This revision application filed under section 435/439, Cr.P.C. Has arisen in somewhat unusual circumstances.
2. Shabbir Shah alias Shabbir Hussain Shah, respondent No.1 was tried alongwith his brother Imam Shah (since dead) for the murder of Hussain Shah, brother of applicant Hidayat Shah by intentionally causing his death by means of hatchet, an offence punishable under section 302/34, P.P.C. Imam Shah died during the pendency of the case while he was confined in Central Jail, Khairpur and consequently the case against him abated. Shabbir Shah alias Shabbir Hussain Shah was, however, found guilty for the offence under section 326, P.P.C. By the learned Sessions Judge, Khairpur, who vide judgment, dated 13-5-1987 sentenced him to suffer R.I. For five years and to pay a fine of Rs.2,000 or in default to suffer R.I. For six months. He was also convicted for the offence under section 13-E of the Arms Ordinance, 1965, for possessing a hatchet for which he had no valid licence and was sentenced to pay a fine of Rs.2,000 or in default to suffer R.I. For one year. The sentence in default of fine was, however, to run concurrently. The State did not file any appeal against the acquittal of Shabbir Shah alias Shabbir Hussain Shah, respondent No.1 from the charge of murder and instead the applicant who was the complainant in the above case filed this revision application with a prayer that the respondent No.1 be convicted for the offence under section 302, P.P.C.
3. One Sarwar Shah was related to deceased Hussain Shah. Mst. Gulzar Bibi daughter of Sarwar Shah was married to accused Imam Shah (since dead), but she was detained by her mother who was not allowing her to go to her husband Imam Shah. Both Imam Shah and Shabbir Shah suspected deceased Hussain Shah to be responsible for the detention of Mst. Gulzar Bibi and it is alleged that they had threatened him of dire consequences. It is the case of the prosecution that on 8-1-1982 at about 8-00 a.m. Both Imam Shah and Shabbir Shah showered hatchet blows upon deceased Hussain Shah while he was going to the house of his sister. The incident was witnessed,, by applicant Hidayat Shah P.Ws. Juman Shah son of Fazal Shah and Gullan Shah. Hussain Shah who had received 13 incised injuries, mostly on head, died on the spot. On the same day at 9-45 a.m. Hidayat Shah lodged F.I.R. At Tando Masti Khan Police Station. During the course of investigation both the accused were arrested. The Police Officer recovered blood-stained clothes and blood-stained hatchet from the possession of Shabbir Shah, respondent No.1. Both these articles were sent to Chemical Examiner, Karachi, who found them stained with human blood. After usual investigation both Imam Shah and Shabbir Shah were sent up to stand trial.
4. The case of the prosecution against respondent No.1 rests upon ocular testimony consisting of Hidayat Shah (P.W.2), Juman Shah son of Fazal Shah (P.W.7), and Gullan Shah (P.W.8), which is supported by the evidence of recovery of blood-stained clothes and blood-stained hatchet from his possession furnished by Paryal Shah Mashir (P.W.11) and Noor Hussain S.H.O. (P.W.12), which is further corroborated by the evidence of motive.
5. The incident took place in broad daylight and all the eye-witnesses who had implicated respondent No.1 are natural witnesses. The account of occurrence given by these witnesses is consistent and the defence was not able to pick holes in their statements made on oath. The learned Sessions Judge was apparently favourably inclined by the demeanour of these witnesses and I find it difficult to reject their evidence.
6. There is also recovery of blood-stained hatchet and blood-stained clothes from the possession of respondent No.1. These articles were found stained with human blood and the report of Chemical Examiner to this effect is on record (Exh.23/D).
7. The respondent No.1 has also accepted the above evidence and he did not challenge the finding recorded against him by filing an appeal. In fact he has served out the sentence and is presently out of prison. The learned Sessions Judge while accepting the above evidence convicted the respondent No.1 for the offence under section 326, P.P.C. Mainly for the following reasons: 'The other aspect of the case is that all the alleged eye-witnesses have admitted that both the accused caused injuries with hatchet to deceased Hussain Shah and as many as 13 injuries were inflicted to deceased. None of the witnesses have stated as to how many injuries were caused by the present accused Shabbir Shah and the co-accused Imam Shah who is dead now and which injuries were caused by both the accused. The motive is against the co-accused Imam Shah who is dead now for which it is said that one Mst. Gulzar Khatoon was given to co-accused Imam Shah in marriage, that deceased Hussain Shah was creating hindrances in the way and was misguiding the parents of Mst. Gulzar Khatoon not to give Mst. Gulzar Khatoon to co-accused Imam Shah on which co--accused Imam Shah became annoyed and it is alleged that he alongwith present accused Shabbir Shah gave hatchet blows to deceased Hussain Shah. Nothing has come on record to show that injuries, becomes fatal was caused by accused Shabbir Shah. Therefore, from the perusal of the record and the evidence, which has come on record it appears that the case of the present accused would not fall under section 302, P.P.C., therefore, the present accused Shabbir Shah is found guilty under section 326, P.P.C,'
8. Certainly the above conclusions drawn by the learned Sessions Judge are perverse which have arisen for want of proper logic and what may be termed misapplication of common sense.
Deceased Hussain Shah had 13 incised wounds on his person and most of them were caused on head resulting into fracture of temporal, occipital and parietal bones. According to the expert evidence the death of Hussain Shah occurred instantaneously and in my view whoever had caused these injuries had no other intention but to commit the murder of Hussain Shah. On the face of the ocular testimony duly supported by the Medical Officer, there was no occasion for the learned Sessions Judge to have convicted respondent No.1 for the-offence under section 326, P.P.C.
9. The question, which now arises is, whether this Court can convert a finding of acquittal into a finding of conviction in exercise of its revisional jurisdiction. The answer to this query is provided by the cases reported as Shera and 6 others v. The Crown PLD 1954 FC 141, Rahim Bux and others v The State PLD 1956 Kar 475, Photo v. Muhammad Khan and 6 others PLD 1972 Kar 360 and Abdul Aziz alias Teny alias Chhoto v The State 1989 P Cr. L J 1072. The following observations made by Muhammad Hayat Junejo, J. (as he then was) in the case of Photo referred to above are relevant and are reproduced below: "Mr. Abdul Fateh Memon, the learned counsel for the petitioner has contended that these sentences and in particular the sentences of R.I. For five years and two years awarded under section 304/149, P.P.C. Should be enhanced to those of transportation for life as on the facts of the case the respondents should have been convicted under section 302/149, P.P.C.
This contention is obviously misconceived. If the petitioner was dissatisfied with the judgment of the learned Sessions Judge he could have moved the Provincial Government through the District Magistrate for filing an acquittal appeal under section 417, Cr.P.C. In the event of Government's refusal to do so, the petitioner could have himself filed a revision petition challenging the acquittal of respondents Nos. 1 to 6 after complying with the provisions of Rule 1-A, Part A(b), Ch.1, Vol. V of the High Court Rules and Orders. But he has not chosen to do so. Instead, the learned counsel for the petitioner asks that this Court should in substance punish the respondents for an offence under section 302, P.P.C. By enhancing the sentence under section 304, P.P.C. To transportation for life. This in my humble opinion, would be doing something indirectly what the law does not permit to be done directly."
10. It, therefore follows that a finding,, of acquittal cannot be converted into a finding of conviction by this Court in exercise of its revisional jurisdiction.
11. Ordinarily, it is for the State to move for the enhancement of sentence, but in exceptional circumstances like the one under consideration, it is the duty of the High Court to exercise such powers suo motu. Following the rule laid down by the Supreme Court in the case of Javed Ahmad alias Jaida v. The State and another, reported in 1978 SCMR 114, Mr. Mumtaz Ali Siddiqui, learned counsel for respondent No.1 was put on notice to show cause as to why the sentence awarded to respondent No.1 for the offence under section 326, P.P.C. May not be enhanced and he was heard at length, who has mainly contended that since the respondent No.1 has already served out the sentence, it would be too harsh, if he is remanded back to custody. This argument is wholly misconceived. In fact the respondent No.1 was fortunate enough to get an order of acquittal on the charge of murder, which was proved against him beyond any shadow of doubt. Taking into consideration the circumstances attending to this case and the time I which elapsed after the incident, I would enhance the sentence awarded to respondent No.1 under section 326, P.P.C. To R.I.
For ten years and a fine of Rs.20,000 or in default to suffer R.I. For 12 months. The respondent No.1 shall is also pay a compensation of Rs.20,000 to legal heirs of deceased Hussain Shah or in default to suffer R.I. For 12 months.
12. Before parting with this judgment I would like to add that conviction recorded against respondent No.1 for the offence under section 13-E of the Arms Ordinance, 1965, was not legal. The `arms' as defined by section 3(b) of. The Arms Ordinance, 1965, do not include a hatchet or an axe and consequently no licence is required for its possession. The conviction recorded against respondent No.1 for the offence under section 13-E of the Arms Ordinance, 1965, is, therefore, set aside. The learned Sessions Judge should have also known that in view of section 64, P.P.C. The sentence of imprisonment in default of payment of fine cannot be made to run concurrently. The manner in which the case was dealt with by him has left a bad taste in the mouth.
13. In the result the revision application stands disposed of in the above terms. The trial Court shall take necessary steps for the arrest of respondent No.1 who shall be remanded to custody to serve out the sentence now awarded. The benefit of section 382-B, Cr.P.C. Will, however, be extended to him while computing the sentence.