MUHAMMAD KHIYAR, J.-This criminal revision under section 439 Cr.P.C is directed against the judgment dated 1-4-1989 of the learned Sessions Judge Bannu whereby Rahim Gul and Zafar Khan, accused-respondent 1 and 2 herein were acquitted and discharges respectively in case F.I.R.No.159 dated 29-9-1984.
2. The accused-respondents were tried under section 302/34 PPC for committing the murder of Mohammad Hanif deceased by firing at him with their fire-arms on 29-9-1984 at 'Subh Roti Vella' in the limits of village Mirwali Khan Painda Khel within the jurisdiction of police station Domel in the fields known as "Hinduwala".
3. In order to prove the charge against the accused-respondents, the prosecution produced 13 PWs. The prosecution mainly relied on the F.I.R,-cum- Dying-Declaration of the deceased and the ocular testimony of Awalyaz, PW.10. Corroboration was sought from the medical evidence, recovery of blood-stained earth and blood stained clothes of the deceased, abscondence and motive. The accused-respondents denied the charge in their statements recorded u/s 342 Cr.P.C, and stated that Mohammad Hanif deceased was not in full sensus and that he was goaded by relations standing by his side at the time of recording of dying declaration-own-report. They further deposed that the deceased had received stray bullets fired from the direction of the accused in the cross-case.
3. The learned Sessions Judge Bannu who tried the case finding accused Zafar Khan as not .Having been challaned to Court and there being no private complainant against him, discharged him on the view that he was wrongly charged. While dealing with the case of Rahim Gul accused, he disbelieved the dying-declaration because the dying man had charged Zafar Khan accused for 'Lalkara' who in his opinion could not be heard by the complainant at a distance of 174 paces and that Zafar Khan accused was not expected to have shouted so loud to fire at the deceased when his co-accused, Rahim Gul, was at a distance of 5 paces from him. Since the deceased had charged Zafar Khan for 'Lalkara', therefore, the dying declaration, in the circumstances of the case, did not appear to be authentic to the learned trial Judge which was, therefore, disbelieved. About the ocular testimony of Awalyaz Khan, the learned trial Judge observed that he being a student was expected to have gone to school on the day of occurrence and this being the case, he was taken as a chance witness whose testimony required close scrutiny. The learned trial Judge, therefore, disbelieved Awalyaz Khan P.W., for, he failed to point out that what kind of weapon was used and was also not supported by the medical evidence. About the evidence of abscondence and motive, it was held that the same being corroborative pieces of evidence could not- prove guilt of Rahim Gul. In view of these findings, the charge against Zafar Khan accused was recalled and he was discharged, whereas Rahim Gul accused was acquitted vide judgment dated 1/4/1989.
4. Mr. Sanaullah Khan Gandapur, Advocate for the petitioner, vehemently contested the findings of the learned Sessions Judge, both with regard to the discharge of Zafar Khan accused and that of acquittal of Rahim Gul accused. It was argued by him that when the Court had taken cognizance of the offence and had tried Zafar Khan accused, he could not be discharged. He was of the view that when cognizance is taken for an offence, it is for the whole case and not for some one found implicated by the police and that the court had no power to discharge the accused but could acquit, the accused under section 245-A of Chapter 23-A Cr.P.C. In support of his contentions, reliance was placed on (1) Qurban Ali vs. Punhoon and 2 others (1982 P Cr.L J 52), (2) Noor Muhammad and others vs. Muhammad Nawaz and another (1969 SCMR 271), (3) Nasira Surriya vs. Muhammad Aslam and 7 others (1990 SCMR 12), (4) Raja Khushbakhtur Rehman and another vs. The State (1985 SCMR 1314), (5) Bashir Ahmad vs. Allaqa Magistrate Jaranwala and 4 others (PLD 1980 Lahore 28) and (6) Sohno vs. The State (1990 P Cr.L J 1190). Making his submissions about the acquittal of Rahim Gul accused, the learned counsel contended that his acquittal was not warranted under the law, inasmuch as the deceased charged him in his F.I.R.-a/m-dying- declaration when he was in complete senses and the fact that the injured expired after seven days of the occurrence was ignored by the learned trial Judge in considering the authenticity of the dying declaration. He argued that this Court has the power under section 439 Cr.P.C, to reverse the findings of the trial Court if it considers that the findings of acquittal are not justified. Lastly it was argued that the charge was proved against Rahim Gul by the eye witness account of Awalyaz Khan corroborated by the evidence of abscondence of the accused and motive.
5. As against the aforesaid case law cited by the learned counsel for the petitioner, S. Zafar Abbas Zaidi Advocate for the accused/respondents while making his submissions on the order of discharge of accused Zafar Khan involved 'n (1) Mehar Khan vs. Yaaub Khan and another (1981 SCMR 267), (2) Farid vs. Allah Wasaya (PLD 1979 Quetta 156), (3) Haji Kamal Khan vs. Mohammad Naeem & 4 others (PLJ 1979 Cr.C. (Quetta)23) and (4) Mohammad Faruq & 2 others vs Muhammad Ismail & another (PLJ 1979 Cr.C.Lah.168). Learned counsel for the accused/respondents was of the view that unless the case was sent u/s 193 Cr.P.C, by the Magistrate to the Sessions Court for trial, the trial could not be held, as Court of Sessions is not a Court of original jurisdiction. He further contended that revision under section 439 Cr.P.C, is maintainable only against the acquittal and not when the accused is discharged and since Zafar Khan accused has been discharged, the revision is not maintainable. On merits of the case, learned counsel for the accused/respondents contended that dying declaration of the deceased could be believed if it could meet the test of scrutiny as laid down by the Superior Courts. Reliance, in this respect' was placed on Lakhmir. The State (PLD 1968 Quetta 7). He contended that when the acquittal order is based on correct appreciation of evidence, it is not to be interfered with in revision. Reliance was placed on State Through Advocate General NWFP vs. Barkat Ali and others (1980 SCMR 81)
6. Mr. Ejaz Muhammad Khan, the learned Assistant-Advocate General for the State, was of the view that since the case against Zafar Khan accused was not sent for trial to the Sessions Court, therefore, he could not be tried, but the irregularity can be cured. He referred to the provisions of section 351 Cr.P.C, empowering a Criminal Court to take cognizance of an offence against that person attending the criminal Court and proceed to try him. About the evidentiary value of the dying declaration, the learned Assistant Advocate-General submitted that it can be believed if it rings true. The case of Tawaib Khan and another vs. The State reported in PLD 1970 Supreme Court 13 was referred in this respect.
7. I have heard the learned counsel for the parties at some length and have also carefully gone through the impugned judgment as well as the case law cited at the bar. First of all, I would like to dilate upon the findings of the learned Sessions Judge about the discharge of accused Zafar Khan.
What I have been able to understand from the arguments of the learned counsel for the parties is that the Court of Session under the law can take cognizance of the offence only when the case is sent to it under sub-section (3) of section 190 Cr.P.C. Subsection (1) of section 193 Cr.P.C, is reproduced as under:- "Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been sent to it under section 190 sub-section (3)".
Here Zafar Khan's case was not sent up to the Court of Sessions for trial. The Court, however, held the trial against him but later on realizing that he should not have been charged, discharged him.
This is an illegality committed by the trial Court. Assuming that the Court proceeded against Zafar Khan accused under the provisions of section 351 Cr.P.C, the order should have been that of acquittal and not of discharge. In the case of Qurban Ali supra wherein the cases reported as 1969 SCMR 271. PLD 1967 SC 425 and PLD 1966 Lahore 790 have been referred, it has been held that the Sessions Court has the power to take cognizance of the offence and summon all the persons implicated. The case reported in 1985 SCM R 1314 supports the contention of the petitioner's counsel that when cognizance is taken of the offence, it is for the whole case and not for some of the accused found implicated by the police. The trial Court could not discharge the accused Zafar Khan as after taking cognizance of the case, it could only acquit him u/s 365-K Cr.P.C. PLD 1980 Lahore 28 has rightly been cited. In the case reported in 199Q P Cr.L J 1190 Karachi while relying on Qurban Ali's Case, it is held that Court of Sessions after receiving challan and after having been seized of the case can pass an order requiring any person connected with the case to be joined as an accused and issue process against him. Under section 193 Cr.P.C, no Court of Sessions shall take cognizance of any offence as' a Court of original jurisdiction unless the case has been sent to it under sub-section (3) of section 190 Cr.P.C., but this limitation is subject to the words used in section 193 Cr.P.C, "except as otherwise expressly provided by this Code". Section 351 Cr.P.C, expressly provides that any person attending a criminal Court although not under arrest or summoned may be detained for the purpose of inquiry of any offence under which such Court shall take cognizance and which from the evidence appear to have been committed and may be proceeded against as though he has been arrested or summoned. It, therefore, follows that Zafar Khan accused whose case was not sent to the Sessions Court u/s 190 (3) Cr.P.C, could be tried by the Sessions Court and if found not guilty the order should have been of acquittal and not of discharge.
2. Now taking up the case of accused Rahim Gul, it is to be seen whether the trial Judge has appreciated the evidence in a manner required by law. He disbelieved the dying declaration of the injured only because of the fact that accused Zafar Khan having been attributed the role of 'Lalkara' could not be heard by the complainant and thus an innocent person having been implicated the dying declaration did not ring true. It has now been settled that dying declaration like the statement of an interested witness requires a close scrutiny and conviction can be based on dying-declaration if it rings true. Then, the may in "falsus in uno falsus in omnibus" is no longer applicable. Similarly the rule that integrity of witness is indivisible is not accepted as universal truth.
The grain has to be sifted from chaff in each case. I am, therefore, of the view that the learned trial Judge in discarding the dying-declaration has not observed the rules laid down by the Superior Courts which has resulted in mis-carriage of justice.
3. For the foregoing Reasons, this revision petition is accepted, the impugned judgement dated 1-4- 1989 is set aside and the case is sent back to the learned Sessions Judge Bannu for rewriting the judgment after hearing the parties and their counsel in the light of the evidence already recorded in the case. The accused-respondents arc directed to furnish bail bonds in the sum of Rs.50,000/- with two sureties each to the satisfaction of Sessions Judge, Bannu within three days. The accused/respondents and petitioner present in Court are directed to appear before the learned Sessions Judge Bannu on 5/12/1991.