P L D 1954 Baghdad﷓ul﷓Jadid 1 (PLP)

ABDUL RASHID, J.‑Abdul Qadir, Azeem and Sojhla respondent were tried by the learned Sessions Judge of Rahimyar Khan on double charge of murder under section 302 P. P. C. for causing the death of Farid and Mst. Bakhtawar wife of Sojhla respondent. The first two persons were acquitted while Sojhla convicted under section 304 (1) P. P, C. and sentenced to 2 years' rigorous imprisonment on each count, both the sentences were ordered to run concurrently. The petitioner moved the Government for setting aside the acquittal of all the three respondents under section 302 P. P. C, but his prayer was refused and now he has come to this Court to seek his remedy by way of revision under section 439 Cr. P. C. As the Government Advocate does not support this petition. the petitioner is represented by his counsel Sheikh Nisar Ahmad and respondents are appearing through Mustafa Khan, while Sojhla convict is un-represented in the case. The story as told by the prosecution was that the relations between Farid deceased and the respondents Abdul Qadir and Azeem were very much strained on account of their attempted violation of each other's women‑folk in the past with the result that there had also been some litigation between them in that connection but without any success on either side. It was further alleged that a month prior to the occurrence Azeem accused had seen both the deceased persons together and informed Sojhla of the matter, upon which all the three respondents plotted together to make away with the couple. In pursuance of that conspiracy Sojbla is said to have approached Jalal Din P W 3 in his house on the evening of the incident and enquired about his son Farid deceased, on whose information Sojhla met him in the house of his relative Wahid Bakhsh P. W. 6 and from there he took the deceased on his bicycle to his own house on the pretext that he would deliver to him some stolen ornaments for disposal on the promise of equal distribution of their sale proceeds. When Farid and Sojhla had reached the latter's house, it is said, the other two respondents Abdul Qadir and Azeem who were lying in wait for their victim, fell upon him with their hatchets and killed him near the courtyard of the house. They then dragged out Mst. Bakhtawar the wife of Sojhla and also put her to death near the dead body of her paramour. All this is alleged to have been done in complicity with their confederate Sojhla who also participated with them in the murders. The case for the defence as put forward in both the Courts was that on the fateful night Sojhla accused was out for borrow ing a bullock, leaving his to wives Mst. Karam (P. W. 16) and Mst. Bhakhtawar deceased alone in his house, that on his return late at night he discovered his wife Mst. Bakhtawar in the act of adultery with some person inside the grove of trees near his house and that in a state of extreme fury he killed both of them at the spot with the axe which he carried at that time. The learned Sessions judge after thorough trial of the case in which he fully discussed the whole evidence and the law applicable to the facts of the case, came to the conclusion that the story as put forward by Sojhla accused appeared to be sub stantially true and on this finding he convicted him of culpable homicide not amounting to murder on each charge. The contention of Sheikh Nisar Ahmad is that the learned Sessions judge in arriving at his conclusions had not fully appreciated the facts of the case and that there was sufficient evidence on the record for the conviction of all the three respondents under the major offence of murder of which they had been wrongly acquitted. In support of his contention he has referred us to the confessional statement (Exh. P‑U) of Sojhla accused recorded under section 164 Cr. P. C. by Malik Nazir Ahmad, Magistrate, 1st Class on 8th May 1953 in which the accused implicates his companions Abdul Qadir and Azeem equally with himself in the commission of the offence. Now this is a very lengthy and detailed statement in which Sojhla says that on the information of Azeem that he had seen Farid and Mst. Bakhtawar in amorous intercourse, he (Sojbla) conspired with his companions to kill both of them and thus he tricked Farid into accompanying him to his house on the night in question where Azeem and Abdul Qadir immediately joined him in :he murder of both the deceased persons, after which the other two accused left the place taking away the bicycle of Farid with them. Now this confessional statement of Sojhla was made by him on the fifth day after his arrest, which was subsequently retracted by him before the committing Magistrate on the allegation of its having been made under police pressure; and on these grounds the Sessions judge has rejected it as being false and involuntary. The learned counsel for the petitioner, however, contends that the confessional statement (Exh. P‑U) appears to be genuine, as it finds sufficient corroboration from the evidence of Mst. Karam the 2nd wife of Sojhla accused as well as by the discovery of bicycle P. 6 of Farid deceased from a well at some distance from the scene of offence. Now the learned Sessions judge has fully discussed both the points and has held these items of evidence as of no value to the prosecution. According to him Mst. Karam cannot be called a disinterested witness as she is closely related to Jalal Din (P. W. 3), father of Farid deceased who is admittedly hostile towards the accused party. Similarly the learned Sessions judge has discarded the discovery of the bicycle from a well on the ground that it was in abandoned condition and accessible to all the public, beside the fact that the discovery was alleged to have been effected on the joint information of all the accused who were together with the police near the well in question. It is quite clear from the arguments of the learned counsel for the petitioner that he wants this Court to interfere on its revisional side with the discretion of the trial Court and accept the prosecution evidence rejected by it in the circumstances of that particular. case. Of course the learned Sessions judge has taken no pains to ascertain as to how far the story of adulterous intercourse between the couple at the fateful moment is borne out from the record. There is no clear evidence on the file to prove that both the dead bodies had no under garments‑or loin cloth on them, when the witnesses noticed them at the spot immediately after the occurrence. No doubt Allah Bakhsh P. W. 18 has stated in clear terms that both the dead bodies were in naked condition except that they only had shirts on them, but this solitary evidence of the witness, however, stands uncorroborated and is not even supported by the testimony of Dur Muhammad Lambardar (P. W. 17) or Maulvi Bashir Ahmad Sub‑Inspector (P. W. 19), who had investigated the case. Unfortunately the Inquest Report (Exh. P‑G and P‑H) of 741st. Bakhtawar and Farid respectively are also not of any help to the, Court as these documents do not clearly point out the exact condition in which the dead bodies were found by the investigating officer al the time of the drawing up of these reports. Now in column No. 2 at the reverse of the inquest report the investigating officer is required to give a sketch plan of the locality where the body is found together with a diagram showing the actual position thereof and the state and manner in which it is lying with regard to clothings, injuries sustained and other articles connected with the com mission of the offence, which might be deemed essential for the right investigation of the case. The investigating agency have however failed to supply these essential particulars in the reports with the result that the trial Court could not deal with this vital aspect of the case in its judgment. But this aspect of the matter relates to the facts of the case and we think the decision of the trial Court is on the whole correct on the facts placed on the record. And even supposing that the trial Court was wrong in appreciating some of these facts, we think we would not be justified in interfering with these findings in revision. In A I R 1941 Oudh 7 it was held that the High Court will not on an application in revision against an acquittal treat the case before it as a case for appeal and will not interfere unless there are exceptional matters compelling it to do so as for example the trial judge does not appear to have exercised the impartial judicial mind in considering evidence, or he has entirely left evidence out of consideration, or has relied upon some evidence which is not to be found on the record. None of these circum stances has however been alleged to exist in the present case. On the other hand as already stated, the Sessions judge has in his lengthy statement fully considered all the evidence adduced before him at the trial and has in the exercise of his judicial dis cretion rejected some of the evidence which he did not believe to be true. Now with regard to the appreciation of evidence the discretionary powers of the trial Court are unfettered and the High Court should not interfere ordinarily with an order of acquittal on its revisional side. The mere fact that the reasons given by the trial judge for doubting the veracity of certain witnesses do not commend themselves to a superior Court cannot provide any ground for interference with an order of acquittal in revision (See A I R 1949 All. 254). This principle was enunciated in A I R 1916 Mad. 931 with the following observations :‑ "The Court should not interfere with an order of acquittal where the question is as to the appreciation of evidence or where there is no patent error or defect in the order of acquittal passed by the lower Court, which has resulted in grave injustice. The mere fact that the High Court if it was sitting as a Court of Appeal, would have come to a different conclusion on facts is no ground for exercising revisional jurisdiction in petitions against orders of acquittal." This proposition of law was followed in 35 Cr. L J 1236 where it was held that the mere fact that a Court of revision is inclined to take a different view of the evidence from that of the trial Court does not justify it to interfere with an order of acquittal. It was further remarked in that judgment that although High Court has jurisdiction to interfere with an order of acquittal under section 439 Cr. P. C. at the instance of a private person, when the Crown has not preferred an appeal, yet the High Court would not move in such a case unless there was some glaring defect in the procedure or in the view of the evidence taken by the Court below. But the High Court would not go into the question of evidence save in exceptional cases as where the judgment is manifestly wrong and grossly and palpably unjust. In the present case it is not suggested that the view taken by the learned Sessions judge of the evidence before him was palpably unreasonable or by any means perverse, nor has the Sessions judge overlooked or ignored any part of the evidence. The utmost that can be said on behalf of the petitioner is that a different view was possible in respect of the evidence dis believed by him. As the learned counsel for the petitioner has attacked the judgment of the learned Sessions judge only on matters of fact and has not alleged any flagrant misapplication of law or any gross injustice in the decision of the case which might in any way vitiate the trial, this application fails and is dismissed. Parties present. FAIZ MUHAMMAD, C. J.‑I agree with conclusions arrived at by my brother A. Rashid, J. Announced. A. H. Petition dismissed.