P L D 1964 Supreme Court 795 (PLP)

CORNELIUS, C. J.?Leave to appeal against the acquittal of sixteen accused persons, which the High Court had declined to interfere with in revision, was granted on the consideration that the victim Abdur Rashid Khondkar, P. W. 1, could at least be certain of the identity of the person or persons who joined in the crime of cutting out his eye-balls, and therefore the evidence ought to be reconsidered. The judgment of the High Court, perhaps advisedly, does not state any opinion, one way or the other, as to whether the conclusions of the trial Court had a sound basis in reason. It is said only that the trial Judge had appreciated the points for consideration, and had decided them in relation to the evidence. The law was stated to be that mere misappreciation of the evidence or that the High Court might itself have taken a different view is not sufficient to justify interference with an acquittal, and further that the points raised on behalf of the complainant made out no valid ground for the action sought. It is true that the power of revision under the Criminal Procedure Code is exercised by the High Courts in a markedly more 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 our jurisdiction in any absolute sense, for the Code provides expressly for an appeal against 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 Shoo Swarup (1), which has been consistently followed in Pakistan, see the cases of Khalid Saigol v. The State (2) and Abdul Majid v. Superintendent and Remembrancer of Legal Affairs (3). 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-appraise?ment of the evidence that is necessitated by the appeal. (1) 61 IA 398????????? ??????????? (2) P L D 1962 S C 495 (3) P L D 1964 S C 422 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 a necessary step in arriving at such a conclusion. Here, on the face of the case, which was that in broad daylight a group of men overpowered the complainant, and while some eight of them held him down, one sat on his chest and with a knife gouged out his eye-balls, it was an evident necessity to show good reason for disbelieving the victim as to the identity of these persons, and in particular the last-mentioned person. As the judgment of the High Court contained no discussion of this central topic, this Court found it necessary to give leave so that the entire case might be reviewed, and a proper order made in exercise of its power to do full and complete justice. We heard Mr. Shafiqur Rahman in support of the appeal, and having been taken through the record, we did not find it necessary to call upon the respondents' counsel to reply. At least two clear instances of patent misreading of the evidence appear from the judgment of the trial Court. The first is where a discrepancy is found between the statement of the complainant on the one side, and of the eye-witnesses on the other, as to the precise nature of the attack. The trial Judge said that a witness P. W. 2 Rehanuddin had said that two of the accused were waiting by the side of tank to which the remaining fourteen carried the victim, having emerged from a jungle in a body and overpowered him as he was proceeding along a footpath, with a child in his arms. The discrepancy was raised by saying that the victim himself had said that all the sixteen men came out of the jungle in a body and joined in overpowering him and carrying him to the tank. In fact, the complainant had clearly said that two of the men Ratan and Mabaher were at the tank, where he was carried by the others: he had said that in his initial report as well. A definite mis-statement of the complainant's evidence is a serious misreading of that evidence. The trial Judge said also that another eye-witness Muhammad Matbar, P. W. 3, did not say "whether Ratan doctor was there or not." In fact this witness, after describing how the victim was carried to the tank, said "There I saw Ratan doctor with a knife and Mahaber with a lathi chani . . .". The discrepancy thus created was described by the trial Judge as a "fatal dis?crepancy", and if that were the sole basis of his rejection of the ease for the complainant, there would have been sufficient ground for interference, even in revision. The second misreading is not less gross. The complainant had said, in his initial report, that Ratan Doctor's grievance against him was that he had helped the Police of Gourandi Police Station in a dacoity case, in which this person had been charge-sheeted. In his evidence, he repeated this, with the correction that the Police Station was Muladi and not Gourandi. The Thanedar of Muladi at the time, M. Shamsul Islam was called in support, as P. W. 7, and as to his evidence, the trial Judge made the following points, viz: (1) that he said the approvers in that case did not implicate Ratan Doctor; (2) Ratan Doctor was not arrested by the Muladi Police in that case; and (3) he failed to understand how the complainant had helped the Police against Ratan Doctor in that case. Again, these conclusions are wholly inconsistent with, and in fact contrary to, most of what was said by M. Shamsul Islam. He had stated clearly that (a) two approvers Abdul Malik Bepari and Tazammal Ali made judicial confessions implicating Ratan Doctor, (b) that the complainant had met him, and had helped him in "apprehending the criminals", viz. Khalek and Tazammal, and was cited as a witness in the ease, and (c) that Ratan Doctor was charge-sheeted, though "he was not arrested then." There was sufficient material in the case to support the complainant's statement that he had given cause to Ratan Doctor to be hostile to him, and the trial Judge's conclusion that this motive was "entirely unfounded" is seen to be based on total misreading of the evidence, and a "failure of understanding" for which he alone was responsible. Although failure to prove an allegation of motive is not fatal to a prosecution, where the evidence alien le is sufficient, and therefore this particular finding was not deter?minative of the result, yet it falls to be observed that the gross errors of the trial Judge in this respect, and in his finding of the discrepancy discussed above were such that they required to be brought to the trial Judge's notice, if he was to develop, in due course into an instrument to whom the dispensation of justice in eases of serious crime could safely be entrusted. In forming a true appreciation of this case, the central fact is the very special nature of the injury caused. One would look for a special motive to justify such an action. The victim had been a Union Board President, but at the last election, he was defeated by one of the accused persons, Chandu by name. He had given evidence in a number of cases, and had been cited as a witness in the dacoity case against Rattan Doctor and others. That might conceivably, if somewhat remotely serve as a motive for the enemies he made to deprive him of the use of his eyes. The defence suggestion however was that this was the work of some thieves of Mirigidia, an adjacent village, who had been punished by "the villagers", by demolishing their huts and by pulling out the eyes of one of their number, Mouza by name. The complainant denied knowledge of this, or of having had a hand in imposing these punishments. One witness Muhammad Matbar, P. W. 3, admitted that Mouza's eye had been pulled out "two years ago" which would be some 18 months before the occurrence. The defence suggestion further was that the com?plainant had visited another village for a function on the night before the alleged occurrence, and that on the way home, he was attacked and injured in this special way by the enemies he had made in Mirigidia. In support, they produced a number of defence witnesses from among his neighbours who said that at 7 a. m. they visited the complainant's house, and found him with his eye-balls gone. When they asked him how it had happened, he blamed his ill-luck. This evidence was led to indicate that the complainant did not know who his assailants were, the reason being that he had been attacked in the dark. All this was denied by the complainant, but the fact remains that this suggestion furnishes a precise explanation of the very special nature of the injury. The prosecution denial of the suggestion found support in the statement of a doctor. Mr. S. K. Choudhry who estimated the age of the injury, which he examined at 11-30 p. m. following the occurrence at "about 12 hours." Such estimates can never be exact, and on the other hand there is the fact that the injured man reached the thana, 10 miles away from his village, by boat, at 5-30 p. m. He has no boat of his own. It would certainly require a combination of very favourable circumstances of wind, current, weather etc. to explain such speed in covering 10 miles. On a good road, it would take not less than 5 hours to cover that distance, on foot, under village conditions, and consequently a suspicion should have arisen that the reporting of the case was unexpectedly prompt. On the other hand, if the start from the village was made say three hours earlier than the time given for the occurrence, it would be easier to accept the making of report at 5-30 p. m. but then the attack could well have been made, as the defence suggested, during the hours of darkness. A final reason for a strong suspicion that the entire case is fabricated is furnished by the circumstances that the sixteen accused persons fall into three groups, against each of which groups a different motive for the crime is suggested. One motive, affecting Ratan Doctor, has already been mentioned. The com?plainant ascribed Chandu Matbar's enmity to the fact that he married Chandu's sister and later had abandoned her and married again. Enmity with two other accused persons, Samed and Sattar, was said to be due to a case over a piece of land which they had bought from one Amin, and which the com?plainant said had previously been sold to him by Amin's niece. Viewed objectively, none of these causes of dislike explains the peculiar nature of the crime, which has the appearance of an exaction of revenge. But they may well explain the implication of all these sixteen persons for a crime which could readily have been committed by two or three persons overpowering and then pinioning the victim before removing his eye-balls. The accused persons are related among themselves in varying degrees. The complainant is also, in a way, a relation. But it is noteworthy that of the seven eye-witnesses named in the initial report, only three were examined, namely Muhammad Matbar, P. W. 3, Waziuddin Matbar, P. W. 5, and Abdul Majid Howladar P. W.

6. The first two are involved in litigation, criminal or civil or both, with one or more of the accused persons. Abdul Majid Howladar, it was suggested, had a personal grievance against Matbar, a principal accused person. The other eye-witnesses Rehanuddin Howladar, P. W. 2, and Abdul Wahed Matbar, P. W. 4, are both chance witnesses. The latter appeared to have his own grie?vances against some of the accused persons. The impression is clearly gained of the witnesses having been got together on the basis of one or other of their private enemies being involved in the case. Accordingly, the view finally formed by the trial Judge, who accepted the evidence of at least one defence witness that the prosecution had "failed to prove beyond all reasonable doubt that the occurrence took place at the appointed (?) time, place and in the precise manner as alleged . . . or that these accused persons committed the crime" can be sustained on a true appreciation of the case and the evidence in support. The final conclusion is not affected by the serious errors into which the trial Judge was led in his reading and treatment of the evidence. On that conclusion, the acquittal was clearly justified. We accordingly dismiss this appeal. A. H.??????????????????????????????????????????????????????????????????????????????????????? ??????????? Appeal dismissed.