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Criminal Revision No. 1 of 1966, decided on 16th July 1976.

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-----S. 439‑Order of acquittal, propriety of‑Nothing to suggest reasoning of trial Court being artificial vis‑a‑vis evidence on record or judgment itself being perverse or foolish ‑Petition placed before High Court after 11 years‑Inordinate delay in dispensation of criminal justice, held, a factor in favour of accused persons‑Interference with orders of acquittal declined in circumstances.‑--[Delay].

Muhammad Anwar Sipra for Petitioner.

Malik Amjad Hussain for Respondents

Date of hearing: 9th July 1976

Sarwar, Muhammad Sadiq, Muhammad Ishaq, Ataullah, Ibrahim and Muhammad Shafi, were tried under section 307/148, P. P. C. by Raja Muhammad Ayub Khan, Magistrate First Class with Section 30 powers, Lyallpur, who vide his judgment dated 31‑5‑1965, found as under: ‑

"Under these circumstances the prosecution story appears to be just false and made up and not free of doubt because not a single dis interested P. W. has been produced by the prosecution in support of this case. Under these circumstances no case in made out against the accused."

Aggrieved against this order of acquittal, a private revision petition was filed by Sardar Muhammad complainant when the Government refused to file an appeal against the acquittal of the accused/respondents. "

2. The brief facts of the case are that on 28‑5‑1963, all the respondents formed an unlawful assembly while armed with deadly weapons and in the pro secution of their common object attacked Sardar Muhammad and Sanaullah P. Ws. while they were saying Zuhar prayer. According to the prosecution, after sating Zuhar prayer when Sardar Muhammad petitioner was sitting in the mosque all the accused/respondents came in the mosque. Sarwar had a Khoonda. Muhammad Sadiq respondent who was armed with a knife, gave a blow with it on his chest and Muhammad Shafi respondent while armed with a knife gave blows on his neck. Similarly Muhammad Ishaq respondent gave a knife blow on the chest of Sanaullah. In this attack mounted by the assailants. Sardar Muhammad P. W. received incised wounds on his face and neck and abdomen. Sanaullah P. W. received 14 injuries including knife blows given by Muhammad Ishaq and the others of blunt nature inflicted by Sarwar respondent.

3. The motive set up by the prosecution in this case was that Sardar Muhammad and Sanaullah P. Ws. gave a shoe‑beating to Ibrahim respondent in a dispute over turn of water. The Ziledar sometime later asked the parties to come to chak. No. 163/1113, to settle their dispute. Both the parties ‑attended to the call made by the Ziledar and it was only then that at Zuhar prayer time when the P. Ws. were offering their prayer, they were assaulted by the respondents. A case was lodged with the police and the injured witnesses were got medically examined. The learned trial Court found that all the P. Ws. were inimical towards the respondents' party due to long stand ing enmity and litigation between them. The learned Magistrate was also persuaded that although 30 to 35 persons were present at the dera of Ziledar and the mosque where this occurrence took place was surrounded by habita tion, therefore, the failure of the prosecution to produce a single independent witness to support its case heavily reflected on its veracity. The other factor which influenced the mind of the learned trial Magistrate was that the mind of the learned trial magistrate was that the plea of alibi put up by Muhammad Shafi respondent found support from the independent evidence of Bashir Ahmad, Ch. Khurshid Ahmad, Allah Ditta and Nawab D. W. 2, out of whom Bashir Ahmad D. W. was a Secretary of Union Council No. 172 of Chak 189/RB while Ch. Khurshid Ahmad D. W. was the Chairman of the same Union Council. Both these witnesses deposed that Muhammad Shafi respondent was present with them in the Union Council at the relevant time when this occurrence took place. Allah Ditta D. W. supported the absence of Sarwar respondent at the spot by submitting that land of Mst. Sharifans Mother‑in‑law of Sarwar respondent was situated in Chak No. 133/RB which was transferred in the name of the wife of Sarwar respondent and that land was on lease with him for 18 or 19 years. On 15th of Jeth Sarwar respon dent came to him for taking grain of leased land, alongwith Nazir, the paternal uncle of Sarwar respondent and two Kumhars and donkeys at 11‑00 a. m. and left that place at about 4‑00 or 4‑30 p m. Ells nephew Nawaz was also present with him. Nawab D. W. 4 also supported the statement of Allah Ditta D. W. 3. He further stated that the place of occurrence was situated at a distance of seven miles from Chak No. 133/1211. The learned trial Magistrate accepting the plea of alibi came to the conclusion that when there was no corroborative evidence coming from an independent source to support the prosecution version given by interested and inimical witnesses particularly when out of the six respondents two were found to be at different places at the time of occurrence, it was highly unsafe to warrant the convic tion of the respondents in this case.

4. I have given my anxious thought to ail these points considered by the learned trial Magistrate and have also heard at length the learned counsel appearing on behalf of the petitioner as well as the learned counsel for the respondents. It being a matter of private revision, unless I find that doubt created in the mind of the trial Magistrate was such a doubt which would not be felt by a rational mind or that the learned trial Magistrate has failed to take into consideration the evidence on the record which has otherwise fully supported the prosecution case, it would not be possible for me to interfere with his order even though I may feel that by appraising the evidence, a different conclusion could have been arrived. Moreover, this petition has been placed before me after a period of eleven years, therefore, inordinate delay in dispensation of criminal justice would be a factor in favour of the respondents. By making over all assessment of the evidence on the record and the reasoning of the learned trial Magistrate, it is not possible for me to hold that the reasoning is artificial vis‑a‑vis the evidence on the record or that the judgment itself is perverse or foolish.

5. In the light of the above discussion, I do not see any force in the revision petition, which is hereby dismissed.

Petition dismissed.

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