P L D 1969 Azad J & K 12 (PLP)

MUHAMMAD SHARIF, A. C. J.

‑ The facts giving to this appeal are that Mst. Rashem Bibi brought a complaint in the Court of the A. D. M., Rawalakot, on 2‑6‑64, against Muhammad Ashraf Khan and Muhammad Afzal Khan, her step sons, for offences under sections 452 and 392, A. P. C. The complainant besides herself examined 4 other witnesses. The learned A. D. M. by his order dated 26‑11‑66, dismissed the complaint and acquitted the accused. The complainant came up in revision before this Court against the order of acquittal and a learned Single Judge by his order dated 30‑6‑67 set aside the acquittal order and remanded the case to the trial Court with the direction that the case may be re‑heard from the beginning. It is against this order of the, learned Single Judge that the accused have now come up in appeal before the Division Bench. The learned Single Judge remarked in his revisional order under appeal that the acquittal order does not conform to the provisions of section 367, Cr. P. C. which requires, inter alia, that it shall contain points for determination, the decision thereon and reasons for the decision, and then the learned Single Judge went on to record ingredients of offence under section 452, Cr. P. C. in Court. Further on it was remarked by the learned Single Judge that there is no deter mination on the point of the possession of the house, whether it was in the possession of the complainant or not and if it was in the possession of the complainant, how she has failed to prove ingredients of the offence of which the accused were charged. It was also remarked by the learned Single Judge that the trial Magistrate had failed to examine the prosecution evidence in a judicial manner and that he had failed to consider and weigh the evidence of all the prosecution witnesses. It was argued by the learned counsel for the accused‑appel lant that if a judgment does not conform to the provisions of section 367, Cr. P. C., an order directing the trial Court to re‑write the judgment should be passed but that an order direct ing re‑hearing the case from the beginning is not warranted by law. The learned counsel has no quarrel with the order of re‑trial but he stresses that re‑trial from the beginning should not be ordered because that would amount to allowing the prosecution to fill in the lacuna in their evidence, We have heard Mr. Said Muhammad Khan learned counsel for the complainant. He has no grievance that his evidence was not recorded. He has cited a number of authori ties, i.e. Janab Gul v. Aslam Khan (P L D 1965 Pesh. 193), Anwar and another v. The Crown (P L D 1955 F C 185) and Abdur Rashid and others v. The State and others (P L D 1962 S C 249), which lay down when re‑trial should be ordered and when re‑trial should not be ordered, and what is bias in a Judge or Magistrate and what is not bias. It was laid down in P L D 1965 Pesh. 193 that "the High Court has power to reverse finding and order re‑trial if conclusions arrived at by the trial Court are not justifiable and result in miscarriage of justice". There is no dispute with the correctness of the order of re‑trial because the judgment of the trial Magistrate did not conform to the provisions of section 367, Cr. P. C. The only dispute is what should be the form of re‑trial in this particular case before us. If the order of acquittal is based on an incomplete record then of course re‑trial would an the taking of additional evidence and deciding the case afresh on the evidence already on record as also the evidence recorded after the order, of remand, but where the acquittal order is based on a complete record, re‑trial would mean reconsideration of the evidence already on record and giving a fresh judgment. It is not the complainant's case that her evidence was shut out. So the acquittal order in the case before us is based on a complete record. Therefore, in our opinion, re‑trial should have been ordered but not a de novo trial. We accept the appeal and amend the order of the learned Single Judge to mean that the case shall be re‑tried by the learned A. D. M. which means that he shall weigh the evidence already on record afresh and give a fresh judgment, but he shall not try the accused de novo. There is no procedural defect in the trial, therefore, de novo trial cannot be ordered. Fortunately the learned Magistrate who passed the order of acquittal has been transferred and the new incumbent shall be free to apply a fresh and unbiased mind in the appraisal of the evidence already on record. The learned Single Judge did not mean to express any opinion one way or the other and he should not be misunderstood to have formed any particular opinion on the evidence on record. The learned trial Magistrate shall be free to form any conclusions of the evidence but he should apply his mind to the statements of all the witnesses and write a judgment in conformity with the provisions of section 367, Cr. P. C. A. E. Appeal accepted.