This private criminal revision under section 439, Cr. P. C. Has arisen out of the judgment dated 23rd February, 1978 of the learned Sessions Judge, Bahawalnagar whereby he acquitted Muhammad Ashfaq respondent the charge under section 302, P. P. C. And confiscated an amount of Rs 8,565 recovered at the instance of the aforementioned accused.
2. The prosecution case in nutshell is that on 2June, 1975 at "Peshiwela" (2 p. m.) Pathana real brother of Jalal complainant was murdered on the bank of a minor canal near village Muridwala by the respondent by causing hatchet blows to him and robbing him of Rs. 8,365 contained in a potli.
3. The occurrence was witnessed by Bhoora and Falak Sher P. Ws. Bhoora contacted Muhammad Hussain Lambardar of the nearby, village and the latter in turn informed the complainant about the occurrence. Jalal complainant accompanied by aforesaid Muhammad Hussain Lambar--dar went to Police Station Minchanabad where F. I. R. Was lodged at 7 p. m. On the day of occurrence.
3-A. The Investigating Officer reached the spot, examined the dead body, prepared his injury statement (Exh. P. G.) and inquest report (Exh. P. H.) He despatched the dead body for post-mortem examina--tion.
4. The respondent was arrested on the next day viz. 3rd June, 1975 and while in police custody he led to the recovery of blood-stained shirt (P. 9) and Chaddar (P. 10) which were taken into possession vide memo. Exh. P. C. He also got recovered blood-stained hatchet (P. 11) from his house which was taken into possession vide memo Exh. P. E. He also got recovered currency notes of the value of Rs. 4,065 contained in a potli which were also taken into possession vide memo Exh. P. D.
On 5th June, 1975 again while in custody he led to the recovery of currency notes of the value of Rs,nd 4,500 from his residential Kotha which were also taken into possession by the Investigating Officer vide memo Exh. P. F.
5. Dr. Muhammad Rafiq Zafar conducted autopsy on 23rd June, 1975 at 11.30 a. m. And noticed the following injuries on his person:-
(1) Incised wound 4' x --" x bone cut completely (left mendible) on the front of the coin oblique in direction just below the lower lip.
(2) Incised wound 4--" x --" x bone cut completely (left maxilla) over the left cheek oblique in direction just above the left side of upperlip.
(3) Incised wound 3--" x --" into bone completely on the left side of the face --" below and in front of left ear oblique in direction. On dissection cutting the skin subcutaneous tissue muscles-blood vessels nerves and left cheek bone and left mandible cut comple--tely.
(4) Incised wound 4--" x bone cut completely over the left cheek oblique in direction half inch below the lower eye lid of left eye. On dissection cutting the skin subcutaneous tissue muscles blood vessels nerves left cheek bone and pelat bone cut completely.
(5) Incised wound 3--" x 1" x skull bone cut completely and brain matter injured on the left side of the head 1--" above and front of left ear. On dissection cutting the scalp frontal bone of skull cut completely, membranes blood vessels brain matter cut, clotted blood present over the brain substance.
(6) Incised wound 1" x --' x skin deep on the left side of the neck 1--" below the left ear.
(7) Incised wound 1" x --" x bone cut completely on the dorsal surface of the middle phalynx of left middle finger.
(8) Incised wound --" x 1/3" x bone cut on the dorsal surface of the prothimal phalynx of left index finger.
6. In the opinion of the doctor death occurred due to shock and haemorrhage as a result of Injury No. 5 which was sufficient to cause death in the ordinary course of nature. All the injuries were declared by him ante-mortem and caused by sharp-edged weapon. The probable time between the injuries and death was instantaneous whereas between death and post-mortem about 20 to 24 hours.
7. The accused-respondent denied the allegations and led no evidence in defence.
8. The learned trial Judge discarded the ocular evidence, disbelieved the evidence of recoveries and acquitted the accused as afore--mentioned.
9. The State was moved for filing an appeal against the order of respondent's acquittal but the same could not be filed due to the expiry of period of limitation prescribed for filing the appeal. The complainant, therefore, filed the instant revision petition.
10. Learned counsel for the petitioner raised following contentions
(a) The evidence of eye-witnesses has been wrongly rejected although it inspired confidence,
(b) There was no inordinate delay in lodging of F. I. R. The accused had ambushed and murdered the deceased on a canal bank and some time had to be consumed in communication of the news to the relatives of the deceased. The F. I. R. Did contain the name of accused and full particulars of crime.
(c) The murder was committed in broad daylight, and no enmity was even suggested to show that the two eye-witnesses or the complainant or even the recovery witnesses had any motive to substitute the name of accused for the real murderer. The learned trial Court has rejected the evidence of several independent and natural witnesses of prosecution on the basis of far-fetched conjectures and surmises, This has resulted in miscarriage of justice.
(d) Recovery of such a huge amount could not have been planted on the accused by the Police.
Besides the stolen money some tell-tale recoveries of blood-stained hatchet and blood-stained clothes were there to support the case against the accused.
(e) In any case forfeiture of recovered stolen money is utterly unwarranted. The recovered money was discLalmed by the accused and should have been delivered to heirs-of deceased."
11. Learned counsel for the respondent at the very outset pointed out that the order of the learned trial Judge to the extent of the forfeiture of amount recovered particularly when not cLalmed by the respondent was legally not sustainable. He however, strongly supported the judgment of the trial Court in acquitting the respondent of the charge under sec--tion 302, P. P. C. It was submitted that the conclusions reached by the trial Court were sound and based on correct appraisal of evidence.
It was stated that the prosecution witnesses in this case were related with the deceased and their presence on the spot at the time of occurrence was doubtful. He expLalned the reason for involvement of the respondent in the case on account of enmity with Muhammad Hussain (P. W. 8) who became instrumental in the involvement of the respondent in this case. He pointed out that the occurrence had taken place in deserted place and in fact had gone unwitnessed. He criticized the introduction of Potli and recovery of amount in two instalments from the same place at the instance of the respondent. It was stated that the ocular account did not inspire confidence and the reasons incorporated by the trial Judge for rejecting their evidence were sound. It was also stated that the occurrence had taken place in the month of June, 1975 and a period of more than six years had elapsed it would therefore be futile exercise to order re-trial of the case at this stage.
It was lastly contended that on the appreciation of evidence if this Court comes to a different conclusion than that arrived at by the trial Court, that alone would not be sufficient ground to order retrial after lapse of such a long time.
12. I have heard learned counsel for the parties, perused the evidence on record with their assistance.
13. The prosecution relied on ocular version furnished by Falak Sher (P. W. 10) and Bhoora (P. W. 11) who had seen the accused giving hatchet blows to Pathana deceased and for corroboration relied on the evidence of blood-stained hatchet, blood-stained clothes of the accused and recovery of Rs. 8,565 made at the instance of the accused from his house.
14 The learned trial Judge rejected the ocular evidence for reasons incorporated in para. 7 of the impugned judgment. It was held that the occurrence could not take place in the manner described by the P. Ws. An extract from para. 7 of the judgment is reproduced hereunder:- "A question arises as to what were the circumstances which had forced the deceased Pathana to raise an alarm when Falak Sher and Bhoora P. Ws. Were still at a distance of 12 karams. The accused Ashfaq did not try to snatch away the purse of the deceased because after he had given hatchet blows and fatally injured the deceased Pathana the accused Ashfaq had searched his dubb and succeeded in getting the purse of the deceased. In such a situation I am not convinced as to what was the cause or the reason for the deceased Pathana to raise an alarm when the eye- witnesses Falak Sher and Bhoora were still at a distance of 12 karams. If on the other hand the accused Ashfaq would have tried to snatch away the purse of the deceased, the latter could be expected to raise an alarm that he was being robbed, which could attract the attention of the two eye-witnesses who were at a distance of 12 karams from that place. In the present case this is not the situation because both Falak Sher and Bhoora P. Ws. Have not stated that the accused Ashfaq had firstly tried to snatch the money on which the alarm was raised but they have stated that firstly the accused had given hatchet blows and when the deceased Pathana had fallen down on the ground he searched his dubb and took away the money. I am, therefore, of the view that the occurrence cannot be expected to happen in the way it has been deposed by the two eye- witnesses Falak Sher and Bhoora P. W. 10 and P. W. 11 respectively. These statements, therefore, do not deserve credit and they cannot be relied upon."
15. The learned trial Judge was of the view that the deceased could not raise alarm if he was given first hatchet blows and he could raise alarm only if the accused had first tried to snatch away his purse. This obviously is a mere conjecture and no ground to discard the ocular evidence The deceased on seeing the accused armed with hatchet could raise alarm and the accused in order to rob him of the amount could first disable the deceased by inflicting injuries to him.
16. Moreover there was undoubtedly an explanation for the time consumed in lodging the F. I. R.
Which was also discarded on no discover--able reasonable ground. The evidence of incriminating recoveries of blood--stained hatchet, blood-stained clothes and large amount at the instance of the respondent was rejected on entertaining surmises. Furthermore, there is substantial weight in the submissions of learned counsel for the petitioner that the ocular evidence finding corroboration of evidence of incriminating recoveries could not have been discarded particularly for the reason that there was no enmity even suggested to the eye-witnesses and it being a case of single accused who was arrested on the next day of occurrence false substitution of the accused was difficult in the circumstances.
17. The amount recovered at the instance of the accused was .Not cLalmed by him. It was, however, specifically asserted by the complainant that the same belonged to the deceased. Its forfeiture, therefore, was also not justified in the circumstances of the case.
18. Being conscious of the fact that re-trial of the case is normally not ordered after lapse of considerable period and discretion to interfere in revisional jurisdiction is rarely exercised, nevertheless I find it a fit case for re-trial as miscarriage of justice has resulted by the impugned judgment of the learned Sessions Judge which is not sustainable under the law.
19. In the result I accept this petition, set aside the impugned judgment and remit it to the learned Sessions Judge for re-trial and fresh decision in accordance with law with a direction that no observation made in this order should be construed to the prejudice of the respondent. The trial Court should proceed independently without being least influenced by the observations made in this order by this Court.
20. In view of the lapse of six years, I direct that he shall be admit--ted to bail on furnishing security in the sum of Rs. 30,000 (Rupees thirty thousands) only with one surety in the like amount to the satisfaction of the trial Court till the conclusion of the trial.
21. As this is an old case the learned Sessions Judge is further directed to decide it expeditiously preferably within three months from the date of this order.