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Criminal Appeal No. 115 of 1962

Criminal Appeal No. 116 of 1962

Criminal Appeals Nos. 115 and .116 of 1962, decided on 11th March 1963.

(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 12th February 1962, in Criminal Appeal No. 185 of 1961/Murder Reference No. 41 of 1961).

Art. 58(3)‑Leave to appeal to Supreme Court‑(Criminal case‑Appeal against acquittal)‑Leave granted on State's petition, time‑barred by 76 days‑Respondent, not heard at time of granting leave, was entitled to raise objection at hearing of appeal‑State's petition, held, liable to be rejected‑[Persons acquitted by High Court not to be put "in jeopardy of their lives by petition for leave filed out of time"]

61‑Supreme Court's power to do "complete justice"‑Acquittal secured from High Court by some of the accused as result of an error‑Supreme Court has power suo motu to issue notices and consider cases of such acquitted accused along with the appeal of accused convicted.

Iftikharul Haq Khan Advocate Supreme Court, instructed by Ijaz Ali, Attorney for the State (in Cr. A. No. 115 of 1962).

M. Saleem Senior Advocate Supreme Court, (R. A. Jeremy Advocate Supreme Court with him), instructed by Ziauddin Ahmad Qureshi, Attorney for Respondents (in Cr. A. No. 115 of 1962).

Mahmud Ali Qasuri Senior Advocate Supreme Court (Rafiq

Ahmad Advocate Supreme Court with him), instructed by Siddiq & Co., Attorneys for Appellants (in Cr. A. No. 116 of 1962).

Iftikharul Haq Khan Advocate, Supreme Court, instructed by Ijaz d1i, Attorney for the State (in Cr. A. No. 116 of 1962).

Dates of hearing: 18th and 19th February 1963.

‑Twenty‑eight persons were tried fur offences falling within sections 148, 323, 307 and 302, P. P. C., read with section 149, P. P. C., by the learned Sessions Judge, Jhelum. He acquitted ten persons and convicted eighteen of the accused. Muhammad Nawaz and Fazal Ilahi, son of Karam Khan, were sentenced to death on the murder charge while the rest were awarded sentences of transportation for life each on that charge. Sentences of imprisonment were also imposed on all the convicts in respect of the remaining offences. On appeal, the High Court of West Pakistan upheld the convictions and sentences of seven of the convicts and acquitted the rest. The two men who had received death ‑ sentences from the trial Judge were also among those acquitted.

The seven persons, whose appeal was dismissed by the High Court, were granted special leave to appeal and by the same order, leave was also granted to the State, to appeal against the acquittal of the remaining eleven persons by the High Court.

Objection has been taken to the competency of the appeal by the State on the ground that the petition for special leave, when presented, was barred by 76 days. As the respondents to the State petition were not heard at the time that leave was granted by this Court, it was open to them to raise this objection at this stage. There is a good deal of force in the contention that the persons who had secured acquittal from the High, Court should not be put in jeopardy of their lives by a petition for leave to appeal filed out of time. The State petition therefore was liable to be rejected on this ground. However, this does not conclude the matter. The High Court purported to adopt two criteria for convicting some of the accused persons. They held that six of the accused who had admitted their presence during the occurrence and had raised the plea of self‑defence, should be convicted along with those who were named by the injured P. Ws. as their own assailants. While giving effect to these findings, however, the High Court committed an error in so far as, inadvertently, it failed to record convictions against three of those six who had admittedly been present at the spot at the relevant time and two others who had been named by Raja P. W. as his own assailants, these five being included among those who were convicted by the trial Judge. This Court has power to issue such directions; orders or decrees as may be necessary for doing complete justice in any cause or matter pending before it, vide Article 61 of the Constitution. The error being patent on the record in this case, this Court could have suo motu issued notices to those of the respondents who bad secured an acquittal from the High Court as the result of the above‑mentioned error. These respondents are represented by Mr. Saleem before us and he accepts notice on their behalf. The position therefore is that the case against these five respondents calls for consideration by us along with the appeal of the seven convicts.

(The remainder of this judgment is not necessary for the, purposes of this report, except the following)

To sum up, therefore, out of the accused who were issued notices to show cause against acquittal, Bahadur, son of Allah Bakhsh's acquittal will not be interfered with while Muhammad Aslam, Bahadur, son of Muhammad, Faiz and Ghulam Muhammad, son of Fateh Din, are sentenced as under

Muhammad Aslam‑Transportation for life under sec tion 302/34, P. P. C., for the death of

Bhai Khan.

Bahadur, son of‑Transportation for life under section 302/34, P. P. C., for the death of

Muhammad.

Faiz and Ghulam‑One and a half years' rigorous imprisonment Muhammad each under

section 324, P. P. C., for injuries caused to Raja P. W.

A. H. Order accordingly.

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