P L D 1988 Peshawar 46 (PLP)

Complainant Gul Muhammad has challenged the order dated 1-11-1986, of Malik Ghulam Mohyuddin, Sessions Judge D.I. Khan whereby accepting the appeal of Mulazim Hussain respondent he acquitted him of the charges, by setting aside his conviction and sentence:

2. Facts in brief are that on 15-7-1983 Gul Muhammad complainant at' 1950 hours lodged a report in Police Station Parowa vide F.I.R. No.66 that at morning time that day Mulazim Hussain accused respondent had obstructed the 'Lath' which was used by the ladies of the village for bringing water from the tap of Public Health and at 'Digas' time the complainant approached the accused-respondent who was present on the 'Lath' and asked him as to why he has obstructed the path which resulted in altercation and the accused respondent picking up the 'Kahi' gave him a blow therewith on his head with which he was injured and fell down to the ground. This report was incorporated in Mad No.12 and subsequently incorporated in the F.I.R. and a case under section 326, P.P.C. was registered against the accused-respondent. The complainant was admitted in the hospital and was discharged as cured on 19-7-1983 and the injuries sustained by him were declared as simple. Accordingly the section of law was changed from 326, P.P.C. to 324, P.P.C. and after due trial by the Illaqa Magistrate the accused was convicted under section 324, P.P.C. and sentenced to one year's R.I. and a fine of Rs.1,000 or in default to undergo S. I. for further six months. Feeling aggrieved by his conviction and sentence the accused-respondent went in appeal in the Court of the learned Sessions Judge who by his order impugned in this Criminal Revision Petition set aside his conviction and sentence and acquitted him which obliged the complainant to file the instant criminal revision petition.

3. Arguments of the learned counsel for the petitioner the learned counsel for the accused-respondent and the learned Assistant Advocate-General have been heard and record of the case examined.

4. The perusal of the order of the learned Sessions Judge would reveal that he acquitted the accused-respondent for the defective trial held by the trial Magistrate, in that, the statements of the material witnesses were not recorded on oath; that the charge was not framed in accordance with law; that the relevant questions were not put to the accused. The learned Sessions Judge further observed that the appellate Court was not expected to supplement the deficiency of the prosecution by remanding the case for retrial and that the appellant cannot be made to suffer because of the negligence, omissions and illegalities committed by the trial Court.

5. It is indeed very unfortunate to notice that while the learned Sessions Judge criticized the legal approach to the trial of the case by the Illaqa Magistrate he himself also did not appreciate the law on the point. No doubt the appellate Court is not expected to supplement the defect and infirmities of the prosecution but in the instant case the prosecution was not to be blamed because if the trial Court conducted the trial not strictly in accordance with law it was not the prosecution to be blamed and if the appellate Court was of the view that certain departure from the prescribed practice had occurred on account of incompetency of the trial Court the better course for the appellate Court was to have remanded the case back to the trial Court for the redress. On the other hand the learned Sessions Judge extended the benefit of incompetency of the trial Court in conducting the trial to the accused-respondent which was not called for.. Section 13 of the Oaths Act 1973 provides that:- "No omission to take any oath or, make any affirmation no substitution of any one for any other of them, and no irregularity whatever in the form in which any one of them is administered, shall invalidate any proceeding or render inadmissible any evidence whatever, in or in respect of which such omission, substitution or irregularity took place, or shall affect the obligation of a witness to state the truth." Now under section 13 the form of the oath and even an absence or omission to take oath is curable.

6. In the instant case the learned Appellate Court has altogether ignored the direct ocular evidence. He has acquitted the accused respondent for the deficiencies and certain omissions committed by the trial Court. It is needless to point out that nowhere the learned appellate Court has concluded that the prosecution has not been able to establish its case. In Janab Gul v. Aslam Khan reported as P L D 1965 Pesh 193 it was held that the High Court has the powers to reverse finding and order for retrial if conclusions arrived at by the trial Court are not justifiable and resulted in miscarriage of justice.

7. If the evidence of the prosecution witnesses was not recorded in accordance with law the best course for the learned appellate Court was .to remand the case back to the trial Magistrate inviting his attention to various irregularities in conducting the trial. The acquittal of the accused without having least consideration to the prosecution evidence just, on technicalities is not the spirit of criminal practice.

8. Accordingly I accept this criminal revision petition set aside the order of the learned Sessions Judge, D.I. Khan and remand the case to the trial Court with the direction to proceed with the trial afresh in accordance with law. The accused-respondent who is present is directed to furnish surety bonds in the sum of Rs.5,000 with two sureties each in the like amount to the satisfaction of the Additional Registrar of this Court. The accused-respondent is also directed to appear before the Illaqa Magistrate on 14-2-1988. M. Y. H. /594/P Case remanded