This revision is directed against judgment dated 31st May, 1968 delivered by the learned Additional Sessions Judge, Lahore (Camp at Kasur).
2. The facts necessary for the purpose of this revision petition, briefly stated, are that Ata Muhammad, Muhammad Shah, Hakim Ali and Aziz, respondents Nos. 1 to 4, were sent up for trial before the learned Additional Sessions Judge, Lahore (Camp at Kasur) in a case registered against them under section 302/34, P. P. C. With Police Station Sarai Mughal, Tehsil Chunian, District Lahore, now District Kasur, vide F.I.R. Lodged on 15th October, 1966 at the instance of Lakha petitioner complainant for causing the death of Ghulam Mustafa.
3. The allegations against the accused-respondents were that they variously armed in furtherance of their common intention attacked Ghulam Mustafa the brother of the complainant Lakha near the Mosque of Mian Gona in village Halla at about Ishawela on 14th October, 1966 and inflicted seven injuries on his person. Ghulam Mustafa was being taken to Mayo Hospital, Lahore in an injured condition but he died on route near Bhai Pheru and his dead body was brought back to the village. The F.I.R. Was lodged the next day at about 8 a. m. With Police Station Sarai Mughal, Tehsil Chunian, District Lahore, now District Kasur, at the instance of Lakha complainant the brother of the deceased.
According to the prosecution story, the deceased Ghulam Mustafa had come out of the Mosque at the time of attack on him, whilst Lakha the petitioner was still in the Mosque offering Dowaa who on hearing the alarm came out of the Mosque and saw the occurrence. On Lakha's alarm other eye- witnesses, namely Mehr Nazir and Boota, also reached the spot. Ata Muhammad and Muhammad Shafi accused respondents allegedly gave hatchet blows on the legs of Ghulam Mustafa deceased, whilst Hakim Ali accused respondent gave him dang blows. The attempt of witnesses to rescue the deceased could not succeed as they were threatened by the accused respondents that in case they intervened they would also be done to death. The accused-respondents after giving severe blows to the deceased left him unconscious at the spot.
4. At the trial, the prosecution examined in all 13 witnesses in support of its case, four of whom were eye-witnesses viz. P. W. 8, P. W. 9, P. W. 10, P. W. 11, P. W. 12 was a witness of recovery, whilst P. W. 13 was the Investigating Officer.
5. The accused respondents did not plead guilty and took up the defence that this was an unseen occurrence and the murder was committed by some one else but as there was previous enmity between the accused respondents and Ghulam Mustafa deceased the petitioner-complainant falsely implicated them. They did not lead evidence in defence.
6. On conclusion of the trial the learned Additional Sessions Judge came to the conclusion that the respondents were entitled to the benefit of doubt since the prosecution story was not confidence inspiring, and that the material prosecution witnesses viz. Eye-witnesses and the recovery witnesses were closely related to the deceased and the petitioner and there being discrepancies in their statements the same could not be safely relied upon for conviction.
7. Regarding the recoveries made it was observed by the learned Additional Sessions Judge that the only arm which was found blood--stained was the hatchet Exh. P. I. Recovered at the instance of Ata Muhammad accused, respondent, vide Exh. P. D. The recovery was, however, held doubtful in view of the recovery witness being a close rela--tion of the deceased and no independent witnesses having been taken for the purpose of recovery such as the Lambardar, the Chaukidar etc. Who were admittedly available.
8, The learned counsel for the petitioner first contended that enmity having been established on record between the accused respondents and the deceased in view of some dispute about a haveli there was no warrant for having acquitted them.
It was next contended that the occurrence was witnessed by four persons who gave correct account of the incident and disbelieving their evidence only on the ground that they were related to petitioner and the deceased was- also not called for as the witnesses could not be disbelieved merely on the ground of relationship.
It was also contended that Mehr Din P. W. 9 was not related to the deceased.
9. On the other hand, the learned counsel for the respondents, argued that the existence of enmity between the accused respondents and Ghulam Mustafa deceased was in fact the basis of false implication of the respondents and could not be taken as a motive for murder.
10. It was next contended on behalf of the accused respondents that Mehr Din P. W. 9 was the father-in-law of a nephew of Lakha petitioner and as such was related to the petitioner and the deceased. Continuing his argument the learned counsel for the accused respondents contended that it may be correct that mere relationship should not be made the basis of disbelieving a witness but then in the case in hand it was not mere relationship but also other circumstances taken into consideration by the learned trial Court such as the introduction of a torch in the hand of Boota P. W. At the trial stage which position was never mentioned in the F.I.R. In the statements of witnesses under section 161, Cr. P. C. Or for that matter, in the commitment proceedings, which impelled the learned trial Court to disbelieve the witnesses.
11. The last contention raised by the learned counsel for the respon--dents was that the High Court should not interfere with the judgment of the learned trial Court in revision against acquittal where the State has not preferred an appeal unless non-interference would involve an endorsement of a patently unfair order. It was urged that in the case in hand no inter--refence is called for as the view taken by the Court below is reasonably possible on consideration of the facts and circumstances. Reliance was placed on Feroze khan v. Capt. Ghulam Nabi Khan and another (PLD 1966 SC 424) and Mr. Fida Muhammad Khan Advocate v. Muhammad Zaman Khan and 5 others (PLD 1975 Pesh.38
12. Having given consideration to the controversy involved I am of the view that the last contention raised on behalf of the accused respon--dents has force. It has been held by the Supreme Court in PLD 1966 SC 424, at page 431, as under :- ---..... In particular iii cases of revision petitions from an acquittal, where the State has not thought it fit to challenge the acquittal by an appeal, the Courts would be very slow to interfere, unless non- interference would involve an endorsement of a patently unfair order, or one which leads to miscarriage of justice. If the view taken by the Courts below is reasonably possible on a consideration of all the facts and circumstances of the case, then the entertainment of a feeling that an alternative view of the evidence might have been taken, would not justify the superior Court in setting aside an order of acquittal."
I am in respectful agreement with the rule laid down by the Supreme Court as reproduced above.
There can be no two opinions as regards the principle that revisional jurisdiction of the High Court under sec--tion 439, Cr. P. C. Is not meant to substitute findings of the Courts below by re- appreciation of the evidence on record. It may well be that on the same set of circumstances and evidence two views could be taken. If the Court below has taken one view which is reasonably possible on the facts and circumstances of the case then the Revisional Court will not interfere to the findings of the subordinate Court, especially of acquittal, merely because it would have taken a different view. The paramount consideration should be to see whether on the proved facts justice has been done) in accordance with law or not. In the case in hand, neither any instance of misreading of the evidence by the learned trial Court nor any error of law in the impugned judgment has been pointed out by the learned counsel for the petitioner. The only contention raised on behalf of the net is that the learned trial Court should not have. Disbelieved the eye- witnesses and the recovery witness merely because they were related to the deceased and the petitioner. This contention is obviously misconceived It has been rightly pointed out by the learned counsel for the respondents that the prosecution witnesses were not disbelieved merely because they were related to the deceased and the complainant but also on account of other considerations detailed in the judgment one of which was referred to by the learned counsel for the accused-respondents as incorporated in para. 10 above.
13. I have also gone through the whole of the judgment of the learned Additional Sessions Judge and have no hesitation in saying that the conclusions arrived at by him are reasonably possible and can in no manner be said to be fanciful or arbitrary. In fact the whole of the material on record has been thoroughly scanned and discussed by him.
14. Apart altogether from the above position, another factor which has persuaded me to hold that the judgment of the learned Additional Sessions Judge does not call for any interference is the passage of a long period since the date of acquittal of the respondents. It would be noticed that the alleged occurrence took place on 14th October, 1966 and the accused-respondents were acquitted as far back as 31st May, 1968 i.e. a period of 13 years has elapsed since the date of acquittal and about 15 years since the date of the alleged occurrence. The ordering of a re-trial,"' at this stage, having regard to the considerable time that has intervened since the occurrence and the date of acquittal will not be in the interes of justice, especially for the reason that the accused- respondents have been undergoing the agony of fear of an impending re-trial on a charge of murder during all these long years. The availability of witnesses after this long period is also doubtful and the re-trial, at this stage, may turn out to be a futile exercise. My above view also finds support from Phulail Khan v. The Stare (1972 SCMR 95) and Allah Rakhio Khan v. Mohkam Din and 2 others (1977 P Cr. L 114).
15. In view of the foregoing discussion 1 find no merit in `this revision which is accordingly dismissed.