P L D 1956 (W (PLP)

MUHAMMAD SHARIF, J.‑This judgment will dispose of an appeal by the defunct Government of Bahawalpur State against the acquittal of seven accused persons, namely, Ismail, Diwaya, Khairu, Allah Bakhsh, Sarwar Shah, Mamdan and Muhammad Ramzan, by the learned Sessions Judge of Rahimyarkhan Division. In brief, the case for the prosecution is that one Balochu, resident of village Goth Amin, who was employed as a post‑peon in the Irrigation Department, was carrying on an illicit intimacy with Mst. Mehran, wife of Ramzan accused. It is alleged that Ramzan accused along with six others, namely, Ismail, Diwaya, Khairu, Allah Bakhsh, Sarwar Shah and Mamdan, assembled at the Mamdanwala well one day before the occurrence and there conspired to kill the deceased when he passed along with the canal post in the morning. It may be mentioned that Balochu deceased used to carry the post daily to Allahabad on a bicycle along the canal service road, which is situated at a short distance from the house of the deceased as also from those of the accused persons. Ali and Jewan (P. Ws. 8 and 9) who got information about the conspiracy hatched by the accused persons, apprised Sardar Mohammad (P. W. 13) ''of it in the presence of Mamdho and Shadu, P. Ws. 11 and 12, respectively. Sardar Mohammad (P. W. 13), however did not realise the importance of the information conveyed to him by Ali and Jewan P. Ws. and failed to impart that information to the deceased person. The next day, that is, on the 13th of February 1953, the deceased started from his house on a bicycle for Allahabad carrying the 'dak' as usual. In the way, he met Kalu (P. W. 14), Mohammad Khan (P. W. 15) Rasul Bakhsh (P. W. 16) and Ghulam Mustafa (P. W. 17), near Gullan Wala well. At that time he had an axe tied to the handle of his bicycle while the post‑bag (Exh. P. 6) was attached to the carrier. He started on a path, which led to the canal service road while the prosecution witnesses proceeded towards Allahabad on a different path, which runs through the fields. They had hardly covered a distance of two acres when they saw the accused Ismail rush out from Dungli Wah and challenge the deceased on the canal service road. In the meantime, Diwaya, Khairu and Allah Bakhsh accused also came out and joined him. Ismail and Diwaya accused were armed with hatchets while Allah Bakhsh had a dang. Khairu accused who was empty‑handed, also managed to secure the hatchet of the deceased, which was tied to the handle of his bicycle. They all attacked the deceased and struck him several blows with their respective weapons and after he had fallen down almost dead,, left the place While, the attack was in progress, the five eye‑witness, mentioned above ran towards the scene of the crime in order to rescue the deceased. Sarwar Shah, Ramzan and Mamdan accused were at that time seen standing at a distance of one acre from the spot under a mango tree and instigating the other accused persons to kill the deceased lest he might be able to give evidence against them. Khairu accused is alleged to have left the hatchet of the deceased on the spot while the other three made off with their respective weapons. Shadu, (P. W. 12), the maternal uncle of the deceased went to Liaqatpur Police Station after gathering the infor mation of the assault from the eye‑witnesses and made the first report (Exh. P. A) with Sayyed Masud Shah, Sub -Inspector (P. W. 18). The Sub‑Inspector reached the scene of occurrence the same day at 1 p. m. and after preparing the necessary state ments sent the dead body of Balochu for host‑mortem exami nation at Allahabad. Dr. S. Q. Qadri, who performed the post‑mortem examina tion, on the deceased's body, found eight injuries on it. Except injury No. 4, which was a contused triangular wound on the left backside of the head, all other injuries had been caused with a sharp‑edged weapon. The injury, which had cut the main vessels of the neck of the deceased, was directly responsible for his death. Four of the accused persons, namely, Khairu, Diwaya, Ismail and Allah Bakhsh, went to the Police Post at Allahabad, which is situated at a distance of three miles from the scene of the crime, and made a report (Exh. P. T.) with the Head Constable Saeed Ahmad (P. W. 6) and, at the same time, produced before him dang (Exh. P, 2) and kulharis (Exhs. P. 3 and P. 4). The Head Constable recorded .the report in the roznamcha on the 13th of February 1953 at 12 noon arid prepared the recovery memos. relating to the weapons produced by the accused persons. After having arrested them under section 54 of the Code of Criminal Procedure, he sent them with the relevant papers and the weapons to Sayyed Masud Shah S. I. the same day. The learned Sessions Judge, Rahimyarkhan Division disbelieving the story of illicit connection of the deceased with the wife of Ramzan accused, the evidence relating to the conspiracy between the seven accused persons to murder the deceased and the ocular evidence pertaining to the actual occurrence, acquitted the accused persons on the 28th of February 1954. The defunct Bahawalpur Government filed an appeal against their acquittal on the 3rd of April 1955 along with an application under section 5 of the Limitation Act for condonation of the delay in filing the same. Before this appeal came up for hearing before the High Court of judicature at Baghdad‑ul‑Jadid, an application by Mehar, the father of Balochu deceased to them had also been forwarded by the Central Government to the High Court for disposal. From the order of the Chief Justice of the now defunct Bahawalpur High Court, dated the 4th of April 1955, it appears that though he left the question of limitation undecided he had issued notices to the respondents to show cause why the appellate and the revisional jurisdiction of the High Court be not exercised. When the appeal came up before us for hearing on the 9th of January 1956, the learned counsel for the Crown did not seriously press for the condonation of delay in filing the appeal but stated that the Court could exercise its revisional powers under sub‑clause (A I R 1932 Sind 211) of section 439 of the Code of Criminal Procedure since the case had come to its notice. He pointed out that as notices to show cause had been issued to the respondents on the revisional side, also this Court was bound to decide the case on merits even though the Crown counsel could not address the Court. The learned counsel for the respondents, on the other hand, contended that this Court could not act on its revisional side to upset an order of acquittal as suggested by the learned counsel for the Crown and that even if it could go into the case on the revisional side it should not exercise that power. The first point to consider in the case therefore is whether the High Court has the power under section 439 (1) Criminal P. C., to upset the order of acquittal on its own motion and order retrial. The learned counsel for the res pondents relied on Tejumal Hassomal v. Emperor (A I R 1914 Sind 139) for his contention that this Court could not exercise its revisional jurisdiction to upset the order of acquittal. In that case one Chandumal had been convicted along with six others under section 17 of the Criminal Law Amendment Act of 1908, and his father had made an appeal to the Court of Session but when it was pointed out that he could not appeal, the appeal was withdrawn. The father then moved the High Court in revision. Relying on subsection (5) of section 439 the High Court dismissed the petition and observed that there was nothing to prevent the son himself from making his application even if he was below the age of 18; but that had not been established in this case. Since the accused had not thought fit to approach either the Sessions judge or the High Court, they did not think that it was a fit case in which they should interfere in exercise of their powers of revision, The learned Judicial Commissioner relied on Jumo v. Emperor (A I R 1914 Sind 139), which is the leading authority on the point in Sind Harbhagwandas Metharam v. Emperor (A I R 1924 Sind 129), Emperor v. Jann Fakir (A I R 1922 Sind 22), Hiranand v. Emperor (A I R 1924 Sind 129), and Nuran v. Emperor (A I R 1925 Sind 206). In Jumo v. Emperor (A I R 1914 Sind 139) the revision petition was sought to be rejected on the ground that the petitioner had not ap proached the District Magistrate in appeal at the first instance and was, therefore, precluded from attacking the order it, revision which really formed part of the order under section 118 of the Code of Criminal Procedure against which an appeal should have been preferred to the District Magistrate. The learned judges while dealing with sub clause (5) of section 439 made the following observations:‑ "No doubt this Court can interfere of its own motion in cases where a person affected is debarred from moving it under section 439 (5), but in this case the Court has not acted of its own motion in calling for the proceedings under section 435, but at the instance of the applicant, and it would be a pure quibble to say that in spite of the provisions of section 439 (5) of the Code the Court could do what applicant wants, of its own motion. This would be a mere evasion of the statute which the Court cannot permit." It is, however, remarkable that after having given a considered opinion against the petitioner the learned judges again proceeded to quash a part of the order of the Sub‑Divisional Magistrate in the end of the judgment. In Harbhagwandas Metharam v. Emperor (A I R 1924 Sind 129), the learned. Judges refused to interfere on their revisional side on the ground that the appeal was time‑barred and that they were expressly forbidden to entertain that appeal as a petition for revision by virtue of the provisions contained in sub-clause (A I R 1925 Sind 206) of section 439, Criminal P. C. The facts of the case have not been clearly stated in the judgment but it appears that the case was already before the Court for enhancement of the sentence and a show‑cause notice had already been issued to the accused person. In Emperor v. Janu Fakir (A I R 1922 Sind 22) District Magistrate Hyderabad referred the case to he High Court with a recommendation that the acquittal of the accused be set aside and a retrial ordered under section 439 of the Code of Criminal Procedure. The learned judges thought that the District Magistrate had moved them as an agent of Government, and as Government could have appealed from accused's acquittal under section 417, they refused to interfere on the ground that their interference was opposed to the provisions of sub -section (5) of section 439, Criminal P. C. In Hiranand v Emperor (A I R 1924 Sind 129), the learned Additional Judi cial Commissioner (Madgavkar) agreeing with Jumo v. Emperor observed that it was the practice of that Court not to interfere in revision when the convicted person had failed to exercise his right of appeal, but did not elaborate the point any further. In the end, however, the same learned Judge went on to remark "But in view of the circumstances referred to above, the sentence may be modified and the accused who has under gone two month' imprisonment in default, set at liberty". In this case, the matter had been unofficially brought to the notice of the Court by an application made by the father of the accused person and the learned judges had issued a notice on the revisional side after going through the record of the case. It is to be noted that though this decision professes to follow Jumo v, Emperor it did not in actual practice act upon that decision and modified the sentence on its revisional side. In Nuran v. Emperor (A I R 1925 Sind 206), the petitioner did not lodge any appeal against the order of the Sub‑Divisional Magistrate, rejecting his sureties, to the Court of Session but moved the High Court in revision. The learned Judicial Commissioners following sumo v. Emperor dismissed the petition on the ground that they were precluded by sub‑clause (5) of section 439, Criminal P. C., from entertaining the revision petition when the petitioner had not filed an appeal at the first instance to the Court of Session. The learned judges, however, did not seem to approve of the decision in Jumo v. Emperor and were of the opinion that the judges in that case went rather beyond the necessity of the case before them in making certain observation: pertaining to the application of sub‑clause (5) of section 439 to the revisional powers of the High Court. The following observations may be reproduced with advantage:‑ It may be some future date be desirable for a Full Bench of this Court to consider whether the learned judges in the case of Jumo v. Emperor did not go rather beyond the necessity of the case before them in making these observations and whether the Court has not full liberty to act under section 439, sub‑clause (1) in spite of sub‑clause (5). But until the Full Bench does consider the reasoning in Jumo v. Emperor and set it aside we are bound by that ruling. There is thus no other course open to us but to dismiss this application for revision. At the same time, we would express the hope that the learned Sub‑Divisional Magistrate will consider our remarks and deal with any further application for sureties which may be preferred before him agreeably to what we have said." After going through Abdul Kayum v. Emperor (A I R 1934 Sind 72), I find that on the revision petition of Abdul Kayum who had been convicted under the latter part of section 498 P. P. C. by a 2nd Class Magistrate of Hyderabad and whose appeal against that order had also been dismissed by the Sub‑Divisional Magist rate, the High Court proceeded to examine the record of the other two persons also who had been convicted with Abdul Kayum although they had neither preferred any appeal to the Sub‑Divisional Magistrate nor had filed any revision in the High Court. The learned judges observed that in Criminal Appeal No. 234 of 1931 where they had the record before them they set aside the conviction of a party who had not come to them in appeal. After carefully going through these authori ties, I find that the learned Judges in Jumo v. Emperor were really dealing with the case of a person who had failed to file an appeal and had then himself come to the High Court in order to invoke its revisional jurisdiction, and were not con sidering sub‑clause (1) of section 439 in all its implications. Some of the later authorities went beyond the rule laid down in that judgment and also rejected the revision petitions which were filed by the third parties on behalf of the accused persons. With due deference to the learned judges who decided Tejumal Hassomal v. Emperor (A I R 1932 Sind 211), I think that they did not lay down correct principle of law in that case. So far as the Lahore High Court is concerned, the opinion of the Sind judges has never been followed, though it is true that the learned judges of this Court had no occasion to consider those authorities. In High Court Bar Association Lahore on behalf of Mian Iftikhar Din v. Emperor (A I R 1941 Lah. 324), the learned judge considered this subject in detail, and relying on Emperor v. Parshottam Das Tandon (LV All. 857), Bhim Sen Sacnar v. Emperor (A I R 1931 Lah. 153), Lilawati and others v. Emperor (A I R 1932 Lah. 364) and High Court Bar Association in re: Vidya Wati v. Emperor (A I R 1932 Lah. 613), exercised his revisional jurisdiction in the matter and partly accepted the revision petition. This subject was again considered in detail in Pars Ram v. Emperor (A I R 1931 Lah. 145), by Tek Chand, J., and the learned judge came to the conclusion after referring to a large number of authorities that a revision petition filed by a third party on behalf of a convict could be entertained although he had neither filed an appeal against the conviction nor a revision petition. The following passage from the judgment may be reproduced with advantage :‑ "In applying section 439, however, it is necessary to bear in mind that the powers of this Court under that section, Ism wide though they are, are purely discretionary and must be exercised not as a matter of course, but only to further the ends of justice. It is not every irregularity or error committed by a subordinate Court, which the revisional Court will take upon itself to set right. Indeed it frequently stays its hands, if it thinks that substantial justice has been done in the case. But where the Court is satisfied that a serious mis‑carriage of justice has taken place, it undoubtedly possesses unfettered power to pass such orders as it in its discretion, thinks fit to do, even though the aggrieved person could have taken the matter to an appellate Court and has failed to do so. It is obvious that in a matter like this it is not possible to lay down a hard and fast rule and the decision in each case must depend on its own peculiar circumstances. It is, however, clear that there is no warrant for the proposition that the omission of a convict to appeal is by itself sufficient in law, or as a matter of well -established practice to debar this Court from examining the record suo motu or on a reference by a Sessions judge, or at the instance of a third party, and from passing such orders as it thinks appropriate. For the foregoing reasons, I hold that the preliminary objection is devoid of force and must be overt‑lee." Sub‑clause (5) of section 439, since it intends to curtail the jurisdiction of the High Court, must be strictly construed and confined only to cases where the person, who could have appealed but did not appeal, himself moves a regular petition in revision asking the High Court to interfere on his behalf. This sub‑clause leaves untouched the powers of this Court to exercise revisional jurisdiction under sub‑clause (1) of section 439, Criminal P. C., in all other cases, namely, those in which the records have been called for by itself or which have been reported to it for orders under section 438, Criminal P. C., or which otherwise come to its knowledge. I do not, therefore, see any force in the contention that the High Court is debarred from interfering in revision petitions at the instance of third parties or on its own motion where the person who could have appealed did not do so. I am, therefore, of the view that under section 439 (1) this Court is fully competent to go through the record of this case on its own motion and pass any orders which seem just and proper under the circumstances of that case because there are no words of qualification in subsection (1) itself as might be understood to limit the jurisdiction of the High Court. I will now advert to the second plea raised by the learned counsel for the respondents that even if it be held that this Court could interfere on its revisional side it should not ordinarily upset the orders of acquittal and remand cases for retrial. It may at once be pointed out that though this Court will undoubtedly exercise its powers very sparingly and with due regard to all the principles which have been enunciated from time to time in judicial pronouncements, the generality of its powers cannot be cut down by any decisions, and the discretion of this Court cannot be crystallised by attempting to provide definite rules for the exercise thereof'. I do not think that the supervisory jurisdiction of this Court to correct miscarriage of justice can be circumscribed by any, set rules. I will, therefore, confine myself to the facts of this case alone and decide whether it is a fit case in which this Court ought to interfere on its revisional side. The important point which emerges is that the learned Sessions Judge did not take into consideration the evidence that four accused persons had appeared before the Head Constable on the 13th of February 1953 at 12 noon, before the first information report had been recorded at the police station, with a dang and two hatchets, which, according to the Head Constable, were stained with blood. The evidence regarding the appearance before the Head Constable of the four accused persons with the weapons of the same description which were alleged by the eyewitnesses to have been used in the commission of the crime if believed was a matter of high significance in appreciating the evidence of these witnesses, and it is not possible to say how the learned Sessions Judge, had he taken that fact into consideration, would have reacted to the evidence of the eye‑witnesses. After a careful perusal of the judgment, I have no doubt that the trial judge never adverted to that evidence and conse quently it can hardly be denied that his decision is not based on the whole of the evidence recorded in the case. Although a long time has elapsed between the acquittal of the accused persons and the hearing of this revision petition, this fact alone cannot stand in our way in remanding the case for retrial. No period of limitation has been prescribed for this Court taking action suo mote in a case on its revisional side, and so long as that power is not fettered by law of limitation this Court can administer justice wherever the ends of justice so demand. I am not unmindful of the fact that though the power of this Court to remand cases for retrial after acquittal is unfettered, it should not be normally exercised, unless its exercise is absolutely necessary and unavoidable, but each case must be decided on its own facts and the previous judicial pronouncements can have but persuasive value. Every judgment proceeds on facts proved) before the Court, and, therefore, though the general principles enunciated in judicial pronouncements cannot but reflect upon the decision of the future cases, they cannot be permitted either to override the statute or limit the exercise of discretion by the judges in future cases, because it is proverbial that the facts of two cases are never alike‑I have, after considering the facts of the case carefully, come to the conclusion that this is a fit case which ought to be remanded for retrial of the four accused who went to the police. As regards the other three accused persons, namely, Sarwar Shah, Mamdan and Mohammad Ramzan, I agree with the learned Sessions judge, that though they were alleged to have taken part in the conspiracy to murder and were alleged to have raised instigating shouts at the time of the killing, they might be innocent as one cannot overrule the possibility of that part of the P. W's version being exaggerated. Moreover, since‑they did not appear before the Head Constable with the other four respondents nor did they produce any weapon of offence before him, it cannot be said that in their case any relevant evidence which should have been considered ‑ by the learned Sessions Judge was not considered. As regards the other four respondents, namely, Ismail, Diwaya, Khairu, and Allah Bakhsh, it is not proper to allow a decision taken only on partial evidence in the case, com pletely ignoring some of the other evidence produced by the prosecution, to stand, because the departmental procedure followed in appeals against acquittal in the State seems to have been indefinite and unsatisfactory. In the result, Ismail, Diwaya, Khairu and Allah Bakhsh, respondents, will now be retried. This trial will be held by the learned Sessions Judge, Bahawalpur, because it would not be desirable to send their case back to the learned Sessions Judge, Rahimyarkhan, who has already expressed his opinion in the case. SHABIR AHMAD, J.‑I agree. A. H. Re‑trial ordered.