' This criminal revision calls in question the order dated 23-3-1977 passed by Mr. Muhammad Zaman Khan, the learned Additional Sessions Judge, Lyallpur, whereby he acquitted all the four respondents, namely, Din Muhammad, Mira, Nisar Ahmad and Noora of the charge under section 302/34, P. P. C., as well as charge under section 307/34, P. P. C., in respect of the murder of Niaz deceased. The learned Additional Sessions Judge, Lyallpur, convicted Noora alone for an offence under section 304-II, P. P. C., and sentenced him to 2 years' R. I. For causing injuries to Mst. Naziran, wife of Noor respondent, with a finding that `the deceased was caught flagrante delicto while he was embracing the wife of Noora accused and as such when attacked in that state of affairs, it can be safely concluded that Noora accused is not guilty of murder as punishable under section 302, P.
P. C.
2. The case of the prosecution in brief is that Niaz deceased was carrying on illicit liaison with Mst.
Naziran, the wife of Noora accused for some time before the occurrence. Noora accused had admonished Niaz deceased to desist from doing so, but despite the intrigue he continued the illicit liaison and used to meet Mst. Naziran in a clandestine manner.
' On the day of occurrence, it came to the knowledge of Noora accused that Niaz deceased was hiding in a sugarcane field and waiting for his sweet heart Mst. Naziran. Noora accused accordingly contacted the three ' co-accused and remained in an ambush till the arrival of Mst. Naziran. The moment she approached the deceased, the accused exhorted a lalkara and pounched upon the deceased who had, in his turn, tried to escape, but was overtaken by the accused. Noora accused inflicted him as many as 15 injuries and later on dragged him to the house of Mira accused, where Mst. Naziran was also given a beating. The other co-accused, except Noora accused, have denied their participation in the incident and the prosecution has not been able to prove, as found by the learned trial Court, any relationship between the acquitted accused and, the convicted Noora. However, the version of Noora has been discussed by the learned trial Court in para. 18 of his judgment in the following terms :- "The motive which has been stated by him has also been supported by the prosecution itself. The place of occurrence and the presence of Mst. Naziran and Niaz deceased at the crime spot is also an admitted fact between the parties. Although Noora accused had been making hectic attempts in the past, himself and through others as has been admitted by P. W. 6, the first informant, to admonish and desist Niaz deceased from continuing his illicit relationship with his wife, but the deceased did not see reason and continued following the wrong path. In spite of the fact Noora accused was in the know of illicit relationship of his wife and Niaz deceased, he had been exercising admirable self-control and did not try to take revenge from the paramour of his wife.
However, on the day of occurrence, when he saw the sinners together, the element of provocation was definitely there and the same was by all means intense and grave. In the circumstances, the loss of self-control on the part of Noora accused was most natural and considering the moral values and actions of honour, he was left with no alternative but to attack the two sinners. The fact that Noora accused had no premeditation to cause the death of Niaz deceased is also apparent from the weapon, which he used in causing injuries to the deceased and Mst. Naziran."
3. The case of the prosecution mainly rests on the testimonies of P. W. 7, Abdur Rashid and P. W. 8, Jalal Din. P. W. 7, Abdur Rashid is admittedly son of Muhammud Yousuf who is the first cousin of Niaz deceased and the deceased Niaz was brother-in-law of P. W. 8 Jalal Din, being the brother of his wife. I fully agree with the learned trial Court in its observations regarding testimony given in detail in paragraphs 15 and 16 of the judgment, which I do not intend to reproduce. The learned trial Court found that the witnesses were not present at the spot and also came to the conclusion that the incident had not taken place in the manner as it was alleged by the prosecution. The reasons advanced are a matter of appreciation of evidence and the view taken by the learned trial. Court is unreasonable and is based on evidence on record.
' No blood was collected from the spot nor it was recovered from the house of Mira where, it is alleged, the deceased was dragged and Mst. Naziran was inflicted injuries. The Sotas recovered were not containing any stains of blood. The prosecution has alleged that the other co-accused are related to Noora but the precise relationship has not been shown. In fact the case of P. W. 6 is that the testimony in this behalf is based on hearsay. The case of the prosecution as well as that of defence is that the deceased was carrying on illicit liaison with Mst. Naziran, the wife of Noora respondent, and he did not desist from doing so despite the admonition. The witnesses are stated to be chance witnesses. In these circumstances the learned trial Courtt has not committed, error in being more convinced of the version of Noora, the convicted accused, and particularly when Mst.
Naziran his wife is also injured with the same kind of weapon and the same nature of injuries suffered at about the same time as that by deceased. All the injuries on the person of deceased are simple in nature, and suffered by blunt weapon, the death is collective result.
4. The man argument of the learned counsel for the petitioner is based on the number of injuries found on the person of the deceased. He wishes to argue that this is a job of more than one person.
The possibility of this, being a job of one person, cannot be ruled out as it is quite possible that on receiving an injury the deceased may have fallen down. He may have laid prostrate there and Noora entirely deprived of power of self-control in a rage may have given indiscriminate beating.
At the same time it could be a job of two or three persons or for that matter even four but witnesses being related and chance, and the learned trial Court having found their A presence doubtful, not only strong corroboration qua the version of the complainant but also strong corroboration qua each of the accused is needed which even as conceded by the learned counsel for the petitioner is not there i,e, corroboration qua each accused. The next submission of the learned counsel for the petitioner is based on 1977 SCMR 177 a case, according to him, on all fours with that in hand.
According to the learned counsel the sentence awarded therein was 4 years' R. I. And therefore the sentence of th respondent Noora be enhanced to 4 years. In the first instance as laid down in Rab Nawaz's case (I) and cases reported in PLD 19,0 SC 13, PLD 1966 SC 708, 1968 SCM R 1256,PLD 1963 SC 109 andPLD 1953 FC 30, each case proceeds on its own facts and more particularly in criminal cases the observations have to be read to have been made in the particular circumstances of the case before their Lordships. On the question of sentence no hard and fast rules can be laid.
Learned trial Court is entitled to its view he is the best Judge of not only the demeanour and conduct of the witnesses but also demeanour and conduct of the accused which is a relevant circumstance which also affects the judgment in the mind of the Court deciding the case. Ther are cases reported where sentence already undergone has also been awarded such as Ghulam Rasool v. State (2), PLD 1961 Lab. 24 and PLD 195 Pesh.
76. In these cases the sentence already undergone was awarded. In this view of the matter considering the awarding of 2 years' R. I. An taking into consideration the period of Noora's detention between the tim- B of his arrest and being released on bail during the trial and the finding the learned trial Court, which is based on evidence to the effect that Noora respondent attacked the deceased and his wife Mst. Naziran seeing them flangrate delicto while embracing each other, does not seem inadequate that I should interfere in my revicional jurisdiction.
5. In any case, the principle consistently laid down by the Supreme Court and High Court in appeals against acquittal, has been restated in th case reported in Muhabbat Khan v. Fateh Muhammad and 2 others (3). The relevant portion reads as : - In Zafar Ali v. State PLD 1962 SC 320, it was held thatif there be no violation of a principle by the Courts below in the assessm ent of evidence before them, the Supreme Court would not interfere, for it is not the practice of this Court to enter into an {{FOOT NOTE}}
(1) PLD 1974 SC 83 (2) PLJ 1974 Cr. C (Lah.) 551
(3) PLD 1796 SC 593 {{FOOT NOTE}} appreciation of evidence in criminal appeals. Also in Muhummad Khurshid v. State PLD 1964 SC 54, it was observed that in the absence of anything to show that the view formed by the High Court from the evidence was either unreasonable or opposed to any principle or rule governing appreciation of evidence. Supreme Court will not re-appraise it. Similarly, in Fazal Khan v. The State PLD .1963 SC 157, this Court held that it is not the function of this Court to re-assess the evidence on points of facts which did not prevail with the Courts below. Also in Noora v. State PLD 1973 SC 469, it was observed that as an ultimate Court, the Supreme Court must give due weight and consideration to the opinion of the Courts below and normally it should not interfere with their findings where it is satisfied that they are reasonable and were not arrived at by disregard of any accepted principle regarding the appreciation of evidence. The mere fact that the Supreme Court might have taken a different view of the evidence should not be sufficient to overrule the findings of the Courts below."
6. This is a revision against acquittal, not supported by State Appeal, which stands on a much lower padestal than the latter. The maximum relief that I can grant is, order of re-trial, which I would not do, as it is not merited in law or on facts, I would respectfully follow the view expressed in Sher Muhammad v. Muhammad Hussain and others (1) by Manzur Qadir, C. J., as his Lordship then was, which reads as follows :- "It seems to me that it is not the intention of the law that a trial be set aside unless there is a defect in the mode of the trial which makes it necessary to set it aside. It does not appear to Ire to be justifiable that a perfectly good trial should be set aside, if a Sessions Judge in appeal or the trial Court itself came to what the High Court regards a wrong conclusion. And unless the earlier trial is regarded as having been set aside, there is no room for a fresh trial. Technically it may be permissible to regard the whole process of a trial as non existent once its final conclusion is set aside, but, in substance, there hardly seems any reason for doing so. I am of the opinion that a re- trial is to be held only where there is a defect in the previous trial. It is not to be held merely' to enable the Court to correct what is regarded as a wrong."
7. While deciding to order a re-trial I cannot overlook the view expressed in Anwar v. Crown (2) which has been reiterated by this Court in Ghulam Haidar v. State (3). The relevant portion reads as under :- "The trial Court's view of the evidence, the nature of the error committed, the magnitude of apprehended miscarriage or failure of justice, the possibility and extent of prejudice to the accused, the chances of conviction, the expenses of a retrial are all relevant factors to be duly weighed."
8. In this view of the matter, this Criminal Revision has no force and is accordingly dismissed in limine.