1983S90 (PLP)

ASLAM RIAZ HUSSAIN, J.-Faqir Muhammad and 7 others seek leave to appeal against the order of the learned Single Judge of the Higb Court dated 3-5-1983 dismissing their writ petition.

2. The facts giving rise to the present petition are that on 4-7-1978, Muhammad Ismail respondent lodged an F. I. R. against the petitioners under sections 148 and 325/149, P. P. C. at Police Station, Gojra. Briefly, it was alleged in the F.

1. R. that at about 9 a. m. on 2-7-1978, when Muhammad Ismail and his brother Yusuf were coming,out of their house the petitioners attacked them with dangs and caused them several injuries. the occurrence was witnessed by Abdullah and Abdul Ghafoor P. Ws. After investigation the police submitted challan. The trial Magistrate, however, acquitted all of them by his judgment dated 22-11-1978. Feeling aggrieved Muhammad Ismail complainant (respondent herein) filed a revision petition under section 439-A, Cr. P. C. before the learned Additional Sessions Judge, Toba Tek Singh, who by a detailed judgment dated 20-4-1983, accepted it and remanded the case for retrial. The operative part of the said judgment reads as follows :- "For what is. said above I feel it expedient in the interest of justice that re-assessment of the entire evidence is done. There is likelihood of miscarriage of justice unless the impugned order is interfered with. I accept the revision petition and remit back the file to the learned Magistrate, for making a fresh decision of the case. Muhammad Yousaf P. W. had received 15 injuries and two of them were declared grievous swelling 16 cm. x 16 cm. on rigth thigh was declared grievous and three contusions 12 cm. x 2 cm. 16 cm x 2 cm on right buttock were declared grievous. Muhammad Ismail P. W: received five injuries contusion 13 cm. x 1 cm. on right shoulder was declared grievous. Swelling'? cm. x 5 cm. on left thumb was also declared grievous. As the learned Magistrate has already expressed his views on the merit of the case, the file shall be submitted before the leaned Sessions Judge on 30-4-1983, for being entrusted to another Magistrate for making a fresh decision of the case after reappraisement of the evidence already available on the file." The acquitted accused challenged the abovenoted order of the learned Additional Sessions Judge through a writ petition which was dismissed vide the impugned judgment. They, therefore, filed the present petition for leave to appeal against the impugned judgment of the High Court. 3. - The contention pressed by the petitioners' counsel before us was that the learned Additional Sessions Judge has recorded a detailed judgment repelling the grounds given by the learned trial Court for acquitting the accused and as such it amounts to an order directing the trial Court to reverse the finding of acquittal and convict the accused petitioners, specially when all that he is required to do is to hear the arguments on the same evidence and then give a fresh decision.

4. It may be mentioned at the outset that this petition for leave to appeal is directed against an order made by the High Court in a `writ petition' filed by the accused petitioners, wherein they had cha!lenged the order of the A learned Additional Sessions Judge passed in the exercise of his revisional jurisdiction under section 439-A, Cr. P. C. As held by this Court in P L D 1981 S C 522 the writ petition itself was not competent. The relevant portio of the said judgment reads as follows "After the enforcement of revisional power on the Sessions Judges, all revisions against judgments of acquittal recorded by Magistrates lie before them, i.e., before Sessions Judges, while revisions against judgments of acquittal by any other `inferior criminal Court' would still lie before -the High Court. The reason for introducing this amendment and curtailing the jurisdiction of the High Court was obviously that each High Court had become clogged with revision petitions against orders of hundreds of Magistrates throughout the respective province and speedy disposal thereof was not possible." . . . "But it is noticed with some dismay that persons dissatisfied with the judgments of the final Courts under the normal law have taken to challenging them through writ petitions under Article 199 of the Corstitution, thereby circumventing the law and defeating the obvious intention of the Legislature. The question of jurisdiction of the High Courts under Article 199, has come under consideration in a number of cases before this Court and it has been repeatedly held that if a Court or Tribunal set up under the ordinary law has the jurisdiction to decide a particular matter then there is jurisdiction to decide it rightly or- wrongly and the fact that the decision is incorrect, or is not one at which the High Court would have arrived, does not render the decision without jurisdiction." 5.' As regards the contention raised by the parties' counsel, it was of course held in Khairdi Khan v. Crown (I) that where the High Court has reappraised the evidence and had come to a definite finding of fact in the order for retrial, the finding may amount to a direction to convict and no subordinate Court can remain unbiased after reading finding of the High Court. But this judgment was differed from by the same Court sub sequently in Anwar and another v. The Crown (2). A similar issue had arisen (1) P L D 1953 F C 223 (2) P L D 1955 F C 185 in that case (i. e. in Anwar v. The Crown) and after discussing the principles governing the exercise of powers for retrial under section 439(4), Cr. P. C., it was observed that : "The order under appeal was not a fit one for interference inasmuch as the order of retrial did not at all direct the Judge holding retrial to come to a certain conclusion nor did it require him to. take a particular view of the evidence though some of the expressions used in the order of retrial conveyed High Court's own view of the evidence."

6. In a similar case namely Abdur Rashid, etc. v. The State (1), where a question arose whether or not the order of retrial which amounted to an order to give a fresh decision after reappraising the evidence already on record does not amount to giving a direction to record a judgment convicting the accused, came under consideration, it was abserved by this Court that : "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 bad said in his order should be treated as binding by the Court before which the case goes for retrial. This Court will, we hope act upon the letter of this caution, and unhesitatingly reach its own conclusion on the evidence led before it."

7. In the present case also, by way of abundant precaution and to obviate any apprehension that the trial Court may be influenced by the observations of High Court, it was observed by the learned Judge in Chamber that "I think this is just an apprehension. The case has been remanded to another Magistrate. As such it is open to the Magistrate to decide the matter afresh in accordance with law with open mind."

8. As to the contention raised by the learned counsel mentioned in paragraph No. 3 above, we do not consider it having much force, because it is wellrecognised that retrial can be ordered from any stage of the trial onward, as held in Feroze Khan v. Captain Ghulam Nabi Khan and another (2). The learned Additional Sessions Judge was, therefore, competent in law to order the retrial of a case from close of the evidence of both sides, which would only involve hearing of arguments. This view gains support for the following observation in the case of Abdur Rashid : "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. One matter which has been urged before us and finds mention in the admitting order, namely, the existence of circumstances tending to support the defence case, `so as to render the defence version a possible one' will have to be considered de novo at the trial, for the subject has received no treatment whatsoever at the hands of the trial Judge." It is evident from this observation that it is permissible to dirt retrial which would only involve a rehearing of the arguments and giving a fresh decision after reconsidering the same evidence. (1) P L D 1962 S C 249 -- (2) P L D 1966 S C 424 In view of the above discussion we find no merit in this petition which is consequently dismissed. g. Q, Petition dismissed.