Sultan Ali, Barkat Ali, Khushi Muhammad, Abdur Rehman's and Niaz Ahmad residents of Chak No. 139 G. B., Tehsil Samundri were tried under sections 302/149/148, 323. P. P. C. By the learned Sessions Judge. Lyallpur (Faisalabad) and vide his judgment dated 4August, 1973 acquitted all of them.
2. The complainant Abdul Ghafoor has assailed the order of their acquittal by means of this private revision petition under section 439, Cr. P. C. When State declined to file appeal against the acquittal of the respondents.
3. The prosecution version of the occurrence is that on the night between 20th and 21st April, 1972 at about 9-30 p. m. Abdul Ghafoor the complainant, his were Mst. Hassan Bibi, his son-in-law Mehr Khan and a relation namely Abdullah and one Muhammad Iqbal Abdul Shakoor and Jaffar were sitting in the haveli of the complainant. Mehr Khan, along with his brother Jaffar Khan went outside to have a round of wheat crop stacked in Killa No. 17 of Square No. 13 of the village. A short while thereafter Abdul Ghafoor and others sitting in the haveli heard a noise of Mehr Khan from the side of Killa No. 14 of Square No. 12 shouting that `cherry' crop was destroyed. On hearing alarm all of them rushed towards Killa No. 14 of Square No. 12 and found there that Barkat Ali was ploughing the land. Abdul Ghafoor asked Barkat Ali not to plough the field but instead of stopping the plough they launched attack on the complainant party. Sultan and Khushi respondents armed with hatchet opened the attack and gave blows on the head of Mehr Khan. Barkat Ali gave dang blow which landed on the head of Abdullah, Abdur Rehman's fired pistol shot which hit Abdullah on his chest.
Hassan Bibi was given lathi blows by Niaz Ahmad.
The assailants then went away taking bullocks with them. Mehr Khan and Abdullah injured succumbed to their injuries on the spot.th The motive for the occurrence was that the land situated in Killa No. 14 of Square No. 12 was initially allotted to Mst. Barkat Bibi mother-in-law of Sultan accused. The allotment of land was however cancelled and the land was allotted to Inayat Gojjar and others. During consolidation proceedings it was allocated to the vanda of Mst. Hassan Bibi. Litigation for taking possession of the disputed land between the parties ensued. The land was being cultivated by one Niaz but he relinquished his tenancy. Abdul Ghafoor and his son cultivated the land and sown ---cherry--- crop over it. The accused party felt aggrieved and came to take forcible possession thereof.
4. On 21April, 1972 at 6-30 a. m. The complainant lodged a report Exh. P. A. At P. S. Which was recorded by Muhammad Anwar Khan P. W. 13.
5. Muhammad Anwar Khan, A. S. I. After recording F. I. R. Reached the spot. He prepared injury statement of Abdullah deceased Exh. P. J. And the inquest report Exh. P. L. Similarly he prepared injury statement of Mehr Khan deceased vide Exh. P. K: and his inquest report vide Exh. P. M. He despatched the dead bodies to mortuary for post-mortem examination. He thereafter took into possession blood-stained earth from two spots vide Memos Exh. P. B. And P. C. He also found one empty and its lead on the place of occurrence which he took into possession vide Memo. Exh. P. D.
He also took into possession plough P. 7 vide Memo. P. E.
6. The investigating officer found Mst. Hassan Bibi in injured condition. He prepared her injury statement Exh. P. N. And sent her for medical examination.
Abdur Rehman's S. I. P. W. 7 went to the place of occurrence on 21April, 1972 at 11. a.m. And took over the investigation from Muhammad Anwar, Khan A. S: I. He arrested Barkat Ali accused respondent and found him injured. He prepared his injury statement Exh. P. R./I and referred him for medical examination.
7. Dr. Muhammad Riaz Ali, Medical Officer, Civil Hospital, Samundri on 21st April, 1972 conducted the post-mortem examination on the dead body of Abdullah and found following injuries on the deceased:- "(i) A lacerated wound --" x --" x deep just on the left side of the middle line of the chest just below the level of the nipple.
(ii) A lacerated wound --" x --'' deep on the right side of the back 3" from the middle line of the back below the lower border of right shoulder blade.
(i.e) A contused wound ----- x 1/8" skin deep on the left side of the head."
He also performed autopsy on the dead body of Mehr Khan found following injuries on the deceased:-
(i) A big wound on the right side of the head above and behind the ear which was irregular in shape. Maximum breadth being from where the brain matter was coming. The underneath bones were fractured into pieces. There was bleeding from both ears. Part of the edges of wound were incised in appearance.
(ii) A superficial incised wound 1--" x 1/16" on left side of head."
The doctor also medically examined Mst. Hassan Bibi on the same day and following injuries were found on her person:-
(i) A superficial contused wound 1----- x --" on the back of the right forearm at its lower half.
(ii) A multiple contusion mark in the area of 3" x 3" in front of the left upper arm at upper part."
On 25th April, 1972 he also medically examined Barkat Ali respondent and found on his person contused wound 1--" x --" on back of the left hand near index finger. The wound was healing with formation. The injury was declared simple and caused by blunt weapon within 7 days from the day of medical examination.
8. The prosecution relied on ocular evidence, medical evidence, evidence relating to motive and recoveries.st st
9. The respondents at the trial pleaded their innocence explained their involvement on account of enmity. They however led no evidence in defence.
10. Learned counsel for the petitioner stated that the trial Court misconstrued evidence on the record and ignored certain pieces of evidence which proved the culpability of the respondents accused for the commission of the offence of double murder beyond reasonable doubt. It was submitted that the ocular evidence furnished by Mst. Hassan Bibi injured P. W. Could not be discarded because she was a reliable witness, whose presence on the spot was not liable to dispute. It was next submitted that the learned trial Court misread and ignored the evidence while holding that there was no evidence available for corroboration of the ocular version. It was submitted that medical evidence in respect of the nature of injuries suffered by the deceased, the weapon used, the seat of injuries provided ample corroboration to the ocular evidence. It was submitted that the medical evidence, the recovery of plough P. 7 vide Memo. P. E., the empty bullet and its lead and the injury suffered by Barkat one of the accused respondents provided corroboration to the ocular version.
11. The motive part of the prosecution case also supported the ocular version. It was submitted that the occurrence had taken place in the first half of the night, the alarm raised was audible to the P.
Ws. Who were present not at a far of distance. It was also submitted that the delay in F. I. R. Was explained by the prosecution nevertheless if it was to weigh against the prosecution it could be only in respect of the false involvement of some of the accused persons but the benefit of doubt could not have been extended in favour of all the accused. It was submitted that the case of each individual accused was not considered by the trial Court which resulted into gross miscarriage of justice.
12. Learned counsel for the respondents pointed out that the State in this case did not file appeal against the order of acquittal. In this way their acquittal has strengthened the presumption of innocence in their favour. It was stated that the F. I. R. In this case was delayed. The recovery was made of one plough although according to prosecution case, more than one ploughs were used in the field. It was submitted that Niaz respondent was more than 80 years at the time of the trial of this case. He could not have possibly inflicted simple injuries to Mst. Hassan Bibi. It was next contended that the ocular evidence in this case was interested because the eye-witnesses were related to the deceased and inimical towards the accused. It was also submitted that at the relevant time, the land in dispute, was legally in possession of the accused party because Niaz Ahmad relinquished tenancy in their favour. As such the accused party could not be aggressor. In any case the learned trial Court correctly held that right of private defence extended in their favour.
It was next submitted that the occurrence had taken place in the night and the eye-witnesses were allegedly present at a far of distance from where they could not have heard the alarm raised by Mehr Khan deceased. It was argued that none of the eyewitnesses were present on the scene of occurrence which lasted for few moments. It was also stated that even if this Court does not agree with the finding of the learned trial Court and comes to a different conclusion, retrial of the case cannot be ordered after a lapse of 9 years from the day of occurrence. It was lastly submitted that to order retrial of the case after such a long time would amount to abuse of the process of Court as it would be difficult to procure the prosecution witnesses for recording their evidence. It was further submitted that the order of respondents' acquittal is neither foolish nor perverse and has not resulted in gross miscarriage of justice. In these circumstances the order of retrial would be unfair and unprecedented.
13. I have heard learned counsel for the parties and perused the relevant record with their assistance. The consideration of the evidence on the record has undoubtedly established that the learned Sessions Judge has, in fact, not properly appreciated the evidence and passed order acquitting the respondents from a charge of double murder. For instance, the learned trial Judge has considered only the legal possession of the land in dispute at the relevant tine ignoring the evidence that the land in dispute was ploughed, and prepared by Abdul Shakoor son of Mehr Khan deceased only a couple of days prior to occurrence. This obviously proved that the land in dispute was in actual possession of the complainant party on the day of occurrence.
14. Learned Sessions Judge observed that there was no evidence on the record to provide corroboration to the ocular version but it is proved on the record that the seat of the injuries and nature of injuries suffered by the complainant party apart from the recovery of plough on the spot couple with undisputed place of occurrence proved that the ocular version in this case was not uncorroborated from other evidence.
15. The injuries suffered by Mst. Hassan Bibi P. W. Assumed by the learned Sessions Judge having been caused by friendly hands were not supported by evidence and to fact was conjectural.
Similarly the injury suffered by Barkat Ali one of the accused was incorrectly held having been not suffered in the occurrence.
16. The learned trial Judge did not consider the role of each partici--pant in the occurrence which was imperative in the circumstances of the instant case and extended benefit of doubt in favour of all the accused. The learned Sessions Judge overemphasised the delay in the lodging the FIR which by itself was not conclusive circumstance to discredit the en--tire prosecution version. The night and time of occurrence proved that there was enough light for identification of the accused who were known to the eye-witnesses. The actual assault was preceded by verbal altercation between the parties during which there was ample opportunity for the eye--witnesses to have identified the accused. This aspect of the case was also sidetracked by the learned trial Court.
17. In the light of the above observations I have no doubt in my mind that it was a fit case for retrial but the main consideration which has weighed with me not to order retrial at this stage is that lapse of a period of about 9 years from the date of occurrence. The occurrence in this case has taken place on 21st April 1972. The respondents were acquitted by the learned Sessions Judge, Lyallpur (Faisalabad) on 9th August 1973. The ques--tion whether at this stage it would be advisable to send the case for retrial engaged my mind that the retrial of the case may not be only an exercise in futility. The trial in this case concluded in the year 1973 and a consider--able time has intervened since the date of occurrence. 1t is not unlikely that the prosecution witnesses may not be available and retrial may amount to abuse of the process of Court. In exercise-of the revisional jurisdiction this. Court has always been reluctant to order retrial and only in exceptional cases exercised where the interest of public justice requires interference for the correction of manifest illegality or for the prevention of a gross mis--carriage of justice. In this case State did not opt to file appeal against the order of respondents' acquittal and this petition which was filed in 1973 came up for hearing in 1981. The respondents, therefore, all along remained under the shadow of impending retrial on the double murder charge for about 9 years.
18. For the foregoing reasons I find no justification at this stage to accept this petition and order retrial. Consequently this petition fails and is dismissed.