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 No. 341 of 1963, decided on 17th March 1969.
S. 439‑Revision‑ High Court perfectly within its powers to find in revision that a find ing of facts or law or order of inferior Court is not legal, correct or proper or to review evidence and give its reasons for holding finding incorrect‑Finding being one of facts only limitation is that while interfering with an order of acquittal it is not to convert a finding of acquittal into one of conviction.
Anwar v. Crown P L D 1955 F C 185 and Feroze Khan v. Ghulam Nabi Khan P L D 1966 S C 424 rel.
‑Prosecution witnesses related to deceased-- Prosecution witnesses corroborated by disinterested witness‑Mere relationship in absence of wry previous enmity, held, does riot make evidence unreliable.
Sh. Aftab Hussain for Petitioner.
Mian Nazir Akhtar for Respondents.
Sardar Majid Leshari for the State.
Date of hearing : 5th March 1969.
Bahadur, aged 70 years, his three sons, Mopal, aged 30 years, Haq Nawaz, aged 27 years, and Lal, aged 25 years, and his son‑in‑law, Waryam, aged 26 years, respon dents, residents of Chak Baluchan, District Jhang, were tried under sections 302/149, 148 and on two counts under section 323/149, P. P. C. for having constituted an unlawful assembly while armed with hatchets and dangs with the common object of committing the murder of Muhammad deceased and in prosecution of the said common object of that unlawful assembly they committed rioting, intentional murder of Muhammad deceased and voluntarily caused simple injuries to Muhammad Bakhsh (P. W. 12) and Ghulam (P. W. 14) with blunt weapons on 8th July 1961, at about late digerwela at Chah Ahmadwala, within the area of village Salamana, Police Station Qadirpur, District Jhang. The learned Additional Sessions Judge vide his order dated 11th June 1962, acquitted all the respondents by giving them benefit of doubt. Against that order the State did not file an appeal against the acquittal of the respondents, but Nizam, cousin of Muhammad deceased, has filed this revision praying that the order of acquittal be set aside and retrial ordered.
2. About a year prior to the occurrence it was suspected that Muhammad deceased had illicit relations with Mst. Dallan, daughter of Bahadur respondent. About two months prior to the occurrence Haji, husband of Mst. Dallan, had actually seen Muhammad deceased in a compromising position with his wife and the deceased on being surprised managed to make good his escape. According to the prosecution this constituted the motive for the occurrence under consideration.
3. On 8th July 1961, Nizam (P. W. 11), his brothers, Muhammad Bakhsh (P. W. 1,) and Ghulam (P. W. 14), his paternal uncle, Mughla (P. W. 13) and his first cousin, Muhammad deceased, had gone to the fair at Darbar Kaurey Shah in village Kalera. At about digerivala, the deceased and Muhammad Bakhsh (P. W. 12), Mughla (P. W. 13), Ghulam (P. W. 14) and Khadim Hussain (P. W. 15) left for their village while Nizam (P. W. 11) stayed behind. At about late digerwela when the deceased and his companions had travelled a distance of about 12 miles, all the respondents emerged from behind sarkanda bushes. Haq Nawaz and Waryam were riding a mare, while the others were on foot. Haq Nawaz and Waryam were carrying hatchets, while the rest were carrying dangs. They challenged the deceased saying that they would avenge the insult which he had done to them, by having illicit connections with Mst. Dallan. The deceased thereafter turned back and started running away. Waryam, Haq Nawaz and Mopal pursued him. Mopal respondent overtook him and caught hold of him by his hair and felled him to the ground. Waryam and Haq Nawaz, who were chasing him on a mare, got down from it and gave two blows each with their respective hatchets on his right leg, with the result that his leg got completely severed. Waryam also gave him a hatchet blow on his hand. Muhammad Bakhsh and Ghulam P. Ws. tried to intervene, but Bahadur gave two dangs blows, one on the head and the other on the thigh of Muhammad Bakhsh P. W. Lal, respondent, gave a lathi blow on the head of Ghulam P. W. Mughla P. W. stayed behind and did not interfere due to old age. The respondents then left the spot taking their weapons with them. Haq Nawaz and Waryam were riding a mare, while the rest were on foot. Waryam also carried the severed leg of the deceased with him. Shortly after that Salabat (P. W. 16) and Sardara (P. W. 17) saw Haq Nawaz and Waryam, respondents, riding a mare and Waryam carrying a severed leg. Muhammad ex pired shortly afterwards. Leaving behind the other eye‑witnesses to guard the dead body of the deceased, Mughla P. W. went to Darbar Kaurey Shah and informed Nizam P. W. about the occurrence. Nizam P. W. then went to Police Station Qadir pur, reaching there at about 2 a.m. on 9th July 1961, and lodged first information report Exh. P. D., which was recorded at his dictation by Moharrir Head Constable Muhammad Ashraf (P. W. 6). Moharrir Head Constable Muhammad Ashraf P. W., after recording the first information report, went to the scene of offence, reaching there at about 6 a.m. and found the dead body of the deceased lying in a field near Chah Ahmadwala. He prepared injury statement Exh. P. O and inquest report Exh. P. N. of the dead body of Muhammad deceased and sent it to the mortuary for post‑mortem examination. Assistant Sub‑Inspector Abdul Karim (P. W. 18) returned to Police Station Qadirpur at about 8 a.m. on 9th July 1961 and after learning about the occurrence, went to the scene of offence reaching there at about 11 a.m. and took over the investigation of the case from Moharrir Head Constable Muhammad Ashraf P. W. He recorded the state ments of the eye‑witnesses present there and sent Muhammad Bakhsh and Ghulam P. Ws., who were injured, to the hospital for their medical examinations. He also secured blood‑stained earth from the place of occurrence. He recovered a mare from the, dera of Bahadur, respondents, vide memo. Exh. P. G. He arrested pal and Bahadur, respondent, on the same day and Mopal on the following day. Sub‑Inspector Ch. Faiz Ullah Sahab (P. W. 19) went to the scene of offence on 9th July 1961, reaching there at about 5 p.m. and took over the investigation of the case from Assistant Sub‑Inspector Abdul Karim P. W. He arrested Waryam and Haq Nawaz on 16th July 1961. From the person of Waryam respondent he took into his possession his shirt Exh. P. 5 and chador Exh. P. 6, both blood‑stained, vide memo. Exh. P. J. and made them into a sealed parcel. From the person of Haq Nawaz, respondent he took into his possession shirt Exh. P. 7 and chador Exh. P. 8, both blood‑stained, vide memo. Exh. P. K. and made them into a sealed parcel. The above recoveries were witnessed by Falak Sher (P. W. 10) and Nizam (P. W. 1 I). On 19th July 1961 as a result of interrogation, Waryam respondent led the Sub -Inspector to a sand mound near Chah Hastewala and from there took out blood stained hatchet Exh. P. 9, which the Sub‑Inspector took into his possession vide memo. Exh. P. L. Similarly Haq Nawaz respondent, as a result of interrogation, led the Sub- Inspector to a stack of bhoosa near Chah Hastewala and from there produced blood‑stained hatchet Exh. P. 9, which the Sub-Inspector took into his possession vide memo. Exh. P. M., and made it into a sealed parcel. The above recoveries were witnessed by Khan (P. W. 7), Shakir (P. W. 8) and Nizam (P. W. 11). According to the report of the Serologist the origin of the blood on the clothes and the hatchets could not be determined as it had disintegrated.
4. On 9th July 1961, at 6‑45 p.m., Doctor Masood Farooqi (P. W. 1) performed post‑mortem examination of the dead body of Muhammad deceased and found the following injuries :‑
(1) Right leg amputated, the amputated part was missing. The, amputation was 5' below the knee.
(2) An incised wound, 3 x 1' x ", on the front of the right hand and wrist.
(3) An incised wound, 1" x " x ", on the palm near the right hand and wrist.
(4) A lacerated wound, " x ' x ", on the back of the root of the left little finger.
(5) An abrasion, 1 " x ", on the middle part of the left upper arm.
Death, in the opinion of the doctor, was due to haemorrhage from the amputated leg as a result of injury No. 1, which was sufficient in the ordinary course of nature to cause death.
On 11th July 1961, at 10‑30 p.m., the same doctor examined one Haider son of Bahawal, and found the following injuries on his person :‑
(i) Two abrasions, 1 " x 1/10' and 1 " x 1/10", on the back of right shoulder.
(2) An abrasion, 1" x 1/8", just to the left on the middle line of the upper part of the back of chest.
(3) An abrasion, 1' x " on the root of left thumb. All the injuries were simple and had been caused by a blunt weapon.
The same doctor on the same day at 8 p.m. examined one Allah Ditta son of Muhammad, and found the following injuries in his person :‑
(1) An abrasion, " x 1/8", on the right cheek, back part of the right chest on lower ribs.
(2) Weslling, " x " on the upper part of the right side of the chest.
Both the injuries were simple and had been caused by a blunt weapon.
5. On 9th July 1961, Doctor Abdul Ghaffar (P. W. 2) examined Muhammad Bakhsh P. W. and found the following injuries on his person :‑
(1) A contused wound, 2 x " x " skin deep on the vertex of the head.
(2) A contused wound, 1' x " x " near injury No. 1.
(3) A contused mark, 4" x 1', on the middle of the right thigh.
(4) Complained of severe pain in the body.
(5) Complained of dyspepsia.
All the injuries were simple and had been caused by a blunt weapon.
On the same day the said doctor examined Ghulam Muhammad P. W. and found the following injuries on his person:-
(1) A contused wound, 2 " x " x ", skin deep on the vertex of head.
(2) Complained of pain in the body.
Both the injuries were simple and had been caused by a blunt weapon.
6. The respondents denied their guilt and declined to produce any defence.
7. The prosecution case against the respondents rests on the testimony of the eye‑witnesses, namely, Muhammad Bakhsh, Mughla, Ghulam and Khadim Hussain P. Ws. The learned Additional Sessions Judge did not place reliance on their testi mony and acquitted the respondents mainly for the followin g reasons :‑
(1) That Muhammad Bakhsh, Mughla anti Ghulam are closely related to the deceased.
(2) that Khadim Husain P. W. did not support the prosecu tion version;
(3) that Bahadur was falsely implicated at the instance of Ali Raza Shah because of previous enmity, and that is why Alam Shah Inspector C. I. A. (P. W. 20) reported to the D. I.‑G. that his name should be put in column No. 2 of the challan;
(4) that the respondents had no intention to kill the deceased because they did not cause any injury on his vital pact ; and
(5) that the prosecution version that after the occurrence Salabat (P. W. 16) and Sardara (P. W. 17) had seen Haq Nawaz and Waryam respondents riding a mare, and Waryam was carrying an amputated leg, is not plausible because it was difficult to believe that they would be creating evidence against themselves.
8. Now the point which requires determination is as to whether the High Court exercising powers under section 439, Cr. P. C. can examine a finding of fact and after reviewing the evidence hold that the finding in the circumstances of the case was incorrect and order retrial. In case Anwar v. Crown (P L D 1955 F C 185) it was observed by Muhammad Munir, Chief Justice:‑
"As regards the High Court's power to order a retrial in revision where the Provincial Government has not appealed from the order of acquittal there has never been nor there is arty doubt. Under section 435, Cr. P. C., the Court of Revision sends for the record of an inferior Court to satisfy itself as to the correctness, legality or propriety of any finding sentences or order as to the regularity of any proceedings, and after examin ing the record the High Court can under section 439 of that Code pass any order that a Court of appeal may pass including an order of retrial except that it cannot convert a finding of acquittal into one of conviction. The High Court is, therefore, perfectly within its powers to find in revision that a finding be it one of law or fact, or order of the inferior Court is not legal correct or proper, and where the finding to be examined is one of fact, the High Court will of necessity have to review the evidence and give its reasons for holding that the finding, in the circumstances of the case was incorrect: The only limitation imposed oar the High Court's power is that while interfering with an order of acquittal it is not to convert a finding of acquittal into one of conviction. If, therefore, the High Court does not do anything of the, kind, the order of retrial cannot be held to be illegal. Accordingly the description to snake an order of retrial, provided it does not offend against subsection (4) of section 439, is legally unlimited, though almost every High Court has imposed certain restrictions on the exercise of that power for its own guidance. It has never been doubted that where the order of acquittal proceeds on a wrong; view of the law the High Court can interfere with it . . . .
Technically, therefore, the power of the High Court to examine the evidence on which a finding of fact is based is unlimited, though in adopting that course it will naturally pay due regard to the opinion formed by the acquitting Judge about the witnesses who gave evidence before hint and the corresponding disadvantages from which the High Court itself suffers in not having them before it. No artificial rules can, therefore, be laid down defining the classes of cases in which the High Court should or should not order a retrial. The matter is essentially in the discretion of the High Court and the only limitation on the exercise of that discretion, apart from the legal restriction contained in subsection (4) of section 439, is that the exercise of such discretion is to be in accordance with the dictates of justice and not arbitrary or fanciful. The trial Court's view of the evidence, the nature of the error committed, the magni tude of apprehended miscarriage or failure of justice, the possibility and extent of prejudice to that accused, the chances of conviction, the expenses of a retrial are all relevant facts to be duly weighed."
From the above it is clear that the High Court is perfectly within its powers to find in revision that a finding, be it only of law or fact, or order of the inferior Court is not legal, correct or proper and where the finding to he examined is one of fact, the High Court will of necessity have to review the evidence and give its reasons for holding that the finding, in the circumstances of the case was incorrect. The only limitation imposed on the High Court's power is that while interfering with an order of acquittal, it is not to convert a finding of acquittal into one of conviction. In case Feroze Khan v. Ghulam Nabi Khan (P L D 1966 S C 424) it was observed :‑
"In cases of revision petitions from acquittal where the State has not thought fit to challenge the acquittal by an appeal, the Courts would be very slow to interfere, unless non‑interference would involve an endorsement of a patently unfair order, or one which leads to miscarriage of justice. If the view taken by the Courts below is reasonably possible on a consideration of all the facts and circumstances of the case, then the enter tainment of a feeling, that an alternative view of the evidence might have been taken, would not justify the superior Court in setting aside an order of acquittal."
From the perusal of the evidence on the record I find that ail the four eye‑witnesses examined in this case made no contradic tion in the narration of the occurrence. The learned Additional Sessions Judge placed no reliance on the testimony of Muhammad Bakhsh, Mughla and Ghulam P. Ws. merely on the ground that they were related to the deceased. This view taken by the learned Additional Sessions Judge does not appear to be correct. Mere relationship in the absence of any previous enmity does not make their evidence unreliable. In the present case, however, their testimony stands corroborated by the testimony of Khadim Hussain P. W. who is completely independent and disinterested. The learned Additional Sessions Judge was wrong when he came to the conclusion that Khadim Hussain did not support the prosecu tion version merely because in his cross‑examination he had stated that earlier on at the fair another fight had taken place between Allah Ditta son of Muhammad Raider, son of Bahawal and others on one side and Muhammad deceased, Ghulam and Muhammad Bakhsh P. Ws. on the other. This incident has noth ing whatever to do with the present occurrence. From the perusal of the medical evidence on the record I find that. Allah Ditta and Haider had received few minor injuries and, therefore, this fight could not have been more than an ordinary scuffle. It is in evidence that a large crowd was present at the fair and, therefore, the prosecution could not have dared to change the venue of the place of occurrence.
9. The finding of the learned Additional Sessions Judge that Bahadur respondent had been falsely implicated at the instance of Ali Raza Shah also does not appear to be plausible. It is an admitted fact that Bahadur respondent had appeared as a witness against Ali Raza Shah arid Mumtaz Husain Shah in a murder case. Nizam P. W. in his supplementary statement Exh. D. C. recorded by Assistant Sub‑Inspector Abdul Karim P. W., had stated that on receiving information about the occurrence he had gone to Thathi Said Bahrain and then taking with him Ali Raza Shah he went to the police station. The learned Additional Sessions Judge was influenced by this statement and that is why he had come to the conclusion that Bahadur had been falsely implicated at the instance of Ali Raza Shah. Ali Raza Shah is neither a witness in this case nor he is in any way connected with the deceased and the eye‑witnesses and, therefore, he was not in a position to influence the eye‑witnesses to falsely implicate Bahadur respondent. In any case no reliance can be placed on the mere opinion of Alam Shah P. W. in face of the ocular evidence on the record.
10. Further the learned Additional Sessions Judge came to the conclusion that the respondents had no intention to kill the deceased because they had not caused any injury on his vital part. Even if that be correct there was no question of acquittal because in view of the injuries caused to the deceased the respondents could at least have been convicted under section 326, P. P. C.
11. Lastly even if the finding of the learned Additional Sessions Judge that the prosecution version that Waryam was seen riding a mare while carrying an amputated leg shortly after the occurrence was not plausible be accepted, it has no bearing on the main occurrence and as such the learned Judge was not Justified in rejecting the evidence of the eye‑witnesses. Taking all the aforementioned circumstances into consideration the finding of fact arrived at by the learned Additional Sessions Judge appears to be incorrect.
12. The learned counsel for the respondents contended that the occurrence in this case took place on 8th July 1961 and they were acquitted by the learned Additional Sessions Judge on 11th June 1952, and so it will be highly unfair to retry them after a lapse of nearly 6 years. In support of his contention he relied on cases :‑
(1) Amin‑ul‑Haque v. Crown P L D 1952 F C 63.
(2) Inayat Ullah Hairat v. The State P L D 1961 Lah. 669.
(3) The State v. Abrar Hussain Shah P L D 1962 Kar. 753.
In case Amin‑ul‑Haque v. Crown it was observed :‑
"In conclusion it was contended on behalf of the Crown that Aminul Haque should be retried so that the prosecution may be able to produce Maulvi Abdul Bari as a witness at the trial. Ali Akbar met with his death as long as the 10th of July 1949. The appellant had to undergo the worry and anxiety of a prolonged trial for a period of over two years. It would be highly unfair to him if he is allowed to be retried in order to enable the prosecution to fill the gaps in the prose cution case. We are not, therefore, prepared to grant the prayer made on behalf of the Crown at this stage."
The facts of this case are not applicable to the present case because in the present case there is no question of a retrial to enable the prosecution to produce a witness in order to fill up gaps in the prosecution case. In Inayat Ullah Hairat v. State the accused was convicted under section 409, P. P. C. and in the alternative under section 380, P. P. C. and sentenced to suffer rigorous imprisonment for a period of two years on each charge with the direction that both the sentence would run concurrently. It was observed :‑‑
"In view of the above weakness in the prosecution story, the delay of more than two years since the alleged occurrence and the period of eleven months already suffered by the appellant in jail, I am of the view that this is not a fit case in which a retrial should be ordered and I direct accordingly."
In case The State v. Abrur Hussain Shah prosecution for offences under sections 5 and 7(2) of the Entertainment Duty Act, 1923 was hanging over the head of the accused for four years. It was observed :‑‑‑
"I am also of the view that the respondent who has had this prosecution hanging over his head for more than four years from 16th May 1957 up to date has undergone sufficient mental worry and anxiety, and to speak of expenses, so as to induce me not to order a retrial in this case. The offences alleged against him are more or less of a technical nature and are punishable only with a maximum fine of Rs. 500.00. Having regard to all these facts and circumstances I am not inclined to accept this reference and direct that it be returned to the District Magistrate, Nawabshah."
None of the offences of the last two cases mentioned above are of serious nature as compared with the offences alleged to have been committed by the respondents in the present case, and, therefore, these rulings will have no application.
13. For the aforementioned reasons I am convinced that there has been miscarriage of justice in the acquittal of the, respondents of the offences on which they had been tried. The revision petition is accordingly accepted and the respondents are ordered to be retried by the present learned Additional Sessions Judge, Jhang, as early as possible. He is, however, cautioned that he is not bound in any manner to follow the conclusion at which I have arrived on the evidence already on the record. He should consider as if no opinion leas been given by me in this judgment and that he should proceed with the trial and with the appraisement of the evidence quite independently of what had been done and said is the past. This judgment should not in airy way affect his independent opinion.
Petition accepted Retrial ordered.
Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.
🔍 Find a Lawyer