' This judgment will dispose of Criminal Revision No,240 of 1966 filed by Mst. Hamida and Nawab, petitioners, for the enhancement of the punishment of Makhey Khan and others, respondents Nos.2 to 5, and Criminal Revision No,29 of 1969 arising out of suo motu notice issued by this Court to Abdul Razzaq, Nek Muhammad Khan and Nazir Khan, respondents to show cause why their acquittal from the charge under section 304, P.P.C. Be not set aside.
2. The prosecution case in brief is that on 1-3-1964, whilst Muhammad Siddique deceased and Nawab P.W.5 were returning from the house of Master Karim Bakhsh, they were waylaid by Makhey Khan, Abdul Razzaq, Nek Muhammad, Nazir Khan and Afzal Khan, accused. Makhey Khan, accused, was armed with a spear, Abdul Razzaq and Nek Muhammad, accused were armed with Takwas, whilst Nazir Khan, accused, was armed with a Dang. Sensing danger, Muhammad Siddique, deceased and Nawab P.W.5 retreated back and took their course homewards by passing around the school and the pond. However, the accused pursued them. Muhammad Siddique, deceased, and Nawab P.W.5 ran in order to save themselves. When they reached in front of the house of Abdullah, complainant, P.W.2, Mehraj Din, P.W.3 and Muhammad Ali, P.W.4, they slackened their paces, thinking that no harm would come to them near the houses of their relatives, who, in the meantime, had also come out of their houses on hearing the Raula. The accused, however, did not change their minds and launched an assault, injuring Mehraj, P.W.3, Muhammad Ali, P.W.4 and Nawab, P.W.5 and Idling Muhammad Siddique, deceased.
3. The learned trial judge, by his judgment, dated 17-1-1966, held that the long circuitous route taken by the prosecution witnesses appeared to have been set up to avoid certain implications suggested by the defence and that the said witnesses could have taken refuge in the house of Hussain Baloch or the shop of Ghulam Muhammad. The trial Judge also felt that it was possible that the dog incident took place on the same day, which ignited the occurrence in question.
Summing up the evidence, the learned trial Judge held that something else had transpired to ignite the feelings of the two parties and that since the origin and cause of the fight could not be clearly identified, the only presumption possible that case under section 300, P.P.C. Stood made out. The learned trial Judge also held that the accused were not bound by common intention and that each one was responsible for his individual act. He, therefore, convicted and sentenced Makhey Khan, accused, under section 304-1, P.P.C. For the murder of Muhammad Siddique, deceased, and under section 324, P.P.C. For injuries to Nawab, P.W., Abdul Razzaq, accused, under section 307, P.P.C. For injuries to Nawab, P.W., Nek Muhammad accused under section 326, P.P.C. For injuries to Muhammad Ali, P.W. And Nazir Khan accused under section 325, P.P.C. For injuries to Mehraj, P.W. He acquitted Afzal Khan accused by giving him the benefit of doubt. Whilst awarding the sentences, the period spent by the accused as under-trial prisoners was taken into consideration.
4. Being aggrieved by the said judgment, Mst. Hamida Begum and Nawab Din, petitioners, filed a revision petition (Criminal Revision 240 of 1966) for the enhancement of the punishments awarded to Makhey Khan, Abdul Razzaq, Nek Muhammad and Nazir Khan. .A learned Single Judge of this Court on 12-12-1968, without passing any order as regards the admission of the said revision petition, however, ordered that notices should issue to Abdul Razzaq, Nek Muhammad and Nazir Khan, accused, under section 439, Cr.P.C. To show cause why their acquittal from the charge under section 304, P.P.C. Should not be set aside.
5. Considering that revision petition Criminal Revision 240 of 1966 filed by Mst. Hamida Begum and Nawab, petitioners, was never admitted, nothing further needs to be done in this case. It appears that this petition was dismissed in limine on 12-12-1968, though there is no specific order to that effect on the record. This petition, therefore, should be consigned to the Record, as already standing dismissed.
6. As regards revision petition Criminal Revision 29 of 1969, notices have been issued to Abdul Razzaq and others, accused, to show cause why their acquittal from the charge under section 304, P.P.C. Be not set aside. In fact the said accused were never charged under section 304, 'P.P.C. An application Criminal Miscellaneous 2 of 1985 in Criminal Revision 240 of 1966 has been moved on behalf of Mst. Hamida Begum, petitioner, for seeking correction of the typographic mistake in the order of this Court, dated 12-12-1968 so as to substitute section 302, P.P.C. For section 304, P.P.C. In that order, but in view of the observation of this Court in its order, dated 12-12-1968 that since the petitioners had not asked for the setting aside of the acquittal of the three accused from the charge of murder, their argument that they shared the common intention in respect of the offence under section 302, P.P.C. Could not be permitted to be canvassed, I dismiss this application in limine, as it would be highly unfair to now call upon the accused seventeen years after the show cause order why their acquittal from the charge under section 302, P.P.C. Should not be set aside, in clear derogation of this Court's order. Even otherwise, there is a defect in the show-cause notice issued by this Court calling upon the accused to show cause why their acquittal from the charge under section 304, P.P.C. Should not be set aside. This order presupposes that there is a sudden fight. This was actually what the learned trial Judge had found from the evidence. The show-cause notice was issued because the learned Single Judge felt that the accused were united in common intention in respect of the offence under section 304, P.P.C. By issuing a show-cause notice as presently worded, the accused are asked to show cause why they should not be retried under section 304/34, P.P.C., which is placing them where they presently are, as the trial Judge has already found that the case is one of sudden fight and individual liability. In view of the long delay in the disposal of this petition and the fact that Nek Muhammad, one of the accused, has died, and rest of the accused have already served out their sentences and been released, I would not like to distrub the position, for even assuming that I were to hold that intrinsically the judgment of the learned trial Judge is incorrect, I would not like to order a retrial after so many years. Taking all circumstances into consideration, I would dismiss this petition.
' For reasons given in my judgment of even date in Criminal Revision No, 240 of 1966, this petition may be treated as having been dismissed in limine on 12-12-1968.