1994 P Cr (PLP)

Lal Khan Baloch for the State. Date of hearing: 1st February, 1994. This judgment shall also dispose of Criminal Miscellaneous No.25/Q of 1993 and Criminal Revision No.204 of 1993, all arising in the following circumstances. On 17-5-1990 at 4 p.m. Liaqat Ali appellant armed with a .12 bore gun and Amanat Ali appellant 'armed with a Kassi attacked Muhammad Rafique (deceased) in the area of Chak No.360/G.B., Tehsil Gojra, District Toba Tek Singh, when he was digging a watercourse in his land for using turn of his canal water for it. On the receipt of Kassi blow on his head at the hands of Amanat Ali appellant, Muhammad Rafique (deceased) retaliated and gave one Kassi blow to him (Amanat Ali) on his head and the other on his right arm. Thereupon Liaqat Ali appellant fired at Muhammad Rafique (deceased), hitting his right chest as a result of which he fell down and died on the spot.

2. The matter was reported to the police by Ali Ahmad complainant and a case, vide F.I.R. No.127, dated 17-5-1990, was registered against the appellants under section 302/34, P.P.C. Muhammad Siddique from the appellants' side also lodged a report with the same police and cross-case, vide F.I.R. No.129 was registered against Muhammad Nawaz and Ghulam Mustafa, the respondents in Criminal Miscellaneous No.25/Q of 1993, under section 307/34, P.P.C. The police, on the completion of investigation in both the cross- cases, submitted challan of the murder case in the Court of Session at Toba Tek Singh and that of attempted murder in the Court of Magistrate Section 30, Gojra. Both the cases were tried separately by the above-mentioned Courts as a result of which the murder case ended in the conviction of Liaqat Ali and Amanat Ali appellant under section 304/34, P.P.C. while the cross-case of attempted murder ended in acquittal. Aggrieved by the judgment, dated 24-7-1991 of the Sessions Court in the murder case, where the appellants came up in appeal (Criminal Appeal No.927 of 1991), Ali Ahmad complainant brought Criminal Revision No.204 of 1992 for the enhancement of the sentence of the appellants. In the cross-case tried by Magistrate Section 30, Gojra, Muhammad Siddiq first challenged the acquittal of Muhammad Nawaz, Ghulam Mustafa in the Sessions Court and on the rejection of his revision, he has filed Criminal Miscellaneous No.25/Q of 1993 for the quashment of the judgment of the Court below in the cross-case.

3. I have heard the learned counsel representing the parties in all the three connected matters being dealt with by this judgment. It is regrettable that neither the learned Additional Sessions Judge, who tried the murder case, nor the learned Magistrate Section 30, who tried the case of attempted' murder, nor the counsel representing the parties before these Courts made an effort or move to get the two cross-cases tried by one and the same Court. The result is that there have been some contradictory or conflicting findings or observations of the two Courts, making the confusion worse confounded, thereby making it difficult for this Court to record any findings and leaving no alternative for it except to direct retrial.

4. In view of the above, the appeal is accepted, the conviction and sentence of Liaqat Ali and Amanat Ali appellants under section 304/34, P.P.C. are set aside and they are directed to be retried for the murder of Muhammad Rafiq by the learned Sessions Judge, Toba Tek Singh. Similarly, the quashment petition is accepted and the judgment, dated 11-8-1992 of the learned Sessions Judge, Toba Tek Singh dismissing the revision of Muhammad Siddiq and the judgment, dated 19-12-1991 of Magistrate Section 30, Gojra, acquitting Muhammad Nawaz and Ghulam Mustafa in the attempted murder case are quashed and they are also directed to be retried by the learned Session Judge, Toba Tek Singh. Both the cases so remanded shall be tried as cross-cases. Consequent the Criminal Revision No.204 of 1993 filed by Ali Muhammad is dismissed.

5. Accused in both the cases, who are on bail, shall appear before the learned Sessions Judge, Toba Tek Singh on 5-3-1994 and he shall, after summoning Liaquat Ali appellant, who is in prison, commence the trial and try to conclude it expeditiously. Those accused, who are on bail, shall furnish fresh bail bonds to his satisfaction and for those, who stand acquitted, he shall pass fresh bail orders. N.H.Q./L-68/L Cases remanded.