P L D 1963 (W (PLP)

Date of hearing: 8th July 1963. This is a petition for revision in respect of an acquittal ordered in an appeal.

2. Two cross‑cases arising out of an incident over the turn of water were registered. The learned Magistrate who tried the two cases came to the conclusion that neither party had the right of private defence and convicted both. On appeal the learned Sessions Judge held that the respondents to this petition had the right of private defence and acquitted them. The correctness of that acquittal is questioned by this petition. He dismissed the appeal of the petitioners as accused persons in the cross case. A revision petition against that order (dismissing the appeal of the petitioners against their conviction and sentence) has already been admitted.

3. The learned counsel contends that since the other petition has been admitted, it is expedient in the interest of justice that this petition against the acquittal of the respondents should also be admitted to be heard along with the petition already admitted to a hearing. He points out that a finding whether there was or was not a right of private defence accruing to one party would affect both cases equally. According to the learned counsel, the finding of the learned Sessions Judge that the respondents to this petition were in possession of the disputed property is based upon certain revenue entries which are not correct. The learned counsel says that there is an unreported case of the Supreme Court (Petition for Special Leave to Appeal No. 15 of 1963 Barkat Ali v. The State and others), in which in circumstances similar to those existing in this case, the right of private defence was held to accrue to the party in a situation corresponding to the one in which his clients were. He asks for time to produce a copy of that judgment.

4. Without going into the question whether the contentions of the learned counsel as to which party, if any, had the right of private defence, are prima facie sound or not, I think this petition ought to be dismissed. Even if the acquittal in this case is not right, an acquittal has a sanctity which in the system of jurisprudence we are following, is not lightly to be disturbed. The original rule from which our law is derived is that it is not to be disturbed at all. Our law creates an exception to that rule and gives to the State‑not to a private party‑the right to appeal against an acquittal. While granting that right of appeal, our law has placed certain checks on it. That right‑namely, the right of appeal against acquittal is to be exercised at the highest level of responsibility. It is not, to be exercised unless the Chief Executive of the Province sanctions it, and it is not to be adjudicated upon except by the highest Court in the Province. This is the extent to which an inroad into the principle of the sanctity of an acquittal is permitted. In all other cases, a specific limitation has been put in, debarring the Court from con verting an acquittal into a conviction.

5. In spite of this, it is contended that the meaning of the provision is that what the law forbids to be done except by way of an appeal against acquittal, may nevertheless be done other wise than by that way, by first setting aside an acquittal in revision and then directing or permitting a re‑trial. It is correct that there is no express bar against the setting aside of an order of acquittal, the only bar being against converting a finding of acquittal into one of conviction. But nothing is achieved by setting aside the acquittal, unless it is contemplated that a fresh trial be held and a fresh finding be recorded. Now, the only justification for a fresh trial could be that on the previous occa sion the trial was either illegal, or in its mode there was a defect which occasioned a miscarriage of justice. If the trial on the previous occasion was neither illegal nor conducted with material irregularity, there would be no occasion and there would be no justification for holding a fresh trial on the same charges. (Of course, if the re‑trial is to be for offences that were never t put into the charge. the case would be different). If, therefore, the High Court, on examining the record of a case under section 439, is of the opinion that the trial was not defective in any manner, but that upon the trial as held, a finding of acquittal was wrongly given, and that if it had the power, it would convert that finding, on the basis of that very record, into one of conviction, but not having the power to convert a finding of acquittal into one of conviction, it would set aside the acquittal and either direct a re‑trial, or leave it to the prosecuting agency to prosecute again, a question arises which needs to be examined carefully. Is it right to order or to permit a re‑trial, when there was nothing wrong with the previous trial? Is not the object of the re‑trial in such a case only to enable the Court to correct what it regards as an error of judgment in respect of a matter in which the law forbids the Court from correcting errors of judgment? Does it then not amount to an attempt to achieve indirectly, as a requirement of justice, what, for reasons of public policy, is forbidden as a requirement of law?

6. It seems to me that it is not the intention of the law that a trial be set aside unless there is a defect in the mode of the trial which makes it necessary to set it aside. It does not appear to me to be justifiable that a perfectly good trial should be set aside, if a Sessions Judge in appeal, or the trial Court itself, came to what the High Court regards a wrong conclusion. And unless the earlier trial is regarded as having been set aside, there is no room for a fresh trial. Technically it may be permissible to regard the whole process of a trial as non‑existent once its final conclusion is set aside, but, in substance, there hardly seems any reason for doing so. I am of the opinion that a re‑trial is to be held only where there is a defect in the previous trial. It is not to be held merely to enable the Court to correct what is regarded as a wrong finding.

7. It may seem anomalous in respect of a mutual fight, that one party may be acquitted in one Court on the ground that it had the right of private defence, and the opposite party may be acquitted in appeal or revision on the ground that that party had the right of private defence. But human systems are p never perfect. Some imperfections are inevitable. That inconsistent findings in separate cases might have to be given effect to side by side, is a consequence that has to be suffered as a. necessary corollary from treating each charge against each indi vidual as a separate case to be decided independently a requirement, the benefits of which far outweigh any minor disadvantages. This petition is dismissed. A. H. Petition dismissed.