' MUHAMMAD RAFIQ TARAR, J.--This petition for revision is directed against the judgment, dated 12th July, 1967 of the learned Sessions Judge, Lahore acquitting Manzur Hussain respondent of the charge under section 302, P.P.C.
2. The F.I.R. Version of the occurrence is that on 10th September, 1965 at 6 p.m. Shafiq Ahmad complainant, Muhammad Yasin P.W. And Iftikhar Hussain alias Kaka deceased were listening the radio at the shop of Azmat Hussain situated at Lake Road, Lahore. In the meantime, Manzur Hussain respondent also came there and asked the deceased as to why he had teased his sister Mst.
Parveen alias RaNo, He also abused the deceased. The deceased denied the allegation and asked him not to abuse him. Then a quarrel ensued between them during which the respondent took out a Chhuri from the fold of his Shalwar and plunged it in the abdomen of the deceased, as a result of which he fell down. The respondent fled away from the spot. The occurrence was also witnessed by Abdul Shakur, Manzur and Ghulam Hassan. Shafiq Ahmad complainant and Yasin P.W. Took the injured to the Casualty Ward of Mayo Hospital, Lahore, where he died. Leaving Yasin P.W. With the dead body, Shafiq Ahmad complainant went to Police Station Old Anarkali, Lahore and reported the occurrence to Zahurul Hassan, Sub-Inspector, at 6-50 p.m.
3. Muhammad Ramzan A.S.I. And Zahur-ul-Hassan, S.H.O., P.S. Old Anarkali, Lahore, investigated the case. On 10th September, 1965 at 11 p.m. Zahur-ul-Hassan S.H.O. Arrested the respondent and removed blood-stained Shalwar from his person which was made into a sealed parcel vide memo.
Exh.P.C. On 12th September, 1365 the respondent, while in custody, led to recovery of blood-stained Chhuri (Exh.P.1) from his house which was made into a sealed parcel vide memo. Exh.P.D. After the usual investigation, the respondent was challaned.
4. On 10th September, 1965 at 6-05 p.m. Dr. Muhammad Zafarullah, Casualty Medical Officer, Mayo Hospital, Lahore, examined Iftikhar Hussain alias Kaka deceased, when alive, and found the following injuries on his person:-
(1) Stab wound on the right side of chest (anteroom lateral aspect) about 4" below the right nipple, measuring 3" x 14" going into chest cavity - lung exposed.
(2) Stab wound on the left lateral aspect more to the posterior than to the anterior, measuring 14" x 1" going into the chest Cavity. Its level was lower than the wound on the other side.
' The injuries were fresh, caused by a sharp-edged weapon and were dangerous to life.
' On 11th September, 1965 Dr. Nasib Awan conducted the autopsy on the dead body of the deceased and found the same injuries on it. In the opinion of the doctor, death was due to shock and hemorrhage resulting from the aforesaid injuries which were sufficient to cause death in the ordinary course of nature.
5. At the trial, Shafiq Ahmad, Azmat Hussain, Manzur-ul-Hassan, Ghulam Hassan, Muhammad Yasin, Abdul Shakur and Mahmud Gillani P.Ws. Furnished the ocular account of the occurrence.
6.The reasons which weighed with the learned trial Judge for recording a finding of acquittal were that there was enmity between the respondent and four eye-witnesses, namely, Shafiq Ahmad, Manzur, Abdul Shakur and Mahmud Gillani; Mahmud Gillani was not named as an eye-witness in the F.I.R.; the statements of the eye-witnesses were discrepant and the medical evidence was in direct conflict with the ocular account regarding the number of injuries. At this stage it need be mentioned that all the eye-witnesses had stated that the respondent inflicted one Chhuri blow on the deceased but according to medical evidence there were two injuries on him.
7. The learned counsel for the petitioner contended that Azmat Hussain, Yasin and Ghulam Hassan had absolutely no motive to falsely implicate the respondent and the enmity of other eye- witnesses was not of such a type as to prompt them to falsely implicate the respondent in a case involving capital punishment. He further submitted that it being the case of a single accused it is impossible to believe that the real culprit was let off and the respondent was falsely implicated. He further submitted that in the circumstances of the case the discrepancy in the ocular and medical evidence regarding the number of injuries was not at all a valid ground for recording a finding of acquittal.
' The learned counsel for the respondent adopted the grounds detailed in the impugned judgment to support the order of acquittal and added that an order of acquittal cannot be interfered with merely on the ground that a different view of evidence is also possible. He submitted that the respondent was acquitted after the entire evidence against him had been considered by the Sessions Court and an order of retrial by this Court would almost amount to a direction to the trial Court to convict, therefore, an order of retrial will not be proper. He further submitted that the revision petition is hit by laches and this petition is being heard seventeen years after the acquittal, therefore, it will not be proper to interfere with the order of acquittal after such a long time.
8. This revision petition was registered on 8th June, 1968 and after removal of office-objection it was refilled on 22nd June, 1968. The circumstances causing delay in filing of the revision petition have been detailed in the admitting note. The question of laches has been exhaustively dealt with in the said note and for the reasons stated therein the delay in filing the revision petition is condoned.
9. The occurrence took place at about 6 p.m. Near Lake Road, Lahore. Immediately after the occurrence, the injured was taken to Casualty Ward, Mayo Hospital, Lahore in a rickshaw by Shafiq Ahmed complainant and Muhammad Yasin P.W. Medico-legal report (Exh.P.O.) bears the name of Muhammad Yasin in the relevant column and it further shows that the injured had arrived in the hospital at 6-05 p.m. With-out gaining any time for deliberation, the F.I.R. Was lodged on the same evening at 6-50 p.m. Naming the respondent as the sole assailant of the deceased. There are seven eye-witnesses of the occurrence. If the evidence of Shafiq Ahmad, Manzur, Abdul Shakur and Mahmud Gilani is kept out of consideration on the ground that they had strained relations with the respondent and Mahmud Gilani is not named as an eye-witness in the F.I.R. Even then there remains the evidence of three eye-witnesses who are not shown to have any motive to falsely implicate the respondent. In the case of a single accused even the uncorroborated evidence of an interested witness can be accepted if there is no possibility of mistaken identification, the reason being that in such a case substitution is a rare phenomenon. It is also important to note that the respondent was admittedly arrested on the same night at 11 p.m. At the time of arrest he was wearing a blood-stained Shalwar and the blood on it was found to be of human origin.
10. It is true that the eye-witnesses have stated but according to medical evidence there were two injuries on him. It is, however, to be noted that before the infliction of injury there was grappling between the respondent and the deceased and during the process both went towards a Pipal tree while grappling. According to Azmat and Manzur P.Ws. They went up to 5/7 yards while grappling.
The time taken for inflicting two injuries would not be more than the fraction of a second. The learned trial Judge failed to address himself to the question whether in a situation like that the eye- witnesses could be expected to observe the blows with exact precision.
It will further be noted that in this case the F.I.R. Was lodged after the injured (deceased) had been medically examined but there was no attempt on the part of the prosecution to bring the F.I.R. In line with the medico-legal report which would show that the investigation was conducted in a fair manner. The eye-witnesses also did not try to improve their statements so as to make them conform to the medical evidence. Aforementioned facts and circumstances which have a very material bearing on the result of the case, the most important of them all being prompt F.I.R.
Containing the name of the respondent as the sole assailant, have missed the attention of the learned trial Judge resulting in miscarriage of justice. In the circumstances, the delay in the disposal of the revision petition cannot be allowed to stand in the way of paramount interest of justice.
' There is also no substance in the contention that an order of retrial would amount to a direction to the trial Court to convict. Any observation made in the order shall not be binding on the trial Judge and he will be absolutely free to come to any finding which the evidence on the record may warrant. I, therefore, allow this revision petition, set aside the order of acquittal and direct a retrial.
As the entire evidence is already on record, the retrial would involve only hearing of arguments. In this connection reliance can be placed on Faqir Muhammad's case PLD 1983 SC 451. The file shall be sent back to the learned Sessions Judge who may himself hear the arguments and dispose of the case or may entrust it to any Additional Sessions Judge for disposal in accordance with law.