1995SCMR1166 (PLP)

Asif Saeed Khan Khosa, Advocate Supreme Court and Sh. Salah‑ud -Din, Advocate‑on‑Record for Petitioner. Nemo for the State. Date of hearing: 8th May, 1994. SAJJAD ALI SHAH, J.‑‑‑This petition for leave to appeal is barred by 127 days. It is stated that after hearing in the High Court judgment was reserved which was announced 'subsequently without notice and without publication of supplementary cause list. In the circumstances, petitioners and their counsel remained unaware of the judgment. Petitioners were served on 27‑11‑1993 with notices issued by the learned Sessions Judge, Muzaffargarh and thus came to know that High Court had allowed Criminal Revision Application against their acquittal and remanded the case for retrial. Application for condonation of delay is supported by two affidavits, one by the counsel, who appeared in the High Court, and the other by petitioner Ghulam Shabbir. Since it cannot be ascertained as to what the other side has to say about this delay, we leave the question of limitation open to be decided at later stage.

2. Both petitioners are brothers inter se and it is stated that at the time of incident, they were below 16 years of age. According to prosecution, both petitioners were armed with daggers and inflicted repeated injuries on Mehmood inside Mandi Mawashian at 12 noon. Mehmood died at the spot and incident was seen by four eye‑witnesses. Motive stated in F.I.R. is that petitioner Ghulam Shabbir suspected that his wife Mst. Sakina was having an illicit affair with deceased. Petitioners were arrested on the same day and blood‑stained daggers were recovered from them.

3. Petitioners were put on trial for offence under section 302/34, P.P.C. but they were acquitted by the trial Court, which disbelieved the presence of two eye‑witnesses who were examined in the trial Court and also motive. Trial Court also discarded recoveries and in the result petitioners were acquitted on the basis of benefit of doubt.

4. No acquittal appeal was filed by the State but complainant filed revision in the High Court which has been allowed and the case is remanded for retrial. It is contended that the High Court has misread the evidence and its observations are contrary to the record. High Court has observed that eye witnesses are trustworthy because they have not claimed to have seen infliction of injuries. On the other hand, record shows that eye‑witnesses did make such claim to have seen the incident from beginning to end and accounted for all the. injuries but they were not believed by the trial Court. It is submitted that incident took place in 1981 and petitioners were acquitted in 1984 and retrial on remand is ordered after 9 years in 1993 and no useful purpose would be served by re‑examining the same witnesses, who have been examined and cross‑examined before.

5. Leave is granted to examine whether the High Court has stated within and rightly appraised the evidence m accordance with principles trial Court granted earlier shall continue till disposal of appeal. N. H. Q./G-491/S Leave granted.