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[Lahore]

Criminal Revision No. 720 of 1968, heard on 16th March, 1985.

(a) Criminal Procedure Code (V of 1898)--

--S. 439--Penal Code (XLV of 1860), S. 506/34--Revisional Jurisdiction--Questions of fact regarding appreciation of evidence, having been determined by two Courts below in exercise of their proper jurisdiction, held, could not form basis for interference in revisional jurisdiction o High Court.

(b) Criminal Procedure Code (V of 1898)--

---S. 439--Penal Code (XLV of 1860), S. 506/34--Sentence--Revision heard after 16 years--Accused remained on bail during all these 16 years--Held, it would not be in interest of justice to send accused back to jail--Sending accused to jail after such long period might once again trigger up enmity between parties--Sentence reduced to one already undergone.--[Sentence].

C . R . Aslam for Petitioners.

Yasin Qazi for the State.

Date of hearing: 16th March, 1985.

This revision is directed against judgment dated 2-8-1968 delivered by the learned Sessions Judge, Mianwali.

2. Briefly stated the facts are that the three petitioners namely Sardar Khan, Muhammad Hayat and Sher Muhammad allegedly demanded cigarettes from Ghulam Qadir complainant who asked for payment of the price but the petitioners insisted on the supply of cigarettes free of cost. They, however, left the place with a threat that Ghulam Qadir a carpenter would be dealt with properly for his having refused the supply of cigarettes to them. Later, on the same date viz. 4-1-1968, the three petitioners appeared at the scene variously armed with fire-arms and Sardar Khan petitioner shouted at Ghulam Qadir complainant-P. W . who rushed into his shop and closed the doors. In the meanwhile the petitioners allegedly fired shots which though hit the wall and the front door of the shop did not cause any injury to the complainant.

The petitioners were tried by the learned Magistrate First Class; Mianwali (Ch. Rashid Ahmad) who by his order dated 1-7-1968 convicted the petitioners and sentenced them each to three months rigorous imprisonment under sections 352/34, P.P.C. and to one year's rigorous imprisonment each under section 506 P.P.C., the sentences were directed to run concurrently.

Feeling dissatisfied the petitioners went up in appeal to the learned Sessions Judge, Mianwali, who by his impugned judgment dated 2-8-1968 set aside the conviction of the petitioners under sections 352/34, P.P.C. but maintained the same under section 506/34, P.P.C The sentences were, however, reduced to six months R.I.

Feeling aggrieved the petitioners have come up to this Court in the present revision.

3. The learned counsel for the petitioners contended,

(i) that the witnesses who have been relied upon for conviction of the petitioners were interested persons;

(ii) that there are discrepancies in the testimony of the witnesses and that the first part of attribution could not possibly be witnessed by other witnesses except P.W.3;

(iii) that acquittal in a case registered on the basis of the same incident but regarding possession of unlicenced weapons against the petitioners shows the hollowness of the version of the prosecution and the petitioners were entitled to be acquitted in this case as well; and

(iv) that this revision has been pending for about 16 years and the sentence being short otherwise merits to be reduced to that already undergone.

4. The learned counsel for the State submitted that believing or disbelieving the witnesses is a discretion with the trial Court and the Appellate Court and that this point cannot be agitated in a revision. He, however, submitted that the State will have no objection if the sentence. is reduced to that already undergone.

5. Having considered the controversy involved I am of the view that the contentions raised on behalf of the petitioner in effect lapse disputed questions of fact which had been determined by the two Courts below in exercise of their proper jurisdiction. These cannot form a basis for interfering with the judgments of the Courts below in tire revisional jurisdiction of this Court.

6. I, however, find force in the last contention raised on behalf of petitioners that due to long period of pendency of this revision petition it would not be appropriate to send the petitioners to jail once again. Obviously it would not be in the interest of justice to send back the petitioners to jail after having remained on bail during all these 16 years. Sending them to jail now may also once again trigger up enmity between the parties who I am told are living harmoniously ever since. The petitioners I am also told remained in jail as under-trials for about two months and have also served some days sentence in jail after conviction by the trial Court and on dismissal of their appeal by the learned Sessions Judge, Mianwali.

7. I would, therefore, dismiss this revision petition but reduce the sentence of the petitioners to that which they have already undergone.

S. A.

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