Find a Lawyer

Criminal Revision Application No. 447 of 1962, decided on 19th February 1964.

S. 439‑‑Revisional powers of High Court‑‑‑Must be exercised very sparingly and with due regard to principles enunciated from time to time with special emphasis on whether there has been a grave or gross miscarriage of justice‑Retrial‑Offence allegedly committed more than 4 years back and accused facing trial for about 2 years‑Retrial likely to be beset with many difficulties entailing further prolongation of proceedings against accused‑Ordering retrial, held, would not be in interest of justice, in circumstances of case.

Sher Muhammad v. Muhammad Hussain P L D 1963 Lah. 514 distinguished.

Crown v. Ismail P L D 1956 B J 24, and Faqir Muhammad v. The Crown P L D 1949 .Bal. 20 ref.

Mrs. S. Salma Nasiruddin for Appellant.

Nemo for Respondent.

Murtaza Hussain for the State.

Date of hearing: 27th January 1964.

This is a revision application under section 439, Cr. P. Code by the applicant, Abdul Samad Kazmi against the respondent, Abdul Razak, who is aggrieved with the order dated the 3rd of 'April 1962, of the Additional Sessions Judge, Hyderabad, acquitt ing the respondent, Abdul Razak of his conviction by the learned S. D. M. Hala under section 342 read with section 109, P, P. C. sentencing him to 15 days' S. I. and to pay a fine of Rs. 50 or in default to suffer S. I. for a further period of 7 days.

2. These proceedings arose on a complaint under sections 342, 506 and 109, P. P. C. filed by the applicant, Abdul Samad against the respondent, Abdul Razak, and one Muhammad Soomar, a Head Constable of Police, attached to the Cantonment. Police Station, originally in the Court of the A. D. M. Hyderabad, which was later transferred to the Court of the Sub‑Divisional Magistrate, Hala, alleging that Abdul Razak had filed a revision application against Abdul Samad in the Court of the Additional Sessions Judge. Hyderabad against the acquittal of Abdul Samad and others in a case under section 498, P. P. C. by the Court of the Joint Sub‑Judge and F. C. M. Prior to this, Abdul Razak had filed a case under section 498, P. P. C. against Abdul Samad and others, which was pending in the Court of the 17th A. C. M. Karachi. It was alleged there that Abdul Samad could not be served with the summons of the case in Karachi on account of which on the 10th of February 1960, Abdul Razak swore an affidavit before the Oath Commissioner, Hyderabad stating that Abdul Samad's presence was required by the City Magistrate, Karachi, that a non‑bailable warrant was issued for his arrest, and on the basis of this affidavit, H. C. Soomar then attached to the Cantonment Police Station, Hyderabad, had arrested him and produced him before the Additional City Magistrate. It was subsequently discovered that no bailable warrant had been issued for his arrest and production, and that a bailable warrant previously issued had been suspended, and that the affidavit filed by Abdul Razak was false. Consequently, Abdul Samad filed the direct complaint with which we are now concerned, and in the course of which the learned S. D. M. Hala on the 31st August convicted Abdul Razak. The judgment of the learned S. D. M. Hala indicated that on the 23rd August 1961, namely, about days before the judgment was announced, a compromise applica tion was filed between Abdul Samad and H. C. Muhammad Soomar in which Abdul Samad, the present applicant, "looking to the small children of accused No. 2 (H. C. Muhammad Soomar) and to his Government service, had pardoned him, and compromised the offence with him," and sought the permission of the Court, which permission appears to have been readily granted, as the learned S. D. M. appeared to be of the opinion that the circumstances, section 342, P. P. C. which was a compound able offence, was applicable, and allowed the compromise and acquitted H. C. Muhammad Soomar. Against the conviction of Abdul Razak appellant, the learned Additional Sessions Judge considering the entire case law in all its aspects factual and legal held that Abdul Razak's conviction under section 342 read with section 109 was incorrect, as Abdul Razak's affidavit and the arrest of Abdul Samad were not parts of one and the same transaction, and were undoubtedly separate acts at separate times, although connected, and that the alleged investigation was not directed to respondent H. C. Soomar, who had acted under the orders of the Assistant Superintendent of Police in arresting Abdul Razak, and that the oral testimony examined did not inspire confidence. He held that since Abdul Samad was arrested on the basis of an affidavit of Abdul Razak, the entire case fell within the purview of section 181 or 182, P. P. C., and not under section 109, P, P. C. He further held that even though there may have been a cons piracy between Abdul Razak and H. C. Muhammad Soomar for the arrest of Abdul Samad, and since the offence under section 342, P. P. C. is punishable with imprisonment for less than two years, the charge of conspiracy was without jurisdiction under section 196‑A, Cr. P. C. without the sanction of the appropriate authority.

3. The next aspect discussed was that the charge under section 342, P. P. C. for the illegal arrest of Abdul Samad was incorrect, as the offence of wrongful confinement by a public servant who had the authority to effect an arrest under the law would fall under section 220, P. P. C. which was a very serious offence indeed and was non‑compoundable, and that the compromise accepted by the learned S. D. M. between H. C. Soomar and Abdul Razak was illegal, in consequence of which Abdul Razak's conviction under section 342, P. P. C. could not be upheld.

4. The further question considered was the sanction by the Additional City Magistrate, Karachi for the prosecution of Abdul Razak, which was not free from difficulty. The learned Additional Sessions Judge went on to hold that it was not necessary to go into the question of the prosecution of Abdul Razak without the relevant sanction, since his conviction under section 342 read with section 109 could not be maintained. He held in conclusion that in considering whether the retrial of Abdul Rank should be ordered, he took into consideration the fact that the prosecution had taken nearly two years which by itself was a punishment for Abdul Razak. He, therefore, set aside the conviction of Abdul Razak and acquitted him, and for the reasons given, did not make a reference to this Court with regard to the matter of compromise of Abdul Samad with H. C. Muhammad Soomar.

5. This revision application was admitted to regular hearing on the point urged by Mrs. Salma Nasiruddin that on the admitted facts, the offence under sections 342 and 109 was not made out against the respondents, but that if the act of the respondents amounted to an offence under other sections of the Penal Code, it was a fit‑case for ordering a retrial.

6. Mrs. Nasiruddin's contention for the applicant has essentially been that this Court should exercise its powers under section 439, Cr. P. C. and order the prosecution not only of the respondent Abdul Razak, but also of H. C. Soomar, as there has been a grave miscarriage of justice, and that the reasons given by the learned Additional Sessions Judge for not ordering a retrial and for refusing to make a reference to this Court were untenable, Reliance was placed on Sher Muhammad v. Muhammad Hussain (P L D 1963 Lah. 514) a Single Bench ruling of the then Chief Justice, Manzur Qadir, 514, in a petition for revision in respect of an acquittal order in an appeal in two cross cases arising out of an incident over the turn of water. The trial Court had tried both the cases and come to the conclusion that neither party had the right of private defence, and convicted both of them. On appeal, the learned Additional Sessions Judge held that the respondents to the petition, namely, Muhammad Hussain and others had the right of private defence, and acquitted them. It was the correctness of that acquittal which was questioned in the petition, of which the ruling referred to earlier is the result. The observations in this judgment as they arise out of the facts of that particular case, in my view, are of no help to the present applicant. It has been held in Crown v. Ismail (P L D 1956 B J 24) that the High Court is not debarred from interfering in revision at the instance of third parties, or on its own motion where the person who could have appealed did not do so, and that in such cases the High Court is fully com petent to go through the record of the case and pass any orders which seem just and proper under the circumstances of the case, because there are no words of qualification in subsection (1) of section 439 as might be understood to limit the jurisdiction of the High Court. It was also observed that the High Court will undoubtedly exercise its powers very sparingly and with due regard to all the principles enunciated from time to time in judicial pronouncements, the generality of powers conferred by section 439, Cr. P. C. cannot be cut down by any decisions, and the discretion of the Court cannot be crystallised by attempting to provide definite rules for the exercise thereof.

7. In Faqir Muhammad v. The Crown (P L D 1949 B J 20) it was observed that while a High Court has power to interfere with the proceedings of a lower Court at any stage, that power must be used very sparingly, and only when grave injustice is likely to be done.

8. The point, therefore, that arises for consideration is whether in view of the admitted position that this High Court has the power to interfere in such cases, on its own motion or at the instance of a third party, and whether the ends of justice will be really served by reversing the order of the learned Additional Sessions‑Judge and ordering a retrial of the respondent Abdul Razak.

9. Prima facie, it appears that the findings of the learned Additional Sessions Judge on the legal aspect of the case on considerations, of which he set aside the conviction of Abdul Razak, are correct. It is also true and indeed regrettable that in the course of the proceedings before the learned S. D. M. Hala and on the nature of the allegations that were made against Muhammad Soomar, H. C., the compromise between him and Abdul Samad should have been allowed. There is no doubt that H. C. Muhammad Soomar's action; even if it had the authority of his superior officers, obtained as would appear on misrepresenta tions, was serious in itself. On the other hand the compromise also indicates that Abdul Samad, in spite of all that he contends he was made to suffer and the disgrace he was subjected to at the hands of H. C. Muhammad Soomar was prepared to condone the action of this custodian of the law, who had allowed his official powers to be misused for the personal malice of Abdul Razak, in consequence of which Abdul Samad was handcuffed, taken to the Cantonment Police Station at Hyderabad, and produced in custody before the Court of the Additional City Magistrate, Karachi. In my view, it is not necessary to go into the details of the conclusions arrived at by the learned Additional Sessions Judge on the legal aspect of the case for, as I have already observed, prima facie these conclusions appear to be correct, and an order for the retrial of Abdul Razak would be beset with many f difficulties entailing a further prolongation of the proceedings against him. I am, therefore, of the opinion that this is not a case in which in the interests of justice Abdul Razak's retrial should he ordered. Initially, I agree with the learned Additions Sessions fudge that Abdul Razak had faced his prosecution for a period of nearly two years, and that a trial of a criminal case for such a long period is by itself a punishment. Consideration must also be given to the fact that there has been a running dispute between the parties, namely Abdul Razak and Abdul Samad over the hand of one Mst. Mumtaz Begum, whose affections have been with either party at different times, and in consequence of which there have been several cases between them in the past. There is also the aspect, as urged by Mr. Murtaza Husain for the State, that there was initially a delay in the filing of the complaint by Abdul Samad against Abdul Razak, when the offence is alleged to have taken place on the 10th of February 1960, and the complaint was filed on the 28th of July 1960. To date, more than four years have passed since the date of the alleged offence.

10. In view of Abdul Samad's own conduct in condoning the action of Head Constable Muhammad Soomar, the serious ness of the entire matter has considerably watered down, and from all points of view, I do not consider that this is a fit case ink which the inherent powers of this Court should be exercised, as such powers must be exercised very sparingly and with due regard to the principles enunciated from time to time with special emphasis on whether there has been a grave or gross miscarriage of justice. I am certain this is not a case of that nature. In consequence, I reject this revision application.

Petition rejected.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.