P L D 1969 Supreme Court 147 (PLP)

ABDUS SATTAR, J.‑

This appeal by special leave is directed against an order of the High Court of West Pakistan, refusing to interfere in the exercise of its revisional jurisdiction with the acquittal of Nasir Hussain respondent of a charge under section 302, P. P. C , by the Sessions Judge, Gujranwala. The prosecution case was that about two months before the date of occurrence, the respondent Nasir Hussain had a quarrel with the deceased Muhammad Tufail at the Bus‑stand of Government Transport, situated on the G. T. Road, Wazirabad when the respondent forcibly picked up some ground‑nuts from the rehri of Muhammad Tufail deceased They grappled with each other but P. W. 9 Abid Hussain and P. W.

1. Mehrajuddin separated them. It is said that the accused left the spot threatening the deceased with dire consequences. On the 8th April 1963, at about 8‑30 p.m. the deceased was passing in front of the douse of the respondent when the latter stabbed the former with a knife in the abdomen. P. W. 7 Muhammad Ramzan, the first cousin of the deceased and P. W. 8 Muhammad Azim witnessed the occurrence. The deceased was taken to his house by Muhammad Ramzan and Muhammad Azim. All the three informed P. W. 12 Inayat Ullah, the father of the deceased that he had been injured by Nasir Hussain. Since the condition of the injured began to deteriorate he was taken to the Civil Hospital Wazirabad, by his father, Muhammad Ramzan and Muhammad Azim. He was placed in the care of the doctor‑in‑charge of the Hospital. Muhammad Ramzan then went to the police station and lodged the First Information Report. The S. H. O. after recording the First Information Report reached the Hospital, at 11‑20 p.m. The respondent Nasir Hussain was arrested on the 17th April 1963, by P. W. 14 Choudhury Muhammad Iqbal. On search of his person, a knife (P. 3) was recovered. Nasir Hussain pleaded not guilty and on being questioned by the learned Sessions Judge as to why he had been implicated in the case, said: "the deceased had enmity against my father who has got a hotel. The deceased used to station his rehri in front of that hotel and my father had prevented him from doing so and entertained grudge against him" the defence case further was that the occurrence had taken place in the darkness of the night and the deceased had received injuries at the hands of some unknown person and the alleged eye‑witnesses were not present at the spot. The prosecution relied upon the following pieces of evidence :‑ (i) Ocular evidence given by Muhammad Ramzan and Muhammad Azim, P. Ws. (ii) 3 dying declarations one allegedly made by the deceased before his father, which was not recorded and one before Sub‑Inspector of Police and another before the Naib Tehsildar, P. W. 6, Raja Sultan Alam both of which were recorded. (iii) Recovery of knife from the respondent, and (iv) Evidence of motive furnished by P. W. 9 Abid Hussain and P. W. 10 Mehrajuddin. The learned Sessions Judge felt that it was not safe to rely on the dying declarations alleged to have been made by the deceased. He did not give any importance to the recovery of the knife from the possession of the accused as it was not stained with blood. The eye‑witnesses were disbelieved because of their relationship with the deceased and in view of some discrepancies in their evidence. The evidence furnished by p. W. 9 Abid Hussain and P. W. 10 Meharajuddin was also discarded. In this view of the matter be acquitted the accused. The present appellant filed a revision petition which was dismissed by a learned Single Judge of the High Court of West Pakistan as according to him the finding of the learned Sessions Judge that the accused respondent was not guilty of the offence of murder Was trot manifestly perverse. Leave to appeal was granted as it was felt that the case required further consideration. Before we proceed to consider the merits of this case it is necessary to decide a point which was raised at the out‑set of the hearing of this appeal and is of general importance. It has already been noticed that this appeal is directed against an order of the High Court refusing to interfere in exer cise of its revisional jurisdiction with an order of acquittal passed by tote trial Court. Under section 439, Cr. P. L. the High Court has the power to set aside an order of acquittal but it cannot convert a finding of acquittal into one of conviction. On setting aside an order of acquittal the High Court can only direct a retrial. The question that falls for determination is what are the powers of this Court in a case in which it is found that the High Court has not correctly exercised its jurisdiction under section 439, Cr. P. C. in refusing to interfere with an order of acquittal. Before we proceed to examine this question further it may be pointed out that in the case of Abdur Rashid Khondkar v. Chandu Matbar and 15 others (P L D 1964 S C 795), this Court has pointed out what should be the proper line of approach of a High Court in a case of the present nature. It has been observed :‑ "For the correct exercise of the reversionary 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 con clusion. An estimate regarding the probabilities, in relation to the allegations of facts forms a necessary step in arriving at such a conclusion." In the present case the learned Single Judge in dismissing the revision petition has only pointed out the grounds given by the learned Sessions Judge in disbelieving some of the items of prosecution evidence. He has, thereafter observed that in view of the same, the finding of the learned Sessions Judge that the accused‑respondent was not guilty of the offence of murder is not manifestly perverse. The powers of this Court to entertain appeals are con tained in Article 58 of the Constitution. The Article reads as follows :‑ "58.‑(1) Subject to this Article, the Supreme Court shall have jurisdiction to hear and determine appeals from judgments, decrees, orders of sentences of a High Court. (2) An appeal to the Supreme Court from a Judgment, decree, order or sentence of a High Court shall lie as of right where‑ (a) The High Court certifies that the case involves a sub stantial question of law as to the interpretation of this Constitution; (b) the High Court has sentenced a person to death or to transportation for life ; or (c) the High Court has imposed punishment on a person in pursuance of the power conferred on the Court by Article 123. (3) An appeal to the Supreme Court from a Judgment decree, order or sentence of a High Court in a case to which clause (2) of this Article does not apply shall lie only if the Supreme Court grants leave to appeal." It is worthy of note that this Court hears and determines appeals from judgments, decrees, orders of sentence of a High Court only. In this respect the provisions of Article 58 of the present Constitution are different from the provisions of Article 160 of the late Constitution which empowered this Court to grant special, leave to appeal from any judgment, decree, order or sentence of any Court or Tribunal in Pakistan other than the; Court or Tribunal constituted by or under any law relating to the Armed Forces. With reference to these provisions, this Court in the case of Sultan Ahan v. Taj Din and 9 others (P L D 1963 S C 97), observed :‑ With regard to the five accused who were acquitted by the learned trial Judge, it is enough to say that the State did not challenge their acquittal by an appeal in the High Court. Only a private revision was preferred in that Court against their acquittal, which was dismissed. The High Court could have at best ordered a retrial of those accused, if it came to the conclusion that there were prima facie grounds for thinking that they had participated in the murder. In this appeal, at best, a similar order could have been passed by us. But in view of the fact that we have now considered the whole evidence in the case and recorded certain findings, a retrial would assume a prejudicial aspect, so far as these accused are concerned. We would, therefore, be extremely reluctant to order their retrial. The underlining is by us. The learned counsel for the appellant argued that in view of Article 61 of the Constitution, the power of this Court cannot be said to be the same as the power of the High Court because of subsection (4) of section 439, Cr. P. C. It %as urged that as this Court has been empowered by this Article "to issue such directions, orders or decrees as may be necessary for doing complete justice" the power of this Court cannot be said to be circumscribed to the extent of ordering a retrial only. According to the learned counsel if this Court comes to a finding that the acquittal of the respondent was wholly unjustified and the High Court failed to exercise its revisional jurisdiction properly, this Court has ample power to convict the respondent. Clause (1) of Article 61 which is relevant is in the following terms :‑ "61‑(1) The Supreme Court shall have power to issue such directions, orders of decrees as may be necessary for doing com plete justice in any cause or matter pending before it including *[Here in italics] an order for the purpose of securing the attendance of any person or the discovery or production of any docu ment." The words of this clause are undoubtedly of the widest amplitude and empower this Court to make any order as may be necessary for doing complete justice in a case before it. Article 58 has conferred appellate juris diction upon this Court against decisions of the High Court. In exercise of this jurisdiction, the Court can either uphold, modify or set aside such decisions. In order to do that the Court can under Article 61 take such steps as is considered necessary but this does not mean that this Court in disposing of an appeal from the decision of a High Court can do more than what the High Court is empowered under the law to do. We are, therefore, of the view that even if we come to the conclusion that the revisional application preferred by the appellant was wrongly dismissed and in ordering acquittal the trial Court did not follow the usual principle for assessment of evidence the only course left open for us to adopt is to order a retrial of the respondent. We cannot do more than what the High Court could do. The learned counsel for the appellant took us through the evi dence in this case and also drew our attention to the reasons given by the learned Sessions Judge for not accepting the prosecution evidence. The learned Sessions Judge found that there was no reasonable explanation for lodging the First Information Report after about 2J hours of the time of occurrence. In disbelieving the eye‑witnesses the learned Judge took into account a number of circumstances, some of which are :‑ (a) No blood had been found at the alleged place of occur rence and there was no trial of blood from there to the house of the deceased. (b) There was no evidence that there was any light at the place of occurrence. (c) The inmates of the neighbouring houses were not examined. (d) The eye‑witnesses are related to the deceased, and (e) there were discrepancies in their evidence. The first dying declaration alleged to have been made before P. W. 12 Inayat Ullah, the father of the deceased was not accepted because his evidence was not fully consistent with his statement before the police. The dying declaration recorded by the Sub‑Inspector was rejected as it contained no certificate of the doctor that the deceased was in a fit condition at the time when it was made. The last dying declaration was rejected as some discrepancies and omissions were found in the same compared with the dying declaration recorded by the Sub‑Inspector and the oral evidence. It was further observed that this dying declara tion was recorded 5 days after the First Information Report in which the name of the accused was mentioned was lodged. The recovery of the knife was not given any importance as it was found not to be stained with human blood. The evidence of motive was discarded as there were discrepancies in the evidence of the two witnesses and P. W. to Mehrajuddin had trade relation with P. W. 7 Muhammad Ramzan, a close relation of the deceased. In the case of Abdul Majid v. Superintendent and Rememb rancer of Legal Affairs, Government of East Pakistan (P L D 1964 S C 422) this Court observed :‑ "In setting aside an acquittal in a case which rested wholly on direct evidence of witnesses, as much importance must be given as in any other case, to the rule which runs through the criminal jurisprudence of our country as a golden thread that the benefit of every doubt must go to the accused person. In this case, the Judge of the trial Court had canvassed in his judgment in a considerable number of features which went to create doubt regarding the testimony of each of the aforesaid witnesses, a doubt which was clearly shared and expressly declared by the assessors. As was remarked by the Judicial Committee in the case of Sheo Swarup and others 1943 1 A. 398 the fact of the acquittal by the trial Court certainly does not operate to diminish the substantial nature of such doubts or of the benefit to the accused person which must necessarily follow." In the present case also the four assessors, with whose aid the trial was held were unanimously of the opinion that the accused was not guilty. It is true that some of the reasons given by the learned Sessions Judge for discarding the evidence of P. Ws. 7 and 8 and the dying declarations are uncon vincing. He has attached undue importance to minor omissions in statements before the police and in the committal Court. Omission amount to contradictions when they are on vital points. There has been a clear failure to distinguish between major and minor discrepancies. Notwithstanding all this we do not think any useful purpose will be served in this case at this stage by ordering a retrial particularly when the learned counsel for the State did not support such a course. The appeal, therefore, is dismissed. K. B. A. Appeal dismissed.