1. This revision application under section 439 is directed against the judgment, dated 26th January, 1980, of learned Ex Officio Additional Sessions Judge, Nawabshah, whereby he acquitted the respondent/accused Ghulam Sarwar, Khuda Bux and Abdul Majid who were tried by him for the offences under sections 302/34 and 114, P. P. C.
2. Briefly the facts of the prosecution case are that the complainant lodged First Information Report at Sakrand P. S. On 26th June, 1975 at 1-15 p. m. In which he stated that at about 11-00 a. m. Deceased Manthar, Sher Khan, Allah Jurio and Nooruddin left their village for going to Sakrand while, complainant remained in his house. At about 11-30 a. m. P. W. Allah Jurio went and informed complainant that while they were going towards Sakrand Via Katcha Road they found accused Ghulam Sarwar's jeep coming from opposite direction which was being driven by respondent Khuda Bux Kheaskeli. Near the well of Abdul Masjid jeep stopped from where Ghulam Sarwar and Abdul Masjid with revolvers and Khuda Bux empty-handed got down, from the jeep and at the instigation of Khuda Bux, Ghulam Sarwar and Abdul Majid fired revolver shots at Manthar and Sher Khan who fell down and went unconsious. On knowing this complainant came at the place of wardat and found Manthar and Sher Khan lying injured. They were brought to government Dispensary at Sakrand. The complainant went and lodged report at P. S. Sakrand which was recorded by S. H.O. Shafi Muhammad. During the investigation police arrested the accused and secured crime weapon, revolver from Ghulam Sarwar. He also produced empty shells. No incriminating articles have been recovered from the respondents Abdul Majid and Khuda Bux. The learned Additional Sessions Judge proceeded with a trial and acquitted all the accused/respondents.
3. The complainant moved the District Magistrate for filing an acquittal appeal but his request was rejected. However, this revision has been filed by private complainant. The learned Judge has disbelieved the ocular testimony and the recovery evidence. He has discussed the entire evidence at length in his impugned Judgment.
4. Mr. Muhammad Hayat Junejo stated at the bar that respondent Ghulam Sarwar has been murdered and this assertion has not been disputed by Mr. A. Q. Halepota the learned counsel for the applicant. The evidence of recovery of jeep, revolver and empty shells and ballistic report is against the accused Ghulam Sarwar. As stated above no crime weapon has been recovered from co-accused Abdul Majid. Therefore, only evidence of ocular testimony of two eye-witnesses Allah Jurio and Nooruddin remains against these respondents. The allegation against Khuda Bux is that he was a driver of Ghulam Sarwar and he instigated his Master to commit murders. The proceedings against respondent Ghulam Sarwar stand abated. Mr. Halepota the learned counsel for applicant/complainant has contended that the First Information Report was filed without undue delay, the names of the accused were mentioned therein, the incident took place in broad daylight, therefore, the trial Judge has erred in discarding the above evidence and was not justified in disbelieving the natural witnesses. Therefore, this is a case which may be remanded for re-trial.
5. Mr. A. Q. Halepota has frankly stated that there is no misreading of evidence nor any irregularity or illegality has been committed at the trial. His only contention is that witnesses should have been believed in toto.
6. Mr. A. Q. Halepota has cited 1968 P Cr. L J 1492, 1972 P Cr. L J 664 and 1973 P Cr. L J 539.
7. In a case Muhammad Din v. Hyder and others , there was ocular evidence of five witnesses and incident occurred in the village and recoveries were made in presence of independent witnesses and in another case Din Muhammad v. Abdul Karim and others , there were counter-versions and point of aggression was yet to be decided, therefore, re-trial was ordered. The present case is distinguishable.
8. I have gone through the evidence and the impugned judgment and found that the evidence against Abdul Majid is that of two eye-witnesses and no incriminating articles have been recovered from him. The allegation against Khuda Bux is that of proverbal lalkara and the case against Ghulam Sarwar has already abated due to his death.
9. Mr. Muhammad Hayat Junejo has relied upon 1971 P Cr. L J 235, PLD 1978 Kar. 710, PLD 1964 Kar. 356 and PLD 1982 SC 429. In all the above-cited cases the evidence of interested witnesses without corroboration was discarded and the accused were acquitted. He has further contended that High Court should not interfere with the Judgment of the trial Court in Revision where State has not preferred appeal against acquittal. Unless non-interference would involve an endorsement of a patently unfair judgment.
10. In a case Abdul Majeed v. Superintendent and Remembrance of Legal Affairs, Government of East Pakistan , in his service observed that :- "In setting aside in a case, the weight is to be given to findings of trial Court and benefit of every doubt must go to accused and that when trial Court in fair recording of evidence formulated grounds of doubt neither perverse nor wholly unreasonably the reversing of finding in appeal not free from risk."
11. In the same judgment Honourable Judges at page 424 observed that :- "The trial Court being close to the scene of the occurrence and familiar with the ways and practices of the people involved, enjoys a marked advantage in the formation of a complete and balanced picture of the incident or incidents which go into the marking of the prosecution case as presented by the witnesses of the locality. It enjoys also another advantage of a priceless character for such appreciation, namely that the witnesses do not merely appear before it to give that evidence which through repetition before the Police Authorities and the committing Court they may be1 2 3 thought to be well-schooled in, but also which they give under the probing stresses of cross- examination."
12. In a case Anwar v. The Crown , observed :- "Technically, therefore, the power of the High Court to examine the evidence on which a finding of fact is based is unlimited, though in adopting that course it will naturally pay due regard to the opinion formed by the acquitting Judge about the witnesses who gave evidence before him and the corresponding disadvantages from which the High Court itself suffers in not having them before it. No artificial rules can, therefore, be laid down defining the classes of cases in which the High Court should or should not order a re-trial. The matter is essentially in the discretion of the High Court and the only limitation on the exercise of that discretion, apart from the legal restriction contained in subsection (4) of section 439, is that the exercise of such discretion is to be in accordance with the dictates of justice and not arbitrary or fanciful. The trial Court's view of the evidence, the nature of the error committed, the magnitude of apprehended miscarriage or failure of justice, the possibility and extent of prejudice to the accused, the chances of conviction, the expenses of a re-trial are all relevant factors to be duly weighed. Cases which lay down that the discretion is not to be exercised unless the judgment of acquittal be perverse or based on a view of evidence which no reasonable man will take merely indicate the classes of cases in which an interference is necessary and do not lay down that in no other case can the High Court interfere. It is a wise rule to follow that where the legislature itself does not define the limits of or the grounds for the exercise of a discretion, the Courts should not too readily law down rules to fetter that discretion, and it seems to me that the practice while interfering with orders of acquittal of recording strong findings, as for instance, that the judgment of acquittal is perverse or manifestly wrong is to be deprecated, because if these be the only grounds on which an order of acquittal can be interfered with, revisional Courts will in every case be engaged in determining the preliminary issue whether the error committed is gross or palpable and view taken perverse or foolish and not the real question whether the order of acquittal is wrong, and it allowed to stand, would occasion a failure of justice."
13. In another case reported in PLD 1966 SC 424 at relevant page 431 the Honourable Judges have held that :- "In particular in cases of revision petitions from acquittal where the State has not thought fit to challenge the acquittal by an appeal the Courts would be very slow in interfer. Unless non- interference would involve an endorsement of a patently unfair order, on one which leads to miscarriage of justice. If the view taken by the Courts below is reasonably possible on a consideration 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 au order of acquittal."
14. The principle regarding revisions in case of acquittal has been fully discussed in a case The State v.
15. Muhammad Alim . Same view has been taken in recent decisions of High Courts Qurban Hussain v. The State , Lakha v. Atta Muhammad and others , and in a case Hussain Ali v. Anwar and 7 others .
16. The learned ex-oflicio, Additional Sessions Judge, Nawabshah has discussed the entire evidence of the prosecution at length and disbelieved the evidence of eye-witnesses and recoveries and based his findings on proper consideration of evidence. The contention that trial Court should not have disbelieved the ocular testimony of witnesses is obviously misconceived. In the present case neither any misreading of the evidence of the learned trial Court nor any error of law in the impugned judgment has been pointed out. In fact the whole of the material on record has thoroughly scanned and discussed by him.4 5 6 7 8 In view of the foregoing discussion, reasons, and decisions of superior Courts and High Court, I find no merit in this revision which is accordingly dismissed. 1972 P Cr. L J 664 1973 P Cr. L J 539 PLD 1964 SC 422 PLD 1955 F. C. 185 PLD 1975 Kar. 168 NLR 1982 Cr. 425 1982 P Cr. L J 155 1983 P Cr. L J 2083