1988 P Cr (PLP)

Dates of hearing: 25th, 26th March,' 1986 and 8th November, '1987 SAJJAD ALI SHAH, J.‑‑This revision application is filed by Haji Fateh Khan son of late Haji Abdul Halim Khan against State and seven respondents, who have been acquitted by learned VIIth Addl. Sessions Judge, Karachi (Mr. Muhammad Yousaf Memon) vide his judgment, dated 21‑3‑1984 in a case for offences under sections 307, 146 and 149, P.P.C. arising from F.I.R. No.61/1974. Briefly stated the relevant facts are that on 23‑4‑1974 as per contents of F.I.R., incident took place from 10 a.m. to 11 a.m. in open maidan behind Leghari Ice Factory in Block‑21, Federal 'B' Area, Karachi. Haji Fateh Khan stated in F.I.R. that about 11 months before the incident he purchased one‑room house from one ma‑n by name Sarwan for Rs.1,000 and it was decided that after the purchase of the house Sarwan would not come back to the neighbourhood. On the day of incident Niaz Muhammad had come to Government tap for taking water and complainant Fateh Khan enquired from him as to why Sarwan had come back to the neighbourhood after he had gone away in pursuance of compromise. Niaz Mohammad abused him and asked him as to who he was to prevent Sarwan from coming there. It is further stated in the F.I.R. that upon this complainant gave a chhuri blow on the nose of Niaz Muhammad who went away from there. At about 10‑30 a.m. Niaz Muhammad came alongwith Hayat Khan, Gul Mohammad, Amanullah, Hameedullah, Mahmood Bhatti, Abdul Baqi and Abdullah. They called complainant from his house. Complainant saw that accused persons were armed with Dandas so he brought his Pistol and requested accused persons not to fight in the name of Quran Shareef but he was not heeded and accused persons opened attack. Agha Jan, Daru Khan, Allahdad, Khudadad, Abdul Wadood, Agha Mohammad and Miran Jan came to intervene. Complainant has further admitted in F .I. R. that he fired from his Pistol, upon which accused persons ran away. In the fight he and other persons who intervened became injured. Complainant further produced Pistol before the Police. In the trial Court, prosecution examined P.W.1 Haji Fateh Khan, P.W.2, Khudadad, P.W.4 Daru Khan and P.W.5 Imtiaz Hussain, S.H.0. Trial Court examined three witnesses as Court witnesses C.W. 1 Wajid Hussain, A.S.I. deposed about service of bailable warrants on P.Ws. Abdul Jabbar and Siraj. C.W. 2 Raees Khan deposed that he went to serve bailable warrants six P.Ws but did not succeed and returned the warrants unserved. C.W.3 is Mohammad Moin, Bench Clerk of the Court who deposed that he issued process in respect of six witnesses. P.W.5 Imtiaz Hussain has deposed that on 23‑4‑1974 he visited place of occurrence where Haji Fateh Khan was present, whose statement a/s 154, Cr.P.C. was recorded and the same was incorporated as F.I.R., S.H.O. further prepared inspection memo as Exh.16. He further stated that original memo had been placed on the record of connected Criminal Case No.60/74. He produced medical certificates in respect of Haji Fateh Khan Exh.17, Daru Khan Exh.18, Khudadad Exh.19, Allahdad Exh.20 and Abdul Wadood Exh.21. In trial Court, statements of accused persons were recorded u/s 342, Cr.P.C. In such statement Niaz Mohammad stated that Haji Fateh Khan had a quarrel with him over taking water from the Government tap. Agha Jan and Agha Mohammad were with him and they started beating him. His brothers came to save him. Haji Fateh Khan and Agha Jan went to their houses and brought Pistols. Their other companions namely Allahdad, Daru Khan, Khudadad, Abdul Wadood and Miran Jan came armed with Dandas and Seryas. There was free fight. Some persons intervened and they were also given injuries. Haji Fateh Khan fired at Gul Muhammad who died. This accused also received bullet injuries fired by Haji Fateh Khan and Agha Jan. Complainant Haji Fateh Khan was prosecuted for murder of Gul Muhammad and attempt to murder of other persons. Haji Fateh Khan was convicted and copy of the judgment in the murder case and copy of F.I.R. in that case were produced. Other accused persons gave similar statements and claimed that they were attacked and injured by the complainant party. After appraisal of evidence produced, learned trial Judge also considered judgment in the counter‑case which had been produced by accused persons and placed on record. Trial Judge concluded that version of .the incident stated by complainant and other witnesses in this case was falsified by the Investigating Officer who had conducted investigation in the main case as well hence version in the instant case had not been believed. Doctor who examined injured witnesses Haji Fateh Khan, Khudadad, Allahdad and Daru Khan was not examined in the Court and their medical certificates were produced by I.O. who was not able to recognise the handwriting and signature in the medical certificates. Mr. Imdad Hussain, A.P.P. Incharge of prosecution appearing in the trial Court also did not support the prosecution case. In the circumstances, the learned trial Judge gave benefit of doubt to the accused and recorded finding of acquittal. Before us in the High Court acquittal appeal was not filed by the State that is why complainant Haji Fateh Khan has privately filed this revision application, which is not supported by Mr. Murtaz Hussain, Advocate for State. Mr. Murtaza Hussain has cited before us case of Feroze Khan v. Captain Ghulam Nabi Khan and another PLD 1966 S. C

424. The relevant portion from the judgment is reproduced as under: "In cases of revision petitions from acquittal, where the State has not thought fit to challenge the acquittal by an appeal, the Courts would be very slow to interfere, unless non -interference would involve an endorsement of a patently unfair order, or one which leads to miscarriage of justice. If the view taken by the Courts below is reasonably possible on a consideration of all the facts and circumstances of the case, then the entertainment of a feeling, that an alternative view of the evidence might have been taken, would not justify the superior Court in setting aside an order of acquittal." In view of the peculiar circumstances of this case stated above, Mr. Naqi Mirza, Advocate for applicant half heartedly argued this revision application and at one point of time made a statement that he did not press this revision application. For the facts and reasons stated above, no interference is called for and the revision application is dismissed. M. Y. H./F‑44/ K Petition dismissed.