' This revision petition has been filed to challenge acquittal of Satbar Khan respondent who was tried in a case registered vide F.I.R. No.129, dated 10-4-1991 for an offence under section 302 of the P.P.C. At Police Station Hazro. He was alleged to have caused death of Muhammad Naeem aged 19 years by firing at him with a pistol.
2. The F.I.R. Was lodged by Muhammad Miskeen, petitioner (father of Naeem, deceased). He stated therein that he had 4 sons out of whom Muhammad Naeem, deceased used to go to the house of his maternal-grandmother and sleep there during the night and used to go back at fasting time (Sehri Wela); that one day before lodging the report Muhammad Naeem after breaking his fast went to the fields towards the western side of the house to ease himself and thereafter he had to go to the house of his grandmother, that according to the normal routine, Muhammad Naeem did not go to take Sehri meals, whereupon he went to the house of his mother-in-law Mst. Khawa Jan, who informed him that Muhammad Naeem had not come to her house that night; that he alongwith his brother Allah Baldish, (not produced), went in search of Muhammad Naeem and at about 7 a.m. Found his dead body on a passage meant for pedestrian situated at the western side of village Waisa. He found a number of fire-arm injuries on different parts of the body of the deceased and expressed his belief that the accused/respondent and others had killed him as he and Fazal-ur-Rahman P.W.1 has seen the accused going towards the same direction on which the deceased had gone earlier. He also mentioned that in September, 1988 Muhammad Naeem deceased had injured the accused on which a case was registered against the deceased and others who were acquitted due to compromise and that a sum of Rs.1,000 was paid to the accused on account of litigation expenses but the said amount was returned by the accused saying that at appropriate time he would take revenge himself; that he had told his son several times to remain careful.
3. In support of its case the prosecution produced 12 witnesses. When examined under section 342 of the Cr.P.C. The accused denied the charge and explained that he was falsely involved on account of previous enmity. The trial Court acquitted the accused vide judgment, dated 2-10-1991.
4. The petitioner's learned counsel urged that Ajoon Khan P.W.2 hall heard a report of shot fired by the accused and sent he respondent running away; that on being questioned by the witnesses the accused replied that he had to go for an urgent piece of work; that Muhammad Akram P.W.4 stated that he had seen the deceased passing from the path and was being followed by the accused/respondent; that even in the F.I.R. a strong suspicion was expressed that respondent No.1 had killed the deceased, that the respondent became an absconder shortly after the occurrence and was arrested after about 9 days on 19-4-1991; that the recoveries were proved by sound evidence on the record and that three empties found from the spot matched with the pistol Exh.P.1 recovered from the petitioner vide recovery memo. Exh.P.C., dated 12-4-1991; that the judgment of the trial Court is illegal and arbitrary and has resulted in grave miscarriage of justice. In support of his contentions he relies on the judgments in the cases reported in 1969 SCM R 558, 1994 SCMR 614 and 1997 SCM R 1000.
5. On the other hand respondent's learned counsel contended that the trial Court had rightly acquitted the respondents for cogent reasons; that the earlier criminal case registered vide F.I.R.
256 of 1988 against the deceased and his father Miskeen (petitioner) ended up through a compromise, therefore, the deceased had no grouse against the complainant party; that the recovery of pistol was not established beyond a reasonable doubt and that there was no valid justification to remand the case particularly after lapse of about more than 9 years from the date of the respondents' acquittal.
6. The prosecution case is based on circumstantial evidence, the recovery of pistol and empties and the report of the Fire-arms Expert. The trial Court had disbelieved the motive, last-seen evidence and the recoveries.
7. The F.I.R. Was lodged by the petitioner who is father of Muhammad Naeem, deceased. He had expressed suspicion in the F.I.R. That the deceased was done to death by the respondent, who was seen by Fazal-urRahman P.W. Going towards the same direction to which Muhammad Naeem, deceased had proceeded. Immediately after the occurrence Ajoon Khan P.W.2 had heard the report of a fire shot and seen the accused running away and on being questioned by him he told him that he was going for an urgent piece of work. P.W.4 Muhammad Akram had stated that he had seen the deceased passing from the path and that he was followed by the accused respondent. After the occurrence had taken place on 10-4-1991 the respondent was not available in the village and was arrested on 19-4-1991. He led the police and got recovered pistol Exh.P.1, through recovery memo. Exh.P.C. On 22-4-1991. It is very significant that prior to this recovery three empties were found from the spot and despatched to the office of Forensic Science Laboratory by the Investigating Officer on 15-4-1991. The report of the laboratory shows that the empties matched with the pistol recovered from the respondent. This is a material piece of evidence and merits serious consideration for determining the guilt or innocence of the respondent. The pistol Exh.P.1 was recovered at the behest of the respondent who had himself led the police party to the place of recovery and got the weapon of offence recovered. In these circumstances mere non-compliance of the provisions of section 103 of the Cr.P.C. Cannot be made a ground for discarding the recovery.
In the case of Mir Muhammad v. The State 1995 SCM R 614 the Honourable Supreme Court was pleased to hold, "The plain reading of section 103, Cr.P.C. Would show that the provisions of this section apply to a case where the police conducts search of a house/place to recover an article for which search is to be made and not to a case where anything is to be discovered in consequence of the information given by or on the pointation of the accused which is relevant under Article 40 of the Qanun-e-Shahadat, 1984. The association of the two respectables of the locality is not required in a case where the accused himself leads the police to a particular place and gets the article recovered". In the case of Muhammad Akbar v. The State 1995 SCM R 693 it was held that the provisions of section 103 of the Cr.P.C. Applying to a case where the police conducts search to make recovery and not a case where anything is discovered in consequence of the information given by the accused or on pointing out the place by the accused. A similar view was expressed in the case of the State through Advocate-General v. Shankar 1997 SCM R 1000. Therefore, the trial Court fell in error in rejecting the recovery of the pistol merely due to noncompliance of the provisions of section 103 of the Cr.P.C. I feel that the case requires remand for the purposes of a fresh decision on the basis of the material on the record and passing a judgment in accordance with the law including the precedents of the superior Courts. A remand need not necessarily be made for de novo trial. It can be made from the stage of hearing arguments and writing the judgment in accordance with the law. In the case of Abdul Latif v. Bagga Khan and another PLD 1996 SC 152 it was held that retrial can be ordered by the High Court from any stage of the proceedings. In this case, the Supreme Court upheld the order of the High Court whereby the trial Court was directed to restart the trial from the stage of arguments. In the case of Muhammad Abbas v. Sagheer Ahmad and others PLD 1995 SC 330 it was held that where from the evidence already on the record and on re-appraising the same the High Court had come to the conclusion that finding of acquittal could not be sustained and remanded the case, the trial Court was not required to record evidence de novo but had to reconsider the judgment already passed by it. The Honourable Supreme Court made it clear that the trial Court was not bound to reverse its judgments necessarily and was not completely bound by the findings arrived at by the High Court and was free to arrive at its own independent conclusions. It is true that about 9 years have elapsed since the acquittal of the respondent but this fact alone cannot stand in the way of ordering retrial to secure the interest of justice. In the case of Abdul Latif the Honourable Supreme Court had repelled the argument that it would be inexpedient to order retrial of the accused on account of passage of long time between the date of incident and order of retrial. In the case of State v. Muhammad Shafi PLD 1964 (W.P.) Lah. 1 it was held that mere delay was no ground for not ordering retrial of an accused.
Therefore, the petition is accepted, the impugned judgment is set aside and the case is remanded to the trial Court for retrial from the stage of hearing arguments in the case and passing a fresh judgment on merits in accordance with the law. it is clarified that the observations made by this Court on merits are tentative in nature and will not stand in the way of the trial Court on coming to its own independent conclusions in the light of the evidence on the record.
Revision .