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Criminal Revision No. 48 of 1973, decided on 26th April 1977.

‑‑ S. 439 read with Penal Code (XLV of 1860), S. 302/34‑Revision Retrial‑Report of Ballistic Expert‑Important piece of evidence against accused, left out of consideration by trial Court‑Case remanded to trial Court for retrial in respect of accused concerned. [Retrial‑Revision (criminal].

Azizullah K. Shaikh for Applicant.

Ahmed Mian Soomro for Respondents Nos. 1, 3 and 4.

A. K. Lakhan for the State.

Date of hearing : 13th April 1977.

This is a revision application directed against the judgment of Additional Sessions Judge, Jacobabad, acquitting the four respondents of offence under section 302 read with section 34, P. P. C., for having committed murders of deceased Abdur Rasul and Hayat.

2. Deceased Abdur Rasul. Hayat and complainant Mst. Noor Khatoon and P. Ws. Ghulam Kadir and Ali Dost were all near relations and they had come from their village to Jacobabad on 18‑12-1970 to meet their rela tion Muhammad Hussain an under‑trial prisoner, in lacobabed Jail. Muhimmad Hussain was accused for murder of one Rasool Bux. After the meeting the party left for Attaur Bangwar village to pass the night with their relations. When they crossed Ahmed Mian minor and were on the bridge 5 persons, namely, the four respondents and absconder Gal Muhammad came out from under the bridge. Respondent Hassan and Peero were armed with guns while the rest had hatchets a accused Hassan challenged the party that he would take revenge for murder of his father Le. Rasool Bax. Respondent Hassan and Peero then fired their guns hitting Muhammad Hayat and Abdul Rasul who fell down and died on the spot. The respondents and the abscon der then ran away. The incident took place in the afternoon. No one came on their cries at the time of the incident. But Attaur Bhangwar passed on his way to Jacobabad from the village. He was informed of what had happened and he was requested to take Mst. Noor Khatoon and Ali Dost in his donkey‑cart for lodging report at Jacobabad. He accordingly took them to Saddar Police Station, Jacobabad where Mst. Noor Khatoon lodged her report at 20 hours. Police visited the scene of offence and secured 5 empty cartridges lying at the scene. A double‑barrel shot‑gun bearing No. 9395 entered on the licence of respondent Muhammad Hassan was recovered from him. Respondent Yar Muhammad had also produced his gun. The guns and the crime empties were sent to the Ballistic Expert and his opinion in respect of the gun recovered from respondent Muhammad Hassan was positive.

3. The learned Additional Sessions Judge, Jacobabad did not care to examine the Ballistic Expert at the trial. He found the ocular evidence of Mo. Noor Khatoon, Ghulam Kadir and Ali Dost to be interested as these witnesses were near relations of the deceased and there was enmity between the two patties on account of the murder of Rasool Bux. The learned Additional Sessions Judge also found that Attaur Bhangwar the only indepen dent witness had not fully supported the prosecution version He accordingly found that there was evidence of interested witnesses only and the requisite corroboration by any other direct or circumstantial evidence was wanting. All the respondents were, therefore, allowed benefit of doubt and they were acquitted.

4. It has been argued by Mr. Aaizullah Shaikh that the trial Court did not care to record the evidence of the Balistic Expert which was absolutely necessary for arriving at the just decision is that case. On 19‑6‑1972 the learned Additional Sessions Judge closed the side of the prosecution himself and did not think it proper to wait for the Ballistic Expert. On the same day there is a further diary that Mr. Jaffery Ballistic Expert appeared and he was directed to attend on 8‑7‑1972 to file his reply to the notice under section 174, P. P. C. Judgment was however, pronounced on 5‑7‑1972, 3 days earlier. It has been argued by Mr. Azizullah Sheikh as well as by Mr. A. K. Lathan on behalf of the State that the learned Judge ought to have recorded the evidence of the Ballistic Expert who had actually attended the Court and was available long before the pronouncement of the judgment. Mr. Lakhan has made a statement that even at present both the officers, namely, Mr. Jaffery as well as Mr. Shah Johan, who has signed the report, are available and could be examined at any time.

It has however been argued by Mr. Ahmed Mian on behalf of the respondent that respondent Sanaullah has not been served as he is not traceable. He has further pointed out that the deaths were caused by gunshot wounds and there was no allegation that respondent Yar Mohammed and Khairbux had taken any part in commission of these murders. In any case the Ballistic Expert, if examined, would have corroborated the version of the interested witnesses only as against respondent Hassan son of Rasool Bux.

6. It is true that there is hardly any dispute regarding the production of the gun in question by respondent Hassan. The gun is entered on his licence and he has admitted in his statement that the said gun had been produced by him. The Ballistic Expert's report regarding crime empties secured from the wardat being positive, in respect of this gun, this piece. of circumstantial evidence ought to have been brought on record for assessment of the ocular evidence which would thin stand corroborated by this circumstantial evidence as against respondent Hassan. The motive for the murder is also to the effect that these murders were committed in order tot avenge the prior murder of Rasool Bux father of respondent Hassan.

7. Thus no useful purpose will be served by directing a retrial of the whole case against all the accused. On The other hand, an important piece of evidence against respondent Hassan hag been left out of consideration. The order acquitting respondent Hassan is accordingly set aside and the case is remanded to the trial Court for re‑trial in respect of respondent Hassan only.

8. Respondent Hassan is on bail, he is directed to appear in the Court of Session at Jacobabad on 20th May, 1977 for a fresh trial. The it & P may be returned to the Court of Session at Jacobabad.

S. Q. Order accordingly.

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