1988 P Cr (PLP)

MUHAMMAD ASADULLAH, J.‑‑Respondents Nos. 1 to 3 alongwith Quresh son of Musafir were tried for the murder of Haroon (deceased) and for causing injuries to Munir and Muhammad 'Arif P.Ws. as also for committing robbery of cattle from the Bhora of the said persons. The learned Additional Sessions Judge, Rawalpindi through his judgment, dated 25‑9‑1984 convicted Quresh accused under section 302, P.P.C. and sentenced him to death with a fine of Rs.5,000 or in default thereof to R.I. for two years. He also convicted him under section 394, P.P.C. and sentenced him to R.I. for 5 years with a fine of Rs.1,000 or in default to R.I. for 6 months. Respondents Nos. 1 to 3 were, however, acquitted of all the charges.

2. The learned Additional Sessions Judge has forwarded the case of Quresh convict for confirmation of death sentence under section 374, Cr.P.C. and he has also filed an appeal against his convictions and sentences. The complainant has filed this revision petition against the acquittal of respondents Nos. 1 to

3. We have perused the record and have heard arguments for the purpose of hearing the revision petition at the motion stage.

3. The learned counsel for the petitioner/complainant has argued that there is already an order dated 29‑4‑1985 of a learned Single Judge that this revision petition should be heard alongwith appeal No.18‑J of 1984 and that in view of the said order the revision petition cannot be taken up and heard at motion stage separately from the said appeal and murder reference. This argument has no force. As narrated above respondents Nos. 1 to 3 were acquitted of all the charges. The‑ revision petition has been filed only against them. For the hearing of revision petition, like the one in hand, there are two courses open, one that the same may be admitted and the acquitted accused be summoned not only through notices but also through warrants of arrest, may be bailable or otherwise, so that they can defend the revision petition through which their conviction has been prayed for. The other course is to refuse to admit the revision petition if no case is made out against respondents Nos. 1 to

3. In other words if the revision petition is dismissed in limine it is not necessary to summon respondents Nos. 1 to 3 but if it is admitted it is well nigh impossible to hear the revision petition unless they are brought before the Court through due process of law, i.e., notices or warrants of arrest. If the revision petition is heard alongwith the murder reference and the appeal of the only convict on merits it will mean that we will be hearing the revision petition also on merits. In that case we would be hearing the same without providing any opportunity of hearing and defence to respondents Nos. 1 to

3. This of course cannot be done under the law contained in subsection (2) of section 439 of the Criminal Procedure Code 1898 (V of 1898) as also under the principles of natural justice. If respondents Nos. 1 to 3 had been sentenced to some period of imprisonment and they were in jail and had appealed against their conviction the matter would have been somewhat different because in that case we could say that they are before the Court for defending themselves. However, even that course will be a risky course as even for enhancement of sentence a convict must have sufficient notice of the revision petition filed against him. However, when an acquitted accused is not before the Court in any capacity there is no question of hearing the case against him at the time of hearing the appeal and murder reference of another convicted person. In these circumstances the murder reference and the appeal cannot be heard unless the revision petition is admitted and respondents Nos. 1 to 3 are brought before the Court or unless the said revision petition is dismissed in limine. The order dated 29‑4‑1985 of the learned Single Judge directing that the criminal revision may be heard alongwith Criminal Appeal No.18‑J of 1984 (filed by Quresh, the only convict) does not mean that the revision petition had been admitted. The simple reason is that if it had been admitted respondents Nos. 1 to 3 would have been summoned through notices or warrants of arrest. Similarly, the said order does not mean that the revision petition stands dismissed in limine. The said order dated 29‑4‑1985. therefore, neither amounts to admission of the revision petition nor to its dismissal in limine. is a result the revision petition is still pending at motion stage arid has to be dealt with accordingly.

4. The full details of the case need not be discussed as the same will be thrashed at the tune of the disposal of murder reference anti the appeal filed by Quresh convict. According to the F.I.R. the case of the complainant was that robbery of cattle was being committed by three persons, one of them being Quresh accused and when they challenged them, two of them ran away while the third (Quresh) was checked by the P.Ws. and he attacked them with a Chhuri resulting in the death of Haroon, deceased, and injuries to Munir and Muhammad Arif P.Ws. Quresh convict was apprehended with the help of other P.Ws. and it was he who disclosed that his two companions were Sharif and Ghani. P.W.4 Jahandad a Wajtakkar witness disclosed that he had seen Muhammad Javed accused also alongwith Ghundai and Usman at the Bus Stand at about 7 or 7‑30 p.m. (while the occurrence took place at about 10‑30 p.m. This is how respondents Nos. 1 to 3 were introduced into the story. It may be pointed out that the injured P Ws. including the complainant and the P.Ws. who apprehended Quresh convict did not speak of identification of the two accused who had run away and could not be apprehended. It is only Jahandad P.W.4 who identified Ghundai and Usman in the identification parade conducted by Haider Mehdi. Magistrate 1st Class, Rawalpindi. The other witness of identification was given up. Jahandad P.W.4 claims to have seen respondents Nos. 1 to 3 at the Bus Stand, a far‑off place from the place of occurrence and he did 44t know Ghundai and Usman before that There was a gap of about 3 hours between the time he allegedly saw them and between the time of occurrence. P.W. 4 never suspected that respondents Nos. 1 to 3 were going somewhere to commit a crime. It is difficult, therefore, to connect respondents Nos, 1 to 3 with the offence for which they were charged only on the basis of the evidence of P.W.4 even if it is taken that he correctly identified Ghundai and Usman.

5. Apart from that Quresh convict allegedly gave the names of Sharif and Ghani as his co‑accused who had run away. He did not give their names as Ghundal alias Sharif and Usman Ghani respectively. The learned trial Judge examined their identity cards and found that trip name of Ghundai in the same was Ghundai only, without any alias as Sharif and that the name of Usman was only Usman and not Usman Ghani. Therefore, even if Quresh convict disclosed the names of Sharif and Ghani as his co‑accused who had run away it cannot be taken that they are respondents Nos. 1 and

2. Similarly there is no direct evidence of any sort against Muhammad Javed respondent No.3 to involve him in the case. In these circumstances no case is made out against respondents Nos. 1 to

3. They rave been, rightly acquitted. The revision petition is dismissed in limine.

6. The learned counsel for the petitioner/complainant has stated that the main purpose of coming to the Court through this revision petition is that the learned counsel for the complainant may take part in the proceedings relating to the disposal of murder reference and B the appeal of the convict and has requested that he may be allowed to appear when the murder reference and the appeal are heard. The learned counsel can surely appear to assist the learned counsel for the State when the murder reference and the appeal come up for hearing. M.Y.H./M‑872/L Petition dismissed.