' Qurban All petitioner has filed this petition for revision under section 439, Cr.P.C. Against the judgment dated 3-3-1982 passed by the learned Additional Sessions Judge, Sheik hupura, whereby he acquitted the accused respondents from the charge under section 302/34, P.P.C. For committing the murder of Farman Ali deceased, his brother.
2. This revision petition against Munshi, respondent was dismissed and against Din Muhammad and Muhammad Rafique respondents was admitted to hearing vide this Court's order dated 8-12- 1982.
3. The brief facts of the case are that a month prior to the occurrence dated 13-74979, one Muhammad Arif son of Nabi Bakhsh, caste Jat, resident of village Kharianwala, who was the distant cousin of the deceased, had given a loan of Rs,112 to Muhammad Rafique respondent No,1. When Muhammad Arif demanded the loan, Rafiq respondent not only refused to pay the same but also called him bad names. The complainant Qurban Ali alongwith his real brother Farman Ali, deceased was present at the spot. When they stopped Rafique from calling Arif bad names, he also started calling them bad names. All of them, 3 in number gave beating to Rafique with fists while Sardar All and Abdul Hamid P.Ws. Both Jat Malhi by caste and residents of the same village, were standing there, who separated the parties. Rafique respondent No,1 continued to nourish the grudge. On the date of making the report Exh.PB/1, the complainant alongwith his brother Farman All deceased was aheading towards the machine of blacksmith for puchasing the husk, while Qurban Ali was following him at a'distance of few paces. When Farman Ali, deceased reached the public street which is a little ahead of the shop of Jalal Dhariwal, from his front side came, respondent Din Muhammad holding a Chhura, respondent Muhammad Rafique armed with a Khanjar while Munshi respondent was empty handed, having formed a common intention. Munshi stepped forward and elapsed the deceased into his arms. He raised a Lalkara to his co-accused, respondents 1 and 3 requiring them to do the deceased to death. In response to the Lalkara Din Muhammad and Muhammad Rafique respondents 3 and 1 started lending Khanjar and Chhurra blows on the person of his brother. When the complainant Qurban Ali tried to intervene to rescue the deceased, Muhammad Rafique and Din Muhammad respondents scared him off by lending a threat of his life. The occurrence was witnessed by Muhammad Arif (not produced) and Siraj Din P.Ws. On their raising Lalkara, the accused-respondents made good their escape. Due to the injuries received, his brother Farman All breathed his last. It was alleged that Din Muhammad and Rafique respondent had done his brother to death at the instance of one Khurshid son of Rahim Bakhsh who was related to them.
4. The learned counsel for the petitioner contended that the reasoning advanced by the learned trial Court in acquitting both the respondents is fallacious and far-fetched. It was argued that the judgment passed by the learned trial Court is perverse and the reasoning of the trial Court are artificial vis-a-vis the evidence on record. It was also argued that on perusal of the evidence no other decision can be made except that the accused is guilty or there has been complete misreading of evidence leading to miscarriage of justice.
5. Conversely the learned counsel appearing on behalf of the respondents placed reliance on a judgment of the Supreme Court of Pakistan reported as Ghulam Sikandar and another v. Mumraiz Khan and others (PLD 1985 SC 11) and submitted that the Court, on principle ordinarily should not interfere in revision and instead should give due weight and consideration to the findings of the Court acquitting the accused.
' I have given my earnest consideration to the arguments advanced by both sides and have also gone through the record. I find that the ocular account in this case has been furnished by P.W. 5 Qurban Ali and P.W. 8 Siraj Din which is very cogent, coherent and consistent. The learned trial Court has discarded the evidence of both the eye-witnesses mainly on the ground that Muhammad Arif, on whose account, the murder had taken place, has not been produced. It observed as under:--- "Though I may be guilty of repetition it would be worthwhile to repeat that P.W.5 and the deceased had no concern with Arif who in turn was related to the accused."
' It is a clear case of misreading of evidence because this observation itself is belied by the opening words of the F.I.R. Where it is stated that Qurban. Ali, complainant is a distant cousin of Muhammad Arif. In any case in this observation the learned Addl. Sessions Judge held that Arif was not produced because he was related to the accused-respondents but in the ealier part of his judgment he was not prepared to believe the prosecution version because Aril had been withheld from deposing in support of the prosecution. The fact is that Arif is closely related to both sides and he was, therefore, won over by the accused as per statement of the learned Prosecutor. Both the P.Ws. Have fully supported the case of the prosecution and, therefore, the reasoning advanced by the learned trial Court to discard their evidence is devoid of logic and has no bearing with the facts proved on the record. The evidence of P.W.5 and P.W.7 does not suffer from any inconsistency, infirmities or any dishonest improvement and their depositions therefore have furnished a cogent, consistent and natural account of the occurrence. Both the eye-witnesses have supported each other on all material particulars.
7. I also find that the learned Judge has erred in law and facts in discarding the evidence of motive.
In my view the learned trial Court has also failed to appreciate the evidence produced by the prosecution to establish motive. The only ground which weighed before the learned trial Court was that because Arif was not related to Qurban All complainant and Farman All deceased so there is no point on the part of Qurban Ali and Farman Ali deceased to take sides on behalf of Arif, particularly when he was pitched against his own relatives Muhammad Rafique and Din Muhammad respondents. Qurban. All P.W.5 and the deceased according to the learned counsel had no dispute with the respondents over the money but I find that he ignored the F.I.R while reaching to this conclusion. The medical evidence and the evidence of recoveries have also not been appreciated in its true perspective when the two respondents namely Din Muhammad and Muhammad Rafique have inflicted blows to the deceased with their respective weapons Chhura and dagger respectively and Qurban li P.W. 5 and Siraj Ali P.W.8 have supported the prosecution case and gave the eye-witness account of the occurrence. The parties were related to each other and there was no previous enmity between them. Blood-stained Chhura had been recovered from Muhammad Rafique respondent.
8. The scope of revision under section 439 of Cr.P.C. 1898 is not only A confined to cases where the order of the trial Court is manifestly wrong or perverse and is based on review of the evidence not to he taken by a judicial officer; rather in appropriate cases even finding of fact could be disturbed in revision. This would be possible in case where a trial Court failed to apply the correct principles of the appraisal of evidence or some important piece of evidence has been ignored or not discussed.
The exercise of powers under section 439, Cr.P.C. Has to be invoked in accordance with the dictates of justice and not arbitrarily or in a fanciful manner, but interference is not restricted in an appropriate case to ensure that justice is done. Consequently, the proper line to adjudge the matter is to see as to whether the evidence has been fairly and fully appreciated by the Court below and the conclusions reached were in accordance with the basic principles governing the formation of a verdict other than the one given. For the correct exercise of revisional powers, particularly against an order of acquittal, the High Court after surveying the case in its factual and evidenciary aspect, has to ensure that justice has seen to be done. Generally misappreciation of evidence is never a sufficient ground for interfering with acquittal but the degree and the determinatory effect on the final conclusion for reason of misappreciation of evidence would call interference. Without discussing and appreciating the evidence in detail even from a tentative assessm ent it appears that learned trial Court has not properly taken the correct and legal view of the evidence which resulted into acquittal of the respondent causing miscarriage of justice. The reasoning adopted by the trial Court in acquitting the accused in the present case, on the face of it, makes the orders conjectural and wholly artificial which should not be allowed to remain in field.
The view of the evidence one way or the other is not to be questioned but from taking a particular view, it appears on the face of record that the order is not based on sound principles, the High Court has ample powers to correct the illegality in aid of justice.
9. I am fully aware of the fact that the principles for setting aside an order of acquittal are now well-settled and unless the judgment of the trial Court is perverse, completely illegal and on perusal of evidence no other decision can be given except that the accused is guilty or there has been complete misreading of evidence leading to miscarriage of justice, the High Court will not exercise jurisdiction under section 439, Cr.P.C. When a period of about more than ten years has passed, since the order of acquittal. I am convinced that it is a clear case of misreading of evidence which leads to miscarriage of justice. Prima facie the judgment appears to be perverse and completely illegal and on perusal of the evidence the respondents appears to be guilty of the offence. Although there is a delay of about 10 years but the revision petition remained pending for this whole period in this Court due to the pendency of large number of cases in this Court for which the parties should not suffer.
10. The upshot of the above discussion is that I accept this revision petition, set aside the judgment dated 3-3-1982 and remand back the case to the Court of competent jurisdiction to try the respondents afresh. The parties are directed to appear before the learned Sessions Judge, Sheikhupura on 22-3-1983.