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Criminal Petition for Special Leave to Appeal No. K‑8 of 1985, decided on 18th February, 1985.

‑‑Art. 185(3)‑‑Criminal Procedure Code (V of 1898), S. 439‑‑High Court in revision quashing order of trial Court joining M as co‑accused on ground that name of such co‑accused having not been mentioned in F.I.R. lodged by brother of deceased and witnesses not involving such co‑accused during investigation‑‑Plea that interference by exercise of revisional jurisdiction was not justifiable repelled by Supreme Court refusing leave to appeal on ground that reasons which prevailed with High Court provided sufficient ground in law for interference and that High Court, was well within scope of its revisional jurisdiction to set aside order of trial Court.

Muhammad Ali Shaikh, Advocate Supreme Court instructed by Faizanul Haq Advocate‑on‑Record (absent) for Petitioner.

Nemo for the State.

Date of hearing: 18th February, 1985.

‑‑Petitioner lodged F.I.R. on 28‑6‑1978 at 9‑15 p.m. with Market Police Station Hyderabad about the murder of his brother, Ahsan Ali, which occurred about half an hour earlier Petitioner claimed to be an eye‑witness of the occurrence alongwith three others. In the F.I.R. he did not mention the name of Mst. Mehrun‑Nisa respondent, sister of Punhoon accused, who alone was alleged to have killed the deceased.

Police challaned Punhoon accused alone, placing Mst. Mehrun‑Nisa in Column 2 in the challan. Petitioner applied for the joinder of Mst. Mehrun‑Nisa as co‑accused but his application was rejected by the trial Court on technical grounds. Sind High Court, however, in revision set aside the order of the trial Court and remanded the case for consideration of petitioner's application on merit.

On remand learned trial Judge examined the main witnesses and they by the order dated 6‑7‑1982 joined Mst. Mehrun‑Nisa as co‑accused.

This order was challenged by Mehrun‑Nisa in revision application in Sind High Court which succeeded by the impugned judgment dated 16‑12‑1984. The reasons which prevailed with the High Court may be usefully reproduced hereunder. These are:

"The F.I.R. and the medical certificate totally belie the subsequent additions which have been made by Qurban Ali and P.Ws. Shah Nawaz and others regarding the role of applicant Mst. Mehrun‑Nisa in this incident. The witnesses had not involved Mehrun‑Nisa in this case during the investigation when their statements under section 161, Cr.P.C. were recorded. This is the reason why her name was mentioned in the column No. 2 of the challan.

The learned trial Court, while passing the impugned order has not referred either to the F.I.R. or the medical certificate which prove that the subsequent allegations of the complainant and his witnesses regarding the role of applicant Mst. Mehrun‑Nisa in this incident is concocted and result of second thought. The petition is, therefore, allowed and the order of the trial Court joining Mehrun‑Nisa as co‑accused in the case is quashed."

Mr. Muhammad Ali Shaikh learned counsel appearing in support of this petition for leave to appeal submits that the High Court has failed to consider that the trial Court taking a prima facie view of the facts of the case had joined Mst. Mehrun‑Nisa as the accused and thereby had committed no illegality, and therefore, interference in exercise of revisional jurisdiction was not justified.

We, however, find that the reasons which prevailed with the High Court provided sufficient ground in law for interference, and the High Court was well within the scope of its revisional jurisdiction to set aside the impugned order of the trial Court. Since by the impugned order the High Court has not violated any provision or principle of law governing the facts of the case interference by this Court is not justified. The petition is, therefore, dismissed.

A. A. Leave refused

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