Muhammad Ali petitioner who was a complainant in a case under sections 148, 302/149, 3.07/149, P.
E. C., has questioned the acquittal of the five respondents.
2. I have heard the learned counsel for the petitioner at length and have gone through the record of the case with his help.
3. Facts of the case briefly stated are that on the night between 5/6-8-1975 Muhammad Ali P. W.
(petitioner) and his guests Basra and Shana (not examined) were sleeping on the roof of the house of the petitioner in village Khumb at Chah Jarianwala. Petitioner's father Gul Muhammad deceased and his sister Mst. Rabia P. W. Were sleeping in the courtyard of the house. The five respondents entered the courtyard scaling over the wall. They were armed with guns. Respondent Anar fired at Gul Muhammad deceased hitting him on the right side of the chest and the right flank. The second shot was fired by Muhammad Yar respondent hitting the deceased on his right elbow. The remaining three respondents stood guarding in the gate of the haveli. Mst. Rabia P. W woke up on hearing gun shots and raised an alarm. Her alarm attracted Muhammad Ali P. W. (petitioner), Shana and Basra. The assailants bad also fired at them, hitting none.
The motive for this attack, stately, is that three years before the occurrence Sultan, a brother of Anar and Panda respondents was murdered. Rahman, maternal cousin of Muhammad Ali P. W.
Was challaned in that case. Gul Muhammad deceased had been pursuing the case on behalf of the accused in that case.
4. During the investigation some recoveries inter alia of two empties P. 3/1-2 was effected from the spot. Guns P. 7 and P. 8 were recovered from Muhammad Yar and Anar respondents. The empties recovered however, were not found wedded with these guns. There is no other material recovery in the case.
5. Prosecution case mainly hinges on the ocular evidence given by Muhammad Ali and Mst. Rabia P. Ws. (Basra and Shana, as noticed above, were not examined) the motive and the medical evidence.
6. The respondents at the trial had taken up the position that they had been involved in the case on account of enmity. It was suggested that in fact the murder in question was committed by Muhammad Ali P. W. And his in-laws. .
7. Learned trial Judge has given a number of reasons for disbelieving the ocular evidence. He found that the medical evidence is in conflict with the ocular testimony. According to the site-plan, the deceased was fired at from a distance of about four feet. However, there was no charring or blackening around the wounds. The enmity between the parties has fully been brought out on the record. Mst. Rabia and Muhammad Ali P. Ws. Are married in the same house. Muhammad P. W. Is their father-in-law Rahman, nephew of Muhammad was convicted for the murder of Sultan, brother of Anar respondent. Motive, therefore, was both ways. In the circumstances, the learned trial Judge was fully justified in not accepting the ocular testimony. I am in full agreement with the learned trial Judge, in his appraisal of the evidence.
8. It has often been held by the superior Courts that retrial cannot be ordered unless the order of the trial Judge is contrary to some fundamental rules of procedure or that the acquittal is based on the view of evidence, which no reasonable judicial officer could possibly take. In Mrs. Ann Coleman v. Arif A. Lukmani etc. (PLD 1964 Kar. 81) the view taken, in such like cases, was:-- "I am dealing with this matter in a revision against acquittal and if the acquittal has to be set aside in this revision the result will be a retrial. The view of the Courts consistently has been that the order of retrial on a revision against acquittal should invariably not be made unless it is made on technical grounds as otherwise such an order would tantamount to a direction to the lower Court to convict the accused.".
A similar view was taken in Khan Jan v. Said Faqir and others (PLD 1966 Pesh. 35).
9. For what has been stated above I arts of the view that the learned trial Judge has neither acted capriciously nor his finding is perverse on the view of the evidence taken by him. Therefore, I am not inclined to interfere with the judgment of acquittal in the exercise of my revisional powers under section 439, Cr. P. C. This petition .Has no merits and is dismissed accordingly.