GUL KHAN vs THE STATE

ORDER

' SHAHID HAMEED DAR, J.---Through this petition, under section 561-A, Cr.P.C. The petitioner has challenged the validity of order dated 26-8-2009 passed by the learned Addl. Sessions Judge, Lahore, whereby an application under section 265-K, Cr.P.C. Moved by the petitioner seeking acquittal in case F.I.R. No.705 of 2005 dated 25-9-2005, for offences under sections 302/392 P.P.C., registered at Police Station South Cantt., Lahore, had been dismissed.

2. The brief facts germane to filing of the instant petition are that Mst. Naziha Saeed complainant of the aforesaid criminal case along with her husband Brigadier (R) Muhammad Saeed was present at her residential house situated in Defence Housing Authority, Lahore, at 9-15 .p.m. On 25-9-2005, when two boys aged 22/23 years pushed open the outer door of the house and got in; one of them pointed his pistol at her neck and ordered her to keep silent; in the meantime her husband Brig. (R)

Muhammad Saeed appeared from his bedroom and asked what had happened, whereupon one of the accused fired straight with his pistol which landed at the chest of her husband who despite being injured attempted to catch them, but they fled away; her husband succumbed to the injuries at the spot.

3. Raza Mohammad Khan (P.W-7), Adil Sajjad and Sajjad Hameed later on made supplementary statements under section 161, Cr.P.C. Wherein they stated that there were two more persons standing outside the gate of the house at the time of occurrence who had run away after seeing them and that they could identify them if they would see them again. The petitioner was arrested, as a suspect on 25-9-2005 from Niazi Bus Stop Bakkar Mandi, Lahore and was dispatched to the judicial lock up for test Identification Parade, which was conducted at Kot Lakhpat Jail, Lahore under the supervision of Mr. Khalid Fayyaz Ahmad Khan, Special Judicial Magistrate Cantt, Lahore on 25-10-2005 wherein Adil Sejjad P.W. Correctly picked up the petitioner and his three co-accused namely Bashar Khan, Nehmat ullah Khan and Nageeb Ullah Khan, stating that they were the dacoits who had come at the residence of late Brigadier (R.) Muhammad Saeed on 25-9-2005 and had committed his murder during the occurrence.

4. The police on completion of investigation submitted a report under section 173, Cr.P.C. In the trial Court by placing the names of above said accused including the petitioner in its column No.3. After supply of copies under section 265-C, Cr.P.C. The petitioner and his co-accused were indicted on 6-5-2006. The co-accused of the petitioner namely Shabbar Khan and Nehmat Ullah Khan ran away from the police custody on 8-2-2007 so, they were proceeded against under section 87, Cr.P.C. By the learned trial Court.

5. During the proceedings of the trial, the complainant Mst. Naziha Saeed and other legal heirs of the deceased namely Jaudat Saeed son and Zohra Saeed daughter moved an application under section 345, Cr.P.C. Wherein they contended to have pardoned the accused persons but it could not reach its logical end because offence under section 392, P.P.C., was not compoundable. The prosecution failed to produce material evidence against the petitioner and his co-accused, so he filed an application under section 265-K, Cr.P.C. Which was dismissed by the learned trial Court vide order dated 28-5-2008. The petitioner then filed a petition under section 561-A, Cr.P.C. Against the above said order of the learned trial Court through Criminal Miscellaneous No.7-Q of 2008 which was disposed of by this Court vide order dated 20-2-2009 with the direction to the trial Court that the case be decided within eight weeks. The prosecution produced its witnesses lazily.

Resultantly the direction passed by this Court went abegging without any substantial progress in the trial. The prosecution since then has produced 12 P.Ws. Out of whom Raza Khan P.W.7 and Mst.

Naziha Saeed P.W.12 are the eyewitnesses who in their testimonies, have exonerated the petitioner and his co-accused Naqeeb Ullah. So far as the other witnesses namely Adil Sajjad and Sajjad Hameed are concerned, they according to the report of the process server, have migrated to United States of America and settled there permanently. The learned trial Court resorted to coercive measures to ensure presence of the above said P.Ws. But to no avail. The petitioner filed in the meantime, yet another application under section 265-K, Cr.P.C. Which was dismissed by the learned trial Court on 26-8-2009. Hence the instant petition.

6. Learned counsel for the petitioner contends that the learned trial Court has passed the impugned order in an arbitrary, capricious and perverse manner without any reasonable or just cause; the prosecution does not have any connecting evidence whatsoever against the petitioner and the direction of this Court dated 20-2-2009 for conclusion of the trial in eight weeks' time has not been complied with by the learned trial court; the complainant P.W.12 and Raza Hameed Khan P.W.7 have exonerated the petitioner and his co-accused in their testimonies and none of the other P.Ws. Produced by the prosecution has uttered even a single word against the petitioner, yet the learned trial Court refused to accept the plea of the petitioner for seeking acquittal. The impugned order has been passed without application of judicious mind, in a slipshod manner; the impugned order is neither speaking nor contains any rational argument, which has rendered it a bad order in the eyes of law; that countless opportunities have been afforded to the prosecution up-till now to conclude the trial, but they have failed to do so, for which the petitioner is being penalized which is against the settled principle of dispensation of criminal justice; there is no likelihood of availability of the two gone away P.Ws, so the prosecution is badly short of connecting evidence against the petitioner. The petitioner had been arrested in this case on 25-9-2005 and since then he has been languishing in jail for none of the fault on his part; the petitioner, in the attending circumstances of the case, merits acquittal or release on bail.

7. Conversely, the learned Addl. Prosecutor-General has contended that the petitioner and his co- accused had committed a gruesome and barbaric act during the occurrence, as a result of which, Muhammad Saeed, a retired Brigadier of Pak Army was murdered; the petitioner had been correctly picked up in the test Identification Parade by Adil Sajjad P.W. Who had categorically stated that the petitioner and his co-accused had committed the murder of the deceased during the dacoity; a temporary non-availability of material witnesses does not warrant acquittal of the petitioner under section 265-K, Cr.P.C., the impugned order has been passed strictly in accordance with law and it does not suffer from any legal defect. Hence it is sustainable.

8. Arguments heard. Record perused.

9. The prosecution has produced 12 witnesses so far, out of whom Raza Hameed P.W-7, Mst. Naziha Saeed, P. W.12 are the eye-witnesses of the occurrence, who in their testimonies categorically stated that they did not recognize or identify Gull Khan petitioner and his co-accused and further that the accused persons facing the trial were not the accused who had committed the murder of the retired Brigadier Muhammad Saeed deceased. The other witnesses recorded so far are almost formal in nature. The Investigating Officer and two other eyewitnesses namely Sajjad Hussain and Adil Sajjad are yet to be presented and examined. Both the above said eyewitnesses as per report of the process server have migrated to USA and settled there. The trial Court has been trying hard to procure the presence of the above said witnesses one of whom Adil Sajjad is the most important and crucial prosecution witnesses as he had correctly picked up the petitioner and his co-accused by mentioning their role during the occurrence in the test identification parade on 25-10-2005. He has to be examined as a P.W by the prosecution and his availability in the trial Court was not an improbability as Mst. Naziha Saeed P.W.12 who too had come from abroad to depose as a P.W. Had informed the learned trial Court that both the aforesaid witnesses would reach Pakistan in due course of time. In this situation, the learned trial Court of course had no other option but to proceed ahead with the trial by adopting coercive measures for production of above said witnesses before it. A lot shall depend upon the testimonies of the above said prosecution witnesses so far as the outcome of the case is concerned. The learned trial Court has not fallen in error or committed any illegality while dismissing the application under section 265-K, .Cr.P.C. Moved by the petitioner. I have gone through the impugned order, which is well reasoned and does not suffer from any legal infirmity. It is neither whimsical nor arbitrary or capricious in nature. So the impugned order passed by the learned trial Court does not call for any interference.

10. The fact, however, cannot be lost sight of, that the petitioner had been arrested on 25-9-2005 and since then he has been languishing in jail. He has not been responsible for the delay caused in conclusion of the trial, in any manner. The prosecution failed to conclude the trial despite a direction of this court passed on 20-2-2009, according to which they were required to conclude the trial within eight weeks. The most important and crucial prosecution evidence is yet to be recorded.

C At the moment it cannot be said as to how long would it take for the prosecution to conclude the trial. The petitioner of course cannot be left to rot in jail for indefinite period of time, therefore, I convert this petition into bail application under section 497, Cr.P.C. And admit the petitioner to post-arrest bail subject to his furnishing bail bonds in the sum of Rs.200,000 (rupees two lac) with two sureties each in the like amount to the satisfaction of the learned trial Court. .