This is a private revision against a judgment of acquittal recorded by the learned Additional Sessions Judge, Lyallpur, in a case under sections 148, 302/307/149, P. P. C. etc. as far back as 31st of August 1965. Although it was admitted on the first of March 1966, it was not fixed thereafter till 17th of September 1971. Let the official at fault explain the reason for the inordinate delay in the fixation of such an important case.
2. The brief facts of the case as alleged and not found to be established according to the learned trial Judge are that the parties were admittedly at logger heads owing to differences in B. D. election contested by Ilyas accused against Allah Din, a relation of Karam Din deceased during which the latter and his son Kliadim Hussain complainant appear to have played an active role. It is also in evidence that one Mumtaz, a voter of Ilyas, the successful candidate, was caught at the spot while trying to cast a bogus vote. Reference has also been made by the pro secution to some disputes over irrigation water between the parties. On the morning of the day of occurrence Khadim Hussain complainant, while on his way to the house of Khair Din carpenter to participate in the marriage ceremony of the latter, was obstructed by Ilyas respondent and his brother Abbas, who absconded in the first but later on his arrest on 11th March 1966, was allowed bail still waiting his trial, owing to the non-avail ability of the record requrstioned by this Court, and an altercation ensued. At about Isha prayer time Ghaffar respondent a brother of Umar Din respondent and a cousin of the rest, called out Karam Din deceased while the latter was present in his house along with his son Khadim Hussain complainant. In response to the call the deceased came out followed by Khadim Hussain. It was the 15th of the lunar month and in moon light they found all the respondents including Abbas present in the lane, of whom Ghani, Noor Ahmad and Abbas were armed with spears while Umar Din and Ghaffar had sticks and Ilyas held a pistol. They started altercating with the deceased and his son which attracted Khushi Muhammad, Fateh Muhammad, Munshi and Jan Muhammad at the spot. Abbas allegedly hurled an abuse at the deceased saying that he would see how the latter would oppose any further and simultaneously with it speared him in the abdo men who fell down in front of the door of his house. His brother Fateh Muhammad P. W. 13 came forward to rescue him when Ghani allegedly threw a brick hitting him on the head who also fell down. Noor Ahmad gave him a spear blow in the abdomen as he lay on the ground. Ilyas allegedly fired two shots with his pistol but none was hit. Umar Din gave a stick blow to Fateh Muhammad. His son Muhammad Hanif P. W. 14 and his daughter Mst. Kanizan P. W. 15 who, had also arrived at the spot on hearing the altercation, were given stick blows by Ghaffar. Umar Din hit Khadim Hussain complainant with his stick. Some persons then intervened to rescue the P. Ws. when the accused left. Karam Din succumbed to the injuries at the spot. The matter was reported by Khadim Hussain complainant with his stack. The matter was reported by Khadim Hussain complainant P. W. 12 at Police Station Khurrianwala, 12 miles away from the spot at 10-15 p.m. on the same night.
3. In their statements under section 342, Cr. P. C. no specific plea was raised by the accused persons except that of their false implication on account of previous enmity with the P. Ws. Nur Ahmad stated that he was not present in the village on the night of the occurrence. Umar Din alleged that he had been falsely involved on account of enmity and his relationship with co- accused Ilyas. He further stated that Allah Rakha P. W. had brought a false case against his father Fazal Din under section 376, P. P. C. and that Karam Din deceased and one Karim Bakhsh, maternal uncle of Jan Muhammad P. W. had appeared as eye-witnesses against his father who was ultimately acquitted. He produced the copy of the relevant judgment Exh. D. L. They examined Mian Muhammad Aslam, Tehsildar Samundari, as the solitary witness in defence who stated that on 23rd November 1964, he had gone to Khurrianwala on a request of the local police with a view to record dying declaration of the injured person. He could not, however, give the particulars of the person, whose statement was recorded by him. He stated that he handed over the papers to the Investigating Officer but had no recollection whatever about the contents of the so-called dying declaration and admitted in cross- examination that he had made the statement purely relying on his memory. He could not recollect whether the papers were handed over by him to A. S. I. Muhammad Sarwar, the Investigating Officer in the case, who happened to be present in the Court and was shown to the witness.
4. A perusal of the impugned judgment shows that the reasons disposing to the judgment of acquittal were ; firstly the admitted enmity between the parties and the possibility of their false implication ; secondly, the relationship of the P. Ws. inter se some of whom deliberately tried to suppress their relationship and thirdly the suppression of the dying declaration of Fateh Muhammad P. W.
5. In support of the petition learned counsel contends firstly, that the occurrence took place right in front of the door steps of the deceased, the venue having been established by the recovery of the blood-stained earth and as such the P. Ws. were natural witnesses, some of them being the inmates of the house while the others residents of the neighbouring houses secondly, that a detailed and elaborate report was lodged with all promp titude at the police station thirdly that at least the presence of the injured P. Ws. namely, Khadim Hussain complainant P. W. 12, Fateh Muhammad P. W. 13, Muhammad Hanif P. W. 14 and Mst. Kanizan P. W. 15 as eye-witnesses of the occurrence stood fully established by the existence of injuries on their persons as supported by medical evidence fourthly, that Munshi P, W. 17 and Jan Muhammad P. W. 18 were independent witnesses whose testimony was discarded for no good reasons fifthly, that it being the 15th of the lunar month, the occurrence took place in the light of full moon leaving no doubt as to the identity of the accused persons who belonged to the same village and lastly that in the absence of any positive evidence as to the dying declaration of Fateh Muhammad having been recorded no finding could have been based on the presumption of the so-called suppression of the dying declaration.
6. As against this, it is contended on behalf of the respon dents that the state had not considered it an appropriate case to file an appeal against acquittal and in the event of success of a private revision only a retrial could be ordered which would be both unfair and unprecedented to do after the lapse of seven years, that normally the assessment of the credibility of witnesses made by the trial Judge which had the additional advantage of seeing heir demeanour should not be lightly interfered with unless there may be compelling reasons to do so which are not available in the instant case, that the prosecution version was sought to be supported by the testimony of interested witnesses and as such the evidence was of a partisan character finding no independent corroboration from any quarters in the absence of recovery evidence which was disbelieved by the learned trial Judge, that even if the possibility of the false implication of one accused is conceded, the entire case would become doubtful and it would not be safe to convict all the accused persons to the satisfaction of the judicial conscience and lastly that the prosecution version contained some inherent infirmities such as the alleged use of a pistol by respondent Ilyas who is stated to have fired at the P. Ws. and yet none was hit.
7. Learned counsel for the respondent places reliance on Muhammad Ramzan v. Nasir Hussain and another (1), Nural Islam v. Saibuddin and others (2). In support of the contention that even if some of the arguments finding favour with the learned trial Judge and resulting in the acquittal of the accused may not be quite convincing it would not be appropriate to order a retrial after the lapse of seven years. In answer to this, it is contended by the learned sounsel for the petitioner that the latter was not guilty of any laches and had moved this petition with all the possible despatch after the State had refused to file an appeal, and as such he should not be allowed to suffer on that account. It is next argued that since, in any case, Abbas, a co-accused of the respondents, who absconded in the first instance and to whom a fatal blow was attributed, has to be tried, a simultaneous retrial could be ordered in respect of all the accused. In answer to the contention that the allegations against Ilyas of having fired two ineffective shots from close quarters were doubtful indicative of his false implication, learned counsel contends that at best, he could have been given the benefit of doubt on that score which least justifies the recording of a judgment of acquittal in favour of all the respondents.
8. Having considered the contentions raised by the learned counsel for the parties, and having regard to the principles laid down in Sheo Swarup and others v. King-Emperor (3). I am con vinced thatthe impugned judgment cannot be maintained. Although normally, before recording its conclusion the Court is expected to give elaborate reasons for the view taken by it and repelling the contentions raised to the contrary, yet in view of the possibility of misconstruction of some observation made by this Court, an elaborate discussion has not been embarked on as a matter of abundant caution. It may, however, be observed that although the occurrence took place seven years before on the 20th November 1964, yet the delay should not be allowed to stand in the way of paramount interest of justice as held in M. S. Khawaja v. The State (4), Mazharul Haq v. Ishaque Sardar and 15 others (5) and Municipal Committee v. Fazal Hussain (6). Accordingly 1 allow this revision, set aside the impugned judgment and direct that the respondents may be retried alongwith Abbas who having absconded could not be tried simultaneously with them and is awaiting trial. However, in view of the time lag of seven years, I direct that they may be allowed bail by the learned trial Judge on furnishing security in the sum of Rs. 10,000.00 (Ten thousand) each with one surety in the like amount each to his satisfaction. .