Lawyers Directory Listing
Chat with us free on WhatsApp — tell us your city and legal matter and our team connects you with the right lawyer. No form, no fee.
Criminal Revision Application No. 725 of 1963, decided on 7th October 1964.
---S. 439---Revision against acquittal---Retrial---Suspicion assailing mind of trial Court in regard to prosecution version based on evidence of eye-witnesses found to be justified-Mere fact that contrary finding may be possible on that evidence regarding guilt of accused-Held, would not furnish a valid ground for reversing acquittal order and directing retrial.
S.439--Revision against acquittal---Jurisdiction of High Court to interfere in an acquittal order in revision essentially rests on discretion-Limita tions on exercise of such jurisdiction. Interference in an acquittal order in revisional jurisdiction, essentially resting on the discretion of the High Court, has its well-defined limitations. Technically, the powers of the High Court in examining and reviewing the evidence on a finding of fact is unlimited, but "the trial Court's view of the evidence, the nature of the error committed, the magnitude of apprehended miscarriage or failure of justice, the possibility and extent of prejudice to the accused, the chances of conviction, the expenses of a re-trial are all relevant factors to be duly weighed".
Anwar and others v. The Crown P L D 1955 F C 185 and Shoe Swarup and others v. King-Emperor A I R 1934 P C 227 (2) ref.
Abdul Qadir for Petitioner.
A. S. Pirzada for Respondents Nos. 2 to 5.
Azizullah Sheikh for the State.
Date of hearing: 6th and 7th October 1964.
This is a revision by Ghulam Haider, calling in question the order of the learned Additional Sessions Judge, Sukkur, dated the 23rd of April 1.963, acquitting the four respondents namely, Rasool Bakhsh, More, Punhoon and Muhammad Kasim, of the charge of the .murder of Ghulamali (the petitioner's brother) on the 23rd of July 1962. The revision has followed an unsuccessful attempt on the part of the petitioner in moving the Provincial Government through the District Magistrate, Sukkur, to file an appeal against the aforesaid acquittal under section 417 of the Criminal Procedure Code.
2. The prosecution case, as laid at the trial against the accused respondents, was that the accused Ghulamali had incurred the wrath of Muhammad Kasim respondent, because a piece of land had been taken away from the latter which he was cultivating under Sanwaldas (P. W. 7) and which he was given to the deceased Ghulam Ali by the aforesaid Sanwaldas for cultivation purposes, a year before the occurrence. This land is situated in Deh Nooro. The petitioner along with P. W. Mehrab was cultivating another piece of land, also belonging to Sanwaldas, to Deh Megran. On the night preceding the day of the murder of Ghulamali, Ghulam Haider petitioner had let in water in the last-mentioned land for purpose of transplantation. Ghulam Haider sent the deceased Ghulamali along with P. W. Manjhi to bring Mehrab, who was a co-cultivator with him in that land, to help in the transplantation. Mehrab was living in village Abdu, one mile away. When Ghulamali and Manjhi reached Mehrab's house, he was not there and they waited for him in his house till a little before noon. When Mehrab came home, he accompanied the deceased and Manjhi to village Dado to the transplantation. The party had hardly traversed 5-6 furlongs when the four respondents armed with guns emerged from the bushes on the roadside and fired shots at the deceased, resulting in his death. Manjhi P. W. informed Ghulam Haider petitioner, giving him full details of the occurrence. Ghulam Haider first went to the place of occurrence where the dead body was lying and where he also found P. Ws. Yar Muhammad and Mehrab, and then he left for police station Chak, District Sukkur, where he lodged the first information report Exh. 10-A at 3 p.m. Therein he repeated the story of the crime as related to him by P. W. Manjhi mentioning Mehrab and Yar Muhammad alias Yaru also as the eye-witnesses, without, however, stating that Mehrab and Yaru had also confirmed the version of the occurrence given to him by P. W. Manjhi. The story narrated to him by P. W. Manjhi was reported by him in the first infor mation report as follows:-
"At noon time I heard gun-reports towards east. Upon the gun-reports I went up to Chitti Canal and saw that Manjhi Maher was coming running from eastern side, raising cries murder', murder'. I also went running towards Manjhi. I enquired from him what the matter was, whereupon he said: 'I, Ghulamali, Mehrab and Yaru, all the four of us, were returning from Abdu. When he crossed Lashkari village and went a little ahead of the road, we heard a gunshot from behind. Deceased Ghulamali raised a cry. We looked behind and saw that Rasool Bakhsh son of Moledino Mehar fired another gunshot which also struck deceased Ghulamali on chest. Ghulamali fell down. Rasool Bakhsh was also accompanied by More son of Wali Muhammad Maher who was also armed with a gun. Meanwhile there was a hakal (challenge) from western side. I saw Punhoon son of Abdul Nabi and Kasim son of Dino Maher, both armed with guns, who asked me, Mehrab and Yar Muhammad to keep off and we complied. Meanwhile, Kasim and Punhoon each fired a gunshot on deceased Ghulamali and from the east Rasool Bakhsh and More also fired each gunshot on deceased Ghulam ali Thereafter, all the four went away in the jungle north, raising slogans."'
3. The prosecution witnesses repeated substantially the same version at the trial. It was stated that the first shot had hit Ghulamali in the back and when Ghulamali looked back there was another shot fired which hit him in the chest. The second shot was fired by Rasool Bakhsh and Ghulam Ali fell down. Thereafter accused Kasim fired one shot at the deceased while he was lying on the ground, another by Punhoon, followed by Rasool Bakhsh and More, who again fired one shot each. It was categorically stated that the deceased in all received six gunshots.
4. The autopsy of the deceased revealed that he had sustained seven gunshot wounds, which were as follows:--
(1) A lacerated wound 6" x 5", with charred margins, with gun powder on the margins, cavity deep on upper part of right side of chest.
(2) Four pellet wounds, each " circular with charred margins on the right knee-joint, capsule deep.
(3) Four pellet wounds with upwards direction, on the medial side of right thigh, muscle deep, with charred margins.
(4) Three abrasions, 1 " x " each, on the middle side of right thigh in the upper part with charred margins.
(5) A lacerated wound, crushing the whole tip of the right index finger with charred margins.
(6) A lacerated wound, x ", with charred margins on the base of thumb of right hand posteriorly.
(7) A pellet entry wound, " circular, on the buttock of right side, with upward direction.
Dr. M. A. Mueed, who noted the above injuries, was of the opinion that the injuries were the result of three shots, Nos. (1) to (6) being caused from a distance of within six feet, while the 7th from a long distance of snore than twelve feet. In our view the locations of the gunshot wounds sustained by the deceased suggested that probably two, shots in all were fired at him, but the number, in any case, could not have exceeded 3. We have adverted to this matter to meet the contention of the learned counsel for the petitioner that the learned trial Judge should not have discarded the evidence of the eye-witnesses which fitted exactly with the medical evidence regarding the number of shots fired. It seems to us that the medical evidence directly contradicts the eye-witnesses on the point, as each one of them deposed that six shots had been fired at the deceased, two while he was standing and the rest while he had fallen on the ground. The inference is clear. The petitioner Ghulam Haider had set out for the police station after seeing the dead body and he attempted to co-relate the number of shots with the number of injuries that he may have been on the deceased, without realising that some of the wounds which were in close proximity with each other may have been caused by a single shot.
5. The learned trial Judge has disbelieved the evidence of the eye-witnesses on what appears to us to be very cogent grounds. He has referred to the circumstance, which creates suspicion, about their credibility that it was not at all necessary for both Ghulamali and Manjhi to have gone after Mehrab to fetch him for transplantation. The explanation that Manjhi accompanied Ghulamali as an escort because the latter was in fear of his life from the respondents is most unconvincing. If Ghulamali deceased had any fear, he should have stayed back and Manjhi alone could have carried the errand. Again, the invitation to Mehrab to come for transplantation at noon time in the month of July is out of tune with the normal practice that such transplantations are generally done early in the morning and finished before noon. Mehrab, who was in joint cultivation of the land, should have been there by himself without the need for sending people after him to get him there. The eye witnesses are not the type of witnesses whose statements can be accepted without reservations. Yar Muhammad and Mehrab are related to the complainant. According to the deposition of P. W. Allah Wassaya, Yar Muhammad is a cousin of Ghulam Haider, while Ghulam Haider's uncle is married to a cousin of Mehrab. Yar Muhammad also appears to be a chance witness. Manjhi is a history-sheeter and a previous convict. He admitted that his own father had filed a hurt case against him and he was convicted and sentenced to seven years' imprisonment.
6. P. W. 4 Khamiso was produced as a corroborative witness who deposed that . he had seen the respondents armed with guns, running towards Nooro village after the murder and soon thereafter he saw Yar Muhammad, Manjhi and Mehrab sitting near the dead body of Ghulamali, who charged the respondents for the murder of Ghulamali. According to his version he had told them what he had himself seen, i.e. the fact of the four accused running towards their village with their guns. The name of this witness is not mentioned in the first information report and his evidence has been disbelieved by the trial Judge on that score. His statement by the Police was recorded, five days after the occurrence.
7. We feel that the suspicion that has assailed the mind of the learned Judge in regard to the prosecution version based' on the testimony of these witnesses is not without jurisdiction, and our own appraisement of this evidence has not freed us from that suspicion. The mere fact, however, that a contrary finding may he possible on that evidence regarding the guilt of the respondents would not furnish a valid ground for reversing the acquittal order and directing a re-trial. Interference in an acquittal order in revisional jurisdiction, essentially resting on, the discretion of the High Court, has its well-defined limita tions. Technically, the powers of the High Court in examining and reviewing the evidence of a finding of fact is unlimited, but as remarked by the. Federal Court in the case of Anwar and other v. The Crown (P L D 1955 F C 185), "the trial Court's view of the evidence the nature of the error committed, the magnitude of apprehended miscarriage or failure of justice, the possibility and extent of prejudice to the accused, the chances of conviction, the expenses of a re-trial are all relevant factors to be duly weighed". While examining the appellate powers of the High Court in regard to an order of acquittal, the Privy Council had observed in the famous case of Sheo Swarup and others v. King-Emperor (A I R 1934 P C 227(2)), as follows:-
"In exercising the power conferred by the Code and before reaching its conclusions upon facts, the High Court should and will always give proper weight and consideration to such matters as:-
(1) the views of the trial Judge as to the credibility of the witnesses;
(2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial;
(3) the right of the accused to the benefit of any doubt; and
(4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses."
8. In this view of the matter, we feel that the order acquitting the respondents does not call for any interference and we, therefore, dismiss this revision.
Petition dismissed.
Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.
🔍 Find a Lawyer