1988 MLD 515 (PLP)

Sh. Ehsan Ahmad for the State. Date of hearing: 5th April, 1988. Manzoor Ahmad alias Zahur Ahmad and thirteen others have moved this petition under section 561‑A of the Cr.P.C. praying that the order of the learned Additional Sessions Judge, Sialkot, dated 1‑9‑1986, be set aside. By the said order the learned Additional Sessions Judge, in exercise of revisional jurisdiction, had set aside the order of acquittal and sent back the case for retrial with direction to the trial Magistrate to examine the Dental Surgeon as a prosecution witness and to dispose of the case after recording the statements of the accused and defence evidence, if any.

2. Learned counsel for the complainant/respondent has raised the objection that this petition merits dismissal for the reason that the learned Additional Sessions Judge has already exercised his revisional jurisdiction.

3. The petitioners were tried by Mr. Ijaz Ahmad, Magistrate Section 30, Sialkot. The grounds which weighed with him for acquitting them were that the witnesses were interested, they had made material contradictions and improvements in their statements and the Dental Surgeon was not produced, therefore, the prosecution failed to prove that injury No. 1 on Mst. Sakina was grievous. After considering the evidence the learned Additional Sessions Judge came to the conclusion that there was no previous background of enmity between the parties and the finding of the learned trial Court that the eye‑witnesses were interested was unjustifiable.

4. Learned counsel for the petitioners has frankly conceded that he is not in a position to contend that the parties were inimically disposed towards each other prior to the present occurrence. He, however, submits that there was a pre- emption matter between the parties. He further submits that the revisional Court has not attended to the reasons given by the trial Court in passing the order of acquittal. Learned counsel for the complainant and the State, on the other hand, submit that the eye‑witnesses examined in the case are independent and disinterested having no motive to falsely implicate the petitioners; the learned trial Magistrate had not detailed any discrepancy or contradiction in his judgment; and since the order of acquittal proceeded on conjectures, no exception can be taken to the order of retrial passed by the learned Additional Sessions Judge. Relying on Atta Ullah Khan v. Muhammad Akram and others 1985 P Cr. L J 2409 learned counsel for the complainant further contended that this petition under section 561‑A, Cr.P.C. is not maintainable. In reply, the learned counsel for the petitioners has submitted that the mere fact that the aggrieved party has exhausted his remedy by way of tiling revision petition under section 439‑A, Cr.P.C. is not a bar to the maintainability of petition under section 561‑A, Cr.P.C.

5. I have given my careful consideration to the submissions made by the learned counsel for the parties. Learned counsel for the petitioners is not in a position to controvert the contention that there was no previous background of enmity between the parties. In his judgment the learned trial Magistrate has observed that the statements of injured eye‑witnesses, namely, Mst. Sakina Bibi and Mst. Safia Bibi, were full of material improvements and their injuries can also be self‑suffered. He has neither detailed the improvements therein nor given any reason for observation that the injuries could be self‑suffered. In the circumstance, no exception can be taken to the order of the learned Addl. Sessions Judge. The petition is, therefore, dismissed.

6. At this stage, I would like to add that any observation made in this order or in the order of the learned Additional Sessions Judge shall not influence the mind of the learned trial Magistrate, and the case shall be decided strictly on merits on the basis of evidence on the record. S.G.D./M‑878/L Petition dismissed.