P L D 1954 Federal Court 120 (PLP)

ABDUL RASHID, C. J.--‑This is an appeal, by special leave, from a decision of the judicial Commissioner of Baluchistan, dated the 6th November 1951, setting aside an order of acquittal passed by the City Magistrate Quetta on the 7th February 1.951 in favour of Abdus Sattar appellant, and ordering a retrial. Siraj‑ud‑Din complainant bad a shop at Quetta where he was carrying on cloth business in partnership with his brother Muhammad Siddiq. Abdus Sattar, who belonged to Sialkot, used to take large quantities of cloth to Quetta and sell them through Siraj‑ud‑Din, the latter receiving a small commission on the sales effected by him. On the 3rd of May 1951, Siraj‑ud‑Din lodged a report in the Police Station at Quetta stating that a sum of Rs, 3,100 in 31 currency notes of the denomination of Rs. 100 each had been stolen by the appellant description‑of first report is a detailed one. It contains a long description of the business dealings between the parties and proceeds that on the night of the 2nd of May Abdus Sattar appellant and Siraj‑ud‑Din complainant were the only persons who slept in the complainant's shop ; that a sum of Rs. 3,100 was placed in the safe in the presence of Abdus Sattar accused ; and that in the morning this sum was found to be missing. It was further stated in the report that the complainant had taken an oath in the mosque to the effect that he was sure that Abdus Sattar had stolen this money and that thereafter the appellant had promised to make good the loss. The trial Court recorded the entire evidence produced on behalf of the prosecution, and the witnesses were cross‑examined at length by counsel. Thereafter, a long written statement was filed by the accused. The accused stated therein that no recovery of Rs 3,100 had been made at his instance as deposed to by the prosecution witnesses, but that the Sub‑Inspector of Police had recovered a sum of Rs. 3,793‑2‑0 from his pocket. This sum belonged to him and was a part of the amount of Rs. 6,500 which he had realized by selling his cloth. The accused further stated that Siraj‑ud‑Din complainant was to receive a commission of only half an anna per rupee for the cloth that he sold on his behalf, but that Siraj‑ud‑Din had acted dishonestly as he had been selling the cloth entrusted to him at Rs. 1‑6‑0 per yard but had been crediting only Rs. 1‑2‑0 per yard to the appellant's account. As Siraj‑ud‑Din had been reprimanded for this dishonesty he had brought a false case against him. The trial Court held that the version of Siraj‑ud‑Din com?lainant given in the F. I. R. was materially different from the one contained in his statement in Court. It further held that the evidence of recovery was of a highly unsatisfactory character. The trial Court refused to place any reliance on the statements of Kamal and Muhammad Ashraf in respect 'of the recovery. As a result of these findings, the Court acquitted the accused. The Provincial Government preferred an appeal in the Court of the Judicial Commissioner. It was open to .the judicial Commissioner in an appeal preferred under section 417 of the Cr. P. C. by the Provincial Government to examine the entire record and reverse the finding of acquittal and sentence the accused. Instead of doing so, the learned judicial Commissioner ordered a retrial on the following grounds ;‑ "There is a very grave element of doubt as to the correctness of the interpretation which the City Magistrate has placed on the F. I. R.

2. The Magistrate's finding that the inventory relating to the recovery (Exh. P.‑2) was a forged one is not based on any sound reasons". Thereafter, the learned judicial Commissioner proceeded as follows :‑ ?When these two reasons are put together they are my view, insufficient to come to a conclusion that the respondent was not guilty ; because other evidence on record, which has apparently not been taken into consideration by the learned Magistrate, is certainly worthy of considerable weight ...... "It would therefore appear to me that the order of acquittal is one which is against the weight of evidence on record. Since there may be some element of doubt '1 do not propose in this order to set aside the order of acquittal and substitute for it one of conviction. The case requires retrial ......... "Had I been without doubt about the guilt of the respondent I would have accepted the appeal and he would have been convicted, but since I feel there is an element of doubt regarding the order of acquittal the matter will now be before another Court for fresh trial. To that extent, this order is not to be read as an order expressing any opinion as to the guilt or innocence of the respondent". The above quotation clearly show's that the learned Judicial Commissioner could not make up his mind as to the guilt or innocence of the accused. He has clearly stated that the case is not without doubt as far as the guilt of the accused is concerned. He has further stated that he has doubts about the soundness of the order of acquittal. In these circumstances, he should have realized that it was not a fit case in which the order of acquittal should be set aside and a retrial ordered. As a general rule, an order for retrial would be proper only where the trial in the lower Court had been illegal, irregular, or otherwise defective. A retrial may also be ordered if the trial Court had allowed inadmissible evidence to come on the record, or had wrongly excluded evidence which was relevant to the case. Where there is no defect in the trial, or irregularity in procedure, the mere fact that the appellate Court is unable to form an opinion as to whether the accused should be convicted or acquitted is no ground for a retrial. It was open to the judicial Commissioner to correct the wrong interpretation placed on the F. I. R. by the trial Court. The finding of the Magistrate that the evidence of recovery was of a highly unsatisfactory character could also have been reversed by the Judicial Commissioner, .if he was of the view that the finding was incorrect. The observation of their Lordships of the Privy Council in the case of Sheo Swarup and others v. The King‑Emperor (61 I A 398 at p. 404, ) relating to appeals against orders of acquittal may be reproduced here with advantage :‑ "Sections 417, 418 and 423 of the Criminal Procedure Code give to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed. No limitation should be placed upon that power, unless it be found expressly stated in the Code. But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and con?sideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses ; (2) the presumption of innocence? in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial ; (3) the right of the accused to the benefit of any doubt ; and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a judge who had the advantage of seeing the witnesses. To state this, however, is only to say that the High Court in its conduct of the appeal should and will act in accordance with rules and principles well known and recognised in the administration of justice". In view of the findings recorded by the learned Judicial Commissioner, which clearly express doubts of which the benefit` could not be denied to the accused; the order for retrial grave ly1B prejudices the accused and cannot be sustained. I would, I accordingly, accept this appeal, set aside the order of retrial) passed by the learned judicial Commissioner, and restore the order of the Magistrate acquitting the appellant. A. S. M. AKRAM, J.--‑I agree. A. R. CORNELIUS, J.--‑I agree. A. H???????????????????????????????????????????????????????????????????????????????????????????????????? Appeal accepted.