1978 PLP 40 (SCMR)

Muhammad Arif, Advocate instructed by Hameed Aslam Qureshi, Advocate‑on-Record for Petitioner. Aftab Farrukh, Advocate instructed by Ghulam Mujtaba, Advocate-on- Record for Respondent No.

1. Major Waheedud Din Virk, Advocate instructed by Ijaz Ali, Advocate‑on-Record for Respondent No.

2. Date of hearing: 25th May 1977. NASIM HASAN SHAH. J.‑Muhammad Nazir alias Billa respondent was tried for the murder of Muhammad Fazil alias Chairman by the Additional Session Judge, Lahore under section 3:`2, P. P. C. The story of the prosecution was that on 27‑11‑1972, at about 9 p.m. Muhammad Fazil deceased got down from a taxi along with his companions Muhammad Munir (P. W. 12). Akram alias Akko (P. W. 13) and Muhammad Iqbal at More Annianwala, Baghbanpura, and were proceeding with Muhammad Fazil in the lead, to their respective homes. Opposite the shop of Muhammad Siddique, fruit‑seller, Mohammad Nazir respondent, armed with knife (Exh. P. F.) confronted Muhammad Fazil and stabbed him in the chest region. Munir (P. W. 12) was tied to rescue the deceased, was also attacked. In warding off the blow with his hard is shirt Exa. P. 1 and jersey Exh. P. 2 were cut. Besides Munir P. W., the occurrence was witnessed by Akram (P. W. 13) and Iqbal (P. W. 14).

2. Muhammad Fazil was immediately taken by Munir (P. W. 12) to the Mayo Hospital where he died within a few minutes. The F. I. R. was dictated by Munir P. W. to Muhammad Anwar, S. I. in the hospital at 10‑45 P.m. the same evening. Muhammad Nazir respondent was arrested on the following moraine (23‑11‑1972) and the weapon of offence, knife (Exh. P. 8) was recovered at his instance. Shirt (Eah. P. 1) and jersey (Exh. P. 2) of Munir P. W. which received knife cuts in the incident, were also taken into possession. Two days later, on 30th November. 1972, the statement of Munir (P. W. 12), Akram (P. W. 13) and Iqbal (P. W. 14) were recorded under section 164, Cr. P. C. in which they supported the F. I. R. The said witnesses maintained the prosecution version‑during the commitment proceed ings. At the trial, however they resiled from their earlier statements made before the committing Magistrate. These witnesses were declared hostile and their earlier statements were transferred to the Sessions file under section 288, Cr. P. C. The witnesses to the recovery of knife, however, continued to support the prosecution case.

3. The learned Additional Sessions Judge, vide his judgment dated 5‑10‑1974 acquitted the respondent giving him the benefit of doubt, observing that the eye‑witnesses had reailed from their earlier statements; that they belonged to the category of badmashes and were interested and unreliable. According to him there was no independent corroboration of their statements before the Committing Court and the prosecution story was also not plausible.

4. Aggrieved by this decision the brother of the deceased (the petitioner herein) unsuccessfully moved the State to file an appeal against the acquittal of Muhammad Nazir respondent. Consequently a revision petition was preferred before the High Court at Lahore. The learned Single Judge who heard the petition dismissed it, vide his judgment dated 10‑2‑1975. He strongly relied upon the judgment of the Karachi Bench of the High Court of West Pakistan, reported as Khurasid Ahmad v. Kabool Ahmad and others (P L D 19664 Kar. 356) where it was held that unless it can be demonstrated with certainty that none of tee grounds on which the trial Court has purported to acquit is at all supportable the superior Court will be reluctant to interfere in a revision against an order of acquittal even though on the evidence on record and the facts and circumstances of the case the Court might well have come to a different conclusion if it was trying the case.

5. Mr. Muhammad Arif, Advocate, for the petitioner, submitted before us that where witnesses resile from their earner statements made before the Court and these statements are transferred under section 288, Cr. P. C. the accused can be convicted on the; basis of the earlier statements as they are substantive evidence in the case. He relied upon Falak Sher's case (2) which had been distinguished by the learned Judge in the High Court, and assailed the reasons given by the High Court for holding this judgment to be inapplicable. The transferred statements could, as ruled by this Court in the said case, be made the basis of conviction by judging their veracity with "care and caution in the light of the attendant circumstances of the case, including the reasons for which the witnesses had resiled at the trial from the statements previously made by them during the inquiry proceedings". In the instant case the veracity of the resiled statements of the three eye witnesses was borne out by several attendant circumstances, such as cor roboration furnished by the medical evidence, which showed that there was a single incised injury on the chest of the deceased which supported the earlier statements of the P. Ws. that only one knife blow was inflicted. Similarly, the evidence of the recovery witnesses established that the recovery of knife (Exh. P. 8) was effected at the instance of the respondent. Even the defence evidence given by Mehtab Din D. W. to the effect that the took place at the place of occurrence between the respondent on one side and the three eye‑witnesses on the other indirectly supported the case of the prosecution to the extent of establishing the presence of the respondent during the incident. Additionally, the presence of cuts on shirt (Exh. P. 1) and jersey (Exh. P. 2) of Munir (P. W. 12) supported the statements which had been transferred to the Sessions file.

6. The crucial question thus was whether the transferred statements of the alleged eye‑witnesses (transferred under section 288, Cr. P. C.) could be made the basis of the conviction in the light of the attendant circumstances. The learned Additional Sessions Judge has given reasons for not relying upon them and it cannot be said that these reasons are perverse, whimsical and capricious and that the view taken by him of the evidence was such as could not be arrived at by any reasonable person. It is, moreover, admitted that even if the revision had succeeded before the High Court, only a retrial could be ordered. Such an order will not be of much avail at this stage. It is conceded, and as presently advised rightly, that the provisions of section 288, Cr. P. C. would not be available ire the retrial if it took place now. The amendments brought in the Criminal Procedure Code by the Law Reforms Ordinance, 1971, as subsequently amended including the Code of Criminal Procedure (Amendment` Ordinance, 1976 (Ordinance XVIII of 1986) show that Chapter XXIII of the Criminal Procedure Code, incorpora ting section 288 has been omitted and substituted by Chapter XXII‑A. It does not include any provision corresponding to section 238, existing in Chapter XXIII. Even if a retrial was ordered at this stage in law, the trial Judge will not be in a position to treat the evidence of the witnesses who had made statements reference the Committing Court supporting the prosecution case, but subsequently resiled there from as substantive evidence at the trial.; In the absence of any substantive evidence and merely on the basis of corroborative evidence there is hardly any livelihood of a conviction being recorded. In these. circumstances, to order a retrial would only bean essai in futility. For all these reasons we are not inclined to grant leave to appeal. The petition is accordingly dismissed. Petition dismissed.