P L D 1961 (W (PLP)

11. As already stated, Mst. Saidan (P. W. 5), Haq Nawaz (P. W. 6) and his brother Allah Dad (P. W. 7) are the only eye‑witnesses of this occurrence. Haq Nawaz (P. W. 6) in course of his deposition during this trial, stated to the effect that at about 6 'p.m. on the day of the occurrence, while grazing his cattle near‑by, he heard an alarm, went to the scene of offence and found Walia and Saidan lying injured and many persons collected around them. He did not 'say that he had witnessed the occurrence or had been informed by anyone how and by whom Walia and Saidan had been attacked and injured. It may, however, be noted here that in course of his statement before the committing Magistrate he had stated to the effect that Mst. Saidan, who had an injury on her left shoulder, and Allah Dad had informed him that Saidan and Walia had been beaten by Nadir, Bahadur, Goman and Mughla. He did not, however, make any such statement in course of this trial. As a, matter of fact, he even resiled from what he had stated on this Point before the committing Magistrate. Therefore, stated regarding this point, as referred to above, was the record in course of his cross‑examination, on treated as a hostile witness. It may, however, be further that he had, in course of his examination committing Magistrate, clearly stated at the same time that he had not found Nadir, Bahadur, Goman and Mughla scene of offence armed with sticks and ghandhali; not seen them running away from that place.

12. Allah Dad (P. W. 7) in course of his statement before the trial Court stated to the effect that he had heard an alarm while he was close to the tobacco field of Walia and had arrived at the scene of offence and seen him giving stick blows to appellant Bahadur. According to him, Nadir brother of Babadur their father Suba, Nura and Ghafoora, sons of Mst. Bibi sister, of Walia, were also there. On making this statement, at the request of the A. P. P. Allah Dad was treated to be a hostile witness and allowed to be cross‑examined and his statement recorded by the committing Magistrate was brought or) the record. In course of his examination before the committing Magistrate, he stated as follows :‑ Next day at 5 p.m. I was present in my land. I heard some noise at Sadan's well. I betook myself there. Nadir, Bahadur, Goman and Moghla accused were present there. Bahadur armed with sticks. Nadir and Sadan grappled with each other. Goman gave him a dang blow on the head. Sadan fell down. Waha deceased arrived from his behak and Mst. Saidan arrived with him. Mst. Saidan was hit by Nadir on her shoulder as she was making a hue and cry Bahadur accused struck his gandhali on the head of Walia and Moghla grappled with the deceased. Walia too fell to the ground and Waryam Lambardar and others arrived at the spot. It would be noticed that is version quoted above is almost the same as given out by Mst. Saidan in course of the present trial.

13. Mst. Saidan, as already pointed out, is wife of Walia and mother of Saidan. She was going to their behak in order to fetch milk and following Sadan at the time when he was attacked by the appellants, party. As a matter of fact she had gone so far as to try to protect her son Saidan from the hand of his assailants and in doing so bad received a minor injury. In course of her medical examination during the investigation such an injury was actually found on her person. Therefore, there could hardly be any doubt about her presence at the scene of offence. Even otherwise it was quite probable that she had witnessed the occurrence under consideration, as both her house and her hehak were not far from the scene of offence. It is quite likely, as she has stated, she was following Sadan who was going to the behak for the purpose of milking their cattle.

14. Both Haq Nawaz and his brother Allah Dad, as already explained, have not supported the prosecution case in course of their examination during this trial. They have resiled from their statements made before the committing Magistrate. In course of these statements, which have been brought on the record, during their cross‑examination on being treated as hostile witnesses they had supported the prosecution case in one form or the other. Haq Nawaz had, no doubt, only gone to the extent of saying before the committing Magistrate that on his arrival at the scene of offence he had noticed Walia and Siadan lying injured and that Mst. Saidan, who had herself received an injury, bad informed him how they had been attacked and injured by the appellants and Nadir and Mughla. He did not, even .on that occasion, it may be noted here, go so far as to say that he had, as suggested by the prosecution, actually witnessed the occurrence and seen the appellants and Nadir and Mughla attacking and injuring them, but his brother Allah Dad had given out in his statement before the committing Magis trate that he had actually seen the appellants and Nadir and Mughla attacking Walia and Saidan and causing them injuries. Whatever he stated before the committing Magistrate on this point was apparently true, as it was almost the same as given out by Mst. Saidan. She had no reason to implicate either of the two appellants falsely in this case, particularly when there was no previous enmity between the two families. Her version throughout appears to be reasonable and probable and could safely be accepted against both the appellants, supported as it is to a considerable extent by the evidence of Haq Nawaz and Allah Dad before the committing Magistrate.

15. In view of these considerations, we have come to the conclusion that the prosecution evidence in this case could be said to warrant the convictions of both the appellants.

16. It is, however, contended by Sh. Maqbul Ahmad on behalf of the appellant Goman that his conviction for an offence of murder punishable under section 302, P. P. C., in this case could not possibly be maintained, as he had already been acquitted of the same in course of the first trial. In connection with the consideration of this contention, our attention has been drawn particularly to the cases noted and explained hereafter one of these cases is Lala and others v. Emperor (A I R 1933 All. 941). In this case, five persons were charged with and tried for offences punish able under sections 333, 225, 323, 325 and 147, I. P. C. The charge under section 147,

1. P. C. was triable with the aid of assessors while the other charges were triable with the help of jurors. In due course the jurors returned the unanimous verdict of not guilty, but the same persons working as assessors were of the opinion that three of the accused, i.e., the three persons who went in revision to the High Court, were present at the time of the attack and were thus guilty of the offence of rioting. They expressed, however, a doubt about the presence of the remaining two accused on the said occasion. The Assistant Sessions Judge who tried the case was of the opinion that as only three persons had been proved to have, taken part in this rioting, the charge under section 147, I. P. C., could not be maintained and he, therefore, acquitted them also of the said charge. On the other band, the jurors returned the unanimous verdict of guilty against the said three persons in regard to the charges under sections 323 and

325. The Assistant Sessions Judge thereupon agreeing with the verdict of the jury convicted them of the said two charges and sentenced them to various terms of imprisonment. The three persons who had been thus convicted and sentenced appealed against their convictions T for offences punishable under sections 323 and 325,

1. P. C. The Sessions Judge who heard this appeal ordered a retrial. Govern ment, however, did not file any appeal against their acquittal for offences punishable under sections 333 and 325 they had ordinarily been charged with along with others. Against this order of retrial the three accused persons filed an application in revision in the High Court. This application was dismissed. So was another filed later on. When the case went back to him the Assistant Sessions Judge framed charges under sections 333 and 225, I. P. C. against the three accused, and ultimately convicted and sentenced them for the same. The Sessions Judge on appeal maintained their convictions and sentences. Thereupon, they went to the High Court again in revision.

17. In view of this position, it was held that "the appellate Court Judge could order retrial only of the charges on which the accused were convicted and against which appeal was filed, and that the lower Court Judge was not justified in framing charges and convicting them under sections of which offence they had already been acquitted."

18. Another case which has a bearing is Krishena Dhan Mandal and others v. Queen‑Empress (I L R 22 Ca1. 377). In this case, six accused were charged with having been jointly concerned in a riot in the course of which one Mahabir was killed in prosecution of the alleged common object of the unlawful assembly. Therefore, all of them were tried by the Sessions Court of the Twenty‑four Parganas for offences punishable under sections 302 and 325, I. P. C., read with section 149, I. P. C. They were, however, convicted only of an offence punishable under section 303 read with section 149 and acquitted of the offence punishable under sec tion 325 read with section 149,

1. P. C. The accused appealed to the High Court against these convictions and sentences. Their convictions and sentences were set aside by the High Court on the ground of misdirection of the jury by the Judge and the accused were ordered to be retried.

19. On this occasion they were charged with offences punishable under sections 148 and 304 read with section 149, I. P. C. They were, however, convicted only of an offence punishable under section 304 read with section 149, I. P. C., and sentenced to ten years' rigorous imprisonment. They again appealed to the High Court against their conviction and sentence urging that having been tried and acquitted of murder in the first trial they could not be convicted of culpable homicide not amounting to murder in the second trial and that their conviction was again vitiated by misdirection of the jury. It was on the strength of these facts that the counsel for the appellant inter alia contended as follows :‑ (1) As a matter of law this Court could not have interfered with the acquittal of the accused on the charge of murder, there having been no appeal by the Local Government, as provided by section 417 of the Code of Criminal Procedure. (2) The previous acquittal of the accused on the charge of murder is by section 403 of the Code of Criminal Procedure is a bar to the trial and conviction for a culpable homicide not amounting to murder. The first point raised by the counsel for the appellants was discussed by the learned Judges in the following words :‑ "With reference to the first point raised in this contention, it is clear from sections 404 to 417 of the Code of Criminal Procedure, that where a person is tried on one charge only and is acquitted on it, or is tried on several charges and is acquitted on them, the acquittal cannot in any way be inter fered with, except upon appeal by the Local Government, but the matter is not equally clear, when an accused person is tried on several charges, is acquitted on some and convicted on the other, and appeals from the convictions."

20. Further, the provisions of clause (b) of section 423, Criminal Procedure Code, were referred to and it was observed; "In accordance with the said provisions in an appeal from a conviction the appellate Court may set aside the conviction and. sentence and order a 'retrial, or it may alter the finding maintaining or reducing the sentence and it was emphasised that these Pro visions appear to favour the opposite view." In, this connection it was further remarked that "the appellate 'Court has the whole of the evidence before it, and if it can order 'a retrial, or alter the finding on the appeal of the accused, why may, it not order a retrial on the charge on which the first Court acquitted the accused, or find the accused guilty on the charge on which he was acquitted by the first Court."

21. After considering the provisions of section 423 of the h Criminal Procedure Code in some detail, the learned Judges held as follows :‑ "Where an accused person is charged with and tried for various offences arising out of a single act, or series of acts, it being doubtful which of those offences the act or acts constitute; and where he has been acquitted by vie verdict of a jury of some of such offences and convicted of others and appealed against such conviction, and where the appellate Court reverses the verdict of the jury, and orders his retrial without any express limitation as to the charges upon which such trial is to be held, such retrial must be taken to be upon all the charges as originally framed, and the acquittal by the jury on the previous trial upon some of such charges is no bar to the accused being tried on them again, as having regard to the provisions of ‑ section 423 of the Criminal Procedure Code, the provisions of section 403 in that respect cannot apply to such cases."

22. The learned Judges on proceeding further and after discussing the powers of the appellate Court under the provisions of section 423, Criminal Procedure Code, clause (b), and refer ring to the provisions of section 236, Criminal Procedure Code, came to the conclusion that "when an act or a series of acts of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, an appeal from a con viction or for any of such offences must lay the whole case open to the interference of the appellate Court notwithstanding any order of acquittal by the first Court in regard to any of the other offences. The interference of the appellate Court in such a case, according to them, is directed primarily not against the acquittal but against the conviction which is called in question by the accused, though if the interference is to be rational and complete, the appellate Court must deal with the whole case," In this connection they went further and made the position clearer by observing as follows: "We wish it to be distinctly understood that what we have said above is intended to apply only to those cases which are contemplated by section 236, of the Criminal Procedure Code and in which the accused is charged with different offences arising out of a single act or a series of acts, it being doubtful which of those offences the act or acts constitute, and the accused is convicted by the first Court of one of these and acquitted of the others. Where an accused person is charged at one trial with distinct offences constituted by distinct acts, such as the causing of death to A and of grievous hurt to B, or the forgery of document A and that of document B and he is acquitted of one of these offences and convicted of the other a different principle would, we think, apply From what has been said above it would follow that former acquittal is no longer in force having in fact been set aside by the order for retrial made by this Court on the appeal of the accused."

23. The next case referred to in this connection is Nazim- ud‑Din v. Emperor (I L R 40 Ca1. 163). In this case it was alleged that one Nazim‑ud‑Din pleaded self‑defence saying that he himself was in possession of the disputed land and had been attacked by Ahmad. Nazim‑ud‑Din was, however, convicted only of an offence punishable under section 147, I. P. C., and sentenced to suffer rigorous imprisonment for two years. Against this con viction and sentence Nazim‑ud‑Din went in appeal to the High Court. The learned Judges in the High Court set aside his con viction and sentence and ordered his retrial. While doing so, they observed as follows :‑ "When a conviction is set aside and a retrial ordered, it is settled law that the whole case is re‑opened and the accused must be tried again on all the charges originally framed and having regard to the provisions of section 423 of the Criminal Procedure Code, the provisions of section 403 in that respect cannot apply." This ruling was mainly based on that given in Krishana Dhan Mandal v. Queen‑Empress and has been referred to by the learned Judges in course of their observations.

24. Another case referred to is this connection is Manji Jairam Bhate v. Kalekhan and others (A I R 1929 Nag. 161). In this case, eleven persons were tried for offences punishable under sections 147 and 379,

1. P. C. Five of them were acquitted, while the remaining six were convicted by the trial Magistrate. In course of their appeal against their convictions and sentences it was held that the trial Magistrate had no jurisdiction and the whole trial was void. Thereupon, a retrial before a competent Court was ordered. On the occasion of the second trial, the complainant requested the trial Court to issue process even against the five accused who had been acquitted at the original trial. The trial Magistrate, however, refused to do so. Thereupon, the complainant filed a fresh complaint against the five accused who had been acquitted in the first trial adding one more person as an accused. This complaint was summarily rejected by the trial Court on the ground that the acquittal of the persons named in the complaint had not been set aside. Therefore, they should not be tried again.

25. It was in view of these faces held that "as the trial was without jurisdiction and void, the acquittal of the non- applicants was void." It was held further in this connection that `a person acquitted or convicted of any offence may, notwithstanding such acquittal or conviction, be subsequently charged with and tried for any other offence which he must have committed, if the Court by which he was first tried was not competent to try the offence with which he is subsequently charged." Obviously this ruling does not apply to the present case, because it is not denied that the Court that origi nally tried and acquitted appellant Gorrian of the offence of murder punishable under section 302, P. P. C., was competent to do so.

26. The next case that has been referred to by the State counsel is Kishan Singh v. Emperor (A I R 1928 P C 254). In this case, the accused concerned was charged with the offence of murder punish able under section 302 and tried by the Court of Sessions of the same. He was however, convicted of an offence punishable under section 304 and sentenced to a certain term of imprison ment Government‑applied to the High Court in revision against his conviction and sentence. The High Court, after considering the evidence in the case, came to the conclusion that there had been a miscarriage of justice in the trial Court and, therefore, accepting the revision application, altered the accused's conviction to one under section 302, P. P. C. and sentenced him to death. Against this conviction and sentence the accused appealed to the Privy Council.

27. In view of the position explained above, it was held that "the accused must be deemed to be acquitted in the Sessions Court of the charge of murder and that the order ‑ of the High Court resulted in altering a finding of acquittal into one of con viction was, therefore, without jurisdiction." This ruling obviously helps us in solving the present problem, because the question before us also is whether appellant Goman who had been acquitted of the offence of murder punishable under section 302, P. P. in the first trial could be charged with, tried for and convicted of the same in the second trial by the trial Court.

28. Another case referred to on this point is Azam Ali v. Emperor (A I R 1929 All. 710). In this case it was held that "section 403, Criminal Procedure Code, forbids a retrial only where a person has been convicted or acquitted and such conviction or equittal remains in force. When the conviction is set aside and no longer in force and no acquittal also is in force, a retrial can be ordered." This ruling clearly supports the view taken by the learned counsel for the appellant in this case, as Goman, whose acquittal on the charge of murder in course of his first trial had not been set aside, was still in force and, therefore, he could not be convicted of the same in course of his second trial.

29. The last case referred to by the learned counsel for the State in this connection is Indar Kumar Nath v. The State (A I R 1954 Cal. 375). In this case Indar Kumar Nath was tried by the Assistant Sessions Judge, Krishna Nagar, with the aid of jury on a charge under section 304, Penal Code. He was, however, acquitted of the same and convicted of an offence punishable under section 325, Penal Code and sentenced to suffer rigorous imprisonment for three months. He appealed to the Sessions Judge against this conviction and sentence, and the Sessions Judge passed the following order : ‑ "In the result the appeal is allowed. The verdict of the jury and the conviction and sentence which followed thereon are set aside. I direct that the appellant be retried according to law by the learned Assistant Judge, Nadia." In accordance with the decision, the case was sent back to the said Assistant Judge who commenced further retrial of the appellant. The Assistant Sessions Judge framed a charge under section 304, Penal Code, against him and started his trial on the same with the help of a Jury. At this stage an application under section 526, Criminal Procedure Code, was filed before the Assistant Sessions Judge in connection with the transfer of the case. His trial was thereupon stayed so as to give an opportunity to the appellant to move the High Court in the matter. Thereafter, an application for the transfer of his case was made to the Sessions Judge; Nadia to his own file from that of the Assistant Sessions Judge. The Sessions Judge refused to do so. Thereupon, he went in revision to the High Court requesting that his case should be transferred as applied by him from the Court of the Assistant Sessions Judge to that of the Court of Sessions Judge, Nadia, praying at the same time that the charge framed against him for an offence punishable under section 304 should be quashed. Mitter, J. and Son, J., while dealing with this revision application, agreed that there was no case made out for transfer of the petitioner's case 'from the Court of the Assistant Sessions Judge, to that of the Sessions Judge, Nadia. They however, disagreed on the question whether the retrial of the petitioner could in law be on a charge under section 304, Penal Code of which he had been acquitted or had to be limited to the offence of which he .had been con victed. So far as this point is concerned, Mitter, J., was bf the opinion on consideration of the actual language of section 423, Criminal Procedure Code, and the pronouncement of the Privy Council in Kishan Singh v. Emperor that retrial could be only for the offence of which the appellant had been convicted. On the other hand; Son, J., considered that retrial could be even on the charges of which the appellant had been acquitted. In view of this difference of opinion the case was referred to K. C. Dass Gupta, J., who, after reviewing several relevant cases and relying on Kishan Singh v. Emperor, and dis agreeing with Sen, J. held that "the retrial of the accused under section 304; Penal Code, cannot take place in law and the learned Sessions Judge in ordering, the retrial must be held not to have ordered for retrial under section 304, Penal Code, and that the retrial should be only on the charge under section 326, Penal Code, of which he was convicted.

30. In the case under our consideration; as already pointed out in the original trial both appellant Bahadur and appellant Goman along with two others were tried of an offence punish able under section 302 read with section 34, P. P. C. 1n all of them, however, acquitted of the same, and only the appellants were convicted of an offence punishable under section 304, Part II, read with section 34, P. P.. C. In his retrial, appellant Bahadur had been convicted as before of an offence punishable under section 304, Part II, while appellant Goman had been convicted of an offence punishable under section 302, P. P. C.

31. Agreeing with the views in Lala and others v. Emperor, Azam Ali v. Emperor and Indar Kumar Nath v. The State and relying on Kishan Singh v. Emperor as already explained, we have been led to the conclusion in the circumstances under consideration in this case that appellant Goman could not, on retrial, legally be tried once again and convicted of the offence punishable under section 302, P. P. C. He had been tried for and acquitted in his original trial of this offence and the order of acquittal passed by a competent Court was in force and the State has not ever appealed against it.

32. In view of this position we partly allow appellant Goman's appeal, setting' aside his conviction and sentence for murder and alter it to one under section 304,. Part II of the Pakistan Penal Code for which we direct that he shall suffer rigorous imprison ment for seven years. As regards Bahadur appellant, we uphold his conviction but reduce his sentence to seven years' imprisonment imprisonment. Criminal Revision No. 498 of 1960 is dismissed. K. B. A. Appeal partly allowed.