P L D 1966 (W (PLP)

SHAKIRULLAH JAN, J.

This revision is directed against the order of Mr. Amirzada Khan, Additional Sessions Judge, Peshawar, Camp Mardan, dated 14‑4‑62, acquitting Said Faqir aged 40, and Gul Faqir aged 35, sons of At6as r/o Khalid Abad, P. S., Shahbazgarh, Tehsil Mardan, of charges under sections 302/34, and 307/34, P. P. C.

2. The prosecution story is that on 14‑3‑59, Mir Wali deceased and Haji Lal Said, P. W. 2 had gone to Zarin Kili in the after‑noon for purchasing some maize from P. W. Zarin. The two respondents along with their cousin Maluk, of whom Said Faqir, was armed with a dagger and Gul Faqir and Maluk armed with knives, were sitting on the bank of the canal by the side of the road awaiting the arrival of the deceased and Haji Lal Said from ZarinKili. It is said that at about `digar' time, the deceased and Haji Lal Said arrived at the spot on their way from Zarinkili to their village. Said Faqir and Gul Faqir attacked Mir Wali deceased and stabbed him, while Maluk stabbed Haji Lal Said P. W. The two respondents and Maluk then went towards sugar‑cane field lying to the east of the spot, and they were pursued by Mir Wali deceased for some distance, but the culprits entered the sugar‑cane field and he returned to the road side, where he fell on the ground. The occurrence was also witnessed by P. Ws. Akbar Ali and Khan Said, who were present across the canal. Many villagers reached the spot after the departure of the respondents and placing Mir Wali on a cot who was then alive, they carried him to his house, and from there he was being carried to the police station. P. W. Lal Said sent for a `tongs' from village Babini, and on its arrival, he boarded it and left on his way to the police station and overtook the people near Zando Banda, who were carrying Mir Wali to the police station. He stopped the `tongs' with a view to take Mir Wali along with him, and while placing the cot in the `tongs' it transpired that Mir Wali had already succumbed to his injuries. Taking the dead body of the deceased along with him, Haji Lal Said then went to police station Shahbaz Garh, where his report Exh. P. A. was recorded at 21 ' 10 hours by Umra Khan, S. H. O. P. W;

11. He prepared injury sheet Exh. P. B. of Lal Said P. W. injury sheet Exh. P. C. and inquest report P. D. of the deceased and sent the dead-body to the mortuary for post‑mortem examination under the escort of Rahmat Shah F. C. and sent Lal Said P. W. 2 to .the Civil Hospital Mardan for medical examination.

3. The S. I. left for the spot reaching there at 23.20 hours, after covering a distance of five miles from the police station. He went to village Khalidbad and searched the house of the two respondents but nothing incriminating was recovered. They were, however, missing. He inspected the spot on the following day in the morning and prepared site plan Exh. P. F.

4. On 15‑3‑1959 at 11‑40 a.m. Dr. Fateh Muhammad Khan (P. W. 1) performed post‑mortem examination on the dead body of Mir Wali, and found the following injuries :‑

1. A stab wound 1 2/3" x " x 2" across the right side of the abdomen on the back and outer side just above the buttocks. (2) A stab wound 1 " x " x l " across the right back and the level of 8th and 9th ribs. (3) A stab wound 1 " x "x 1" on the back of the left chest just below the middle of shoulder. (4) An incised wound 1" x 1/3" skin deep on the back of the right side scalp. On internal examination, scalp, thorax walls, the right pleura and the right lung were found injured, as also the abdominal wall, peritoneum and the right iliac vessels. Death was due to shock and hemorrhage on account of injuries to the lung and iliac vessels, caused by a sharp‑edged and pointed weapon. Injuries 1 and 2 were individually sufficient in the ordinary course of nature to cause death.

5. The same doctor examined Lal Said P. W. and found the following injuries on his person. (1) An incised wound 2" x " bone deep on the top and front of the left shoulder joint. (2) An incised wound 2 " x 1/3" skin deep on the back of left shoulder joint. (3) An incised wound 1 " x " skin deep crossing injury No. 2.

4. An incised wound 3 " x 1/3" skin deep on the left back, 2" below injury No.

2. The injuries were caused by sharp‑edged and pointed weapon within 24 hours. None of the injuries, according to the doctor, was dangerous to life.

6. It may be pointed out here that the two respondents along with Maluk were charged for murdering the deceased and attempting at the life of Lal Said P. W. in furtherance of their common intention. The respondents absconded. A warrant under section 204, Cr. P. C. was issued against them and was entrusted to Lal Zada F. C. which was returned unserved. Maluk was however, tried under sections 302/34 and 307/34, P. P. C., by Mr. Qaisar Khan, Sessions Judge, Peshawar Camp Mardan, who, by his order, dated 24‑7‑59, convicted him on both the counts and sentenced him to transportation for life under section 302/34, P. P. C. and three years' R. I. under section 307/34, P. P. C., ordering both the sentences to run concurrently. On appeal, a Division Bench of this Court set the convictions and sentences of Maluk aside, vide order, dated 14‑7‑1960. The two respondents surrendered themselves to the District Magistrate, Mardan, on 25‑4‑1961, and on receiving this informa tion on telephone, Mir Rahman Khan A. S. I. P. W. 9 then attached to P. S. Shahbazgarh, went to Mardan, and found that the respondents had already been sent to the judicial lock‑up. He went there and recorded their statements.

7. The motive for the offence, as given by the prosecution, is that about a year before the occurrence, P. W. Akbar Ali, who was the tenant of Haji Lal Said P. W: 2, had set fire to the sugar‑cane blades in his field. The fire, however, spread into the adjoining field of the respondents and burnt their sugar cane crop. Subsequently, through the intervention of a `airga', Lal Said paid Rs. 100 as compensation to the respondents. Although Rs. 100 were accepted by the respondents, but according to the prosecution, they were not satisfied, as they demanded compensation on the basis of standard maunds, while they were paid on the basis of pucca maunds.

8. The respondents, when examined, pleaded not guilty. In their statements before the Inquiry Magistrate, both the respondents stated that they had not absconded but appeared before the Deputy Commissioner on hearing that they had been falsely implicated in this case. They were innocent and were falsely charged. Explaining the charge brought against them by Haji Lai Said P. W. and also for killing the deceased, they stated that it was Lai Said P.W., who had himself killed the deceased, and the latter had injured him. They stated that the deceased was their relation, and they had no motive to kill him. Lai Said charged them, as he wanted to save his own skin. Both of them had stated that they were in Navakili on the day of occurrence, and on learning about the charge they went into hiding out of fear and subsequently surrendered to the Deputy Commissioner, Mardan. They stated that Akbar Ali and Khan Said P. Ws. had charged them, as they were tenants of Lai Said. Furthermore, Akbar Ali is the sister's son of Lai Said and Khan Said is the son of the sister of Lai Said's wife.

9. After considering the evidence examined by the prosecu tion and the plea of the respondents, the learned Additional Sessions Judge came to the conclusion that the prosecution failed to prove the presence of Akbar Ali and Khan Said P. Ws. at the spot at the time of 'occurrence. Having disbelieved them, he was left with the statement of Lai Said as the only witness regarding the guilt of the respondents. He rejected his statement on the ground that the relations between him and the respondents were strained, and in view of the strained relations; his statement required corroboration. He found that although the two respondents had absconded after the occurrence, but in his opinion, abscondence was equally consistent with the guilt as well as with the innocence of the accused, and that it was possible that the respondents had absconded, as they had guilty conscience, but it was also possible that they had done so out of fear, although they believed themselves to be innocent.

10. The learned counsel for the petitioner attacked the order of the learned trial Judge on two grounds, (1) that the trial Judge had conducted the trial with certain preconceived notions which apparently he had formed at an early stage of the trial by putting questions which could only be put by counsel on the instruction and (2) that the judgment of the learned trial Judge was perverse, was not based on the evidence examined by the prosecution and the evidence was misread by him. In support of the first contention that the trial was conducted with certain preconceived notions, the learned counsel for the petitioner referred to the examination of the witnesses by the Court. He urged that it was the trial Judge, who introduced Gul Khan and Mst. Shamroza as eye‑witnesses while examining Umara Khan S. I. P: W. 11, and so it appeared that such like questions could be asked only by a person of the instructions. Continuing his argument, the learned counsel submitted that since the trial Judge had conducted the trial with preconceived notions, it was vitiated, and he requested for retrial. In support of this contention, learned counsel referred to Manzur Hussain v. The State (P L D 1963 Lah. 20) where retrial was ordered, as the trial Judge had conducted the trial with certain preconceived notions and theories which he seemed to have formed at a fairly early stage of the trial. The authority relied on by the learned counsel for the petitioner, is not applicable, be‑cause in our opinion, there is no material on the record to suggest that the trial was conducted with preconceived notions. The main contention of the learned counsel was that Gul Khan and Mst. Shamroza were introduced as eye‑witnesses by the trial Judge. A careful perusal of the evidence read with the site plan Exh. P.F., would show that the learned counsel is misinformed. It was not the trial Judge, who, by examining the S. I. had introduced Gul Khan and Mst. Shamrozaas eye‑witnesses, but they themselves gave an impression at the time of the preparation of the site plan that they had witnessed the occurrence. Point No. 5 of the site plan denotes the place, from where Mst. Shamroza, widow of the deceased, is alleged to have witnessed the occurrence and Gal Khan is alleged to have witnessed the occurrence from point No. 8. 1n view of these notes on the site plan, the S. I. in answer to a court question stated that he had prepared the site plan at the instance of Mst. Shamroza and Gul Khan, who had stated that they had witnessed the occurrence. Moreover, apart from the fact that this objection is not tenable, as it has no basis, it is also not maintainable on the ground that it was not raised in the grounds of revision by the learned counsel. In support of this view we are fortified by A I R 1933 All 264 at page 266, their Lordships observed:‑

"The applicants before us went before the learned Sessions Judge with a petition of revision but it was rejected by him. Thereupon the matter came up to this Court. Several points have been taken before us. One of these we can at once rule out, on the ground that it was not taken in the Court below and was not taken specifically in this Court. As it involves a decision as to facts, we are unable to proceed with it."

11. The learned counsel next urged that the judgment of the trial Judge is perverse, is not based on the evidence on record and the evidence was misread. In support of this contention, he urged that, Akbar Ali, P. W. 3 and Khan Said P. W. 4 were wrongly disbelieved, and furthermore the statement of Haji Lal‑ Said P.W. 2 who was injured during the course of the same transaction, and which was corroborated by the conduct of the two respondents in absconding after the occurrence, was also disbelieved without any reasons.

12. As pointed out earlier, Maluk, a co‑accused of the respondents was tried under sections 302/34 and 307/34, P. P. C. and was sentenced to transportation for life on the former count and three years' R. I. on the latter, by Mr. Qaisar Khan Addl. Sessions Judge. In that trial, Akbar Ali and Khan Said P. Ws. were examined as eye‑witnesses, who were disbelieved by him, and he had mainly based the conviction of Maluk on the statement of Haji Lal Said P. W.

2. His convictions and sentences were set aside and he was acquitted by a Division Bench of this Court, by order, dated 14‑7‑

60. While discussing the evidence of the three eye‑witnesses, viz. Haji Lal Said; Akbar Ali and Khan Said, their Lordships observed:‑ "The prosecution examined Lat Said (P.W. 1), Akbar Ali (P. W. 3) and Khan Said (P.W. 4) in support of its case. The learned Additional Sessions Judge, who had the advantage of hearing 'the witnesses and watching their demeanour in the witness‑box, did not rely on the evidence of Akbar Ali and Khan Said P. Ws. We have gone through the evidence of these two witnesses, and have also considered the reasons given by the learned Additional Sessions Judge, and see no reason to differ from him on this point. Thus, the conviction is based on the solitary statement of Lal Said P. W. It cannot be denied that the relations between the parties are strained. In view of the strained relations between the parties, it is necessary to look for independent corroboration, which is completely lacking. In the case of the absconders it can be said that their conduct, inasmuch as they absconded after the occurrence, may be a corroborative circumstance, but in the case of the appellant there is no such circumstance." The two eye‑witnesses, viz. Akbar Ali and Khan Said, were disbelieved in the former trial and also by a Division Bench of this Court, and they were again disbelieved by the learned trial Judge by his order, which is under this revision. A careful perusal of the statements of Akbar Ali and Khan Said would show that they were rightly disbelieved by the learned trial Judge. It appears that Akbar Ali P. W. was the tenant of Khan Said P. W. and it was he, who had set fire to the sugar‑cane blades lying in the field of Lal Said P. W. and the fire then spread into the adjoining field of the respondents burning their sugar‑cane crop. Although this P.W. claimed to be an eye‑witness, yet he appeared before the police on the following day. Moreover, it was Akbar Ali, who was the source of enmity between the parties by setting the fire to the sugar‑cane crop of the respondents, and it is rather incredible that although he was present on the spot, yet he was spared by the accused, and instead the deceased, with whom they had no enmity was killed by them. Khan Said P. W. was the tenant of Lal Said P. W. during the days of occurrence, and therefore, he is interested witness and was rightly disbelieved by the learned trial Judge.

13. Having disbelieved Akbar Ali and Khan Said P. Ws. now we are left with the statement of Haji Lal Said the injured P. W. Learned counsel for the petitioner contended that the statement of Lal Said was corroborated by the injuries found on his person and also by the conduct of the respondents in absconding' after the occurrence. The statement of Haji Lal Said P. W. in our opinion, does not link the respondents with the commission of the offence. He deposed that on the day of occurrence he had accompanied the deceased to Zarinkili for purchasing maize from Zarin P. W. and while returning from there, they were waylaid by the respondent and Maluk, acquitted accused. The statement of Lal Said P. W. shows that the two respondents had no enmity with the deceased, and so in these circumstances, in our opinion, the respondents had no motive for the offence. Zarin P. W. who was examined in support of the motive, deposed that Rs. 100 were paid as compensation to the respondents by Haji Lal Said, but in his statement, recorded by the committing Magistrate, with which he was confronted, he stated that a sure of Rs. 30 was paid to the respondents as compensation. This discrepancy regarding the amount of compensation, said to have been paid by Lal Said to the respondents, has not beta satisfactorily explained, and thus the story that the sugar‑cane crop of the respondents was burnt has not been established, Moreover, Haji Lal Said P. W. was disbelieved regarding his own injuries by a Division Bench of this Court, and therefore, his statement, regarding the injuries resulting in the death of Mir Wali, cannot be accepted.

14. Learned counsel for the petitioner, however, urged that the statement or Haji Lal Said P.W. has been corroborated by the injuries on his person and also by the subsequent conduct of the respondents in absconding after the occurrence: It is true that Lal Said had injuries on his person, these injuries, however, proved his presence on the spot at the time of occurrence, but this does not conclusively prove the guilt of a person charged by him, and he was disbelieved by a Division Bench of this Court regarding his injuries, for which he charged Maluk. The two respondents had absconded after the occurrence, but they explained that they had done so on account of fear, and therefore, it cannot be considered as a corroborative piece of evidence. Furthermore, there is no evidence on the, record to connect the two respondents with the commission of the offence. In support of this contention, the learned counsel for the respondents referred to Criminal Appeals Nos. 74 to 76, decided by the Supreme Court on 19‑10‑

61. Their Lordships observed:‑ "Two corroboratory circumstances were adduced to support the evidence. One was that immediately after the occurrence the culprits had absconded and one of them Haq Nawaz was still absconding when the others were brought to trial. The three accused persons only appeared about a year and a half after the occurrence. A fairly reasonable explanation for this circumstance is that knowing that their enemies had been shot, whether they were guilty or not, they were bound to make themselves scare, since they were aware that they would be accused of the crime. Probably also, belonging to Abbasa where the Thana is situated, they became aware after a very short time that they had actually been accused, and therefore, their safety lay in slipping over the border into the Tribal Area. This circumstance is therefore indifferent in its effect, being of no weight to incline the judgment one way or the other in determining whether or not the accused persons are guilty." The abscondence of the respondents is, therefore, equally consistent with their guilt as well as their innocence, and thus, there is some force in the contention of the learned counsel for the respondents that they absconded out of fear. These facts taken into consideration would show that the entire evidence, examined by the prosecution, was considered by the learned trial Judge, and the petitioner failed to prove that the learned trial Judge had made an obvious mistake resulting in a failure of justice, that the order of the learned trial Judge is contrary to some fundamental rules of procedure and that the acquittal is based on a view of evidence, which no reasonable judicial officer could possibly take, and so in these circumstances, retrial cannot be ordered. In a case reported as A I R (37) 1950 All.

42. It was, held:‑

"The power to interfere in revision with an order of acquittal is to be exercised only in exceptional cases where it appears that the Judge has made an obvious mistake which has resulted in a failure of justice; for instance, where the Judge has tried the case without jurisdiction or where the trial has been irregular in that he has not allowed the prosecution to produce material evidence or to address arguments before judgment was delivered. But the High Court will not interfere when the Judge has tried the case in a regular way and passed an order of acquittal upon a consideration of all the material evidence on the record, on the ground that the conclusions arrived at by him are not correct, Such findings of facts are not interfered with in revision even in the case of a conviction much less ought they to be interfered with in the case of an acquittal." In Anwar and another v. The Crown (P L D 1955 F C 185), at p. 188 their Lordships observed:‑-- "Technically the power of the High Court under section 439, Cr. P. C. to examine the evidence on which a finding of fact in a case of acquittal is based is unlimited, though in adopting that course it will naturally pay due regard to the opinion formed by the acquitting Judge about the witnesses who gave evidence before him and the corresponding disadvantages from which the High Court itself suffers in not having them before it. No artificial rules can, therefore, be laid down defining the classes of cases in which the High Court should or should not order a retrial. The matter is essentially in the discretion of the High Court and the only limitation on the exercise of that discretion, apart from the legal restriction contained in subsection (4) of section 439, is that the exercise of such discretion is to be in accordance with the dictates of justice and not arbitrary or fanciful. The trial Court's view of the evidence, the nature of the error committed, the magnitude of apprehended miscarriage or failure of justice, the possibility and extent of prejudice to the accused, the chances of conviction, the expenses of a retrial are all relevant factors to be duly weighed." The same view was taken in a case reported as Muzaffar and another v. The State (P L D 1961 Lah.561). At page 578 his Lordship observed:‑

"The power of the High Court to order a retrial in a case in which an accused person has been acquitted is unlimited, because it is not circumscribed by any provision of the relevant law. It is, however, obvious that when a person has been acquitted after the entire evidence against him has been considered by a Court of competent jurisdiction and after that this Court orders a retrial, the finding of this Court amounts almost to one of conviction of the accused. For these reasons, I am reluctant to order, a retrial in a case in which the entire evidence has been considered by the subordinate Court which passed an order of acquittal."

15. As a result of the foregoing discussion we are of the opinion that the learned trial Judge had passed the order of acquittal after considering the entire evidence on the record, and so in view of the authorities cited above, we dismiss this revision. S.Q Petition dismissed.