hearing: 24th, 25th and 27th November, 1985
This acquittal appeal is directed against an order dated 19th April, 1982 passed by Mr. Hamza A. Rajban, the then acting Sessions Judge, Sibi Division, Camp at Jhatpat in Sessions Case No.101 of 1981 discharging the above five respondents and one Abdul Hameed son of Abdul Majeed under section 265‑K, Cr.P.C. The brief facts leading to the filing the above appeal are that Faiz Muhammad Tareen, Sub‑Inspector Police Station Sohbatpur received information that proclaimed offenders Master Abdul Haq, Qadir Bakhsh alias Kadoo, Wahid Bakhsh alias Wado son of Saadullah Khan, Muhammad Usman Umrani, Shaban Mangi and Abdul Hameed Bangulani (hereinafter referred to as the 'outlaws') were hiding in the house of Master Abdul Haq in village Zulfiqar Ali close to Bajang. Upon receipt of the above secret information, the complainant in company of the Superintendent of Police, D.S.P., Inspector, Ali Muhammad, Sub Inspector and other Police personal proceeded on 8th February, 1981 at about 16‑15 a.m and reached the house of Master Abdul Haq in Ghot Zulfiqar Ali. They encircled the above house from three sides. At about 6‑30 a.m. firing started at the police party from a 'Jhugi' adjacent to the house of Master Abdul Haq. In return, the police party also started firing which continued till 11‑00 a.m. On account of the above firing by the outlaws, Head Constable Muhammad Jafar sustained injuries. After that, the outlaws started running towards the Jungle. In the meantime, the above police party sent wireless message to the Head quarters, in response to which, Sub Inspector Khushdil Khan alongwith a police party proceeded towards the place of incident. Their convoy was ambushed by the outlaws resulting into the death of four police personnel and injuring five, namely. Rehmatullah, Head Constable, Ghulam Sarwar, Constable, Abdul Raheem, Constable and Dilawar Khan, Constable were killed, whereas, Aurangzeb, Ghulam Hussain, Jaffar lqbal, Ghulam Bari and Wakeel Ahmed, all Constables were injured. The outlaws succeeded in escaping in spite of the pursuit by the police party. Thereupon, F.I.R. No.3 of 1981 was lodged at 1‑30 p.m. on the same day against the outlaws under section 302/307/3531332/333/148/149, P.P.C. It may be stated that section 216/109, P.P.C. read with M.L.O. 77 and 9/36 M . L. Rs. were added to in the challan referred to hereinbelow. It was alleged that while retreating, the outlaws left behind a Jeep belong to the present respondent No. 3 and a Motor Cycle, of which, the ownership was not established. After necessary investigation, an incomplete challan was submitted on 9th May, 1981 in the Court of learned Sessions Judge, Sibi Division, Sibi against the outlaws as well as against the respondent Nos.l to 4 and one Abdul Hameed son of Abdul Majeed Khoso, in which, 34 witnesses were cited. After that, supplementary challan was submitted on 11th July, 1981 also implicating the present respondent No.5. The learned Sessions Judge first time on 21st June, 1981 issued the process against the accused for 9th July, 1981. However, before any charge could be framed, the respondents filed applications on 14th March, 1982 under section 265‑K, Cr.P.C. i.e. the respondent No.1 filed a separate application, whereas, the remaining respondents filed joint application through their Advocate. The learned Sessions Judge by his above order dated 19th April, 1982 purported to discharge the respondents and also discharged them from their bail bonds under section 265‑K, Cr.P.C. The appellant being aggrieved by the above order has filed the present acquittal appeal.
2. In support of the above appeal, Mr. Muhammad Yousuf Ch. learned Assistant Advocate General has contended as follows:‑
(i) That the learned Sessions Judge was not justified in pressing into service the provisions of section 265‑h, Cr.P.C. even before framing of the charge and before even recording of any evidence;
(ii) That there was ample material on record which, prima‑facie, made out a case against the respondents, which has not even been touched upon by the learned Sessions Judge.
On the other hand, Mr. Yahya Bakhtiar assisted by Mr. S.A.M. Qadri, Advocate has contended as under:‑
(i) That under section 265‑K, Cr.P.C., the learned trial Court at any stage of the case could pass an order of acquittal;
(ii) That though the learned trial Court has not dilated on the material available on record, this Court can examine the same, in order to ascertain whether the order under appeal was justified; and
(iii) That the material available on record was not reliable at all, in as much as, the statements of the police officials were hearsay whereas, the statements of the other witnesses under section 164, Cr.P.C. were liable to be rejected as the accused were not given the opportunity to cross‑examine them.
3. Before taking up the above contentions of the learned counsel for the parties, it may be pertinent to reproduce the diary sheet of the learned trial Court from the first date till the date of passing of the order under appeal, which reads as follows:‑
14‑6‑1481
The case is opened today. Issue notice to accused who are on bail. Issue N.B.Ws against absconders to come up 9‑7‑1981.
Sd/‑Sessions Judge, Sibi.
21‑6‑1981
Accused Zahoor Hussain, Abdul Hameed and Zulfiqar Ali appear today. D.A. is present. Copies of Police statement supplied to him and such receipt is obtained. Put up 9‑7‑1981. Issue N.B.Ws against absconders. Intimate Mir Nabi Bux Khan Khoso and Manzoor Hussain.
Sd/‑Sessions Judge, Sibi.
9‑7‑1981
All the five accused s who are on bail appeared. P.P. and D.A. present. D.A. informed that accused Shaban has been arrested and he is presently confined in Sukkur. He also states that accused Muhammad Ashfaq has also surrendered before Police. Repeat N.B.Ws of remaining absconders. Those present directed to attend. Hearing 20‑8‑1981.
Sd/‑Sessions Judge, Sibi.
20‑8‑1981
All the five accused present on bail. P.P. and D.A. present. Accused Ashfaq also present on bail. Repeat same process. P.O. is called by the Chief Justice Baluchistan High Court. Put off to 20‑9‑1981, at Jhatpat. Accused directed to attend.
Sd/‑Stenographer
Sessions Judge, Sibi.
17‑9‑1981
Application to condone the absence of Nabi Bux Khan Khoso on 20‑9‑1981 submitted by his council. And accused Mir Nabi Bux is also present in person. For the reason given in application the absence of Mir Nabi Bux Khan 20‑9‑1981 is condoned.
Sd/‑Sessions Judge, Sibi.
20‑9‑1981
Accused Nabi Bux is absent. His absence was condoned on 17‑9‑1981. The rest of the five accused are present on bail.
P.P. and D.A. present. Put off to 24‑10‑1981 at Jhatpat. Those present are directed to attend. D.A. to inform date to Mir Nabi Bux P.W. of accused Shaban to Supdt: District Jail, Sukkur. Issue N.B.Ws of absconders and call process server.
Sd/‑Sessions Judge, Sibi.
24‑10‑1981
All the accused present on bail as before. Accused Shaban not produced. Accused Usman is stated to be dead. Repeat N.B.Ws against absconders. Call process server. Hearing 22‑11‑1981. Those present directed to attend.
Sd/‑Sessions Judge, Sibi
22‑11‑1981
Accused present on bail as before. Accused Shaban is said to be in custody. He has not been produced today. Issue P.Ws. to him. Repeated N.B.Ws of absconders and call process server. Hearing 14‑12‑1981 at Jhatpat. Those present directed to attend.
Sd/‑Sessions Judge, Sibi.
9‑12‑1981
Mr. Mangi Advocate submitted an application for production of accused Shaban for seeking instructions and signature on Wakalat Nama. Issue P.W. of him for 14‑12‑1981.
Sd/‑Sessions Judge, Sibi.
14‑12‑1981
Accused Abdul Hameed, Zahoor Hussain, Manzoor Khan, Zulfiqar Ali, Ashfaq Hussain present on bail. Accused Nabi Bux Khan is absent. His counsel submits application for condonation of his absence on account of illness. P. P. is absent. P.O. is transferred. Put off to 14‑1‑1982 at Jhatpat. Accused directed to attend.
Sd/‑Stenographer Sessions Judge, Sibi.
14‑1‑1981
Accused present except Mir Nabi Bux Khan and Zahoor Hussain who reported to be sick. A.P.P./1 present. Call the process server for absconders on 11‑2-1982 at Jhatpat.
Sd/‑Sessions Judge, Sibi.
11‑2‑1982
Accused Zahoor Hussain, Nabi Bux, Abdul Hameed, Manzoor, Zulfiqar and Ashfaq are present on bail. Rest are absconders. Issue N.B. Ws for the rest accused. In case of no service on the accused process server be called for 14‑3‑1982. Also issue P‑W for Shaban accused who is stated to be in Sibi Jail.
Sd/‑Sessions Judge, Sibi.
14-3-1982
Zanoor, Nabi Bux, Manzoor, Zulfiqar, Ashfaq accused present. Abdul Hameed is stated to be sick. Muhammad Shaban accused is stated to have been arrested is in Sibi Jail issue P.W. for him. Other absconders shall be proceeded under section 512 Cr.P.C. An application under section 265, Cr.P.C. is submitted on behalf of Mir Nabi Bux. To come up on 15‑4‑1982 at J/Pat for arguments on this application will also be made.
Sd/‑Sessions Judge, Sibi.
15‑4-1982
Accused present on bail. P.P./D.A. present. Application under section 265‑K, Cr.P.C. to come up on 19‑4‑1982 at Jhatpat.
Sd/‑Sessions Judge, Sibi.
19‑4-1982
Accused Mir Nabi Bux Khan, Manzoor, Zuhoor Hussain son of Abdul Majeed, Ashfaq present on bail. Zulfiqar is absent and application is submitted that he is in before ML authorities so he could not present himself. P.P./D. A. present. Application under section 265‑K, Cr.P.C submitted by the accused person is disposed of. Issue process for the absconders for 16‑5‑1982 at Jhatpat.
Sd/‑Sessions Judge, Sibi.
4. It may be noticed that the first date ,of hearing was 9th July, 1981 and hardly after expiry of about eight months, the respondents filed the above applications under section 265‑K, Cr.P.C. It may also be noticed that on none of the above quoted dates of hearing, there was any default on the part of the prosecution and the case was at the stage of effecting service of process on the remaining accused.
Adverting to learned Assistant Advocate General's contention that the learned Sessions Judge was not justified to pressing into service section 265‑K, Cr.P.C. even before framing of the charge and examining of the witnesses, it may be observed that prior to the enactment Of section 265‑K , Cr.P.C. , there was a provision in the form of section 253, Cr.P.C. , which was repealed upon the enactment of the above new provision by the Law Reforms Ordinance, 1972. It may be advantageous to reproduce hereinbelow the above repealed section 253 advance and section 265‑K, Cr.P.C., which read as follows:
Section‑253.
"(1) If, upon taking all the evidence referred to in section 252, and making such examination (if any) of the accused as the Magistrate thinks necessary, he finds that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him.
(2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at and previous stag" of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless."
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".
5. It may be stated that under sub‑section (1) of section 253, Magistrate was empowered after taking all the evidence referred to in section 252 to discharge the accused, if he was of the view that no case against the accused had been made out if the evidence would remain unrebutted, whereas, under sub‑section (2), the Magistrate was competent to pass a discharge order at any previous stage of the case i.e; before recording of all the evidence, if for the reasons which were to be recorded, he considered the charge to be groundless.
However under the above quoted section 265‑K, Cr.P.C. there is no reference to the recording of any evidence. Under this section, a Court has been empowered to acquit an accused at any stage of the case (i) after hearing the prosecutor and the accused and (ii) for the reasons to be recorded, it considers that there is no probability of the accused being convicted of any offence. The expression "at any stage of the case" employed in the above section, is susceptible to a very wide connotation. In our view, it will include even a stage prior to framing of charge or recording of any evidence.
Mr. Muhammad Yousuf Choudhary, learned Assistant Advocate General has referred to the following cases:‑
(i) Tariq Mehmood v. The State and another, reported in P L D 1962 W.P. Lah. 939, in which, a learned Single Judge of the erstwhile High Court of West Pakistan while construing section 253(2) Cr.P.C. held that the pre‑requisite to press into service the above provision was that the Magistrate should come to the conclusion that the charge was groundless and that the Magistrate should not hold the charge to be groundless without examining the witnesses, if, prima‑facie, the complaint disclosed an offence.
(ii) Jabed Ali v. Joynal Mridha and 2 others, reported in P L D 1968 Dacca 698. In the above case, a D.B. of the Dacca High Court while rejecting a reference made by the learned Sessions Judge for quashment of a private complaint, held that discharging of the accused without examination of the witnesses and without touching merits of the case, was without jurisdiction. It was further held that the second private complaint was competent on the same facts.
(iii) S. Zahoor Ahmed and another v., The Chartered Bank Limited, Karachi and another, reported in P L D 197Q Kar. 779, in which, a learned Single Judge of the erstwhile High Court of Sind and Baluchistan held that under section 253, Cr.P.C. a Magistrate has the power to discharge the accused without taking all the evidence that a complainant wishes to produce but he cannot cut‑short proceedings or stifle prosecution by refusing to summon any prosecution witness,
(iv) Syed Mushtaq Hussain Shah Bokhari v. The State and another, reported in P L D 1981 S C 573. in the above case, a criminal Complaint was lodged against certain police officials. An application was made under section 265‑K, Cr.P.C. for dismissal of the complaint on the ground that there was no sanction obtained under section 197, Cr.P.C. of the competent authority. The above application was dismissed by the learned Sessions Judge, against which, revision was dismissed by a learned Single judge of the Lahore High Court. The applicant had filed an appeal the Honourable Supreme Court, which was dismissed by the judgment. It was held that the prosecution should not be stifled at the outset for want of sanction to prosecute. It eras further held that the parties are to be allowed to produce their witnesses and if in course of proceedings case appears to be one which cannot be tried without sanction of appropriate Government, proceedings have to be stopped and reasonable time be given to complainant to file requisite sanction.
6. We are inclined to hold that though under the above quoted repealed section 253, there was requirement to record some evidence before discharging an accused on the ground that the charge was groundless, but under the above new enacted section 265‑K, Cr.P.C. B there is no requirement to record any evidence before passing an order of acquittal, but the above section 265‑K, Cr.P.C. cannot be pressed into service to stifle or to throttle the prosecution. it is cardinal principle of jurisprudence that the parties to a litigation should be given fair opportunity to place their respective cases. In a criminal proceeding, either the State or a private complaint is a party on one C hand, and an accused on the other hand. Both are entitled to have fair opportunity and not only an accused. Furthermore, the court is bound to record reasons for concluding that there is no probability of the accused being convicted of any offence. The above conclusion should be based not on fanciful or imaginary reasons, but should be founded on the basis of the material available on record. In the present case, the learned trial Court has not even touched upon as to the mater which was available on record. It has in one stroke brushed aside the material without even referring to it, by observing that "I do not find any evidence in the file against the applicants at this stage". The E power under section 265‑K, Cr.P.C. was not intended to by exercised arbitrarily and capriciously in the manner in which, the learned trial Court in the instant case, has exercised. We will dilate on the material on record hereinbelow. In this regard, reference may also be made to the following cases:‑
(i) Mst. Shedan and others v. The State P L_ D 1983 Lah. 71, in which, a learned Single Judge of the Lahore High Court dismissed a revision filed by the applicants who were acquitted under section 265‑K, Cr.P.C. by the trial Court on the ground that their names were put in column‑2 of the challan, which order was set‑aside by the Lahore High Court in exercise of suo‑moto revisional powers. A learned single Judge of the Lahore High Court while dismissing the revision observed that the order under section 265‑K passed by the trial Court on the ground that their names were put in column 2 of the challan, was based on tqia1 mis‑appreciation of law and contrary to law and perverse.
(ii) Ghazi Sultan and others v. Abdul Sattar reported in 1984 P Cr. L J Lah. 2350. In the above case, the petitioners were charged under sections 10, 11 and 16 of the Zina (Enforcement of Hudood) Ordinance. The abductee in her statement under section 169. Cr.P.C. exonerated the above petitioners. The petitioner/accused, filed an application under section 265‑K, Cr.P.C. before the 'learned Additional Sessions Judge, Lahore, which as dismissed; on the ground that the complainant's witnesses were not by then examined. The above order was maintained by a learned Single Judge of the Lahore High Court.
(iii) The State v. Ashiq Muhammad and others, reported in P L D 1985 Lah. 634, in which, a learned Single Judge in exercise of suo‑moto revisional power set aside the order of the trial Court passed under section 265‑K, Cr.P.C. acquitting the accused without recording the statement of any eye‑witness, recovery witnesses and of doctor regarding post‑mortem.
(iv) Malik Muhammad Ibrahim v. the State and 4 others, reported in 1985 P Cr. L J Kar. 929. In the above case, the trial Magistrate after issuance of process, without making any further progress, allowed the accused's application under section 249‑A, Cr.P.C. which corresponds to section 265‑K, Cr.P.C. It may be observed that the former relates to Magistrates, whereas, the latter relates to other Courts. The complainant filed a criminal appeal with the permission of the High Court, which was allowed by a D.B. of the Sind High Court, of which, one of us (Mr. Justice Ajmal Mian, Actg. C.J.) was a party. It may be advantageous to reproduce hereinbelow, para. 4, thereof, which reads as follows:‑
Adverting to the first contention of the learned counsel for the parties, it may be observed that section 249‑A, Cr.P.C. provides that a Magistrate at any stage of the case if after hearing the prosecutor and the accused and for the reasons to be recorded considers the charge as groundless or that he feels that there is no probability of accused being convicted of any offence may record acquittal notwithstanding anything contained in Chapter 20 of the Criminal Procedure Code. It is true that a trial Court has the power to pass an order under section 249‑A, Cr.P.C. at any stage including at the initial stage if it finds that the process which he had issued should not have been issued. In the present case the complainant disclosed prima facie a criminal case and the learned Magistrate after holding preliminary enquiry issued process. No further evidence was recorded for the reason that two of the accused were not served with the process. There was no default on the part of appellant in producing the witnesses or there was factually no allegation against the appellant that he was delaying the trial. In the background of the above facts, in our view the learned trial Court was not justified in passing an order under section 249‑A, Cr.P.C.".
7. The above referred judgments indicate that the Courts have dis‑approved the practice of invoking section 265‑K,. Cr.P.C. arbitrarily and capriciously without providing an opportunity to the State or to the complainant party to produce the prosecution witnesses.
As regards the material on record against the present respondents, it may be observed that there are police statements under section 161 Cr.P.C. of some police officials and 164 Cr.P.C. statements of some witnesses. In the above first category, we have the statements of Muhammad Sadiq Abbasi, Inspector C.I.A., who was posted in 1977 in District Naseerabad (Annexure 'C‑1' to the appeal), Muhammad Akram, S.I./Additional S.H.O. Police Station, Jhatpat (Annexure 'C‑2' to the appeal). Mujahid Hussain, A.S.I. Police Station, Sohbarpur (Annexure 'C‑3' to the appeal), Raja Shabir Ahmed, S.1. Reader Branch, S. Office, Naseerabad (Annexure 'C‑5' to the appeal), Abdul Karim, S.I, Special Branch, Usta Muhammad, Naseerabad (Annexure 'C‑6' to the appeal). All the above police personnel, in their 161 Cr. P. C statement , have stated that while discharging their duties at the relevant police stations, they had come to know that the respondents were providing shelter and other helps to the outlaws, whereas, the other statements under section 164, Cr.P.C. comprise of the statements of Azizullah alias Bagan recorded on 16th February, 1981 by the S.D.M. Usti, Muhammad (Annexure 'D‑1' to the appeal) and Fazal Din (Annexure 'D‑3' to the appeal). Both have allegedly stated that after the above encounter of the police, some of the outlaws mentioned in the statements, namely, Master Abdul Haq, Qadir, Wahido, Usman Khosa, Shaban Mangi and Abdul Hameed Bungalani duly armed, came running and stated that they had saved their lives from the police. Thereupon, the respondents Zahoor, Zulfiqar and one Abdul Hameed, who is not a party to the present appeal, remarked that the police had committed excesses and the same was to be avenged. ' Ali Murad in his statement under section 164, Cr. P. C. (Annexure 'D‑2' to the appeal) recorded by the S.D.M. Usta Muhammad on 22nd February, 1981 gave the detail of sale transaction of a Jeep, which was eventually sold :o the respondent Zulfiqar and which was found abandoned, whereas, the other three witnesses, namely. Ranjha son of Dil Murad, Qamar Din son of Noor Muhammad and Gul Bahar son of Serab (Annexures 'D/4, D/5 and D/6 to the appeal) have deposed in their 164, Cr.P.C. statements recorded on 16th February, 1981 by the S.D.M. Usta Muhammad that they had seen the outlaws visiting the respondents who extended protection to them and all other helps.
8. In view of the above material available on record, it, therefore could not have been concluded by the learned trial Court without C referring to the same, that there was no evidence. However, it was urged by Mr. Yahya Bakhtiar, learned counsel for the respondents that 161, Cr.P.C. statements of the above police official are hearsay and, therefore, cannot be looked into, whereas, the above statements under section 164, Cr.P.C. are liable to be ignored as the accused were not given the opportunity to cross examine the above witnesses. In our view, it is pre‑mature to say, whether the above police personnel would be able to substantiate their statements by disclosing the source upon the basis of which, their information is based. Otherwise, a police official is as good a witness as any other private person, provided his statement inspires confidence and contains the truth. In this regard, reference may be made to the cases of (i) Muhammad Khurshid v. The State, reported in P L D 1960 W.P. Lah. 1202 and (ii) Qasim and others v. The State, reported in P L D 1967 Kar. 233. In the first case it was held that the policeman's evidence in criminal case not to be taken for granted as suspect or tainted and it be accorded credence as much as to ordinary witnesses. In the second case, it was held that a Police Officer is as good witness as any other person and the standard of judging his evidence is same as for evidence of any other person.
9. Adverting to the contention of Mr. Yahya Bakhtiar, learned counsel for the respondents that the above statements under section 164, Cr.P.C. are liable to be ignored as the accused were not giver, opportunity to cross‑examine the above witnesses, it may be stated that in furtherance of his above contention, he has referred to the following cases:‑
Muhammad Shafique v. The State, reported in P L D 1977 S C (AJ&K) 1; Muhammad Ismail v. the State reported in 1985 P Cr. L J Kar. 713; Ghulam Muhammad v. The State reported in 1985 P Cr. L J Kar. 829; Abdul Hakeem and another v. The State reported in P L D 1982 Kar. 975.
In the above first case, it was held by the Honourable Supreme Court of Azad Jammu and Kashmir that since the statement under section 164, Cr.P.C: has recorded behind the back of the accused, such statement cannot be used against him but may be admissible only for the purpose of contradicting the statement made by the witness in the Court or for prosecuting him for perjury. In the second case, a D.B. of the Sind High Court held that since the statements under section 164, Cr.P.C. were not recorded in presence of the accused, such statements were inadmissible in evidence and could not be relied upon. In the third case, a learned Single Judge of the Sind High Court took the view that since the requirements section 164, Cr.P.C. and section 265‑K, Cr.P.C. were not fulfilled, the statements of the prosecution witnesses under section 164, Cr.P.C. could not be relied upon. In the fourth case, a D.B. of the Sind High Court, to which, one of us (Mr. Justice Ajmal Mian, Actg. C.J.) was a party, observed that in terms of section 265‑J, Cr.P.C. an accused is entitled to a notice and an opportunity to cross‑examine the witnesses if the statement under section 164, Cr.P.C. is to be treated as substantive piece of evidence. There cannot be any cavil to the proposition propounded in the above cited cases as the provisions of subsection (1‑A) of section 164 and section 265‑J, Cr.P.C. are clear on the above aspect, but the above point is not involved in the instant case. It may be pointed out that under the Law Reforms Ordinance, 1972, under item No.62, subsection (1‑A) to section 164, Cr.P.C. and a new section 265‑J were enacted, which provided as follows:‑
"(1‑A):‑ Any such statement may be recorded by such Magistrate in the presence of the accused, and the accused given an opportunity of cross‑examining the witness making the statement."
SECTION 265‑J:
The statement of a witness duly recorded under section 164, if it was made in the presence of the accused and 5f he had notice of it and was given an opportunity of cross‑examining the witness, may, in the discretion of the Court, if such witness is produced and examined, be treated as evidence in the case for all purposes subject to the provisions of the Evidence Act, 1872 (11 of 1872):"
The above two provisions are to be read together in order to understand the object of the same. In the above quoted subsection (1‑A) to section 164, Cr.P.C. it has been provided that any such statement i.e under section 164 may be recorded by such Magistrate in the presence of the accused and the accused be given an opportunity of cross‑examining the witness making the statement, whereas, section 265‑J Cr.P.C. provides that the statement of a witness duly recorded under section 164, Cr.P.C. if it was made in presence of the accused and if he had notice of it and was given an opportunity of cross‑examining the witness, may, in the discretion of the Court, be treated as evidence in the case for all purposes subject to the provisions of the Evidence Act, 1872 even without examining the witness second time. The question, whether the above statements of witnesses under section 164, Cr.P.C. can be brought on record in terms of section 265‑J, Cr.P.C. is not an issue before us. This may be an issue before the learned trial Court. However, for the purpose of ascertaining the question, whether there is any material against the present respondents for the purpose of deciding an application under section 265‑K, Cr.P.C., the above statements can be looked into as at least they can be treated at par with the police statements under section 161, Cr.P.C.
Mr. Yahya Bakhtiar, learned counsel for the respondents has also referred to the following cases:‑
(i) Maula Bakhsh and 8 others v. The State and two others, reported in 1977 S C M R 292, in which, nine persons were charged with smuggling. Against six of them, the only evidence was the statement of co‑accused. The erstwhile High Court of Sind and Baluchistan dismissed the petitioner's/appellant's /accused 's application under section 561‑A, Cr.P.C. for quashment of the proceedings in limini, against which, a petition for leave was filed in the Hon'ble Supreme Court which was treated as an appeal and the appeal of six accused was allowed on the ground that there was no evidence against the above accused except the statement of co‑accused. In this regard, it may be advantageous to reproduce hereinbelow the relevant observations, which read as follows:‑
"With the help of learned counsel appearing for the parties we have scrutinized the available evidence, and we find that apart from the evidence regarding the interception of the bundles of smuggled goods by the Coast Guards, there is evidence that during the case Nb. Sub. Muhammad Bashir and Haveldar Manzoor were able to identify at least three of the appellants, namely, Wasand (appellant No.2) Babu Jan (appellant No.6) and Haji Ahmed (appellant No.9). It is correct that the presence of the torch was not mentioned in the first information report, nor was the fact that these two officials had identified three of the appellants, and even the torch had not been formally seized as a part of the case property, yet these two witnesses have made statements during the investigation of the case that they were able to identify these three appellants. The question whether their evidence should be accepted or not is a question which must be decided by the trial Court in the first instance.
As regards the remaining six appellants, the learned counsel appearing for the State concedes that the only evidence available to connect them with the crime consists of the disclosure made by the two respondents who were caught by the Coast Guards at the spot. The disclosure is obviously not admissible in evidence, and even if these respondents repeat the same information at the trial, it would at best be available for consideration under section 30 of, the Evidence Act, but by itself it could not provide a basis for the conviction of the appellants named by the respondents as being concerned in the same transaction. In view of this position the learned counsel for the State was willing to concede that there was no possibility whatsoever of a conviction to be recorded against the six appellants who were not ,identified by the officials of the Coast Guards, and against whom there was no other evidence at all."
(ii) Lin Muhammad v. Muhammad Sharif and another, reported in 1979 P Cr. L J 59. In the above case, a learned Single Judge of the Lahore High Court held that the power contained in section 249‑A (which corresponds to section 265‑K) and 561‑A, Cr.P.C. are co‑extensive. Both the trial Court and High Court have the power to free an accused from groundless charge.
(iii) Ghulam Habib v. The State, reported in 1980 P Cr. L J 754, in which, a learned Single Judge of the Sind High Court allowed a revision and ordered the acquittal of the applicant under section 265‑K Cr.P.C. read with section 185(f) of the Customs Act, 1969 on the ground that against the applicant, the only piece of evidence was the statement of co‑accused. Reliance was placed on the above case reported in 1977 SCMR 292.
10. In our view, the above cases do not support the case of the respondents. On the contrary, in the above Supreme Court case, the Honourble Supreme Court has, inter‑alia, observed in the above quoted passage that the question whether the evidence of the witnesses referred to, could be accepted or not, is a question which must be decided by the trial 'Court in the first instance. The above observation clearly lends support to the view, which we are inclined to take, that the question, whether the statements of the above witnesses will be admissible 1 under section 265‑J or whether their statements, if made before the learned trial Court, should be relied upon, will be an issue before the learned trial Court.
11. We have taken pain to go through the material on record ands we are of the view that the instant case was not a case, in which, section 265‑K could have been invoked by the learned trial Court without even framing the charge and without providing an opportunity to the prosecution to produce the witnesses, particularly, when there was n M delay on the part of the prosecution, as is indicated from the above quoted diary sheet, and hardly eight months had expired from the first date of appearance and, therefore, the order under appeal cannot be sustained. It may also be observed that in the order under appeal, the learned trial Court has used the word 'discharge', which was employed in repealed section 253, Cr.P.C. and not in section 265‑K, Cr.P.C., which has used the word "acquittal". There cannot be any discharge N under section 265‑K, Cr.P.C., but it can only be are acquittal. However, the employing of the wrong word would not render the order as illegal,) if otherwise it was valid.
12. Mr. Yahya Bakhtiar, learned counsel for the respondents has also urged that the above prosecution is mala fide as the respondent NO‑1 who is a Member, Provincial Assembly, had complained in 1976 to the then Prime Minister about the excesses of the Police. He has also referred to a petition under section 561‑A, Cr.P.C. which was filed by the respondent No.1 in this Court on 18th February, 1981 for quashment of the proceedings, which is the subject matter of Criminal Acquittal Appeal No.6 of 1982, which‑ has been dismissed by us by a separate judgment of even date. We would not like to dilate on the question of mala fide, as the respondents would have full opportunity before the learned trial Court to agitate the above question by furnishing full Particulars and proving the same. However, suffice to observe that on he basis of the material before us, we cannot hold that, prima‑facie, the proceedings were actuated or tainted with malice.
13. Before parting with the above discussion, we may observe that the arguments in the above appeal were concluded on 25th November, 1985 by both the learned counsel but the case was kept for 27th November, 1985 for producing the originals of the above witnesses statements recorded under section 164, Cr.P.C., as it was contended by Mr. Yahya Bakhtiar, learned counsel for the respondents, on the basis of the copies filed alongwith the Memo of appeal that the above statements were not signed by the S.D.M. and were not certified by him about explaining the contents thereof to the witnesses, but it was done by a police official. Learned Assistant Advocate General has produced original statements under section 164, Cr.P.C. of the four witnesses today before us, which were shown to the learned counsel for the respondents, namely, of Ali Murad, Ranjha, Qamar Din and Gul Behar. The above original statements contain the signature and certifi cation of the S.D.M. According to the learned Assistant Advocate General, the statements of other two witness, namely, Azizullah and Fazal Din could not be traced out in the Sessions Court for want of short time available, as on 26th November, 1985 there was a public holiday on account of 'Eid Miladun Nabi'. It may also be observed that certified copies of 164, Cr.P.C. statements of the above two witnesses are record of the trial Court at pages 255 and 261 respectively and they contain the indication that the same were signed by the S.D.M. and certificated by him. It may further be stated that Mr. Yahya Bakhtiar, learned counsel for the respondents wanted to file five affidavits allegedly sworn today i.e. on 27th November, 1985 by the above witnesses, namely, Azizullah, Fazal Din, Qamar Din and Gul Behar and Ranjha, in which, the, have allegedly disowned their previous statements under section 164, Cr.P.C. We have taken on record the above affidavits but declined to consider the same or to examine the above witnesses at this stage. The above original statements of the witnesses and five affidavits, shall be sent to the learned Sessions Judge under seal. The respondents may make whatever request they may wish to make in aspect of the above affidavits to the learned trial Court.
14. The up shot of the above discussion is that the above appeal is allowed. The order under appeal is set‑aside and the case is remanded back to the learned Sessions Judge, Sibi Mr. Muhammad Aslam, who shall try the same expeditiously and dispose of the same not later than six months, from the stage at which, it was when the impugned order was passed. It may also be stated that according to Mr. Muhammad Yousuf Ch learned Assistant Advocate General that on account of oversight and because of the fact that in the certified copy of the order in the title, the name of Abdul. Hameed, son of Abdul Majeed Khosa was not mentioned, he was riot impleaded to the above appeal as I the respondent No. 6. However, since he was not a party to the above appeal, we cannot order his re‑trial as was fair conceded by the learned Assistant Advocate General.
15. We have noticed that in the above appeal, the respondents were not directed by this Court while admitting the above appeal to furnish surety bonds. We would, therefore, order that the respondents shall furnish the bail bonds within a period of fifteen days before the learned sessions Judge of the same amounts and containing same conditions, which they had previously furnished when they were admitted to bail, fang which, action will be taken against them, in accordance with law.
The above are our reasons in pursuance of our short order of even date.
M.Y.H. Appeal allowed.
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