' These are two petitions, one filed by Musa Khan and the other filed by Musahib Khan, who both stood trial in the Court of Magistrate exercising enhanced powers on a charge under section 307/34, P. P. C. For effectively firing at Zardad Khan complainant in order to take his life, which were originally filed as revision petitions but on the request of the learned counsel for the petitioners were converted into petitions under section 561-A, Cr. P. C. And were admitted to full hearing as such.
2. The petitionerr were convicted by the learned Magistrate and each sentenced to two years' R. I.
And a fine of Rs, 1,000 or in default of payment of fine to six months' R. I.
3. The petitioners herein then went in appeal to the Court of Session Judge, Abbottabad, against their conviction and sentence and the complainant filed revision petition in the said Court for the enhancement of the sentence awarded to the petitioners herein by the trial Court. The learned Sessions Judge heard the appeal and the revision petition together and vide his judgment, dated 28-11-1981, while rejecting the appeal filed by the petitioners herein and accepting the revision petition filed by the complainant, enhanced the sentence of each of the petitioners herein to 10 years' R. I. And a fine of Rs, 5,000. In default of payment of fine they were directed to undergo further rigorous imprisonment for one year. Half of the fine, upon realisation, was directed to be paid to the complainant by way of compensation.
4. Not satisfied with their conviction and sentence, the petitioners have filed these two petitions, which are to be treated as petitions under section 561-A, Cr. P. C. I would dispose of both these petitions by this single order.
5. At the very outset the learned counsel for the complainant raised preliminary objection that these petitions under section 561-A, Cr. P. C., calling in question the correctness, legality or propriety of the findings given and the sentence awarded by the learned Sessions Judge, are not maintainable. He submitted that the Court while invoking jurisdiction under section 561-A, Cr. P. C.
Cannot exercise powers similar to those available to it under section 435 read with section 439 of the Code of Criminal Procedure in order to judge the correctness, legality or propriety of any finding, sentence or order passed by any inferior Court. He submitted that the jurisdiction exercised by the High Court under section 561-A, Cr. P. C. Is quite different from the jurisdiction exercised by it under section 435 read with section 439, Cr. P. C. He argued that the inherent jurisdiction of the High Court is neither an alternative jurisdiction nor an additional jurisdiction so as to empower the High Court to sit as a Court of appeal or as a revisional Court and disturb the findings of conviction recorded and the sentence awarded to an accused by the inferior Courts. While making these submissions the learned counsel for the complainant relied on Muhammad Samiullah Khan and another's case (1) and Ghulam Muhammad's case (2) decided by the Supreme Court.
6. Replying to the aforesaid objection raised by the learned counsel for the complainant, both the learned counsel for the accused-petitioners submitted that since after the addition of section 439- A to the Code of Criminal Procedure no other remedy was available to the petitioners, there being a clear bar contained in clause (b) of subsection (4) of section 439 of the Code, the inherent jurisdiction of the High Court preserved in section 561-A of the Code could be invoked to correct the patent injustice done to the petitioners. They submitted that after the aforesaid amendment of the Code the High Court can, in exercise of inherent powers under section 561-A, set aside the conviction recorded and the sentence awarded by the inferior Courts and can also reduce the sentence to the extent deemed appropriate. They also submitted that the emphasis in the decisions of the Supreme Court in the cases cited by the learned counsel for the complainant was on the point "Where express or other adequate remedy was available". They submitted that in the changed position of law when the petitioners have no other remedy available against the order made by the learned Sessions Judge, in exercise of his revisional jurisdiction under section 439-A, Cr. P. C. They could knock at the door of the High Court for invoking its inherent jurisdiction to set right the injustice done to them. While making these submissions both the learned counsel representing the petitioners relied on Amir Khan's case, decided by a Division Bench of this Court (PLD 1982 Pesh. 34) wherein, in the interest of justice, while maintaining the conviction of the accused-petitioner the High Court reduced his sentence from life imprisonment to five years' rigorous imprisonment and also reduced the sentence of fine.
7. There is no denying the fact that after addition of section 439-A and clause (b) of subsection (4) of section 439 to the Code of Criminal Procedure, no remedy is left to an accused whose appeal is rejected by the Sessions Court and the sentence awarded to him by the lower Court enhanced in exercise of provisional jurisdiction under section 439-A. The question arises whether in such circumstances would the High Court sit as an idle spectator
(1) PLD 1963 SC 237 (2) P D 1967 SC 317 even in cases in which patent injustice may have been done by the inferior Courts. In my humble view, in such cases High Court has the power to intervene under its inherent jurisdiction to correct the patent injustice done by the inferior Courts. There is a strong reason in support of this view and that is that it is the duty of the High Court to see that justice is not denied to a litigant or injustice is not allowed to perpetuate. There is also one other reason in support of this view. The Legislature, while making amendment in the Code, in clause (b) of subsection (4) of section 439 has specifically used the words "to entertain any proceedings in revision", which clearly means that the powers available to the High Court under section 439 of the Code have only been expressly excluded to be invoked with respect an order made by the Sessions Judge under section 439sA, Cr.
P. C. There is no express exclusion of the inherent jurisdiction of the High Court, preserved under section 561-A, Cr. P. C. With respect to such an order made by the Sessions Judge, making manifest the intention of the Legislature that such exclusion was never intended. If the intention had been otherwise nothing could stop the Legislature from specifically making such exclusion by making amendment in section 561-A when it already existed on the statute book at the time when amendments in section 439 of the Code were introduced. It is also a settled principle that in absence of express exclusion the ouster of jurisdiction conferred by law on a Court cannot be lightly inferred.
8. The two decisions of the Supreme Court cited by the learned counsel for the complainant, as rightly pointed out by the learned counsel for the petitioners, also laid emphasis on the point that the inherent jurisdiction of the High Court would, as a rule, not be available to be invoked where other remedy expressly provided in the Code was available to the party concerned. Following the decision of this Court in Amir Khan's case, which in my humble opinion is not contrary to the law laid down by the Supreme Court in the two cases cited by the learned counsel for the complainant, I would hold that in the changed position of law, when no other remedy is available to a petitioner, the inherent jurisdiction of the High Court preserved under section 561-A, Cr. P. C. Can be invoked even with respect to the orders made by the learned Sessions Judge in exercise of powers vested in him under section 439-A, Cr. P. C. It is, however, another question whether in exercise of inherent jurisdiction High Court would in a particular case interfere in the findings of conviction recorded and sentence awarded by the two Courts below ? Answer to such question would primarily depend on the circumstances of each case and the extent to which a petitioner before the High Court may be able to prove that one or more of the conditions mentioned in section 561-A were satisfied in his case.
9. The inherent jurisdiction of the High Court is an extraordinary jurisdiction and can only be invoked in extraordinary circumstances. As held by the Supreme Court in the cases cited at the Bar, the High Court in exercise of its limited inherent jurisdiction cannot exercise the powers available to it under section 435 read with section 439, Cr. P. C. Such being the legal position, it is to be seen whether the case of the petitioners before me is one in which extraordinary jurisdiction can be exercised by the High Court.
10. In order to convince me that a patent injustice has been done to the petitioners by the two Courts below in recording conviction against them, and especially by the learned. Sessions Judge in enhancing their sentence of imprisonment and fine, the learned counsel for Musahib Khan petitioner took me through the evidence brought on record. He submitted the previous enmity between the parties is admitted on the record, that the complainant's statement in charging the accused-petitioners for the crime is not supported by any independent witness, that in view of the seat of injuries on the body of the complainant he was unable to see his assailants, that the presence of Muhammad Nawaz P. W., the brother of the complainant, on the spot at the relevant time was highly doubtful, that the medical evidence contradicted the prosecution version and that the dimensions of injuries suggested the use of only one weapon. For these reasons, he submitted, the conviction of the petitioners for the crime was totally unwarranted and needs to be set aside. In the alternative, the learned counsel for the petitioner suggested that in the circumstances of the case the sentence awarded by the learned Sessions Judge to the petitioners is too excessive and needs to be reduced. The learned counsel for Musa Khan petitioner also adopted the same arguments.
11. The learned counsel for the complainant, however, argued that the case of the petitioners is not of extraordinary nature, the conviction recorded by the two Courts below on the petitioners regarding the crime is supported by the complainant's statement, the statement of Muhammad Nawaz P. W., the statement of Noor Shab P. W. Motive for the crime, medical evidence and ascendance of the accused-petitioners. He submitted that minor discrepancies in the evidence are not material as no witness could be expected to state the facts before the Court with.
Exactness. He argued that it was an occurrence in broad daylight, the assailants were known to the complainant and the prosecution witnesses being their co-villagers, the charge was immediately laid against the accused-petitioners before Noor Shah P. W., a totally disinterested witness, as well as Police and there was no evidence of tutoring in this case. He argued that in such circumstances the conviction was rightly recorded by the two Courts below. He also submitted that the sentence awarded to the petitioners by the learned Sessions Judge was neither illegal nor excessive and does not, therefore, warrant interference by the High Court in the exercise of its inherent jurisdiction.
12. I have given my anxious consideration to the arguments addressed by the learned counsel at the Bar and have also very carefully gone through the evidence brought on the record. I think the two Courts below have applied the correct principles relating to the appeasement of evidence to this C case. The complainant and Muhammad Nawaz P. W. While returning to their village from Haripur saw the accused-petitioners armed with rifles emerging from nearby garden who shouted at the complainant that he should save himself. While the complainant was running for his life they fired at him and hit him. The complainant then described further assault by the accused- petitioners on him. This version is fully supported by the injuries found on his body. The occurrence having taken place in the broad daylight and the assailants being known to the prosecution witnesses the question of mistaken identity in this case did not arise. Noor Shah P. W. Was a totally disinterested witness and his statement goes to establish that the complainant had immediately after the occurrence charged before him the accused-petitioner for the crime. His statement also establishes the presence of Muhammad Nawaz P. W. On the spot when he categorically stated that he had reached the house of deponent earlier than his co-villagers. The recovery of moong' pulse from the spot also establishes the presence of Muhammad Nawaz P. W. On the spot. The minor discrepancies in the statements of the prosecution witnesses have no value because no person can narrate the occurrence with photographic exactness, especially when he under assault and is running for his life.
13. In any case, the case being not of a patent injustice or of extraordinary circumstances, and the sentence awarded by the learned Sessions Judge being legal and not excessive, the inherent jurisdiction of the High Court, in my opinion, cannot be invoked in this case to upset the findings of facts reached by the two Courts below. There being no merit in these petitions, the same are hereby dismissed.