' Through this revision petition under sections 439-A/435, Cr.P.C. The petitioner has sought setting aside of order, dated 6-6-2000 passed by the learned Additional Sessions Judge, Chichawatni by which he has dismissed the revision petition of the petitioner against the order, dated 22-11-1999 by which the respondents were acquitted from the private complaint filed under sections 337-H(ii), 337-A(i), 337-L(ii), 354, 148 and 149, P.P.C. On 30-10-1997 by the petitioner in the Court of learned Judicial Magistrate, Chichawatni. Charge in this case was framed on 4-4-1998, evidence of the complainant was closed due to the non-production of the evidence and on 19-10-1999 an application under section 249-A, Cr.P.C. Was moved which was accepted and the respondents were acquitted vide order, dated 22-11-1999.
2. Learned counsel for the private respondents has raised a preliminary objection regarding the maintainability of this petition on the ground that it was an order of acquittal and P.S.L.A. Lies against the said order before this Court under section 417(2), Cr.P.C. While revision was not maintainable before the Sessions Court.
3. When questioned learned counsel for the petitioner opposes this preliminary objection on the ground that the learned Additional Sessions Judge had treated the revision petition wrongly hence this revision petition has been filed. However, learned counsel for the petitioner requests for treating this petition as a petition under subsection (2) of section 417, Cr.P.C.
4. Learned counsel for the State also opposes this petition.
5. I have heard the learned Counsel for (he parties. The respondents were tried in a' private complaint and acquitted vide 'order, dated 22-11-1999 against which order the petitioner had a remedy under section 417(2), Cr.P:C. Before this Court by filing petition for special leave to appeal.
Instead of filing this application the petitioner opted to file revision petition in the Court of learned Additional Sessions Judge which was dismissed and now this revision petition has been filed.
Basically the order of acquittal dated 22-11-1999 passed in the private complaint tiled by the petitioner has been challenged in this revision petition and the same is not maintainable under subsection (5) of section 439, Cr.P.C. Which provides that where under this Code an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed. The request of the learned counsel for the petitioner to treat this revision as an application under subsection (2) of section 417, Cr.P.C. Is also not tenable as under subsection (3) of section 417, Cr.P.C. No application under subsection (2) for the grant of leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of sixty days from the order of that order. The acquittal order in this case was passed on 22-11-1999 and the petitioner himself opted to challenge the said order in revision petition before the Sessions Court on 16-12-1999 which was dismissed on 6-6-2000 and then this revision petition was tiled on 15-9-2000 which is hopelessly barred by time. Hence the prayer for treating this revision as a petition under section 417(2), Cr.P.C. Is declined as in appeal, against acquittal order delay of each day has to he explained.
6. For the foregoing reasons this revision petition is not maintainable which is dismissed.'
Revision dismissed.
2003 P Cr. L J 770 [Lahore] before Khawaja Muhammad Sharif, and Rustani Ali Malik. JJ THE STATE---Appellant versus SULTAN AHMAD and others---Respondents Criminal Appeal No,260 of 1990. Heard on 19th November, 2002.
Penal Code (XLV of 1860)--- -----S. 302(b)---Criminal Procedure Code (V of 1898), S.417---Appeal against acquittal---Delay in lodging the F.I.R. Had been reasonably explained by the complainant- Inquest report had been prepared after the registration of the F.I.R.---Parties being known to each other, no question of mistaken identity could arise---Accused had the motive for the occurrence-- -Presence of the complainant at the scene of occurrence was established whose name was mentioned in the column of relatives of the M.L.R. And who after the occurrence had taken his brother to the hospital---Hatchets recovered at the behest of accused were found stained with human blood-Ocular account was fully corroborated by medical evidence, motive and recoveries- Impugned judgment acquitting the accused was passed by Trial Court on conjectures and surmises against the evidence on record---Acquittal a accused was consequently set aside and they were convicted under S.302(b), P.P.C.---Occurrence having taken place 14 years ago, accused were not awarded death sentence and were sentenced to imprisonment for life each with benefit of S.382-B, Cr.P.C. [pp. 774, 775] A. B, C & D Imtiaz Ahmad Chaudhry for the State.
Muhammad Sharif Khokhar for Respondents Nos.l and 3.
Muhammad Ilyas for the Complainant.
Date of hearing: 19th November, 2002.
JDUGMENT ' KHAWAJA MUHAMMAD SHARIF, J.--- This appeal is directed against the judgment, dated 12-11-1989, passed by the learned Additional Sessions Judge, Gujrat, whereby he has acquitted the accused/respondents in case F.I.R. No,265 ,of 1988 of Police Station Mandi Baha-ud-Din, District Gujrat.
2. The F.I.R. In this case was registered on 7-9-1988 at 2-00 p.m. On the statement of one Muhammad Ashraf complainant who had stated therein that on the day of occurrence i,e, 7-9- 1988, around 11-00 a.m., he alongwith his brother Muhammad Afzal alias Shera was proceeding towards his Dera outside the village and when they reached the land of Khan Muhammad son of Allah Ditta adjacent to the graveyard, Sultan Ahmad empty-handed, Muhammad Hanif and Ashfaque Ahmad armed with hatchets, who were sitting in ambush, suddenly emerged. Sultan Ahmad raised Lalkara and Ashfaque accused gave hatchet blow hitting Muhammad Afzal alias Shera, the brother of the complainant, on his hack towards the backside. Then Muhammad Hanif accused gave a hatchet blow hitting Muhammad Afzal on his right leg and he fell down. While he was lying down, Ashfaque and Muhammad Hand gave several hatchet blows to him, hitting him on his right arm, left hand and right thigh. The complainant did not go near them on account of fear.
He, however, raised alarm and on which Liaqat son of Kalay Khan and Farman who were present nearby in the graveyard reached there and got his brother rescued from the assailants.
Muhammad Afzal was taken to Civil Hospital, Chailianwala for treatment. He was medically examined and the complainant was about to leave for the police station when Muhammad Afzal succumbed to the injuries.
3. In the F.1.R. It was ?Is stated by the complainant that sometime before the present occurrence, they had fired at Sultan Ahmad accused and on which a case was registered against them and which was pending in the Court and on account of the same reason, Sultan Ahmad, Ishfaque Ahmad and Muhammad Hanif, in consultation with each other had murdered his brother Muhammad Afzal alias Shera. The statement of the complainant Exh.P.F. Was recorded on 7-9-1988 by P.W.10 Muhammad Yusaf, S.-I. Thereafter, he had proceeded to the hospital where he prepared inquest report Exh.P.H. And sent the dead body for post-mortem examination. Thereafter, he visited the place of occurrence, inspected the spot, secured blood-stained earth and also recorded the statements of P.Ws. Thereafter, the investigation of this case was transferred to P.W.12 Shabbir Hussain, Inspector. Shabbir Hussain, Inspector, P.W.12 took formal steps in connection with the investigation of this case. On 13-9-1988 he arrested the three accused in this case. On the same day, on the pointation of Muhammad Hanif accused, hatchet (P.5) was recovered. On the same day on the pointation of Ashfaque Ahmad accused, hatchet (P.4) was also recovered. He prepared the site plans of the places of recoveries of the aforesaid hatchets, recorded the statements of P.Ws: and after the completion of investigation, he challaned the accused in this case.
4. P.W.2 is Dr. Daleel Khan who on 7-9-1988 had medically examined Muhammad Afzal and had found five incised wounds on his person. According to him, injury No,1 was dangerous to life while the injury No,3 was grievous. Rest of the injuries were found to be simple in nature. According to him, all the injuries had been caused by a sharp-edged weapon. Exh.P.B. Is the copy of M.L.R.
5. P.W.4 is Dr. Tariq Saeed Ahmad who on 8-9-1988 had conducted post-mortem examination on the dead body of the deceased and had found five incised wounds on the dead body of the deceased. In his opinion all the injuries were ante-mortem and had been caused by a sharp- edged weapon. Injury No,1 was grievous whereas injuries Nos.2, 3 and 4 were 'and to be simple in nature. According to him, injury No,5 was sufficient to cause death in ordinary course of nature and the death had Recurred due to haemorrhage and shock. A copy of the post-mortem report is Exh.P.D. While Exh.P.D./1 is the pictorial diagram of the injuries.
6. P.W.7 is Muhammad Ashraf complainant whik P.W.8 is Liaqat Ali, both of whom are the eye- witnesses and have deposed on the same lines as indicated in the F.I.R. P.W.7 Muhammad Ashraf also deposed about the motive. He stated that Sultan accused had got a case of murderous assault registered against him, the deceased and his cousin Liaqat and due to that reason all the accused had committed murder of his brother (Muhammad Afzal alias Shera). P.W.1 stated that the said case (which' forms the motive in this case) is still pending in the Court of Judicial Magistrate at Mandi Baha-ud-Din.
7. The prosecution examined in this case as many as 12 witnesses and after which the learned prosecutor tendered in evidence reports of Chemical Examiner as Exh.P.N. And Exh.P.P. Whereas the reports of Serologist were produced as Exh.P.Q. And Exh.P.R. And thereafter he closed the case for the prosecution.
8. After the conclusion of the, prosecution evidence, the statements of the accused were recorded under section 342, Cr.P.C. And wherein they denied all the incriminating circumstances. When asked as to why this case against them and why the P.Ws. Have deposed against them, all the three accused/respondents stated that they had done so on account of enmity. None of the accused/appellant made statement on oath under section 340(2), Cr.P.C. Except Ashfaque Ahmad accused, no other accused produced any defence evidence. However, Ashfaque Ahmad accused tendered in his defence evidence a copy of an F.1.R. As Exh.D.A. And thereafter closed his defence evidence.
9. On the conclusion of trial, the learned Additional Sessions Judge, Gujrat vide his judgment dated 12-11-1989 acquitted all the three accused/appellants in this case, by extending to them the benefit of doubt. The present appeal has been tiled on behalf of the State against the acquittal of the foresaid three accused/respondents.
10. We have heard the arguments and have also gone through the record.
11. The learned counsel for the appellant in support of this appeal submits that it was a broad daylight occurrence; that it is a case of promptly lodged F.I.R.; that the names of the respondents had been mentioned in the F.I.R.; that the motive is admitted by the respondents/accused persons before the learned trial Court; that both the eye-witnesses are consistent in their statements, although there are some discrepancies which had occurred after the lapse of so many years after recording the F.I.R., that the respondents also led to the recovery of blood-stained hatchets and according to the report of the Chemical Examiner and of the Serologist it was human blood: that the ocular account is corroborated by the medical evidence furnished by the two doctors. The learned counsel further submits that the learned trial Court acquitted the respondents merely on the basis of conjectures and surmises and had not appreciated the evidence in accordance with law.
12. On the other hand, the learned counsel for the respondents has relied on paragraph No,33 and onwards of the impugned judgment whereby the learned trial Court had acquitted the respondents; submits that the motive is a double-edged weapon that there was every possibility of false implication of the respondents: that the evidence was given by, the interested and inimical witnesses: that there was no independent corroboration and the-recovery was planted on the respondents; that the learned trial Court was justified in acquitting the respondents.
13. We have heard learned counsel for the parties. The occurrence had taken place on 7-9-1988 at 11-00 a.m. And the matter was reported to the police at 2-00 p.m. On the same day while the police station was at a distance of 8 miles. In the last lines of paragraph of the F.I.R. The complainant has given reasoning for the delay in lodging the F.I.R. Because brother of the complainant was seriously injured, he took him to different %hospitals to save his life: Moreover, the F.I.R. Was lodged in the police station. We have gone through. The brief facts of the inquest report where the number of the.
F.I.R. Has also been mentioned which shows that after the registration of the F.I.R., inquest report was prepared. Parties were known to each other, thus there is no question of mistaken identity. As far as Sultan is concerned (who died later on), he is father of the other two respondents. He was empty-handed. Motive also lies with the present respondents because sometime prior to the present occurrence, complainant party had fired at Sultan, father of the present respondent.
Ocular account in this case is fully corroborated by the medical evidence. We have gone through the M.L.R. Of the injured Muhammad Afzal. In the column of relatives the name of the complainant is mentioned which shows that he was present at the spot and after the occurrence he took his brother to the hospital. The P.W. Who examined the injured Muhammad Afzal is Dr. Daleel Khan P.W.2. He examined the injured at 12-5 noon, the duration of the injuries given by him as probable six hours is with a different pen. It seems that it was mentioned later on. Dr. Tariq Saeed Ahmad is P.W.4, who had conducted the postmortem examination on 8-9-1988 at 7-30 p.m. The occurrence had taken place at 11-00 a.m. On 7-9-1988. The duration given by him between injuries and death is 15 to 20 hours. Both the appellants led to the recoveries of hatchets which were blood-stained.
From the report of Chemical Examiner and that of the Serologist they were found stained with human blood. Ocular account in this case is fully corroborated by the medical evidence and is further corroborated by the motive and the recovery of blood-stained hatchets.
14. We have gone through the impugned judgment of the learned trial Court. Which is based on conjectures and surmises and is not in accordance with the evidence produced by the prosecution. Prosecution eye-witnesses and recovery witnesses had not been appreciated in accordance with law. After having heard learned counsel for the parties and going through the record, we are not satisfied with the impugned judgment of the learned trial Court whereby the respondents had been acquitted. In consequence of what has been discussed above, acquittal of Muhammad Hanif and Ashfaq Ahmad respondents is converted into conviction and they are convicted under section 302(h), P.P.C. But as it is a case in which occurrence had taken place in the year 1988, i,e, 14 years ago, so we do not want to sentence the respondents to death, and hence they are awarded life imprisonment under section 302(h). P.P.C., with the benefit of section 382-B, Cr.P.C.
15. With this modification, this appeal stands disposed of. Respondents shall be taken into custody and sent to jail to serve out their sentence.