1989SCMR977 (PLP)

ALI HUSSAIN QAZILBASH, J.‑‑Both these appeals, viz. Criminal Appeal No.149 of 1981 filed by Faiz Bakhsh and Criminal Appeal No.61 of 1984 filed by Khadim Hussain, arise from the same judgment of a learned Division Bench of the Lahore High Court, Circuit Bench Bahawalpur, dated 23rd March, 1981 and we propose to dispose them of through this judgment.

2. Faiz Bakhsh (appellant in Criminal Appeal No.149 of 19 a ongwith his two brothers, namely, Muhammad Nawaz and Khadim Hussain, was tried for the murder of Muhammad Nawaz and murderous assault on Nazar Muhammad P.W. The learned trial Court as per its judgment dated 30‑10‑1979 acquitted Faiz Bakhsh appellant but convicted the other two and sentenced each of theca t0' death under section 302/34, P.P.C. and to seven years' R.I. under section 307/34, P.P.C. The two convicts, namely, Muhammad Nawaz and Khadim Hussain, filed appeal against their conviction and sentence while the complainant filed a revision petition under section 439, Cr.P.c. against the acquittal of Faiz Bakhsh. The High Court while converting the sentence of death imposed on Muhammad Nawaz to one of imprisonment for life, dismissed the appeal of Khadim Hussain and confirmed the death sentence imposed upon him. The sentence of both the convicts under section 307/34, P.P.C. was, however, maintained. The revision petition against the acquittal of Faiz Bakhsh was also accepted and the case remanded for re‑trial. 3.Leave in Criminal Appeal No.149 of 1981 was granted to consider whether the settled principles relating to ordering retrials on cases against persons acquitted of a charge under section 302, P.P.C. have been properly applied in this case. 4.The learned trial Court had acquitted Faiz Bakhsh of the delict on the plea of his alibi. In his statement under section 342, Cr.P.C. he had denied the whole occurrence and stated that on the day of occurrence he was not present at the spot; that his wife, the sister of the complainant, had taken away an amount of Rs.6,000 from his house a month before the occurrence and when he demanded the amount he was falsely involved. He further stated that on the day of occurrence he was indisposed and was taken by Khuda Bakhsh to a doctor for treatment. In support of the above, he produced Dr. Capt. Abdul Rauf, Medical Officer, B.V. Hospital, Bahawalpur, in his defence. At the trial the doctor supported the plea of alibi by stating that at the crucial date and time Faiz Bakhsh son of Rahim Bakhsh had come to him and remained in his clinic for about five hours as a case of appendicitis and that the certificate issued in the name of Fail Bakhsh had been duly entered in his record. The learned trial Court relying on the deposition of the doctor acquitted Faiz Bakhsh.

5. The learned Judges of the High Court, however, while reversing the finding of acquittal of Faiz Bakhsh have given the following reasoning: "We have noticed with concern that the learned Sessions Judge, completely ignored the following material facts, which he was duty bound to discuss in the judgment:‑ Faiz Bakhsh did not give the nature of disease. He did not give the time of his visit to the doctor and his stay with the doctor. He even did not give the name of the doctor. According to him, Khuda Bakhsh had taken him to the doctor, but the said person was not examined in defence. According to Faiz Bakhsh he was accompanied by Khuda Bakhsh, but the doctor stated that Faiz Bakhsh was accompanied by two/three other persons. The certificate Exh. D.C. was not produced before the police, and it was produced for the first time in Court at defence stage. No explanation was given as to why two/three persons, who were accompanying Faiz Bakhsh to the doctor, had asked for a certificate. Faiz Bakhsh had not taken up plea of alibi before the. police. According to the doctor, Faiz Bakhsh accused was a case of acute chronic appendicitis with fever and vomitting. He was in serious condition. He was taken to the hospital at 4 p.m., but he was not accompanied by his real brothers Muhammad Nawaz and Khadim Hussain appellants. The operation is always advised in a serious case of appendicitis, but in the instant case, only glucose drip was given. Since the learned Sessions Judge, completely ignored to meet the above‑mentioned points, which were required to be met, we are constrained to hold that the case is of such a singular exceptional character that unless the case is remanded, a grave and irremediable injustice must be the result. We further hold that the conclusions drawn are not supported by the balanced statement of relevant facts or by truly reasoned arguments. The reasoning, on the basis of which, the judgment of acquittal has been passed is quite artificial and perverse. The trial Court clearly overlooked important aspects of the case and has not given proper consideration to the evidence. We go to the extent in holding that the judgment of acquittal is based on the view of evidence, which no reasonable judicial officer could possibly take."

6. We have considered the reasoning given by the learned Judges in the light of the case of the prosecution and the defence and we do not think that they are in any way germane to the plea of alibi taken by the appellant. The stand taken by the appellant that at the relevant time he was undergoing medical treatment has been fully supported by Dr. Capt. Abdul Rauf who appeared as D.W.3. He is a qualified doctor and is an absolutely independent witness. At the trial he recognised Faiz Bakhsh and in very categorical terms deposed that on the day of occurrence the appellant had come to him at 4 p.m. and remained in his clinic for about rive hours as a case of appendicitis. He also authenticated the certificate issued by him to the appellant. No question was put to him to create any doubt about the medical treatment that he had given to the appellant or that the medical certificate issued to him was fabricated. There is nothing on the record that he was in any way connected with or had acquaintance with the appellant and that he has falsely deposed in favour of the appellant. As his deposition made at the trial was straight and unambiguous, the learned Judges have erred in discarding the statement of this witness on extraneous considerations, more so, when there was no disregard of material evidence or for the matter of that any misreading of evidence.

7. The view, therefore, we take is that the appeal filed by Faiz Bakhsh succeeds and the order of the High Court ordering his re‑trial is set aside.

8. As for the case of Khadim Hussain, as per the remission allowed by the Federal Government, the sentence of death imposed on him has been altered to one of imprisonment for life. The learned counsel for Khadim Hussain has, however, prayed that in case the order of the Federal Government in altering the sentence of death to life imprisonment is in any manner declared to be illegal and void, then he be permitted to revive his appeal. This prayer is genuine The appeal of Khadim Hussain is hereby dismissed and he is allowed to get his appeal revived in case the alteration of sentence ordered by the Federal Government in such cases is declared to be illegal. M.B‑A./F‑100/S Order accordingly.