P L D 1977 Karachi 683 (PLP)

This revision application is directed against the judgment of Sessions Judge, Khairpur acquitting respondent, Achar of an offence under sec tion 302, P. P. C. regarding murder of one Gut Hassan.

2. It was the case of the prosecution that deceased Gut Hassan and his friend P. W. Ghulam Murtaza came and stayed as guests of complainant Sher Muhammad deceased at their village situated near the garden of his Highness at Khairpur. They slept on separate cots out in the garden 50 paces from the house of Sher Muhammad. At about 4‑30 a. m. Sher Muhammad, and his relations Khair Muhammad, Ali Nawaz and Pir Bux woke up on the cries of Ghulam Murtaza who informed them that someone had killed Gut Hassan during the night. An F. I. R. was lodged by Sher Muhammad at Khairpur Police Station on 7‑6‑1971 at about 8‑30 a.m. It was stated in that F. I. R. by Sher Muhammad that in the morning he heard commotion and on going there found Ghulam Murtaza and other witnesses standing and they told hits that some one had killed Gul Hassan by inflicting a hatchet blow. Gul Hassan was lying dead on his cot with hatchet injury on the right side of his neck, The complainant further stated in the F. I. R. that Gul Hassan and one Achar bad some dispute and it was suspected that either Achar himself or some one else sent by him had committed this murder.

3. Head Constable Ghazanfarali visited the scene and started investigation. At about 4‑30 p.m. respondent Achar was interrogated. Accused /respondent then led the Head Constable and the Mashirs and produced the shalwar with washed blood stains from his bed and ha also pointed out his blood stained hatchet lying concealed in bushes 5 or 6 paces away from the house. On 9‑6‑71 the accused was produced before the Civil Judge and F. C. M , Khairpur who recorded his judicial confession. The chemical examiner's report showed that the shalwar and the hatchet were stained with human blood. The accused/respondent was then sent up in Court and he was acquitted by the Sessions Judge, Khairpur on 6‑10‑1972.

4. The learned Sessions Judge disbelieved the evidence of eye‑witnesses Ghulam Murtaza and witnesses Sher Muhammad, Khair Muhammad, All Nawaz and Pir Bux. Ghulam Murtaza had stated in his evidence that about 2 years before the incident he had seen Achar for the first time quarrelling with his friend Gul Hassan at a marriage ceremony and thereafter he had seen him at the time of the incident giving hatchet blow to Gul Hassan. That he bad identified Achar on the light of the moon. The facts, however, showed that Ghulam Muriaza hid not seen the act of murder which had been discovered in the morning and report lodged at 8‑30 a.m. The F. I. R. showed only a suspicion that due to the dispute it was possible that Achar had himself or through some one else committed this murder. The question of identification of Achar was definitely an afterthought. it was admitted that Ghulam Murtaza had been suspected for the murder and detained at the police station and the other witnesses had also been detained until they gave their statements in support of the prosecution version.

5. Regarding recovery of blood‑stained Shalwar and hatchet the only Mashir examined is Karim Bux (Exh.28). He has admitted in his cross‑examination that he saw hatchet and the trousers in the hand of the Head Constable an 1 he could not say from whose house the articles were recovered. He has also admitted that these articles were not sealed in their presence.

6. The only other piece of evidence is the judicial confession of accused Achar. The version of the accused /respondent is that he has been implicated due to enmity over matrimonial affairs and he had made that confession under pressure of police as mother, father and other relations had been brought and wrongfully confined to extract the confession from him. The prosecution witnesses examined in this case have made admissions that accused made his confession as a result of threats of maltreatment and humiliation of his parents and women‑folk. Thus even the voluntary character of the retracted confession is not free from certain amount of doubt. Under these circumstances the learned Sessions Judge allowed the benefit of reasonable doubt to the accused and acquitted him.

7. It has been argued by Mr. Muhammad Ali Sheikh that there is retracted confession of the accused corroborated by recoveries of blood stained shalwar and hatchet; that if the Mashir of recovery had not supported the prosecution case the other Mashir ought to haven examined. He has accordingly moved for a retrial.

8. It has then been pointed out by Mr. M‑ I. Memon on behalf of the accused f respondent that the evidence of the only alleged eye‑witness Ghulam Murtaza is unreliable and even Ghulam Murtaza raised cries long after the actual murder. The F. I. R. was lodged at 8‑30 a.m. though the police station was hardly 500 paces away. He has also pointed out that e evidence regarding recoveries and the judicial confession is not free from e incident is of 1971 and is by now six years old. It would not, doubt. The therefore, be expedient to order a retrial of the case simply because the other Mashir of recovery might possibly support the prosecution case.

9. The accused/respondent has been acquitted in this case after an appraisal of the entire evidence. The learned Sessions judge had seen and heard the witnesses and has given his findings on facts based on sound reasoning and these findings cannot ordinarily be interfered with in the course of this revision application. The judgment of the learned Sessions judge does not show that it is either manifestly wrong or perverse and the acquittal is based on a view of evidence which might be perfectly justified on facts and supported by the reasons stated. It cannot be said that a grave f injustice would result unless the acquittal is set aside, nor is there any material to suggest that any important piece of evidence has been improperly left out or ignored. Under these circumstances a retrial cannot be ordered. The revision application is accordingly dismissed. S. Q. Application dismissed.