The petitioner was challaned in case F. I. R. No. 204 under section 307, P. P. C. Registered at Police Station Toba Tek Sin gh on the 29th August, 1981, on the complaint, of Haji Allah Ditta respondent No.
1. Malik Zawar Ali, Magistrate Section 30, Toba Tek Singh acquitted the accused after trial vide order dated 9-6-1982. Haji Allah Ditta challenged the order of acquittal by way of a revision petition before the Court of Session. The learned Additional Sessions Judge, Toba Tek Singh vide order dated 28-3-83 set aside the order of acquittal and remanded the case to the learned lower Court for re-trial. The petitioner has filed this writ petition challenging the order of the learned Additional Sessions Judge.
2. According to the prosecution the petitioner had attacked Fazal Ahmad P. W. During night between 28/29-8-1981 while he was sleeping on a `Thara' in front of his house in the area of Chak No. 395/J-B, P. S. Toba Tek Singh. The occurrence, according to the prosecution, was seen by Nazir Ahmad, Ghulam Rasul and Haji Allah Ditta complainant. All of them appeared as P. Ws. Fazal Ahmad; the injured P. W. Also appeared.
3. According to the prosecution the petitioner had led to the recovers of a Chhuri, the alleged weapon of offence.
4. The prosecution had, during the trial, led the evidence of recovery also. The doctor who had medically examined the injured P. W. Was also produced. The petitioner had denied the allegations and set up the plea of false implication but did not lead any evidence in defence.
5. Arguments heard.
6. The contention of the learned counsel that the order of the learned Additional Sessions Judge is not maintainable for the reason that the State being the necessary party, the petition was decided without hearing the State representative, is of no consequence for the reason that the petitioner had named the State as a party. The learned Additional Sessions Judge was not supposed to direct the State representative to appear and argue. It was for the State to have made arrangements. It does not appear from the judgment that the State representative was not heard. The State by not filing appeal had shown that they were not interested; even otherwise in a criminal revision the Court is not bound to hear all the parties. Revisional powers can be exercised sun molu also and without the assistance of any of the parties. Notice to the parties however, is a necessary element for exercising revisional powers, which had been done in this case.
The argument that the learned Additional Sessions Judge had no authority to decide the revision petition as the same had not been transferred to him by the learned Sessions Judge, is devoid of any force, The revision petition had been transferred to the predecessor of the learned Additional Sessions Judge and as such he had the authority to hear and decide the same.
7. The contention of the learned counsel that the learned Additional Sessions Judge has passed the order of reversal of judgment of the learned trial Court without discussing the prosecution evidence, is not correct. The learned Additional Sessions Judge in his judgment has discussed the prosecution evidence. Reference has been made to eye-witness account, the evidence of recovery and the medical evidence. The contentions raised by the learned counsel for the petitioner (respondent) have also been specifically noted.
8. The point raised by the learned counsel for the petitioner that the revisional powers should not be exercised merely for the reason that a different view can be taken of the evidence than the one taken by the trial Court has been considered by me taking into account, the observations of the learned trial Court and that of the revisional Court. The order of the learned, trial Court has not been set aside merely on the ground that the learned Additional Sessions Judge had come to a different finding. He in fact came to the conclusion, `that the learned trial Court did not appreciate the evidence properly and rejected the prosecution evidence on speculative grounds without applying his judicial mind---.
8. I have gone through the judgment cited by the learned counsel for the petitioner in this regard reported as Lakha v. Ata Muhammad and 3 others (1982 P Cr. L J 155). In paragraph 14 of the judgment the learned Judge has observed that :- "A part altogether from the above position, another factor which has persuaded me to bold 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 interest of justice--------- It is apparent that the above view mainly weighed with the learned Judge while dismissing the revision petition.
9. Apart from the above considerations, I am also conscious of the view that the order has been challenged through a writ petition which is a D limited jurisdiction, and does not call for going through the evidence. It has been observed in Hamayat Khan and another v. Ahmed Din and 2 others (1983 SCMR 59):- "Unfortunately, a practice has arisen to challenge decisions of Courts of law through constitutional petitions on frivolous grounds, requiring re-appraisal of evidence when none is envisaged by the relevant law."
Keeping in view the above law laid down by the Supreme Court, I am inclined to bola that no case for interference by way of exercise of extra--ordinary constitutional jurisdiction has been made out.