P L D 1965 (W (PLP)

ANWARUL HAQ, J.-This revision petition against an order of acquittal passed by Mr. K. M. A. Samdani, Additional Sessions Judge, Peshawar, in a case under sections 302 and 307, P. P. C. and section 19 of the Arms Act raises an important question of law, namely, what are the correct principles which should be followed by the High Court in the exercise of its revisional powers under section 439, Criminal Procedure Code, in the matter of setting aside an order of acquittal and a retrial. The question has arisen in the following circumstances.

2. On the 3rd of October 1962, at about 7-15 p.m., ~~ . Khan Zaman, a resident of Garhi Mowaz Khan, a suburb of Kohat City, was given knife blows by the respondent Aslam Khan at the shop of Pir Muhammad (P. W. 5), situated in the Bazar of Garhi Mowaz Khan. Abdul Ghafoor (P. W. 4), cousin of the deceased Khan Zaman, was also injured of stepped forward to rescue the deceased. The first information report was made soon after by the deceased himself who was conscious at that time. This was recorded by Sub-Inspector Sadullah Khan (P. W. 14). As the condition of the deceased was precarious, it was arranged to have his dying statement recorded by a Magistrate, namely, Captain Iftikhar Sahibzada (P. W. 15), at 9-15 p.m. the same day. The deceased expired in the Kohat Liaqat Memorial Hospital at 1-45 a.m. on the 4th of October 1962. The respondent Muhammad Aslam Khan was directly named as the assailant both in the first information report and the dying statement. Abdul Ghafoor (P. W. 4), Pir Muhammad (P. W. 5), Sharif Khan (P. W. 6) and one Khan Gul, son of Khalifa were named as eye-witnesses. The motive for the assault mentioned in the dying statement as well as the first information report was that the deceased had advanced a loan of -Rs. 5 to the respondent, and that immediately before the occurrence the deceased had demanded the return of this loan from the respondent. The demand made by the deceased angered the respondent and he abused the deceased and thereafter stabbed him with a dagger.

3. The respondent Muhammad Aslam Khan was arrested the next day and he led to the recovery of the weapon of offence from his house. He also offered to make a confession, which was recorded on the 5th of October 1962 by Mr. Rehmatullah Jaral (P. W. 2), a Magistrate of the First Class. This confessional statement is Exh. P. Q. on the record of the trial, and runs into great length. It is, however, not necessary to reproduce it here, except to say that the respondent admitted having stabbed the deceased and also injured his companion Abdul Ghafoor, but asserted that he did so in the exercise of his right of private defence of the body, when the deceased and Abdul Ghafoor were going to forcibly subject him to sodomy by trying to remove his shalwar. He did not produce any defence evidence in support of his plea, nor was any question put on this point to any of the prosecution witnesses in cross-examination. However, the plea found favour, with the learned Additional Sessions Judge who accordingly acquitted the respondent on all the charges.

4. It was contended by Mr. Abdul Latif Khan, the counsel for the petitioner, that the acquittal of the respondent had resulted in a grave miscarriage of justice, and was based? a complete mis-appreciation of the material evidence on the record, and also showed that the learned trial Judge had misdirected himself in placing implicit reliance on the confessional statement of the respondent, which was not supported at all by any material on the record. He pointed out that not a single question was asked in cross-examination of the prosecution witnesses regarding the defence version put forward by the respondent, nor was any defence witness called in support thereof, although according to the respondent himself his friends Muhammad Amin and Saleem Khan were present at the time of the incident. It was next contended by Mr. Abdul Latif Khan that even the confessional statement had been misread by the learned Additional Sessions Judge, . when he observed that this statement showed that the deceased had advanced five rupees to the accused-respondent for immoral purposes, for, in fact, the accused had nowhere made any such statement but, on the contrary, he had asserted that it was the deceased who had borrowed three rupees from him. . The learned counsel also contended that the location of the injury sustained by Abdul Ghafoor did not necessarily lead to the inference that he had overpowered the respondent by throwing him down on the ground for committing sodomy. Lastly, Mr. Abdul Latif Khan pointed out that there was no previous enmity between the deceased and the respondent, and, therefore; the deceased or his cousin P. W. Abdul Ghafoor had no motive to implicate him falsely, that the first information report and the dying statement were made without any delay, and that Sharif (P. W. 6) was a completely disinterested witness, and accordingly no reason existed on the record for discarding these important pieces of evidence which clearly brought home the guilt of the respondent.

5. I do not propose to deal with these contentions at length in the present order of reference; it is sufficient to remark that after perusing the evidence on the record and hearing the learned counsel for both the parties at some length, no doubt is left in my mind that the conclusions reached by the learned Additional Sessions Judge in this case regarding the existence of a right of private defence of the body on the part of the respondent are a result of conjectures and surmises as to the possible course of events during the occurrence, of ignoring direct ocular evidence available in the case; and, finally, they are due to the fact that he did not give due weight to the requirements of section 105 of the Evidence Act which places a definite burden on the accused in cases of the present kind. Consequently, the acquittal of the respondent has clearly resulted in a grave miscarriage of justice.

6. The question, however, is whether it is a case where a retrial should be ordered. The learned counsel for the respondent has contended that a retrial is not to be ordered simply for the reason that a different view could have been taken of the evidence and that another Court might have convicted the respondent on the same material. He has pointed out that in this case there has been no illegality or material irregularity in the conduct of the trial and that a retrial would mean undue expense and hardship to the respondent who is a young man of 16/17 years of age. In support of his contentions, the learned counsel has placed reliance on Muzaffar and another v. The State (P L D 1961 Lah. 561), Sher Muhammad v. Muhammad Hussain and others (P L D 1963 Lah. 514) and Mrs. Ann Coleman v. Arif A. Lukmani and the State (P L D 1964 Kar. 81,).

7. In the first mentioned case it was observed that- "Where there is no appeal by the Provincial Government but only a revision by a private person, the acquittal cannot be set aside but a retrial can be ordered. The power of the Higl3 Court to order a retrial in a case in which an :2cc~tsed person has been acquitted is unlimited, because it is not circumscribed by any provision of the relevant law. However, when a person has been acquitted after the entire evidence against him has been considered by a Court of competent jurisdiction, and after that if the High Court orders a retrial, the finding of the High Court would amount almost to one of conviction and in such cases the Court should refrain from ordering a retrial. But where the acquittal has been ordered on a technical ground, soling it aside does not amount virtually to a direction to convict which an order of retrial in a case in which the entire evidence has been considered by the trial Court does."

8. This view was followed by I. B. Khamisani, J., in the case of Mrs. Ann Coleman v. Arif A. Lukmani,, etc. The learned Judge also referred with approval to two cases from the Indian jurisdiction, namely, Stephens v. Noisbolla (A I R 1951 S C 196) and Logendranath Jha v. Polaf Lal (AIR 1951 SC 316), in both of which the view was expressed that a retrial is not to be ordered lightly and that this power should be exercised by the High Court only for the correction of a manifest illegality or the prevention of a gross miscarriage of justice. It was added that this jurisdiction is not to be ordinarily invoked of used merely because the lower Court has taken a wrong view of the law or mis-appreciated the evidence on the record.

9. In the third case relied upon by the learned counsel for the respondent, namely, Sher Muhammad v. Muhammad Hussain and others, Manzur Qadir, C. J., emphatically laid down as follows: Now, the only justification for a fresh trial could be that on the previous occasion the trial was either illegal, or in its mode there was a defect which occasioned a miscarriage of Justice. If the trial on the previous occasion was neither illegal nor conducted with material irregularity, there would be no occasion and there would be no justification for holding a fresh trial the same charges. "If, therefore, the High Court, on examining the record of a case under section 439, is of the opinion that the trial was not defective in any manner, but that upon the trial as held, a finding of acquittal was wrongly given, and that if it had the power, it would convert that finding, on the basis of that very record, into one of conviction, but not having the power to convert a finding of acquittal into one of conviction, it would set aside the acquittal and either direct a retrial, or leave it to the prosecuting agency to prosecute again, a question arises which needs to be examined carefully . . . . . It seems to me that it is not the intention of 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 me 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 maybe 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 retrial 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 finding."

10. On behalf of the petitioner, Mr. Abdul Latif Khan drew attention to the observations of a learned Single Judge of the East Pakistan High Court in Nalinikanta Ghosh v. Afiruddin and others (P L D 1958 Dacca 32) to the effect that "the High Court has power to interfere in revision with an appellate order of acquittal even upon questions of fact and, though that power should be sparingly exercised, it would be wrong to refuse to exercise it in cases where there has been a failure of justice by reason of the Appellate Court not having brought a judicial mind to bear upon the evidence". In coming to this conclusion the learned Judge placed reliance on an unreported judgment of the East Pakistan High Court in Criminal Revision No. 108 of 1949, as well as on the case of Satish Chandra Das v. Chintaharan Saha and another (43 C W N 25).

11. Mr. Abdul Latif Khan next pointed out that the views expressed in the cases relied upon by the learned counsel for the respondent do not appear to be in accord with the dictum of their Lordships of the Federal Court of Pakistan in Anwar and another v. The Crown (P L D 1955 F C 185). In that case the accused were acquitted by the learned Sessions Judge of a charge of murder. The Provincial Government did not appeal from acquittal, but father of the deceased moved the High Court on the. revision side, whereupon, after hearing the parties, an order was made for retrial of the case, Special-Leave to Appeal was granted by the Federal Court on the ground that the case involved questions relating to the exercise of powers under section 439, Cr. P. C. and to the right of private defence and the proper limits thereof, while dealing with the power of the High Court under section 439, Cr. P. C., their Lordships observed as follows:- "Technically the power of the High Court under section 439, Cr. P. C. to examine the evidence on which a finding of fact in a case of acquittal is based is unlimited, though in adopting that course it will naturally pay due regard to the opinion formed by the acquitting Judge about the witnesses who gave evidence before him and the corresponding disadvantage from which the High Court itself suffers in not having them before it. No artificial rules can, therefore, be laid down defining the classes of cases in which the High Court should or should not order a retrial. The matter is essentially in the discretion of the High Court and the only limitation on the exercise of that discretion, apart from the legal restriction contained in subsection (4) of section 439, is that the exercise of such discretion is to be in accordance with the dictates of justice and not arbitrary or fanciful. 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. Where the Legislature itself does not define the limits' of the grounds of the exercise of a discretion, the Courts should not too readily lay down rules to fetter that discretion, and it seems that the practice while interfering with orders of acquittal, of recording strong findings, as for instance, that the judgment of acquittal is perverse or manifestly wrong is to be deprecated, because if these be the only grounds on which an order of acquittal can be interfered with, revisional Courts will in every case be engaged in determining the preliminary issue whether the error committed is gross or palpable and the view taken perverse or foolish and not the real question whether the order' of acquittal is wrong, and if allowed to stand, would occasion a failure of justice. What has to be realised in such cases is that the discretion of the High Court, subject to the statutory restriction mentioned above, is undefined, that the High Court though it exercises the powers of a Court of appeal is not itself a Court of appeal and that it is responsible to itself alone for the exercise of those powers. A retrial does not contravene the rule against double jeopardy because the order of acquittal is not final and is subject to the Provincial Governments right to appeal against it and of the High Court's power to quash it in revision. It is not second trial for the same offence but a continuation of the first trial the result whereof has been declared by the High Court to be invalid."

12. In this very case the question was also examined whether a detailed examination of the evidence by the High Court, while ordering retrial, meant that the retrial would be a farce and its result a nullity. It may be stated that the learned Judge of the High Court had analysed the evidence in the case at great length and expressed his disagreement with the findings of fact recorded by the learned trial Judge. It was contended before their Lordships of the Federal Court that "the order of Mr. Justice Kayani is so clear in its implications that the Sessions Judge who has to try the appellants will have no independence of judgment and would convict them not because he is satisfied of their guilt on the evidence but because Mr. Justice Kayani has expressed himself so strongly against them that the trial Judge will merely be concerned in discovering further reasons from the evidence in order to record findings in conformity with the implied conclusions of Mr. Justice Kayani". In support of these contentions reliance was placed on a previous decision of the Federal Court in Khairdi Khan's case (P L D 1953 F C 223), to the effect that bias vitiates all judgments and all orders made by a biased Judge are void. Muhammad Munir, C. J., after examining the verdict in Khairdi Khan's case and the contentions raised on behalf of the accused persons, observed: "Nor can I subscribe to the proposition that every judgment of the High Court, no matter in what circumstances it is given, has the effect of producing a bias in the mind of the subordinate judicial officer who is subsequently required to try a person to whose case some observations in the judgment are applicable."

13. Again, in the case of Abdur Rashid and others v. The State and others (P L D 1962 S C 249), leave to appeal was granted to examine, inter alia, the question whether the order for a retrial, which puts the petitioners in peril of their lives for a second time in the same cause, has been made in accordance with right principles. Their Lordships expressed themselves thus: "We have been taken through the judgment of the trial Court, and have checked a number of the Sessions Judge's conclusions against the evidence in the case which is now before us in full. We do not think it right or fit to express opinions on points of fact relevant to the final conclusions reached by the trial Judge. We think so because any opinions expressed by this Court on such matters may have a serious effect upon the decision which may be reached by the Court which retries the case. For we are clearly of the opinion having regard to the nature of the treatment given by the trial Judge to the evidence in the case, that the order of the High Court directing the retrial so that the evidence may be considered from a fair and impartial point of view is entirely correct. We think that it is not going too far to say that there is scarcely a single. conclusion reached by the trial Judge which is supported by a balanced statement of the relevant facts, or by a truly reasoned argument . . . . ."

14. The following further observations were made with regard to the analysis of evidence by the learned Judge of the High Court who ordered a retrial:- "It is true that the order of the learned single Judge by which the case has been remanded for retrial contains a fairly exhaustive analysis of the case and the evidence led in support of its principal elements, and opinions have been expressed which run counter to those of the trial Judge, and. are couched in language which is not lacking in directness. At the same time the learned Judge added the caution that nothing which he had said in his order should be treated as binding by the Court before which the case goes for retrial. That Court will, we hope, act upon the letter of this caution, and unhesitatingly reach its own conclusions on the evidence led before it."

15. It will be seen, from the above extracts, that the view adopted by a Division Bench of this Court in Muzaffar and another v. The State, by the learned Chief Justice of this Court in Sher Muhammad v. Muhammad Hussain and others and by a learned Single Judge of the Karachi Bench of this Court in Mrs. Ann Coleman v. Arif A. Lukmani, does not appear to be .in conformity with the dictum of their Lordships of the Federal Court in the case of Anwar and another v. The Crown, and of their Lordships of the Supreme Court of Pakistan in Abdur Rashid's case. Whereas the judgments - o f the High Court have laid down that the revisional power of setting aside an order of acquittal and directing a retrial is to be exercised only in cases where there has been material defect or irregularity in the conduct of the trial, no such limitation is contemplated by their Lordships of the Federal Court and the Supreme Court of Pakistan in this behalf. On the contrary, according to their Lordships of the Federal Court the real question is whether the order of acquittal is wrong, and if allowed to stand, would occasion a failure of justice. In both these cases their Lordships have clearly approved an order of retrial for the express purpose of reappraisal of evidence from a fair and impartial point of view.

16. Further, whereas the. learned Judges of the High Court have expressed the fear that a detailed analysis and consideration of the evidence by the High Court is bound to influence the retrial and amount virtually to a direction to convict, yet their Lordships of the Federal Court and the Supreme Court of Pakistan do not appear to me to have endorsed that view. In both the cases before their Lordships, namely, the case of Anwar and that of Abdur Rashid, evidence had been analysed at some length by a learned Judge of the High Court before ordering a - retrial, yet their Lordships of the Federal Court and of the Supreme Court, respectively, did not consider that the retrial stood vitiated for that reason.

17. I notice that the judgment of the Federal Court in Anwar and another v: The Crown was not placed before the Division Bench which decided the case of Muzaffar and another v. The State. Similarly, neither this judgment nor that of the Supreme Court in the case of Abdur Rashid was brought to the notice of the learned Chief Justice when he decided the case of Sher Muhammad v. Muhammad Hussain and others, nor were these judgments placed before I. B. Khamisani, J. in the case of Mrs. Ann Coleman v. Arif A. Lukmani, etc.

18. As revision petitions against orders of acquittal are generally placed before a Judge in Chambers, it is necessary that the legal principles which should regulate the exercise of the revisional power of the High Court in such cases should be clearly defined, and any conflict apparent or real, between various decisions, which are binding on a Single Judge sitting in Chambers, should be resolved. I would, therefore, refer the following questions to a larger Bench:- What are the correct principles to be followed by the High Court in the exercise of the revisional powers under section 439, Cr. P. C. in the matter of setting aside an order of acquittal and directing a retrial? Is the exercise of this power to be restricted to cases where there has been a material defect or irregularity in the conduct of the trial, or can it be properly exercised in those cases as well where there is no defect or irregularity in the conduct or mode of the trial itself, but the acquittal has clearly resulted in a failure of justice due to reasons which may include improper and unfair appreciation of evidence, and failure to apply correct judicial or legal principles to the appreciation of evidence ?

19. Normally, this case should be heard at Peshawar but, in view of the fact that the judgments of this Court which need reconsideration include one delivered by a Division Bench at Lahore, another delivered by the learned Chief Justice of the High Court at Lahore and the third by a learned Judge of the Karachi Bench, it would be appropriate, if the learned Senior Judge of the Peshawar Bench sees no objection, that the case be heard by a Full Bench comprising Judges from all the three Benches of the High Court. For this purpose the papers may be submitted to his Lordship the Chief Justice at Lahore through. the Senior Judge of the Peshawar Bench.

20. The revision petition out of which t-his reference has arisen will be kept pending for final orders. I have already heard the parties at length and it only remains for me to record my detailed reasons for the view which I have formed of the evidence. The final order as-to a retrial or otherwise will, of course, depend on the answer returned by the Full Bench to the present reference. Abdul Latif Khan for Petitioner. Peer Baksh Khan for Respondent. Sher Bahadur Khan A. A: G. for the State. Date of hearing: 1st March 1965. MUHAMMAD DAUD KHAN, J.-Aslam Khan (17-18), son of Mir Ahmad Khan,?of Garhi Mowaz Khan, Kohat City, was tried by Mr. K. M. A. Samadani, Additional Sessions Judge, Peshawar, on charges under sections 302 and 307, P. P. C. and section 19 Arms Act, and acquitted of the same, by the judgment, dated the 3rd of July 1963. Janab Gul, brother of Khani Zaman deceased lodged a revision petition, with the prayer that the judgment of the learned Additional Sessions Judge be set aside, and the accused-respondent be ordered to be retried.

2. Aslam Khan accused-respondent was tried for the murder of his co-villager, Khani Zaman (22), son of Janat Gul, by stabbing him on the shop of Pir Muhammad (P. W. 5) on the 3rd of October 1962, at 19-15 hours, as a result of which he succumbed to the injuries later in the hospital. This revision petition came up for hearing before S. A. Haq, J. on the 2nd, 6th and 9th of March 1964. The learned Judge, by his elaborate judgment, dated the 24th of March 1964, recommended that since there was conflict between three judgments recorded by the High Court on the one hand and the judgments of the Federal Court and the Supreme Court on the other, therefore, the matter be referred to the Full Bench representing all the three seats of the High Court for laying down the principles to be followed by the High Court in exercise of its revisional powers under section 439, Cr. P. C. In the matter of setting aside an order of acquittal and directing a retrial. The point on which the reference was recommended may well be reproduced in the words of the learned Judge himself in the following paragraph:- "What are the correct principles to be followed by the High Court in the exercise of its revisional powers under section 439, Cr. P. C. in the matter of setting aside an order of acquittal and directing a retrial? Is the exercise of this power to be restricted to cases where there has been a material defect or irregularity in the conduct of the trial, or can it be properly exercised in those cases as well where there is no defect or irregularity in the conduct or mode of the trial itself, but the acquittal has clearly resulted in a failure of justice due to reasons which may include improper and unfair appreciation of evidence, and failure to apply correct judicial or legal principles to the appreciation of evidence ?"

3. In para. 19 of his judgment, the learned Judge expressed the reasons why he-considered it necessary to recommend that the case be referred on the above-mentioned points .to the Full Bench. He, however, suggested the reasons and also the constitution of the Full Bench for answering the reference in the following "Normally, this case should be heard at Peshawar but, in view of the fact that the judgments of this Court which need reconsideration includes one delivered by a Division Bench at Lahore, another delivered by the learned Chief Justice of the High Court at Lahore, and the third by a learned Judge, of the Karachi Bench, it would be appropriate if the learned Senior Judge of the Peshawar Bench sees no objection, that the case be heard by a Full Bench comprising Judges from all the three Benches of the High Court. For this purpose the papers may be submitted to his Lordship the Chief ,Justice at Lahore through the Senior Judge of the Peshawar Bench."

4. In the concluding part of his judgment, the learned Judge recorded:- "The revision petition out of which this reference has arisen will be kept pending for final orders. I have already heard the parties at length and it only remains for me to record my detailed reasons for the view which I have formed of the evidence. The final order as to a retrial or otherwise will, of course, depend on the answer returned by the Full Bench to the present reference."

5. The revision petition was sent to Lahore with the direction that it may be laid before the Chief Justice for the constitution of the Bench as recommended by the learned Judge. The Chief Justice on the 6th of May 1964, recorded the following order:- "Law on the subject has been clearly laid down by the Federal Court and the Supreme Court of Pakistan and that is law declared in the country. If a D. B. or an S. B. has not A' followed `the law declared in the country' it has no value. Put it up before the Senior Judge, Peshawar who will please dispose of this petition."

6. I have heard Khan Abdul Latif Khan, counsel for the petitioner, and Khan Pir Bakhsh Khan, counsel for the accused ?respondent, at great length. It is useless to dilate fully on the law referred to by both counsel with respect to the principles which should guide the High Court in determining the order of retrial in a revision petition lodged under section 439, Cr. P. C. It would be better if the difference of opinion between the three judgments delivered by-the High Court and the two judgments, one of the Federal Court, and the other of the Supreme Court, relied upon by the learned Judge, should be discussed with a view to show as to what had necessitated the making of the recommendation of the reference to the Full Bench of the Nigh Court. It will be advisable to reproduce the relevant part of the judgment of the learned Judge as he had discussed this aspect with great clarity. In para. 6 of the judgment the learned trial Judge remarked as follows: "The question, however, is whether it is a case where a retrial should be ordered. The learned counsel for the respondent has contended that a retrial is not to be ordered simply for the reason that a different view could have been taken of the evidence and that another Court might have convicted the respondent on the same material. He has pointed out that in this case there has been no illegality or material irregularity in the conduct of the trial, and that a retrial would mean undue expense and hardship to the respondent who is a young man of 16-17 years of age.. In support of his contentions, the learned counsel has placed reliance on Muzaffar and another v. The State P L D 1961 Lah. 561, Sher Muhammad v. Muhammad Husain and others P L D 1963 Lah. 514 and Mrs. Ann Coleman v. Arif A. Lukmani and the State P L D 1964 Kar. 81." "(7) In the first mentioned case it was observed that: `Where there is no appeal by the Provincial Government but only a revision by a private person the acquittal cannot be set aside but a retrial can be ordered. The power of the High Court to order a retrial in a case in which an accused person has been acquitted is unlimited, because it is not circumscribed by any provision of the relevant law. However, when a person has been acquitted after the entire evidence against him has been considered by a Court of competent jurisdiction, and after that if the High Court orders a retrial, the finding of the High Court would amount almost to one of conviction and in such cases the Court should refrain from ordering a retrial. But where the acquittal has been ordered on a technical ground, setting it aside does not amount virtually to a direction to convict which an order of retrial in a case in which the entire evidence has been considered by the trial Court does."??????????? "(8) This view was followed by I. B. Khamisani, J., in the case of Mrs. Ann Coleman v. Arif A. Lukmani, etc. The learned Judge also referred with approval to two cases from the Indian jurisdiction, namely, Stephens v. Noisbolld A I R 3 1951 S C 196 and Logendranath Jha v. Polai Lal A I R 1951 S C 316, in both of which the view was expressed that a retrial is not to be ordered lightly and that this power should be exercised by the High Court only for the correction of a manifest illegality or the prevention of a gross miscarriage of justice. It was added that this jurisdiction is not to be ordinarily invoked or used merely because the lower Court has taken a wrong view of the law or mis-appreciated the evidence on the record. (9) In the third case relied upon by the learned counsel for the respondent, namely, Sher Muhammad v. Muhammad Hussain and others, Manzur Qadir, C. J., emphatically laid down as "Now, the only justification for a fresh trial could be that on the previous occasion the trial was either illegal, or in its mode there was a defect which occasioned a miscarriage of justice. If the trial on the previous occasion was neither illegal nor conducted with material irregularity, there would be no occasion and there would be no justification for holding a fresh trial on the same charges. If, therefore, the High Court, on examining the record of a case under section 439, is of the opinion that the trial was not defective in any manner, but that upon the trial as held, a finding of acquittal was wrongly given, and that if it had the power, it would convert that finding, on the basis of that very record, into one of conviction but not having the power to convert a finding of acquittal into one of conviction, it would set aside the acquittal and either direct a retrial, or leave it to the prosecuting agency to prosecute again, a question arises which needs to be examined carefully. `It seams to me that it is not the intention of 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 me 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 retrial 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 finding."

7. The learned Judge proceeded in para. 10 of his judgment, and observed: "On behalf of the petitioner, Mr. Abdul Latif Khan drew attention to ,the observations of a learned Single Judge of the East Pakistan High Court in Nalinikanta Ghosh v. Afiruddin and others P L D 1958 Dacca 32 to the effect that the High Court has power to interfere in revision with an appellate order of acquittal even upon questions of fact, and though that power should be~ sparingly exercised, it would be wrong to refuse to exercise it in cases where there has been a failure .of justice by reason of the Appellate Court not having brought a judicial mind to bear upon the evidence." In coming to this conclusion the learned Judge placed reliance on an unreported judgment of the East Pakistan High Court in Criminal Revision No. 108 of 1949, as well as on the case of Satish Chandra Das v: Chintaharan Saba and another (43 C W N 25). "(11) Mr. Abdul Latif Khan next pointed out that the views expressed in the cases relied upon by the learned counsel for the respondent do not appear to be in accord with the dictum of their Lordships of the Federal Court of Pakistan in Anwar and another v. The Crown P L D 1955 F C

185. In that case the accused were acquitted by the learned Sessions Judge of a charge of murder. The Provincial Government did not appeal from acquittal, but father of the deceased moved the High Court on the revision side, whereupon after hearing the parties, an order was made for retrial of the case. Special Leave to Appeal was granted by the Federal Court on the ground that the case involved questions relating to the exercise of powers under section 439, Cr. P. C. and to the right -of private defence and the proper limits .thereof. While dealing with the power of the High Court under section 439, Cr. P. C., their Lordships observed as follows:- "Technically the power of the High Court under section 439, Cr. P. C. to examine the evidence on which a finding of fact in a case of acquittal is based is unlimited, though in adopting that course it will naturally pay due regard to the opinion formed by the acquitting Judge about the witnesses who gave evidence before him and the corresponding disadvantages from t which the High Court itself suffers in not having them before it. No artificial rules can, therefore, be laid down defining the classes of cases in which the High Court should or should not order a retrial. The matter is essentially in the discretion of the High Court and the only limitation on the exercise of that discretion, apart from the legal restriction contained in subsection (4) of section 439, is that the exercise of such discretion is to be in accordance with the dictates of justice and not arbitrary or fanciful. 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. 'Where the Legislature itself does not define the limits of the grounds for the exercise of a discretion, the Courts should not too readily lay down rules to fetter that discretion, and it seems that the practice while interfering with orders of acquittal of recording strong findings, as for instance, that the judgment of acquittal is perverse or manifestly wrong is to be deprecated, because if these be the only grounds on which an order of acquittal can be interfered with, revisional Courts will in every case be engaged in determining the preliminary issue whether the error committed is gross or palpable and the view taken perverse or foolish and not the real question whether the order of acquittal is wrong, and if allowed to stand, would occasion a failure of justice. What has to be realised in such cases is that the discretion of the High Court, subject to the statutory restriction mentioned above, is undefined, that the High Court though it exercise the powers of a Court of appeal is not itself a Court of appeal and that it is responsible to itself alone for the exercises of those powers. A retrial does not contravene the rule against double jeopardy because the order of acquittal is not final and is subject to the Provincial Government's right to appeal against it and of the High Court's power to quash it in revision. It is not second trial for the same offence but a continuation of the first trial the result whereof has been declared by the High Court to be invalid."

8. The learned Judge (S. A. Haq, J.) further dilated in para. 12 of his judgment on the other aspects of the case considered by the Federal Court in the judgment referred to above. It is in the following words:? "(12) In this very case the question was also examined whether a detailed examination of the evidence by the High Court, while ordering retrial, meant that the retrial would be a farce and its result a nullity. It may be stated that the learned Judge of the High Court had analysed the evidence in the case at great length and expressed his disagreement with the findings of fact recorded by the learned trial Judge. It was contended before their Lordships of the Federal Court that `the order of Mr. Justice Kayani is so clear in its implications that the Sessions Judge who has to try the appellants will have no independence of judgment and would convict them not because he is satisfied of their guilt on the evidence but because Mr. Justice Kayani has expressed himself as strongly against them that the trial Judge will merely be concerned in discovering further reasons from the evidence in order to record findings in conformity with the implied conclusion of? Mr. Justice Kayani." In support of these contentions reliance was placed on a previous decision of the Federal Court in Khairdi Khan's case (P L D 1953 F C 223), to the affect that bias vitiates all judgments and all orders made by a biased Judge are void. Muhammad Munir, C. J., after examining the verdict in Khairdi Khan's case and the contention raised on behalf of the accused persons, observed:? Nor can I subscribe to the proposition that every judgment of the High Court, no matter in what circumstances it is given has the effect of producing a bias in the mind of the subordinate judicial officer who is subsequently required to try a person to whose case some observations in the judgment are applicable.'?

9. In para. 13 of the judgment, the learned (S. A. Haq) went on to say:? "(13) Again, in the case of Abdur Rashid and others P L D 1962 S C 249 leave to Appeal was granted to examine, inter alia, the question `whether the order for a retrial, which puts the petitioners in peril of their lives for a second time in the same cause, has been made in accordance with right principles.' Their Lordships expressed themselves thus:- 'We have been taken through the judgment of the trial Court, and have checked a number of the Sessions Judge's conclusions against the evidence in the case which is now before us in full. We do not think it right or fit to express opinions on points of fact relevant to the final conclusions reached by the trial Judge. We think so because any opinions expressed by this Court on such matters may have a serious effect upon the decision which may be reached by the Court which retries the case. For, we are clearly of the opinion having regard to the nature of the treatment given by the trial Judge to the evidence in the case, that the order of the High Court directing .the retrial so that the evidence may be considered from a fair and impartial point of view is entirely correct. We think that it is not going too far to say that there is scarcely a single conclusion reached by the trial Judge which is supported by a balanced statement of the relevant facts, or by a truly reasoned argument . . . . . '."

10. The learned Single Judge then proceeded further in para. 14 of his judgment in the following words:- "The following further observations were made with regard to the analysis of evidence by the learned Judge of the High Court who ordered a retrial:-.- "It is true that the order of the learned Single Judge by which the case has been remanded for retrial contains a fairly exhaustive analysis of the case and the evidence led in support of its principal elements, and opinion have been expressed which run counter to those of the trial Judge, and are couched in language which is not lacking in directness. At the same time the learned Judge added the caution that nothing which he had said in his order should be treated as binding by the Court before which the case goes for retrial. That Court will, we hope act upon the letter of this caution and unhesitatingly reach its own conclusions on the evidence led before it'."

11. The learned Single Judge (S. A. Haq, J.) in para. 15 of his judgment summed up the above discussion in the following words:- "It will be seen, from the above extracts, that the view adopted by a Division Bench of this Court in Muzaffar and another v. The State, but the learned Chief Justice of this Court in Sher Muhammad v. Muhammad Hussain and others, and by a learned Single Judge of the Karachi Bench of this Court in Mrs. Ann Coleman v. Arif A. Lukmani, does not appear to be in conformity with the dictum of their Lordships of the Federal Court in the case of Anwar and another v. The Crown, and of their Lordships of the Supreme Court of Pakistan in Abdur Rashid's case. Whereas the judgments of the High Court have laid down that the revisional power of setting aside an order of acquittal and directing a re-trial is to be exercised only in cases where there has been material defect or irregularity in the conduct of the trial, no such limitation is contemplated by their Lordships of the Federal Court and the Supreme Court of Pakistan in this behalf. On the contrary, according to their Lordships of the Federal Court the real question is whether the order of acquittal is wrong, and if allowed to stand would occasion a failure of justice. In both these cases their Lordships have clearly approved an order of retrial for the express purpose of reappraisal of evidence from a fair and impartial point of view."

12. Paragraph 16 of the judgment of the learned Single Judge (S. A: Haq, J.) runs as follows:- "Further, whereas the learned Judges of the High Court have expressed the fear that a detailed analysis and consideration of the evidence by the High Court is bound to influence the retrial acid amount virtually to a direction to convict, yet their Lordships of the Federal Court and the Supreme Court of Pakistan do not appear to me to have endorsed that view. In both the cases before their Lordships, namely, the case of Anwar and that of Abdur Rashid, evidence had been analysed at some length by a learned Judge of the High Court before ordering a retrial, yet their Lordships of the Federal Court and of the Supreme Court, respectively, did not consider that the retrial stood vitiated for that reason."

13. The learned Single Judge in para. 17 of his judgment, observed as under:- . "I notice that the judgment of the Federal Court in Anwar `' and another v. The Crown was not placed before the Division Bench which decided the case of Muzaffar and another v. The State. Similarly neither this judgment nor that of the Supreme Court in the case of Abdur Rashid was brought to the .notice of the learned .Chief Justice when he decided the case of Sher Muhammad v. Muhammad Hussain and others, nor were these judgments placed before I. B. Khamisani, J., in the case of Mr. Ann Coleman v. Arif A. Lukmani, etc."

14. When the revision petition. was argued before me the learned counsel for the accused-respondent himself had brought to my notice another judgment delivered by the Supreme Court in case of Abdur Rashid Khondkar v. Chandu Matbar and 15 others (P L D 1964 S C 795), wherein Cornelius, C. J., delivering the judgment, observed as under:- "The power of revision under the Criminal Procedure Code is exercised by the High Court in a markedly mere restricted manner where the order is one favouring the accused than in the case of a conviction. This is based upon the established rule against double jeopardy, which is however, not to be applied, in Supreme Court jurisdiction in any absolute sense, for the Code provides expressly for an appeal an acquittal, and the principles applicable to the exercise of that power are well-settled (vide the judgment of the Privy Council in the case of Sheo Swarup 61 I A 398, which has been consistently followed in Pakistan, see the cases of Khalid Saigol v. The state P L D 1962 S C 495 and Abdul Majid v. Superintendent and Remembrancer of Legal Affairs P L D 1964 S C 422, "The governing consideration must always be whether, in relation to the proved facts and circumstances, justice has been done in accordance with law. In particular, full weight must be given (1) to the fact that the appreciation of evidence by the trial Court is based upon the Court having seen and heard the witnesses, and (2) that the fact of that Court having given the accused the benefit of any doubt serves to emphasise the need of giving full weight to that principle in the re-appraisement of the evidence that is necessitated by the appeal. In revision, the High Court may not reverse an acquittal, but it may yet interfere with it in another way, so as to ensure that justice is done. Consequently, the proper line, of approach would appear to be not by stressing the unassailability or finality of the order of the Court below, but by considering whether the case . as presented, in its details and the supporting evidence, had been fairly and fully appreciated by the Court below; and its conclusions were reached in accordance with the basic principles governing the formation of a verdict adverse to an accused person. To say that 'misappreciation of evidence' is never sufficient ground for interfering with an acquittal is to ignore the existence of degrees of misappreciation, from the very grossest forms, exhibiting perversity, to the mere ignoring of certain side-aspects arising out of a piece of evidence. For the correct exercise of the revisionary power in such cases, and particularly where the revision is .brought against an original order of acquittal, the High Court should, in order to ensure that justice is seen to be done, survey the case, in its factual and evidentiary aspects, and should find, where misappreciation of evidence is alleged, what the misappreciation consists in and what is its degree and finally whether it has had a determinative effect upon the final conclusion. An estimate regarding the probabilities, in relation to the allegations of facts forms necessary step in arriving at such a conclusion."

15. Counsel for the accused-respondent had also brought to my attention another case decided recently by the Supreme Court. It is Abdul Majid v. Superintendent and Remembrancer of Legal Affairs, Government of East Pakistan (P L D 1964 S C 422). In this judgment, Cornelius, C. J., who delivered the judgment of the Court, laid down the following principles in this connection:- "In the case of reversal of an acquittal by the trial Judge, supported unanimously by the assessors it is desirable that the Court should bear in mind that the full facts and circumstances of a case are laid open before a trial Court and thereby come within the comprehension of that Court including a jury or assessors, sitting as part of the Court far more thoroughly and completely than it is ever possible on the basis of a written record canvassed to advantage or disadvantage by learned counsel in a Court of appeal. The trial Court being close to the scene of the occurrence and familiar with the way and practices of the people involved, enjoys marked advantage in the formation of a complete and balanced picture of the incident or in incidents which go into the making of the prosecution case as presented by witnesses of the locality. It also enjoys another advantage of a priceless character for such appreciation namely that the witnesses do not merely appear before it to give that evidence which through repetition before the police authorities and the committing Court they may be thought to be well schooled in, but also that which they give under the probing stresses of cross-examination. In setting aside an acquittal in a case which rested wholly on direct evidence of witnesses, as such importance must be given as in any other case, to the rule which runs through the criminal jurisprudence of our country as a golden thread that the benefit of every doubt must go to the accused person. Of course a view of the facts or the conclusion therein formed by a trial Judge or even by a jury is not binding on a Court of appeal in Pakistan. A verdict by a jury may be reversed by the High Court on a reference. Equally, a conclusion by a Judge may be reversed even where it has led to an acquittal. But where the Judge has read the evidence fairly, and has formulated grounds of doubt which are not perverse or wholly illogical or unreasonable, there is a clear risk of departure from the rule of the benefit of the doubt in reversing his findings."

16. In both the above latest pronouncement of their Lordships of the Supreme Court it has been clearly laid down that the High Court can interfere in revision and order retrial, even if it considers that the conclusions of the learned trial Judge were not supported by the eye-witnesses and the circumstances of the case. The Federal Court, and later the Supreme Court,' therefore, had consistently laid down the rule of law that the provisions of section 439, Cr. P. C. had given a wide discretion to the High Court to reverse the finding of acquittal and order a retrial when it considered that the conclusions arrived at by the learned trial Court on the evidence on the record were not justifiable, and in coming to that conclusion, there had been an ostensible miscarriage of justice. I, therefore, fully concur with the Chief Justice in his order refusing to refer the case to the Full Bench, because the Supreme Court had laid down the law on this point in quite clear and unambiguous terms, and if a Single Bench or Division Bench of the High Court had given decision contrary to what the Supreme Court had decided, then the judgments of the High Court do not lay down a sound law. As remarked by S. A. Haq, J., and as referred to above, the judgments of the Supreme Court were not cited before the Judges of the High Court in the three cases mentioned above in this judgment. The Judges of the High Court, therefore, had not the advantage of considering and following the law declared by the Supreme Court on this point in this country.

17. S. A. Haq, J., in paragraph 5 of his judgment, had briefly referred to this case on merits, in the following words:- "I do not propose to deal with these contentions at length in the present order of reference, it is sufficient to remark that after perusing the evidence on the record and hearing the learned counsel for both the parties at some length, no doubt is left in my mind that the conclusions reached by the learned Additional Sessions Judge in this case regarding the existence of a right of private defence of the body on the part of the respondent are a result of conjectures and surmises as to the possible course of events during the occurrence, of ignoring direct ocular evidence available in the case, and finally, they are due to the fact that he did not give due weight to the requirements of section 105 of the Evidence Act which places a definite burden on the accused in cases of the present kind. Consequently, the acquittal of the respondent has clearly resulted in a grave miscarriage of justice."

18. I respectfully fully concur with this conclusion of the learned Judge in Chambers. The prosecution had produced Abdul Ghafur (P. W. 4), Pir Muhammad (P. W. 5), and Muhammad Sharif (P. W. 6), as eye-witnesses of the occurrence. Abdul Ghafur (P. W. 4), no doubt is a cousion of the deceased, but he had a stab injury on his person, and therefore, this was the hall-mark of his presence on the spot and his having witnessed the occurrence. Pir Muhammad (P. W. 5) is related to the deceased through females, but he is a natural witness, as the occurrence had taken place at his shop. His presence on the scene of occurrence, therefore, cannot be denied. As a matter of fact the accused ?respondent had also admitted that he was present on the spot at the time of the occurrence. Muhammad Sharif (P. W. 6) is a quite disinterested witness. Besides the evidence. of these eye?witnesses, the prosecution case rests on the first information report, cumdying declaration of the deceased, and the dying declaration (Exh. P. 6/1) recorded by Mr: Iftikhar Sahibzada, (P. W.15) Assistant Commissioner, Kohat, in the Liauqat Memorial Hospital, Kohat. The accused had also admitted his having stabbed the deceased in his statement (Exh. P. Q.) recorded under section 164, Cr. P. C. on the 5th of October 1962, by Mr. Rabatullah Jaral (P. W. 2), Sub-Divisional Magistrate, Kohat. The accused stuck to the same statement at the trial. In the two dying declarations, as well as the statements of the eye-witnesses named above, it was sufficiently proved that the respondent was indebted to the deceased in the sum of Rs. 5, and when they met at the shop of Pir Muhammad, the deceased demanded the payment of his debt, and the respondent refused to pay it. On this, hot words were exchanged, and before the matter had taken a serious turn, these present intervened; and separated them. The accused and the deceased thereafter sat on the plank of the shop of Pir Muhammad and after about five minutes, when the deceased was sitting unawares, the respondent got up, attacked him with a knife, and stabbed him. Abdul Ghafur (P. W. 4), who was sitting closed to the deceased, got up, and tried to catch hold of the accused to save the deceased from being further stabbed when he too was stabbed.

19. The respondent, in his statement under section 164, Cr. P. C., as well as in his statement at the trial admitted that he had stabbed the deceased, but he had done so, because the deceased and Abdul Ghafur (P. W. 4) wanted to commit sodomy with him by catching hold of him and taking him into the shop. On this point the defence counsel had not even ventured to suggest to an the eye-witnesses if the deceased and Abdul Ghafur P. W. had? made any attempt to catch hold of the respondent in order to subject him is their unnatural lust. The learned trial Judge, therefore, had no support of this version advanced by the accused ?respondent at the trial in the prosecution evidence. It was for this reason that his judgment on this point is based on conjectures, surmises, and inferences. For instances, at one place, he had dealt with this aspect of the case in the following words:- "I am, therefore, of the opinion that during the interval of five or six minutes that passed between the subsiding of the first altercation and the commencement of the second incident something happened between the accused and the deceased which has not been deposed by the prosecution witnesses. We have, therefore, no alternative but to make a guess in this respect. " At another place in his judgment, he remarked:- "It, in fact, appears from the statement of the accused that the deceased had advanced him the sum of Rs. 5 also with an ulterior motive. " The statement of the accused-respondent even does not contain this allegation that the deceased had advanced him a sum of Rs. 5 for ulterior motive. This is also another surmise.

20. In another part of the judgment, the learned trial Judge had remarked:- "There may be a little exaggeration in the representation of facts made by the accused, but it does offer a plausible explanation of how the accused was provoked "

21. If the learned trial Judge considered that the accused-respondent was responsible for making an exaggeration, then how could it possibly offer a plausible explanation of how he had been provoked. In another part of his judgment, he had made the following observation:- "If they had come out with the whole truth perhaps the Court would not have had to make conjectures and places as much reliance on the statements of the accused as now it is forced to do." The witnesses had stated what they had seen and even were not cross-examined on the point, if the deceased or Abdul Ghafur P. W. had made any effort to catch hold of the respondent with a view to subject him to unnatural lust. It is curious how the learned trial Judge was able to find that the witnesses had not come out with the whole truth when there is no other evidence on the record pointing to that fact, except the statement of the accused. The basing of the finding of private defence of person merely on the statement of the accused, supported by conjectures, was, therefore, not justified.

22. In another part of his judgment, he had recorded:- "For the reasons given above, I am convinced that if the deceased and his companions did not actually assault the accused with the intention of gratifying their unnatural lust there and then, i.e., on the spot, they did (not) (sic) at least cause an apprehension in the mind of the accused by their words and acts that they would. According to section 102 of the P. P. C., the right of private defence of body commences as soon as a reasonable apprehension of danger to body arises from an attempt or threat to commit the offence, though the offence may not have been committed, and it continues as long as such apprehension or danger to the body continues." Except the statement of the accused, there is no evidence also on the point that the deceased and his companion- Abdul Ghafur had acted in such a way that the accused had a reasonable apprehension in his mind that he would be subjected to their unnatural lust.

23. In the concluding part of his judgment, he had further observed:- "For all that we know the accused may have picked up a knife from the shop of Pir Muhammad P. W. where the presence of such a knife is not unlikely." This is another conjecture. When there is nothing in the prosecution evidence or the circumstances of the case even to suggest that the deceased and his companion were the aggressors in any manner, then, if the accused raised a plea of defence of person, he has based under section 105 of the Evidence Act, to prove that fact by positive evidence. In this case, with the exception of his bare statement, there is no evidence whatsoever on his side, even to suggest, such less to prove the pleas which he had taken up in his defence. The learned Additional Sessions Judge, therefore, has supported something from himself by relying on surmises, conjectures, and inferences, which reasonably and according to law he was not competent to invoke in aid of the respondent. In doing so he had violated the normal rules of evidence and bad exhibited perversity in the grossest form in its appreciation.

24. Muhammad Sharif (P. W. 6) is a quite disinterested witness, and if the deceased, or his cousin, Abdul Ghafur, the wounded prosecution witness, had exhibited any act which could have caused any apprehension, it passes one's comprehension why he should not have stated so.

25. For the aforesaid reasons; I am convinced that there had been a miscarriage of justice in the acquittal of the accused of the offence on which he had. been tried. The revision petition is, therefore, accepted, and the accused-respondent is ordered to be retried.

26. Mr. Shafiur-Rehman, Sessions Judge, Peshawar is directed to hold the trial himself. He is, however, cautioned that he is not bound in any manner to follow the conclusions at which I have arrived on the evidence already on the record. He should consider as if no opinion had been given by me in this judgment and he should proceed with the trial and with the appraisement of the evidence quite independently of what had been done and said in the past. This judgment should not in any way affect his independent opinion. K. S. A.?????????????????????????????????????????????????????????????????????????????????????????????? Petition accepted.