' ABDUL MAJEED MALLICK, C.J.--- The petition is addressed against the order of acquittal of accused respondents, passed by the Additional District Magistrate, Mirpur, on March 7, 1987.
2. The respondents were ascribed offences under sections 307 and 341, A.P.C. And were tried for the same. Haji Sattar Muhammad deceased made a report to the police on October 20, 1980 at 1-30 p.m. To the effect that last evening when he was travelling in his car from Taxila to Gurah Sanwala, his native village and arrived near Bhalote water pond, the accused came across. Muhammad Aslam accused was driving his car. He was armed with revolver. Mangti accused was sitting in another car which was also occupied by some other unknown persons. A jeep was occupied by six persons. They were armed with guns and revolvers. Muhammad Aslam made four fires with his revolver on the car of the complainant. The complainant fled his car but he was chased by the accused for over a distance of a mile and was fired from behind. Some of the gun fires hit the car of the complainant. Somehow, he escaped luckily. The assault was made with intention to kill him.
The complainant and accused party were on inimical terms on account of previous litigation. The accused installed a Petrol Pump in front of the house of the complainant. The complainant challenged the action of the accused in the Court of law. As a result, the Petrol Pump was ordered to be removed. Second time, they installed a weighing machine but the same was also ordered to be removed by the Deputy Commissioner. The accused pleaded not guilty. The prosecution produced Haji Sattar Muhammad, complainant, Muhammad Nazir, his driver, Raj Muhammad, Sher Baz, Sardar Noor Muhammad S.I., Khawaja Muhammad Abdullah, S.I. Mujahid Akram, Photographer and Raja Abdul Razaq, Inspector Police.
3. The order of acquittal was not challenged in appeal by the State. Haji Sattar Muhammad assailed the order of acquittal by revision. The revision was moved on August 24, 1987. The order of revision is unaccompanied by the certificate of the District Magistrate. During the pendency of the petition, Haji Sattar Muhammad died.
4. Ch. Lal Hussain, the learned counsel for the accused-respondent raised a preliminary objection, to the effect that the revision petition automatically abated on the death of Haji Sattar Muhammad. In the circumstances, the learned counsel who represented the deceased-petitioner, has no locus standi, to addres, the Court. He cited 1989 P Cr. L J 2028 and 1977 P Cr. L J 89.
5. Section 439(1), Cr.P.C. Postulates that in case of any proceeding the record of which has been called for by the High Court, or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on the Court of appeal under sections 423, 426, 427, 428 and 338, Cr.P.C. And may enhance the sentence. Subsection (5) further lays down that where under the Code, an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed. It is accepted that the right of appeal vests with the State and not the complainant. Therefore, the complainant is not deprived to prefer revision petition in the case where the State fails to lodge an appeal against acquittal. In the present case, the revision petition was presented by the petitioner while he was alive. It was duly registered and process was issued to the respondents. The Court issued process on applying its mind to the impugned order. It is, therefore, presumed that the Court while issuing process to the respondents, was satisfied that an illeglity, prima facie, was committed, on account of which the intervention of the Court was imperative. The complainant, ordinarily, can invite the attention of the Court to any illegality committed by the trial Court resulting in acquittal of accused. In the present case, this has been done. Therefore, once the Court issued process, it is enjoined upon it to dispose of the revision petition on merits. The objection is, therefore, repelled.
The authorities cited by the learned counsel in support of his objection, are not considered helpful to the proposition.
6. It is well-accepted that there is vital difference in appellate and provisional powers of this Court.
In an appeal against acquittal, this Court enjoys the authority to convert acquittal into a conviction on the satisfaction that the acquittal was unwarranted. But such authority is not available in exercise of provisional powers. In provisional jurisdiction, an acquittal may be set aside when the High Court feels convinced that the order of acquittal was passed patently in derogation to the rules of procedure or that the impugned order was the result of patent miscarriage of justice. In absence of either of those conditions, an acquittal cannot be set aside so much so to remand the case for fresh decision of the trial Court. In other words, an order which rests on appreciation of evidence, cannot be lightly interfered with. The High Court may come to a different conclusion on merits but that by itself cannot be a ground to reverse the acquittal. In Feroze Khan's case PLD 1966 SC 424, Mr. Justice S.A. Rehman, the learned Judge who spoke for the Court, on making analysis of the scope of revisional jurisdiction, vis-a-vis an order of acquittal, observed as:--- "But the discretion vesting in the High Court under section 439 of the Code of Criminal Procedure has to be exercised in accordance with the dictates of justice and not arbitrarily, or in a fanciful manner. In particular in cases of revision petitions from an acquittal, where the State has not thought it fit to challenge the acquittal by an appeal, the Courts would be very slow to interfere, unless non-interference would involve an endorsement of a patently unfair order, or one which leads tomiscarriage of justice. If the view taken by the Courts below is reasonably possible on a consideration of all the facts and circumstances 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 an order of acquittal. As was observed by this Court in Abdul Rashid Khandkar v.
Chandu Matbar, the governing consideration must always be whether in relation to the proved facts and circumstances, justice has been done, in accordance with law."
7. In this case, the trial Magistrate acquitted the accused as, in his opinion, the prosecution failed to prove its case beyond reasonable doubt. We have perused the impugned order in the light of the evidence of the prosecution. Apart from the absence of delay in making the F.I.R., the prosecution version suffers from material contradictions. Haji Sattar Muhammad complainant disclosed that his car was ambushed by the accused who were equipped with fire-arms. Muhammad Aslam accused was shown to have fired on his car. The revolver of Muhammad Aslam was recovered by the police. It was sent to the Ballistic Expert. The report of the Expert was on the file but the same was not duly proved in evidence. The recovery of alleged crime empties was shown to have been made from the road, the place of incident. The alleged recovery was equally not convincing. There were also inconsistencies in the evidence of Muhammad Nazir, P.W. He denied some material particulars of his statement previously made before the police under section 161, Cr.P.C., as such made improvements in his statement before the Court. Raj Muhammad, P.W. Deposed that he was coming from Dina and when he reached the place of occurrence, he saw the cars of the complainant and the accused. Muhammad Aslam was in the car and Mangti in the jeep. He saw the accused firing on the car of the complainant. His presence on the road, the place of incident, was not ackowledged by Haji Sattar Muhammad, complainant and Muhammad Nazir. Sher Baz, another witness proved the alleged recoveries. Sardar Noor Muhammad, Sub-Inspector stated that he recovered the revolver, the weapon of offence at the instance of Muhammad Aslam accused.
The recovery was shown to have been made in Kashif Hotel in Mirpur City. The accused was already arrested. The witness was unable to explain as to how the revolver was recovered in the Hotel from the accused while he was already arrested by him. It is not shown as to why the recovery was not made at the time of his arrest. The witness further said that the revolver was not sealed in parcel. It was admitted that the parcel of the revolver was prepared under the order of P.D.S.P. After some interval. The aforesaid evidence, obviously, was not free from doubt. We find no reason to record our disagreement with the trial Magistrate. In the circumstances, the impugned order is not shown perverse.
' There is no force in the petition. It is, therefore, dismissed.
' The complainant and his companions went in their house and saw the dead bodies of Ghulam Kadir and one woman lying in the Verandah. Deceased Ghulam Kadir had hatchet injuries on throat, neck, back and left ear while the woman appeared to have died due to throttling. F.I.R. Was lodged by Dr. Allandino on 11-12-1988 at 7-05 a.m. At Police Station Kandhkot, District Jacobabad.
The accused/applicants were arrested on 31st December, 1988. The application for bail presented on their behalf before the learned trial Court failed, learned counsel for the applicants made the following submissions in support of this application:--
(1) That there was inordinate delay in filing the F.I.R. Inasmuch as the Police Station Kandhkot is about two furlongs from the place of incident;
(2) That it was an unwitnessed incident although the population of Kandhkot is about 15,000 persons, who belong to different castes.
(3) The extrajudicial confession has allegedly been made by both the accused jointly and hence it has no value in the eye of law. It was, therefore, according to him, to be brushed aside as being inadmissible. In support of this plea the learned counsel placed reliance on two orders reported in 1987 P Cr. L J 2030 and 1986 P Cr. L J 109(1). In the first cited case, a learned single Judge of Lahore High Court observed:-- "I have gone through the relevant material. Perusal of the statements of Ghulam Muhammad, Nur Ahmed and Mst. Sharifan, as originally recorded, leaves the impression that all the accused made a joint statement before them that they had killed Qasim Ali deceased. Seemingly statements were subsequently changed so as to read that each accused had made statement separately. It appears that in their statements words were added subsequently.
' The other cited case is also of Lahore High Court where a learned Single Judge allowed bail in a murder case to the accused on the ground that the alleged extra-judicial confession was jointly made by the accused and the recovery of the dead body was also made on the potation of the accused as it was according to him, a case of further enquiry.
(4) Lastly the counsel submitted that the age of accused Khalil Ahmed alias Khairullah is about 15 years as per school leaving certificate issued by Head Master, G.H.S. Kandhkot on 14th January, 1989. Relying therefore, upon the order in Asad Khan v. State 1985 P Cr. L J 1676 Lah. And another order of this Court in Muhammad Rafiq v. The State 1987 P Cr. L J 1360, the counsel contended that the accused Khalil Ahmed alias Khairullah applicant abovenamed is entitled to the grant of bail as his case is covered by section 497(1), Cr.P.C. In the above-referred Lahore case the age of the accused was below 16 years at the time of the commission of the offence of murder; whereas in the above-referred Karachi case the age of the accused, who was involved in murder case, was found to be between 16 and 17 years. In both the cases the bail was granted to the accused on the ground of age.
' Learned A.A.-G. Also did not oppose the bail application inasmuch as, in his opinion, the submissions made by the learned counsel for the applicants were weighty and tenable in law. He submitted that there was no direct evidence available in the case connecting the applicants with the commission of offence and hence it was obviously a case of further enquiry.
I have given due consideration to the submissions made at the Bar as well as the facts of the case and I am also of the opinion that the accused above named are entitled to be enlarged on bail as it was a case of further enquiry inasmuch as no one had seen the applicants committing the murder of the two above named deceased persons. Besides, undisputedly accused Khalil Ahmed alias Khairullah is even otherwise entitled to the benefit of age. The above-cited cases are squarely applicable to the facts of the instant case in so far as the effect of making alleged extra-judicial confessions by the accused is concerned. Likewise, as already observed, the Courts have granted bail to accused of tender age in case of murder as well.
' For the aforesaid facts and circumstances of this case I would grant bail to both the applicants above named on their furnishing two sureties each in the sum of Rs,30,000 with P.R. In the like amount to the satisfaction of the trial Court.