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Criminal Petition for Leave to appeal No. 34‑R of 1982, decided on 9th
October, 1982.
(On appeal from the judgment and order dated the 17th February, 1982 of the Lahore High Court Rawalpindi Bench in Criminal Revision No. 939 of 1980).
Penal Code (XLV of 1860)‑
‑‑ Ss. 302/307/149 etc. read with Criminal Procedure Code (V of 1898), S. 439(4)(a)‑[Murder‑case]‑Revision‑Contention that Single Judge of High Court while exercising revisional powers went beyond mere vacating of certain findings of fact and recorded clear finding of fact likely to support conversion of finding of "not guilty" into a finding of "guilty" and consequently exceeded his jurisdiction‑Points discussed by Judge‑Amply supported by evidence‑Case also remanded for retrial by Sessions Judge or Additional Sessions Judge other than one whose judgment set aside in revision‑Judge also directing that trial Court shall not be influenced by any observation made in his order and shall come to its own independent conclusion‑Fear in mind of peti tioners as to impugned judgment having decided facts one way or other, held, without any reasonable ground and observations of Single Judge indicate no conclusive observation having been made with regard to various facts taken into consideration while remanding case for fresh decision.
Kh. Ahmad Iqbal and K. H. Meer, Advocates Supreme Court and Imtiaz Muhammad Khan, Advocate‑on‑Record for Petitioners.
Nemo for the State.
Date of hearing : 9th October, 1982.
.‑This is a petition against the judgment and order of the Lahore High Court, Rawalpindi Bench dated 17‑2‑1982 passed in Criminal Revision No. 939 of 1980 whereby the judgment of the Additional Sessions Judge, Rawalpindi dated 29‑7‑1980 acquitting the accused petitioners in a case under section 302/307/324 read with sections 148 and 149, P. P. C,, was set aside and the case was remanded for retrial.
2. The learned counsel contended that the learned Single Judge of the Lahore High Court while exercising powers under section 439(4)(a) of the Code of Criminal Procedure has gone beyond mere vacating of certain findings of fact and recorded clear findings of fact which may support a conversion of finding of not guilty' into a finding of guilty'; that the impugned order is contrary to the principle that power of revision and even appeal is to be exercised in a markedly more restrained manner in a case of acquittal.
3. The facts which are necessary to appreciate the points raised by the learned counsel for the petitioners are that on 14‑1‑1978 at late afternoon Ghulam Mustafa was coming to his village from the Sugar Depot when the petitioners Abdul Majeed and Ashiq Hussain, armed with sobs, Muhammad Munir, armed with '12 bore gun, Liaqat Hussain and Abdul Razzaq, armed with hatchets, stood up and Ashiq Hussain challenged Ghulam Mustafa saying that his mother had abused the mother of the accused (Ashiq Hussain) as to why she had passed through their land, and, therefore, he inflicted blows to Ghulam Mustafa with a soti who raised alarm which attracted Karam Elahi P. W. 7, Hadi Hussain, P. W. 9 Mushtaq Hussain (not produced) and Abdul Qadeer (deceased). They tried to rescue Ghulam Mustafa but the petitioners attacked them with their weapons as a result of which Abdul Qadeer died later on in the hospital while some of the witnesses sustained injuries and were examined by a doctor in the Civil Hospital, Gujar Khan. Karam Elahi, P. W. 7 lodged the report in the police station and also revealed the motive for the commission of the offence.
4. On going through the judgment of the learned Single Judge w notice that the various points which had been discussed, find ample support from the evidence and in the concluding paragraph of the judgment it had been observed that the case is remanded for retrial by the Sessions Judge or the Additional Sessions Judge other than the one whose judgment was set aside in revision, with further direction that the trial Court shall no be influenced by any observation made in the High Court's order and shall come to its own independent conclusion. Thus the fear in the mind of the petitioner that the impugned judgment has decided the facts one way or the other, is without any reasonable ground. The observations made in the judgment would show that the learned Single Judge has not made an conclusive observation regarding the various facts which he has taken into consideration while remanding the case for fresh decision. He has obvious taken into consideration certain findings of the learned trial Judge and held that they are not well‑founded. Thus this petition is without merit and is accordingly dismissed.
Petition dismissed.
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