P L D 1996 Supreme Court 152 (PLP)

SAIDUZZAMAN SIDDIQUI, J.‑‑‑The above criminal appeal with the leave of this Court is filed against the judgment of Lahore High Court dated 18‑10‑1992 whereby the learned Judge in chambers accepted the Criminal Revision Application filed by the complainant against the acquittal judgment of the trial Court and after setting aside the same remanded the case to the Sessions Judge, Gujrat, for retrial from the stage of hearing arguments and further disposal in accordance with the law. Leave was granted in the case to consider the following legal question:‑‑ "Leave to appeal is granted to consider the question, inter alia, if in setting aside the judgment of acquittal and in directing the trial Court to re‑start the trial from the stage of arguments the High Court has kept in view the principles laid down by this Court in the cases of Khairdi Khan v. Crown PLD 1953 FC 224; Ghulam Sikandar v. Mamaraz Khan PLD 1985 SC 11 and Muhammad Usman v. The State 1992 SCMR

489. During the pendency of the appeal the judgment of the High Court will remain suspended." In support of t ' he above appeal, the learned counsel for the appellant contended that the learned Judge in Chambers while exercising power under section 439, Cr.P.C. had a very limited jurisdiction to interfere with the acquittal judgment of the trial Court. It is contended by the learned counsel that no doubt the power of sending back the case to the trial Court for retrial was available to the learned Judge but such retrial can only be ordered if the learned Judge was of the view that some material part of the evidence was not considered by the trial Court or that the accused was denied the right of defence in the case or that there was some other material irregularity committed by the trial Court which vitiated the trial. It is further contended by the‑learned counsel for the appellant that while exercising power under section 439, Cr.P.C., the High Court is not entitled to enter into the question of reappraisal of the evidence and substitute its own finding in place of the finding recorded by the trial Court. The 3 learned Advocates‑General of the Provinces of Sindh, N.‑W.F.P. and Punjab, who appeared in the case on Court notice, on the other hand maintained that the retrial can be ordered by the High Court while exercising power under section 439, Cr.P.C. from any stage of the case if the Court after examining the record of the case which has been called for under section 435, Cr.P.C., comes to the conclusion that the retrial is necessary either on account of any defect in the proceedings of the trial or the trial Court has misread the evidence or has approached the evidence on record in a perverse manner. Before examining the above legal contention, we would like to briefly state the relevant facts of the case. Abdul Latif, appellant, and his uncle W Khan were accused of committing murder of Sultan and his son Ghulam Haider at the house of one Bagga Khan on 1‑6‑1976 at Degerwela. Bagga alongwith Ghulam Sarwar Lambardar of the village reported the matter on the same day. After necessary investigation by the police both the appellant and his uncle Lal Khan were put to trial before the trial Court under section 302/34, P.P.C. on 2 counts but the trial Court vide judgment dated 5‑1‑1981 acquitted both, the appellant as well as his uncle Lal Khan in the case. The State did not prefer any appeal against the acquittal of the appellant and Lal Khan in the case. The complainant, however, filed a revision application under section 439, Cr.P.C. challenging the acquittal of both the accused by the trial Court in the case. The learned Judge in Chambers while admitting revision petition against the acquittal of the appellant Abdul Latif declined to exercise jurisdiction under section 439, Cr.P.C. against the acquittal of Lal Khan who was only attributed "Lalkara" in the case. The learned Judge in Chambers on an appraisal of the evidence in the case came to the conclusion that the evidence on record was mis-appreciated and some wrong inferences were drawn by the trial Court from the evidence on record. It was also found by the learned Judge in Chambers that the testimony of the 3 eye‑witnesses was discarded by the trial Court in the case solely on the ground that they were related to the deceased which was contrary to the rule of appreciation of evidence laid down by the superior Courts in criminal cases. The learned Judge also came to the conclusion that the eye‑witnesses' account was substantially corroborated by the medical evidence and the motive part of the story. The case was, accordingly, remanded after setting aside the acquittal of the appellant in the case for retrial from the stage of hearing arguments and disposal in accordance with the law. The objection of the learned counsel for the appellant to the judgment of the learned Judge in Chambers appears to be that the question of appreciation of evidence was entirely outside the scope of the revisional jurisdiction exercised by the learned Judge in Chambers under section 439, Cr.P.C. According to the learned counsel for the appellant, misappreciation of evidence or wrong inferences drawn from the evidence cannot be made a ground for setting aside the acquittal by a revisional Court in exercise of its power under section 439, Cr.P.C. The scope of power to be exercised by the High Court while hearing a revision petition against the acquittal has been subject‑matter of consideration in a number of cases. In the case of Khairdi Khan v. The Crown PLD 1953 FC 223, the Federal Court of Pakistan while hearing an appeal against the order of retrial made by the High Court of West Pakistan, set aside the judgment in the case with these observations‑

"I find myself in complete agreement with the views expressed above by the Supreme Court of India. If we now turn to the judgment of Mr. Justice Kayani we find that he has re‑appraised the entire evidence and has given the following definite and prectise fit dings:‑‑ (a) The delay in making the F.I.R. does not exist, but if it does Mst. Sahibji has given a reasonable explanation, and that explanation should be accepted; Even if Mst. Sahibji delayed the report because she wanted to consult other persons in the village, if could not be held that the result of the consultation was to exclude the actual assailants and substitute them by persons entirely unconnected with the attack; (c) In this case, it cannot be said that some innocent persons have been added as two young persons were being attacked in broad daylight, and it was therefore necessary that the assailants should out‑number their victims, and therefore there is nothing unlikely in the attack having been delivered by all the four appellants; (d) The motive is perfectly sufficient for the murderous attack; (e) Such reasons as the learned Sessions Judge has given cannot brush aside the broad fact that Khan Bahadur was not likely to substitute his assailants by other persons. In my opinion, the findings given by the learned Judge amounts to a direction to convict, and no Sessions Judge subordinate to the Lahore High Court could remain unbiased after reading the findings given by the High Court. The judgment of Kayani, J., in this case, merely stops short of finding the accused guilty and passing sentence on them." Khairdi Khan's case, supra, came up for consideration again before the Federal Court of Pakistan in the case of Anwar v. Crown PLD 1955 FC 185 and a larger Bench of the Federal Court while disagreeing with the rule laid down in Khairdi's case, supra, on the question, of bias by the trial Court, laid down the scope of jurisdiction of the High Court under section 439, Cr.P.C. while hearing the revisional application against the acquittal judgment as follows:‑‑ 'Technically, therefore, the power of the High Court to examine the ‑evidence on which a finding of fact is based is unlimited, though 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 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. Cases which lay down that the discretion is not to be exercised unless the judgment of acquittal be, perverse or based on a view of evidence which no reasonable man will take merely indicate the classes of cases in which an interference is necessary and do not lay down that in no other case can the High Court interfere. It is a wise rule to follow that where the legislature itself does not define the limits of or the grounds for the exercise of a discretion, the Courts should not too readily lay down rules to fetter that discretion, and it seems to me 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. In the present case, for instance, if we were to accept the view as laid down in Khairdi Khan's case that an order of acquittal can be interfered with only where it is manifestly wrong or perverse or is based on a view of the evidence which no judicial officer would take, in order to determine whether we should or should not interfere we shall have to record a finding on the question whether the order of acquittal fell into the class of cases indicated. And this will mean that we would be judging the guilt or innocence of the accused before he is actually retried and clearly prejudicing him if eventually we came to the finding that the order of retrial was justified because the order of acquittal was perverse or manifestly wrong. This shows how dangerous it may sometimes be to a person asking for the interference of this Court with an order of retrial to attempt to obtain a finding that the order of acquittal was not perverse or manifesily wrong, because if any such ground be raised by the accused person, the prosecution would be entitled to show that the order of acquittal fell under that description and that therefore the order of retrial was good. 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 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 no contravene the rule against double jeopardy because the order o 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. The accused has a right to be heard before an order adverse to him is made in revision and cannot, therefore, complain that findings in his favour, whether they be of fact or law, have been vacated. Thus, the order of retrial is an order in the same case and entirely outside the principle of double jeopardy." In the case of Janab Gul v. Aslam Khan PLD 1965 (W.P.) Peshawar 193 a Full Bench of the then High Court of West Pakistan, Peshawar Bench, after making reference to the observations in the case of Anwar v. Crown and Abdur Rashid v. The State PLD 1962 SC 249 observed as follows:‑‑ "

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 Fun Bench, because the Supreme Court has 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 SA. 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." Similarly, in the case of Haji Muhammad Jee v. Muhammad Ibrahim Shauq 1988 SCMR 1691 this Court referred with approval the observations made in the case of Anwar v. Crown, and Abdur Rashid v. The State, supra, while observing on the scope of power of the High Court to order retrial, as follows:‑‑ "Applying the principles laid down, we do not think that the High Court was correct in ordering the retrial of the case. There was no conclusive evidence of the possession of the Baithak and the trial Court accordingly did not accept the ocular version of the complainant and his servant Khair Din whose evidence was mellowed down by the defence witness examined in the case who to an extent supported the version of the appellants that the Baithak was not used as an office and that its exclusive possession was not with the respondent No.l. The documents upon which the High Court laid emphasis were earlier in point of time and apart from their admissibility could not be read to establish the possession of respondent No.1, which is an essential ingredient of the offence. In that view of the matter, the trial Court felt hesitant to convict the appellants on the tainted testimony of the three witnesses. Any retrial would amount to a denial of the principle of doubt and would lead to injustice if the case is allowed to proceed in the trial Court as that would invite another opinion on the evidence which had already been appraised, commented upon and the benefit of it extended to the appellants. It would have no other result but one of conviction in view of the opinion expressed by the High Court which appears to us not to be based on proper appraisal of the trial Court's opinion." In view of the above discussion, we are of the view that no hard and fast rule can be laid down limiting the power of the Court while ordering the retrial of the case under section 439, Cr.P.C. As observed in the above referred cases, no limitation having been placed by the legislature on the power of the High Court while hearing a revision under section 439, Cr.P.C., it would be quite unjustified to read any such limitation on the power of the High Court while ordering retrial in a criminal case. The paramount consideration before the High Court while ordering retrial in a case in exercise of its power under section 439, Cr.P.C. would be to prevent occasion of miscarriage of justice in the case. Therefore, where the High Court finds that the trial Court while acquitting the accused has misread the evidence on record or drawn inferences from the evidence which are perverse or has committed an irregularity which vitiated the trial or it failed to keep in view the guiding principles laid down by the superior Courts for appreciation of evidence in criminal cases, the High court may step in exercise of its jurisdiction under section 4399 Cr.P.C. anal after setting aside the acquittal judgment, order retrial of the case. It will, therefore', not be correct to say that the revisional Court while hearing a revision application arising from an acquittal judgment cannot go into the question of reappraisal of the evidence recorded by the trial Court. It cannot be disputed that if the ground taken in the revision application before the High Court, filed against the acquittal judgment, is that the trial Court has misread the evidence in the case or that the approach of the trial Court to the evidence on record is totally perverse, the High, Court will be fully entitled. to go into the question of appraisal of the evidence by the trial Court and if it reaches the conclusion that the trial Court has in fact misread a material part of the prosecution evidence or that the approach of the trial Court to the evidence on record is totally perverse or otherwise the dictates of justice demanded that the acquittal judgment recorded ~y the Court be interfered with, the High Court will be My competent to interfere with such judgment of the trial Court and order retrial. The retrial can be ordered by the High Court from any stage of the proceedings which the circumstances of the case may warrant in each case. However, care should be taken by the High Court while ordering retrial of the case that the observations of a definite character and nature should not be 'recorded which may fetter the. jurisdiction or discretion of the Court while holding retrial. The High Court while remanding the case to the trial Court for retrial must leave the matter open for decision by the trial Court for appraisal of the evidence in accordance with the law. In the case before us, the High Court while remanding the case to the trial Court came to the conclusion that certain principles laid down by the superior Courts for appraisal of ocular evidence in a criminal case were not kept in view by the trial Court while drawing inferences on basis of the evidence on record. It was also observed by the learned Judge in Chambers that certain important part of the prosecution evidence was not taken into consideration by the trial Court. while acquitting the accused in the ‑caw. These considerations were totally valid for the purpose of ordering retrial in the case. However, we would like to clarify that the observations made by the learned Judge in Chambers while ordering retrial, to the effect that the M‑witnesses' account corroborated by the medical evidence and the motive part of the story and the attending circumstance were sufficient to conclude the charge against the respondent, are observations of definite nature which might influence the opinion of the trial Court while holding retrial of the case. We would, therefore, while upholding the order of the High Court for retrial in the ease, would clarify that the above observations made by the learned Judge in the impugned judgment with regard to merits of the case will not be binding on the trial Court while holding retrial in accordance with the order of remand made by the High Court. The trial Court will be free in the assessment of evidence in the case while holding retrial and will decide the case uninfluenced by the observations of the High Court in the, order of remand, on the merits of the case. The learned counsel for the appellant has very vehemently argued that the incident in the case has taken place in the year 1976 and almost a period of more than 19 years has passed and, therefore, it will not be expedient and in the interest of justice to order retrial of the case after a lapse of such a considerable period of time. In support of his contention, the learned counsel for the appellant has relied on the case of Sultan Khan v. The State 1987 SCMR 237, Phulail Khan v. The State and Shah Wali v. The State 1972 SCMR

95. The facts of the above‑cited two cases are, however, quite distinguishable. In Sultan Khan's case, supra, the retrial was directed as a de novo trial of the accused and because of the elapse of a period of about 11 years the retrial was not considered in the interest of justice and reliance was placed on the observations of this Court in the case of Phulail Khan v. The Stete, supra. The consideration in both the above‑cited cases was that on account of passage of a considerable period of time it may not be possible for the prosecution to secure attendance of the prosecution witnesses originally cited in the case. In the case before us, however, retrial has been ordered from the stage of only hearing arguments and no fresh evidence is to be recorded in the case. Therefore, the consideration which pursuaded this Court in the above‑cited two cases is not relevant in the present case. As would appear from the preceding discussion the Court while ordering retrial of an accused in exercise of its power under section 439, Cr.P.C. keeps in view the view taken by the trial Court of the evidence in the case, the nature of error committed, the magnitude of the apprehended miscarriage or failure of justice, the possibility and extent of prejudice to the accused, the chances of conviction, the expenses of a retrial and the passage of time between commission of crime and order of retrial. However, mere passage of time between the date, of commission of the crime and order of the retrial made by the Court in isolation has never been considered as a sufficient ground for refusing to make an order of retrial of an accused. The passage of time between the date of commission of offence and order of retrial is only one of the relevant considerations which the Court Will keep in mind in the totality of the circumstances of the case while ordering retrial of an accused in the case. In the present case, as earlier pointed out by us, the retrial of the accused does not involve any fresh examination of witnesses in the case and as such the considerations which prevailed with this Court in the two cited cases, in refusing the retrial of accused in those cases are not relevant here. We, therefore, find no merit in the submission of the learned counsel for the appellant that on account of passage of a long time between the date of incident and order of the retrial it would be inexpedient now to order retrial of the accused in the case. With these observations, the appeal is dismissed. N.H.Q./A‑1352/S Appeal dismissed.