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Criminal Appeal No. 17 of 1952, decided on 10(h April, 1953.
(On appeal from the judgment and order of the High Court of Judicature at Lahore, dated the 1st May; 1951, in Criminal Appeal No. 435 of 1950).
S. 439‑Revision by private person against order of acquittal in. cognizable case‑Guiding principles to be followed by High Court‑Retrial Advisability‑Definite findings of fact given by High Court in order for retrial‑Court re-trying accused bound to be affected by such findings‑Judgment in re‑trial, held, completely vitiated.
Where the trial was not contrary to any fundamental rule of procedure and the acquittal was not based on a view of the evidence which no reasonable judicial officer could have taken the case was not one in which retrial could have been ordered.
The High Court in Revision had re‑appraised evidence and had come to definite and precise findings of fact in the order for re‑trial.
Held, the findings amounted to a direction to convict, and no Sessions Judge subordinate to the High Court could remain unbiased after reading the findings given by the High Court.
In the matter of Sh. Abdul Kareem, An Advocate P L D 1950 Lah. 439 ; Partap Singh v. Harnam Singh and other I L R 1942 Lah. 125 ; D. Stephens v. Nosibolla 1951 S C R p. 284 and Logendranath Jha and others v. Shri Polailal Biswas 1951 S C R p. 676 ref.
If the Judge who re tried the accused was not an unbiased Judge the trial in his Court was completely vitiated. The trial is the foundation of the case, and if the trial has been vitiated, the judgment in appeal which is the superstructure built on the foundation cannot stand.
Once the mind of the trial Judge has been affected by any bias the proceedings in the Court of such a Judge have no legal validity whatsoever.
Adan Haji Jama and others v. The King 1948 A C 225 ref.
Since the order of retrial was intended only to procure a reconsideration of the evidence, the duty of dispensing fair and impartial justice required that the judge conducting the retrial should take all considerations arising out of the case into account, in arriving at his final decision.
It is obvious that a retrial at which the accused persons are completely barred from raising particular defences or from attacking the prosecution case on any grounds arising naturally out of the evidence is not a trial in consonance with the princi ples of natural justice. There can be no reasonable expec tation of justice being administered under such conditions.
S. 114, illus. (g)‑Non- production of important witness by prosecution‑Prosecution must nevertheless have the witness ready at trial in case defence .should examine him.
It is hardly necessary to stress the great importance which attaches to the non‑production of an important witness by the prosecution in a criminal case, where no satisfactory reason for non‑production is establishes. It is true that the prosecutor is not bound to produce before the Court a witness who is not expected to give true evidence, but he cannot escape the duty such a witness, if his evidence be of importance, to be present at the trial In case the opposite‑party should wish to examine him.
Character and credibility of‑Weight to be given to opinion of Court of first instance.
Hamid‑ud‑din, Advocate, Federal Court, instructed by Amjad Hussain Attorney for Appellants.
Abdul Aziz Khan, Advocate‑General of the Punjab (S. A. Mahmood, Assistant Advocate‑General, Punjab with him) instruct ed by Ijaz Ali Attorney for Respondents.
Dates of hearing : 16th, 17th, 18th and 19th March 1953.
‑This appeal raises the important question as to what are the guiding principles which should be followed by a High Court in the exercise of its revisional jurisdiction under section 439 of the Criminal Procedure Code when it is invoked by a private complainant against an order of acquittal in a cognizable case.
The appellants Khairdi Khan and Dilawar Khan are brothers, and Jahandad Khan appellant is the father‑in‑law of Khairdi Khan. Sher Muhammad appellant is the son of Jahandad. On the 4th October, 1948, two persons, namely, Sher Bahadur and his brother Khan Bahadur, were attacked in a field belonging to one Farid Khan, at a distance of about half a mile from the deras of the accused and their victims. Sher Bahadur was killed on the spot, while Khan Bahadur died a few days afterwards in the hospital.
The case for the prosecution is that on the 3rd October 1948, some cattle belonging to Khairdi and Dilawar appellant trespassed into the field of Sher Bahadur at about 5‑0 p.m. The latter protested pointing out that the cattle had completely ruined his crop. This led to an altercation between Sher Bahadur deceased on the one side, and Khairdi and Dilawar appellants on the other. On hearing the noise and the abusive language, Jahandad and Sher Muhammad came to the assistance of Khairdi Fordil Khan (P. W. 9), however, intervened and separated the parties. The appellants and the deceased belonged to village Ghorgushti which is situated at a distance of about three and a half miles from the place of occurrence. On the day of the incident, however, it is stated that they were living in their respective dhoks near village Malak Mala. These dhoks are three miles from village Ghorgushti and about half a mile from the place of occurrence. On the 4th of October, Sher Bahadur and Khan Bahadur had left their dhok early in the morning and had gone to the field of Farid Khan to plough it. They had been hard at work till mid‑day when their mother Mst. Sahibji (P. W. 18) and Mst. Ismat, the wife of Khan Bahadur, brought their meals. Sher Bahadur and Khan Bahadur had just finished taking their food when all the appellants came up armed with spears. Khairdi and Dilawar delivered an attack on Sher Bahadur with their spears and felled him to the ground. Jahandad and Sher Muhammad appellants attacked and injured Khan Bahadur, but he managed to escape. According to the statement of Ust. Sahibji, all the four accused pursued Khan Bahadur for a short distance, but soon gave up the pursuit, and returned and fell upon Sher Muhammad killing him on the spot. The assailants then took up the pursuit of Khan Bahadur again. The latter, however, succeeded in reaching the dhok of Said Muhammad which is situated at a distance of about half a mile from the place of occurrence. Khan Bahadur informed Said Muhammad that the four appellants had inflicted injuries on his brother Sher Muhammad and killed him on the spot ; that Jahandad and his son Sher Muhammad had inflicted injuries to him also, but that he had managed to escape. Khan Bahadur begged Said Muhammad to give him shelter, and the latter allowed him to enter one of the rooms of his dhok and to chain the door from inside. Shortly afterwards, the four accused armed with spears reached the dhok of Said Muhammad and asked him to hand over Khan Bahadur. Said Muhammad told them that Khan Bahadur had received serious injuries and was not likely to survive. He beseeched them in the name of Almighty God and the Holy Prophet not to murder him at his dhok. On his entreaties, the accused spared Khan Bahadur who remained at the dhok of Said Muhammad till sunset when he was carried away by four of his relatives on a cot to the Hazro Police Station.
While Khan Bahadur was being pursued Mst. Sahibji left for village Ghorgushti and informed Nawab Khan (P. W. 5) and several other relatives of the occurrence, and accompanied by some of them went, and lodged the First Information Report at the Police Station at about 6‑30 p.m. In the evening at about 9‑30 p.m. Khan Bahadur was brought to the Police Station and Muhammad Ali Shah Head Constable (P. W. 2) recorded his statement. Another dying declaration of Khan Bahadur was recorded at the instance of Dr. Abdul Ghani, Assistant Surgeon, at about 11‑30 p.m. Khan Bahadur died in the hospital on the 9th October, 1948, at about 5‑0 p.m. There were five incised wounds and two abrasions on the person of Khan Bahadur. Sher Bahadur deceased had eight incised wounds and two abrasions.
The appellants were placed on their trial in the Court of Mr. Inayat Ullah Khan, Sessions Judge of Campbellpur, under section 302/34 of the Pakistan Penal Code on the 12th of May 1949. The trial lasted for three days. On the 18th of May the learned Sessions Judge pronounced judgment acquitting all the accused persons. After the accused had been acquitted Mst. Sahibji, the mother of the deceased, applied to the District Magistrate of Attock praying that the Provincial Government should prefer an appeal against the order of acquittal under section 417 of the Criminal Procedure Code. This application was rejected by the District Magistrate and thereafter Mst. Sahibji referred a petition for revision in the High Court of Judicature at Lahore. This petition was heard by Mr. Justice Kayani on the 2nd February, 1950. The learned Judge accepted the petition and directed that the accused be retried on a charge of murder. Their bail bonds were cancelled and the District Magistrate was ordered to take them in custody. In pursuance of be order of the High Court the appellants were retried by Malik Ahmad Khan, Sessions Judge. The learned Judge convicted all the appellants and sentenced them to transportation for life each under section 302/34 of the P. P. C. The four convicts preferred an appeal in the High Court of Judicature at Lahore against their convictions, while a petition for revision was filed by Mst. Sabibji praying that the sentences awarded to the convicts should be enhanced. The appeal of the convicts was dismissed by a Division Bench (M. Munir, C. J. . . . and S. A. Rahman, J., while the petition for revision was accepted and Khairdi Khan, Dilawar Khan, and Jahandad Khan were sentenced to death.
It would be convenient at this stage to refer to the judgment of Mr. Justice Kayani dated the 2nd of February 1950. The learned Judge held that the Sessions Judge's appreciation of the evidence was perverse. After giving a short account of the prosecution story and reproducing the number of injuries that existed on the persons of the victims the learned Judge summarised the judgment of Mr. Inayat Ullah Khan. He reproduced in his judgment nine different grounds which had been relied upon by Mr. Inayat Ullah Khan in acquitting the accused. After summarising the judgment of the Sessions Judge, Mr. Justice Kayani made the following observations which must be reproduced in extenso :‑
"I cannot but hold that the learned Sessions Judge's appreciation of the evidence is perverse. As regards the time of the occurrence, although villagers generally, take their meals at about 10 o'clock in the morning, Mst. Sahibji has explained that the meals were late that day. There is nothing unreason able about that explanation. Even assuming that the incident took place at 10 a.m. and that Mst. Sahibji delayed the report because she wanted to consult some body in the village and her own son Khan Bahadur in the dhok of Said Muhammad, Gujjar, it is not likely that the result of the consultation was to exclude the actual assailants and to substitute them by persons entirely unconnected with the attack. It might have been at best argued that there was danger of some innocent person being added, but considering that quite a large number of injuries were caused and that two young persons were being attacked in broad day light, it would appear necessary that the assailants should out‑number their victims, and there is nothing unlikely in the attack having been delivered by four persons. The motive is perfectly sufficient for a murderous attack and considering that the accused offered no explanation, I see no reason why the quarrel of the previous day should not be held as having being proved. The main thing is that an attack was delivered on Khan Bahadur and his brother in the light of day, when they were neither sleeping nor drowsy, and since one of them survived the attack for some time, he ought to be able to say who his assailants were. Whether or not Khan Bahadur believed that he was dying, the fact remains that his statement has the status of a dying declaration and that it can be accepted as evidence without corroboration so long as it is not found to be in disaccord with reality. Such reasons as the learned Sessions Judge has given cannot brush aside the broad fact that Khan Bahadur was not likely to substitute his assailants by other persons. If the learned Judge had been definitely of the opinion that two of the accused persons mere innocent him that he could not decide who they were, he might have properly given the benefit of doubt to all, but there is no such decision. The finding is that the evidence is tainted, that although Khan Bahadur saw his assailants, he could not be believed because he had consulted his mother. This, in my opinion, is a perverse view."
Mr. Hameed‑ud‑Din, on behalf of the appellants, took us through the judgment of Mr. Inayat Ullah Khan to show that the findings of the Sessions Judge were not perverse, that the judgment was a well‑reasoned and balanced one, and that the reasons given by the learned Judge for discarding the prosecution version were cogent, sound, and reasonable. He further urged that Mr. Inayat Ullah Khan, after a thorough examination and analysis of the evidence, had given a finding that "it was evident that some at least out of the accused bad been falsely implicated", and that Mr. Justice Kayani therefore was not right in stating that no definite finding had been given by the trial Court that two of the accused persons were innocent. If the Court holds that some at least out of the accused were innocent and had been falsely implicated, it is not necessary for it to go further and find definitely that two of the accused were innocent. The principal argument addressed to the Court by the counsel was that the learned Judge of the Lahore High Court had given findings in his judgment almost amounting to a decision‑ that all the four persons were guilty. It was argued that the jurisdiction to direct a retrial was so exercised as to constitute a flagrant infringement of the essential principles of justice.
The Supreme Court of India in the case of D. Stephens v. Nosibolla (1951 S C R p.284) has made the following observations with respect to the powers of the High Court under section 439 of the Criminal Procedure Code:
"The revisional jurisdiction conferred on the High Court under section 439 of the Code of Criminal Procedure is not to be lightly exercised, when it is invoked by a private complainant against an order of acquittal, against which the Government has a right of appeal under section 417. It could be exercised only in exceptional cases where the interests of public justice require interference for the correction of a manifest illegality, or the prevention of gross miscarriage of justice. This jurisdiction is not ordinarily invoked or used merely because the lower Court has taken a wrong view of the law or mis-appreciated the evidence on record. As already pointed out, there has been no such error in the present case ; on the other hand, it seems to us that on both the previous occasions, the Chief Presidency Magistrate was right m holding that the accused was not guilty of any offence under sections 25 and 26 of the Indian Merchant Shipping Act.
The order of the High Court is set aside and that of the Chief Presidency Magistrate is restored. The accused will stand acquitted of the charge."
The question has been dealt with in greater detail in the case of Logendranath Jha and others v. Shri Polailal Biswas (1951 S C R p. 676). The following observations from this judgment may be reproduced with advantage :‑
"The learned Judge who heard the petition reviewed the evidence at some length and came to the conclusion that the judgment of the learned Sessions Judge could not be allowed to stand as the acquittal of the appellants was "perverse". In his opinion, "the entire judgment displays a lack of true perspective in a case of this kind. The Sessions Judge had completely misdirected himself in looking to the minor dis crepancies in the case and ignoring the essential matters so far as the case is concerned, and there was no justifiable ground for rejecting the prosecution evidence regarding the cultivation and harvesting by Polai. And he concluded with the warning "I would, however, make it perfectly clear that when the case is retried, when I am now going to order, the Judge proceeding with the trial will not be in the least influenced by any ex pression of opinion which I may have given in this judgment." . . . . . . . . .
"It will be seen from the judgment summarized above that the learned Judge in the High Court re‑appraised the evidence in the case and disagreed with the Session Judge's findings of fact on the ground that they were perverse and displayed a lack of true perspective. He went further and, by way of "expressing in very clear terms as to how perverse the judgment of the Court below is", he indicated that the discrepancies in the prosecution evidence and the circumstances of the case which led the Sessions Judge to discredit the prosecu tion story afforded no justifiable ground for the conclusion that the prosecution failed to establish their case. We are of opinion that the learned Judge in the High Court did not properly appreciate the scope of inquiry in revision against an order of acquittal. Though subsection (1) of section 439 authorises the High Court to exercise, in its discretion, any of the powers conferred on a Court of appeal by section 423, subsection (4) specifically excludes the power to "convert a finding of acquittal into one of conviction." This does not mean that in dealing with a revision petition by a private party against an order of acquittal, the High Court could in the absence of any error on a point of law re‑appraise the evidence and reverse the findings of facts on which the acquittal was based, provided only it stopped short of finding the accused guilty and passing sentence on him. By merely characterising the judgment of the trial Court as "perverse" and "lacking in perspective", the High Court cannot reverse pure findings of facts based on the trial Court's appreciation of the evidence in the case. That is what the learned Judge in the Court below had done, but could not, in our opinion, properly do on an application in revision filed by a private party against acquittal. No doubt, the learned Judge formally complied with sub section (4) by directing only a retrial of the appellants without convicting them, and warned that the Court retrying the case should not be influenced by any expression of opinion contained in his judgment. But there can be little doubt that he loaded the dice against the appellants and it might prove difficult for any subordinate ,judicial officer dealing with the case to put aside altogether the strong views expressed in the judgment as to the credibility of the prosecution witnesses and the circumstances of the case in general." .
"We are of opinion that the learned Judge in the High Court
exceeded his powers of revision in dealing with the case in the
manner he did, and we set aside his order for retrial of the
appellants and restore the order of acquittal passed by the
Sessions Judge."
I find myself in complete agreement with the views expressed'
above by the Supreme Court of India. If we now turn to thel
judgment of Mr. Justice Kayani we find that he has re‑appraised B
the entire evidence and has given the following definite and precise
findings :
(a) the delay in making the F. I. R. does not exist, but if it
does Met. Sahibji has given a reasonable explanation, and that
explanation should be accepted ;
(b) Even if Mst. Sahibji delayed the report because she
wanted to consult other persons in the village, it could not be
held that the result of the consultation was to exclude the actual
assailants and substitute them by persons entirely unconnected
with the attack ;
(c) In this case, it cannot be said that some innocent persons
have been added as two young persons were being attacked inl
broad‑day light, and it was therefore necessary that the assailants
should out‑number their victims, and therefore there is nothing
unlikely in the attack having been delivered by all the four
appellants ;
(d) The motive is perfectly sufficient for the murderous
attack ;
(e) Such reasons as the learned Sessions Judge has given
cannot brush aside the broad fact that Khan Bahadur was not
likely to substitute his assailants by other persons.
In my opinion, the findings given by the learned Judge
amounts to a direction to convict, and no Sessions Judge
subordinate to the Lahore High Court could remain unbiased after o
reading the findings given by the High Court. The judgment of
Kayani J., in this case, merely stops short of finding the accused
guilty and passing sentence on them.
The principles which the High Court should keep in view
in dealing with revisions against orders of acquittal were laid down
by a full Bench of the Lahore High Court in the case of
Partap Singh v. Harnam Singh and others (I L R 1924 Lah. 125). As this Full
Bench decision was binding on the learned Judge who heard the
petition for revision in the present case, it would be useful to
reproduce the following passage from the judgment of the Full
Bench :
"Under clause (4) of section 439 the High Court cannot convert a finding of acquittal into one of conviction, but it can under the powers conferred under section 423 order the accused to be retried by a Court of competent jurisdiction subordinate to such appellate Court. In considering the question whether such a retrial should or should not be ordered, the discretion of the Court is legally unlimited. In actual fact, however, the Court seldom exercises this discretion except as laid down in a number of rulings, namely, that an order of acquittal will not as a rule be interfered with merely because the High Court disagrees with the finding of the Magistrate. It is only when the record is incomplete or there is a flaw in jurisdiction or where the finding is manifestly wrong or perverse that the High Court will interfere in such cases. In the present case the main point is that the evidence has been misstated. This point hag also been dealt with in many rulings and the general trend of authority is that where the evidence has been so mis‑stated, it is much the same position as if the learned Judge, who combines the functions of a Judge and jury, had misdirected himself as to what the evidence was in the particular case. It will be open for the High Court, however, to consider whether in spite of the misdirection, any finding other than one of acquittal would have been come to in the circumstances of the particular case and the High Court would not order a retrial unless it came clearly to the conclusion that but for the misdirection the Court might have or should have come to a different finding to what it actually did."
Reference may also be made to a recent Full Bench decision of the Lahore High Court reported as In the matter of Sh. Abdul Kareem, An Advocate (P L D 1950 Lah. 439). In this case, Sh. Abdul Karim, an Advocate of the Lahore High Court, had accepted a bribe for filing a revision from an order of acquittal in a murder case. He was proceeded against for professional misconduct. The learned Chief Justice made the following observations :‑
"The Advocate must well know, as every counsel practising in this Court should, how petitions for revision of orders of acquittal in murder cases are treated by this Court, and what chances counsel has in such petitions to obtain a retrial, because no order of acquittal can be converted into an order of conviction in revision. I can say from my eight years' experience at the Bench and eighteen years' experience at the Bar, that I have not known of a single instance in which a petition for revision of the order of acquittal in a murder case ever succeed ed in the absence of an appeal by the accused on his being convicted of a minor offence."
* * * * * * * * * * * *
"Needless to say that where the Government is not interested and for that reason it has not appealed, this Court will order a retrial only if the case is of such a singularly exceptional character that, unless a retrial is ordered a grave and irremediable injustice must be the result, and such result can be apprehended only where the trial has been contrary to some fundamental rule of procedure or where the acquittal is based on a view of evidence which no reasonable judicial officer, anxious to do justice, could possibly take. This position must be known to every practitioner of this Court, and certainly to a practitioner of the Advocate's standing."
I have carefully examined the reasoning embodied in the judgment of acquittal given by Mr. Inayat Ullah Khan on the 18th May 1949. The reasoning of the learned Sessions Judge can, under no circumstances, be described as manifestly wrong or perverse. In fact, in respect of the essential features of the case the arguments given by him are cogent and sound. Before accepting the suggestion of the defence counsel that at least two innocent persons had been implicated, Mr. Inayat Ullah Khan subjected the evidence and the circumstances surrounding the investigation to a searching criticism, and thereafter arrived at the conclusion that the arguments of the defence counsel were fully borne out by the record. He has remarked in his judgment that it was a pity that in the circumstances the real offenders who had perpetrated two murders would go unpunished but that he had no choice in the matter, as the prosecution had resorted to gross exaggeration, had tried to substantiate their case by false evidence, and had failed to produce Mst. Ismat, the wife of one of the victims, who was an eye‑witness. It might be mentioned that when the second trial was held all the four assessors came unanimously to the same conclusion as Mr. Inayat Ullah Khan, that is, that the prosecution evidence was not reliable, and it could not be said which of the accused was guilty and which of them was innocent. Mr. Inayat Ullah Khan had pointed out that there was "no mid‑way course open to the Court as the statements of the P. Ws. involved all the four accused equally."
Mr. Inayat Ullah Khan examined the incident of the escape of Khan Bahadur to the dhok of Said Muhammad with great care. He held that it was highly unlikely that all the four assailants would pursue Khan Bahadur for half a mile in order to kill him, but that when they reached the dhok of Said Muhammad they would be so easily dissuaded from doing him any harm. The learned Judge had given due weight to the fact that Said Muhammad was alone at the time in his dhok, and that the four assailants could carry out their purpose easily, and that their failure to do so shows that they never went to the dhok of Said Muhammad. If the evidence of Said Muhammad is true, there should have been a trail of blood from the place of occurrence to his dhok, and a considerable amount of blood in the room where Khan Bahadur rested for several hours. No such evidence was produced. In these circumstances, how can it be said that Mr. Inayat Ullah Khan was manifestly wrong in holding that in all probability the assailants of Khan Bahadur never went to the dhok of Said Muhammad
In the present case, an application was made to the District Magistrate who is the representative of the Provincial Government in such matters to prefer an appeal against acquittal. The rejection of this application by him must betaken to mean that the Provincial Government was of the opinion that no injustice had resulted in this case as a result of the order of acquittal. The Provincial Government, presumably, took notice of the findings of the learned Sessions Judge to the effect that some innocent persons had been implicated, and that as it was not possible to separate the case of the innocent from that of the guilty all the accused had to be acquitted. The trial was not contrary to any fundamental rule of procedure and the acquittal was not based on view of the evidence which no reasonable judicial officer could have taken. This case, therefore, according to the latest Full Bench decision of the Lahore High Court, was not one in which retrial could have been properly ordered.
The learned Advocate‑General contended that even if we hold that the order for retrial made by Mr. Justice Kayani on the 2nd February 1950, amounted to a direction to the Sessions Judge to convict, it is only the Sessions Court that can be said to have approached the case with a biased mind, and that the same cannot be said in respect of the judgment of the learned Judges of the High Court who heard the appeal against the order of conviction passed by Mr. Ahmad Khan at the second trial. It was urged, therefore, that the order of the Division Bench should not be upset. In my opinion, this contention is based on a misapprehension. If Mr. Ahmad Khan was not an unbiased Judge the trial in his Court was completely vitiated. The trial is the foundation of the case, and if the trial has been vitiated, the judgment in appeal which is the superstructure built on the foundation, cannot stand. In the case of Adan Haji Jama and others v. The King ((1948) A C 225) the Privy Council held that where at the trial of the appellants on a charge of murder nobody appeared on behalf of the Crown to prosecute, and the trial judge himself undertook the duties of the prosecution, the combination in one person of the duties of the prosecutor and Judge prevented the trial from being one conducted substantially in the manner required by the relevant provisions of the Administration of Criminal Justice Ordinance, 1926, of the Somaliland Protectorate, and it was vitiated. The curative provisions of section 393 of the Ordinance could not be called in to support such a trial. In this case, the accused were tried on a charge of murder by the Protectorate Court of the Somaliland Protectorate sitting as a Court of original jurisdiction and were sentenced to death. Their appeal was dismissed by the Protectorate Court of the Somaliland Protectorate sitting as a Court of Appeal, and the sentences of death were confirmed. Their Lordships held that the trial of the accused had been vitiated by the trial Judge himself undertaking the duties of the prosecutor and questioning the witnesses. Thereafter, their Lordships did not examine the judgment of the Appellate Court in order to find whether the conviction was correct. They delivered a judgment of acquittal simply because the procedure adopted in the trial Court had vitiated the trial. Once the mind of the trial Judge has been affected by any bias the proceedings in the Court of such a Judge have no E legal validity whatsoever. The following observations of their Lordships at page 233 of the Report show how careful they are to ensure that the accused person must have full confidence that he is being tried by an unbiased person :‑
"Their Lordships have no doubt that the trial Judge did his best to be scrupulously fair to the accused, but it is impossible to be sure that a judge, who himself examines the prosecution witnesses, escapes an unconscious bias in favour of accepting their evidence. The judge rightly refrained from cross‑examining the defence witnesses, but it would be difficult for him uncon sciously to avoid discounting some of their evidence on the ground that might have assumed a different aspect if subjected to cross‑examination. The chance, perhaps a small one, that some witnesses night have impressed their veracity on the Court by the manner in which they stood up to cross‑examination, was lost to the accused. It has been said many times that it is necessary not only that justice be done, but that it may be seen to be done. The accused and their friends can hardly have felt assured that impartial justice would be meted out to them by a judge who was acting as prosecutor."
In view of the observations contained in the judgment of Mr. Justice Kayani, I cannot regard Mr. Ahmad Khan as an unbiased Judge. His judgment must be completely eliminated, and if his judgment is discarded, the hearing of the appeal in the High Court cannot, in any way, benefit the prosecution. The judgment delivered by the first Sessions Judge (Mr. Inayat Ullah Khan) was an unbiased judgment, and as I find that his findings and reasonings were by no means manifestly wrong or perverse, I consider that the interests of justice would be best served by accepting his findings. I would, therefore, allow this appeal an: acquit the appellants.
‑Tile crime in respect of which the four appellants stands convicted under section 302/34, P. P. C. was committed as long ago as the 4th October 1948. It was the murder of two brothers Sher Bahadur and Khan Bahadur, allegedly caused with spear blows. Of the appellants, Khairdi Khan and Dilawar Khan are brothers, and are married to two sisters, daughters of Jahandad appellant, while the fourth appellant Sher Muhammad is a son of Jahandad. They were first tried by Mr. Inayat Ullah Khan, Sessions Judge of Attock, sitting without assessors, and following the summons procedure, as provided by the West Punjab Public Safety Act, then in force. On the 18th May 1941), they were acquitted, and it is right that we should say that the judgment recorded by the Sessions Judge contains, besides an accurate statement of the facts of the case, as appearing from the evidence led by the prosecution, a commendably thorough examination of the nature of the case as a whole, of the quality of the evidence of the Principal witnesses, and of the circumstances generally affecting the veracity of these witnesses. At a later stage it will be necessary to state and consider the con clusions recorded by Mr. Inayat Ullah Khan in detail, for we are clearly of the view that had these conclusions received the consideration which was their due at any stage of the subsequent proceedings, those proceedings might have been very greatly curtailed, and the accused persons would have been spared the agony and expense of being put again in peril of their lives, a peril which for a period acquired the character of imminence when by order of the High Court, the sentences of three of the appellants were enhanced from transportation for life to death. We are in formed, however, that these death sentences were later commuted to transportation for life by the Provincial Government.
Briefly, the proceedings following after Mr. Inayat Ullah Khan's acquittal order were as follows. Mst. Sahibji, mother of the murdered men approached the executive authorities for the institution of an appeal against the acquittal by the Provincial Government. The application was rejected at an early stage, viz. by the Deputy Commissioner of the District, and thereafter she approached the Lahore High Court for revision of the order of acquittal under section 439, Cr. P. C. The matter was heard and decided by a single Judge. It appears that no notice was sent to the Crown. The learned single Judge held that the Sessions Judge's "appreciation of the evidence" was perverse, and directed a retrial. The appellants were accordingly retried by another Sessions Judge (Mr. Ahmad Khan), sitting with four assessors. Nothing having been said in the petition for revision or in the order, regarding any irregularity or omission in the previous pro ceeding, either as regards procedure or as regards evidence, the purpose and object of the order would appear to have been that a fresh opinion should be formed judicially upon the same evidence as to whether the accused persons were guilty. In the event it does not appear that the second trial Judge had any more evidence or any different evidence before him than that which had appeared before the first judge. In one respect, the second judge suffered what is universally regarded as a grave handicap compared with Mr. Inayat Ullah Khan, namely, that by the time of the second trial, a very important witness Said Muhammad was dead and there was no alternative but to place on record the statement which he had made at the first trial, in substitution for his viva voce evidence. In respect of another handicap, the two judges were at par with each other, namely that neither of them bad the advant age of seeing and hearing the evidence of a person named Mst. Ismat, the wife of Khan Bahadur deceased, who was accepted on all hands as a person who had witnessed the actual occurrence. Before Mr. Inayat Ullah Khan, the excuse given for her non appearance was that she had been won over by the opposite‑party and had refused to accept service of summons to attend as a witness. The judge observed that there was no proof of either of these matters and his conclusion concerning her non‑production was expressed in words admitting of no doubt concerning their meaning.
"This is most fatal to the prosecution. Her husband has been murdered and she has an infant son also. Unless there is definite proof that she has been really won over, it is equally open to the accused to maintain that she has been given up only because the prosecution version is false and she is not prepared to support it."
At the second trial, the prosecution give her up because "she was making arrangements to marry Sher Muhammad accused ..... and had been won over by the accused". The judge did not think fit to enquire regarding the truth of this excuse or to consider the effect upon the prosecution case of the non‑production of Mst. Ismat.
At the close of the second trial, the four assessors being asked to state their opinions, as required by law, each of them declared that the prosecution evidence was not reliable and "it cannot be said which of the accused is guilty and which of them is innocent". The judge noted this fact in his judgment, but made no comment regarding the unanimous opinion of the assessors, when giving effect to his own contrary opinion. It was of course, not necessary in law for the judge to give any reason for disagreeing with the assessors. It is, however, a fact which, in our opinions, is deserving of notice that the view expressed by the assessors coincides in a remarkable way with that formed by Mr. Inayat Ullah Khan, as will appear from the following extracts taken from his judgment :‑
"It is next contended (for the defence) that it appears that in fact some two persons only had taken part in the incident, but as the entire investigation is stained and defective, and the prosecution witnesses have perjured themselves, and involved at least two innocent persons, they cannot be believed against any of the accused at all. I have carefully considered the entire evidence and all the points urged on the two sides, and I think the contentions raised on behalf of the accused are substantially correct.
It is a pity that in the circumstances two murders will have to go unpunished. But that is something that cannot be helped. And for this the prosecution themselves, are responsible ......... It is to be borne in mind that there is no midway course open to the Court. The statements of the prosecution witnesses involve all the for accused equally. If their statements are to be accepted, the only possible sentence is the extreme penalty of death, which a Court would consider hundred times before imposing it.
To sum up, there is no satisfactory motive, the most important alleged eye‑witness Mst. Ismat has been given up ; as regards the other two alleged eye‑witnesses. Hasham and Mst. Sahibji the former was evidently not present, and the latter was also most probably not there ; the F. I. R. was made after considerable delay and it appears after deliberation and consultation ; and the dying declaration of Khan Bahadur too was a result thereof, and as such it was not at all entitled to any weight, and the investigation of the case was vitiated, and the prosecution had introduced several false particulars ; and it was evident that some at least out of the accused had been falsely implicated, and in the circumstances it is not all safe to rely on such evidence."
The facts of the occurrence, as alleged by the prosecution, were briefly as follows. The incident occurred in broad day light in a field in which Khan Bahadur and Sher Bahadur had just finished eating their mid‑day meal, which was served to them by their mother Mst. Sahibji and Mst. Ismat. The assailants arrived in a body when the two women had moved away to pick grass in the fields, and the description of the assault given by Mst. Sahibji and Hasham Khan, P. W. 19, whose sister was married to Sher Bahadur, is that Khairdi and Dilawar attacked Sher Bahadur who fell down on the spot, while Jahandad and Sher Muhammad assaulted Khan Bahadur and caused him three major Incised wounds on the body and two minor cuts on the left hand, which injuries, though they eventually proved fatal did not, however, bring Khan Bahadur down at once, and he took to his heels, whereupon all the four assailants pursued him for a few paces but then gave up the chase and all the four went back to deal with Sher. Bahadur and caused him some more injuries. Eight incised wounds were found on Sher Bahadur's person, resulting apparently from seven blows of which three caused major internal injuries while the rest were on the limbs, one being on the head. These details are relevant for the consideration of the story that Khan Bahadur continued his flight safely for a distance of about a mile, without pursuit or interrup tion and took refuge in a but belonging to the aforesaid Said Muhammad. This man was entirely by himself at the time, all the other inhabitants of the dhok being out in the fields, and he himself being an aged cripple who had been suffering from paralysis for some eight years. Khan Bahadur narrated the facts of the attack to Said Muhammad and the latter undertook to protect him. When, a little later, all the four accused persons turned up at the dhok with spears and demanded that Khan Bahadur should be handed over to them, Said Muhammad succeeded in inducing them to go away by invoking the name of God and the Holy Prophet, and also by assuring them that Khan Bahadur was mortally wounded.
The report at Thana Hazro, 7 miles away was made at 6‑30 p.m. that evening, the incident having occurred at noon. It was made by Mst. Sahibji, and it mentioned the fact that Khan Bahadur was lying at the dhok of Said Muhammad Gujjar, and that Mst. Sahibji had not been able to bring him with her. It is not explained on the record how Mst. Sahibji received this information, which she could not in the circumstances, have acquired for herself, as the dhok was entirely off the route which she took to the thana. The absence of discovery of any trail of blood from the spot up to Said Muhammad's dhok, and of blood stains in that dhok, remains unexplained. Khan Bahadur's injuries should have bled very freely ; indeed, Said Muhammad declares that his clothes were "soaked with blood", and that Khan Bahadur remained in the but until about sunset, when four persons from Malakmala took him away. Said Muhammad was unable to give the names or any particulars of those four persons, although he himself belonged to Malakmala and Khan Bahadur did not. It remains a mystery how Khan Bahadur was taken to the thana but he seems to have reached there at about 9‑30 p.m. the same night. By this time Mst. Sahibji had already left Hazro for the village in the company of A. S. I. Lal Khan. Another circumstance which is quite unexplained is the close correspondence between the form and the wording of the F. I. R., and the form and the wording of the two statements of Khan Bahadur recorded the same night in Hazro by the same Head Constable Muhammad Ali Shah. The prosecution case is that these three statements were made independently of each other and each represents what the deponent said voluntarily and without prompting. With reference to the more authentic of the two dying declarations of Khan Bahadur, namely, Exh. P. M. which was recorded at the hospital, it is not explained why the attestation of the doctor and the compounder was not obtained, and instead these appear the signatures of two persons who were candid enough to admit that they had once previously acted as attesting witnesses in relation to a confession obtained in the course of another investigation by the same Head Constable, namely, Muhammad Ali Shah.
It is not necessary to consider the evidence relating to the investigation and certain recoveries made, as these have not been the subject of comment, or served to base any finding, by the High Court. In order to complete the narrative, it should be mentioned that the accused persons all pleaded not guilty, and declared that they had been involved on account of enmity. They were arrested on the 5th October 1948, and as the police only arrived in the village at 8‑30 p.m. on the 4th October 1948, the foundation for the plea that they had absconded or concealed themselves was so slight that it is surprising to find that the Judge at the second trial asked each one to explain his "absence from 4th to 5th October, 1948" to which each one gave the reply that he was at his home in Ghurghushti. Apparently, this did not satisfy the Judge, for he not only concluded that they had absconded, but went on to infer that this was an incriminating circumstance.
The question before the Court at the second trial, was the same as at the first trial, namely, whether the prosecution case was proved on the evidence of Mst. Sabibji. Hasham, and Said Muhammad, and the dying declaration of Khan Bahadur ; if so, against which of the accused persons was it proved, and to what extent. In determining this question, no help was derived by either Court from anything said or done by any of the accused persons. The case, therefore, stood to succeed or to fail as a whole upon the oral statements of the first named witnesses, and the alleged oral statements of the deceased Khan Bahadur. Despite the absence of rebuttal, the Judge who conducted the first trial, and the assessors who assisted at the second trial were strongly impressed with the possibility of one or more innocent persons having been falsely accused. Mr. Inayat Ullah Khan had examined the question in relation to the general credibility of the prosecution story, as well as in relation to the nature of the evidence given by each of the witnesses. and the proof afforded by the dying declarations. There can be no question but that this was the correct approach to a case of a very difficult type, and in our opinion, Mr. Inayat Ullah Khan performed this duty with care and efficiency. The matters of a general nature which he regarded as casting a doubt on the prosecution case were the following. The first was that there had been considerable delay in reporting the incident at the thana. On, Mst. Sabibji's version, there was about 3J hours delay, but if the mid day meal had been served at the usual time, say at 9 or 10 a.m., and not mid‑day as Mst. Sahibji made out, the delay would be even greater. This gave scope for "deliberation and consultation", of which the Judge found a number of proofs. The second matter was that if indeed there were four assailants not only would Khan Bahadur have been unable to escape, since he had to run about a mile in a badly wounded condition, but there would also have been many more injuries on the person of Sher Bahadur, who had been brought down almost at once, and was helpless to resist the second assault. Thirdly, the non‑production of Mst. Ismat was "most fatal" to the prosecution, and the presumption could rightly be drawn from the failure to produce her or to explain satisfactorily why she could not be produced, that she was not prepared to support the prosecution case. In addition, Mr. Inayat Ullah Khan thought that some of the proceedings of the investigating police officers were of a suspicious nature, and that the motive sought to be made out for the murder was also too slight. As regards the evidence, he thought that Hasham and Mst. Sachi were not true eye witnesses, and that Said Muhammad's story could not be believed in so far as he made out that the four accused persons had visited his dhok, and demanded that he should let them kill Khan Bahadur.
As for Khan Bahadur's dying declaration he thought that this person bad already been told what he was to state, and this affected his alleged statement to Said Muhammad, as appearing from the latter's evidence.
It has been necessary for the purposes of his judgment to set out these conclusions in detail, in order to appreciate the nature and effect of the order made in the High Court, whereby the acquittal was set aside and a retrial was ordered. The contention of counsel on behalf of the appellants is that by this order great prejudice has resulted to the accused, and to the interests of justice. Having examined that order and all the subsequent proceedings, we find ourselves in complete agreement with this contention.
The operative portion of the order reads as follows:‑
"I cannot but hold that the learned Sessions Judge's appreciation of the evidence is perverse. As regards the time of the occurrence although villagers generally take their meals at about 10 o'clock in the morning, Mst. Sahibji has explained that the meals were late that day. There is nothing unreasonable about that explanation. Even assuming that the incident took place at 10 a.m. and that Mst. Sahibji delayed the report because she wanted to consult some body in .the village and her own son Khan Bahadur in the dhok of Said Muhammad Gujjar, it is not likely that the result of the consultation was to exclude We actual assailants and to substitute them by person entirely unconnected with the attack: It might have been at best argued that there was danger of some innocent person being added, but considering that quite a large number of injuries were caused and that two young persons were being attacked in broad‑day light, it would appear necessary that the assailants should out‑number their victims, and there is nothing unlikely in the attack having been delivered by four persons. The motive is perfectly sufficient for a murderous attack and considering that the accused, offered no explanation. I see no reason why the quarrel of the previous day should not be held as having been proved. The main thing is that an attack was delivered on Khan Bahadur and his brother in the light of day, when they were neither sleeping nor drowsy, and since one of them survived the attack for some time, he ought to be able to say who his assailants were. Whether or not Khan Bahadur believed that he was dying, the fact remains that his statement has the status of a dying declaration and that it can be accepted as evidence without corroboration so long as it is not found to be in disaccord with reality. Such reasons as the learned Sessions Judge has given cannot brush aside the broad fact that Khan Bahadur was not likely to substitute his assailants by other persons. If the learned Judge had been definitely of the opinion that two of the accused persons were innocent but that he could not decide who they were, he might have properly given the benefit of doubt to all, but there is no such decision. The finding is that the evidence is tainted, that although Khan Bahadur saw his assailants, he could not be believed because he had consulted his mother. This, in my opinion, is a perverse view."
It is plain that the learned Judge has not, in the passage quoted above, comprehensively examined each of the arguments which had been marshalled by Mr. Inayat Ullah Khan in his order of acquittal. Of the general arguments, there is no mention to be found in the order for retrial of the two following matters, each of high importance, namely, the improbability of Khan Bahadur escaping and of Sher Bahadur receiving so small a number of injuries, in the course of an attack by four persons, as described by Mst. Sahibji and Hasham, and secondly the non -production of Mst. Ismat. As regards the particular witnesses, the learned Judge said nothing about the careful argument of Mr. Inayat Ullah Khan regarding the credibility of Mst. Sahibji and Said Muhammad. The point which impressed him most strongly was that Khan Bahadur at least must have seen his assailants, and he was not likely to substitute innocent persons for those whom he knew to be guilty, and the learned Judge could not conclude that such a thing had happened from the mere circumstance of delay in making the report. He observed that there was "nothing unlikely in the attack having been delivered by four persons", without examining the weight and effect of the considerations bearing on this point which had received careful treatment from Mr. Inayat Ullah Khan. Nor did he consider the effect upon the credibility of the dying declaration of the numerous circumstances mentioned by Mr. Inayat Ullah Khan, some of which have been stated above.
This order was made at a time when the Federal Court had not commenced to function, and an appeal on the criminal side lay by special leave only to the Judicial Committee of the Privy Council. It was, therefore, to all practical intents and purposes a final order, and in view of its wording, it appears to have been accorded an altogether remarkable degree of finality. The general declaration by the learned Judge that he found Mr. Inayat Ullah Khan's appreciation of the evidence to be perverse appears to us to have led to the result that Mr. Ahmad Khan, who conducted the second trial, contented himself in his judgment with a narration of the evidence and thereafter recorded the following conclusions:‑
(1) that the dying declaration of Khan Bahadur was made when he was in his proper senses, and had been recorded and attested by persons who were not interested in Khan Bahadur, and had been supported by the evidence of Mst. Sahibji, Hasham Khan and Said Muhammad;
(2) that Mst. Sahibji and Hasham Khan are both natural witnesses;
(3) that there was no undue delay in making the report;
(4) that there was a motive for the murder;
(5) that the accused persons absconded after the murder; and
(6) that the conclusion was irresistible that since Sher Bahadur had ten injuries and Khan Bahadur had six, and they were both young men, all the four accused were assailants."
The only respect in which Mr. Ahmad Khan ventured to go beyond the findings of Mr. Justice Kayani was in holding, without basis whatsoever, that the accused persons had absconded.
There seems to be no escape from the conclusion that Ur: Ahmad Khan's approach to the case and the inferences which he felt himself enabled to draw from the evidence which had been adduced before him were determined, or as it were, set in a mould, by the views of Mr. Justice Kayani. Nothing also can explain his failure to take the slightest note of many weighty considerations, plainly arising in the most natural way out of the circumstances and the evidence in the case, which had been so ably canvassed by Mr. Inayat Ullah Khan. Since the order of retrial was intended only to procure a reconsider ation of the evidence, the duty of dispensing fair and impartial justice required that the Judge conducting the retrial should take call considerations arising out of the case into account, in arriving at his final decision. This explains the practice universally followed by Judges of High Courts, whenever they take the unusual step of reversing a judicial decision in order that the judicial process should be repeated, of entering, at the close of their judgment, a clearly worded caution against the danger of their views being regarded as binding on the lower Court. We find no caution of this kind in the order of Mr. Justice Kayani. We assumed that the omission was due to inadvertence but cannot avoid the remark that the omission has resulted in prejudice of a grave character to the interests of justice. Mr. Ahmad Khan's conclusions seem to its to follow a set pattern. No sign of any effort to apply to the facts and the circumstances of the case an independent mind, that is to say, a mind which could operate outside the lines laid down in "Mr. Justice Kayani's order, appears in his judgment. It is entirely true to say that he conducted and decided the case in ,he manner of a mariner sailing on a marked chart.
It is obvious that a retrial at which the accused persons are completely barred from raising particular defences or from attacking the prosecution case on any grounds arising naturally out of the evidence is not a trial in consonance with the principles of natural justice. There can be no reasonable expectation of justice being administered under such conditions. We entertain no doubt that the trial conducted by Mr. Ahmad Khan was of this nature, and that this was, in the circumstances, the inevitable result of the very strong directive contained in Mr. Justice Kayani's order, coupled with the absence of any expression by the learned Judge that his views were not to be regarded as final, in deciding as to the guilt of the accused persons at the retrial.
The learned Advocate‑General when dealing with this part of the case went to the length of urging that the effect of Mr. Justice Kayani's order was to put the agreements adopted by Mr. Inayat Ullah Khan out of Court, so that they could never be used again, in favour of the accused persons, and this ground was advanced also in explanation of the failure of the High Court to give any consideration to those arguments. It was urged that since Mr. Justice Kayani's order had not been appealed from; it became final in relation to everything said in it concerning matters arising out of the case. The argument overlooks the facts that the order itself was not definite in respect of the guilt or otherwise of the accused persons. It purported to avoid the result of perfectly legal and correctly conducted proceedings, on the basis that the final step in that proceedings, namely, the judgment of the Court, was vitiated by perversity. That conclusion did not enable the learned Judge to put out of Court, any consideration arising in favour of the accused persons in a natural way, out of the facts and the circumstances established by the evidence.
On this view, the appeal would appear to be concluded in favour of the appellants, but it has been represented before us that the flaw should be deemed to have been corrected and compensated for by the re‑examination of the evidence which took place at the hearing of the appeal in the High Court. The contention assumes that a flaw of this nature is curable in appeal, and as to that there can be no two opinions that anything in the nature of a serious defect in the instrument of justice, as operating is a Court of first instance, vitiates all subsequent proceedings. Thus, if it be shown that the Judge was interested in one of the parties to the case before him, or that he had received gratification for the purpose of deciding the case in a particular way, or that he was under some strong influence guiding his decision in a particular direction, the whole trial would thereby be rendered a nullity, not so much by reason of the danger of his utilising fallacious arguments to reach a particular end, but because of the impossibility of believing that, in the circumstances, there was a fair trial of the cause. There are reported cases of trials being held to be void because of an assessor, whose opinion was not binding on the Judge, having derived information of the case from extra‑curial sources. Tumahole Bereng and others v. The King ( A I R 1949 P C 172).
The right of parties seeking justice and in particular of an accused person in a criminal trial is a right to a fair trial. It has often been said that it is not sufficient that justice should be done, but it should also be seen to be done. In the present case, where it is plain that the Judge at the trial felt himself debarred from investigating or considering certain very plain and cogent arguments appearing in favour of the defence, which had been set out lucidly in the judgment recorded at the first trial, it is clear that he did not approach the case with an open mind, and in those circumstances it is idle to scrutinise the arguments set out by him for validity in logic. On the same reasoning, there is no profit to be derived for the interests of justice in considering whether all or any fallacies appearing in his judgment have been considered or compensated for in the judgment of the appellate Court. The trial was one‑sided and so was the judgment delivered in the trial Court. Such a defect cannot be cured by a re‑hearing of the case in appeal, where the appellant was limited to showing that the grounds of conviction were bad in themselves; or in relation to the record of evidence. In the exhaustive enume ration of irregularities by criminal Courts contained in Chapter XLV of the Criminal Procedure Code, there is no provision which can be stretched to cover a case of bias in the mind of the Judge. The omission goes to confirm the view that a fault of this kind avoids the proceeding, beyond all hope of remedy.
It is not necessary, therefore, to examine the appellate judgment in any great detail, but it is proper that we should observe that even this judgment fails to take account of at least two important matters of which mention has already been made. There is firstly, the failure of the prosecution to produce Mst. Ismat. Whereas Mst. Sahibji's presence on the spot might have been a matter of doubt, in view of her permanent resi dence being in the village 3 miles from the spot. Mst. Ismat's presence could not be doubted as she lived in the dhok about half a mile away. The reasons given for Mst. Ismat's non -production at the second trial bordered on levity. At the first trial it was said simply that she had been won over and had refused to accept summons and Mr. Inayat Ullah Khan pointed out that the first allegation was improbable and the second has not been established. At the second trial, however, the extra ordinary suggestion was made, unsupported by any evidence, that Mst. Ismat was preparing to marry Sher Muhammad appellant, one of the alleged murderers of her own husband. There was not a scintila of evidence on the point, although persons with knowledge were available, e.g., Mst. Sahibji, her mother‑in‑law Mr. Ahmad Khmad made no enquiry on the point but merely stated in his judgment the reason placed before him for the non‑production of Mst. Ismat. It is hardly necessary to stress the great importance which attaches to the non‑pro duction of an important witness by the prosecution in a criminal case, where no satisfactory reason for non‑production is establi shed. It is true that the prosecutor is not bound to produce before h the Court a witness who is not expected to give true evidence, but he cannot escape the duty of causing such a witness, if his evidence be of importance, to be present at the trial in case the opposite party should wish to examine him Allahyar v. The Crown (P L R 1953 Lah. 157), Adel Muhammad v. The A. G. of Palestine, (A I R 945 P C 42). In the present case the prosecution took no steps to arrange for Mst. Ismat to be available at the trial. The presumption provided by section 114, illus. (g) Evidence Act must, therefore, be raised against the prosecution. It could only have been avoided by the prosecution proving that they had exhausted to the utmost of their power all means to bring the witness before the Court. As for the importance of Mst. Ismat's evidence, it appears sufficiently from the finding by the High Court itself that the second alleged eye‑witness, Hasham Khan, was probably not a true eye‑witness at all, which left the case to be established on the basis of Mst. Sahibji's evidence, Said Muhammad's statement and Khan Bahadur's dying declaration regarding all of which grounds for grave suspicion were confi dently advanced. As to the last‑mentioned piece of evidence, it should be mentioned that Mr. Justice Kayani's view that the acceptance of Khan Bahadur's statement rested on his capacity to see his assailants does not cover all the considerations affecting the acceptability of that evidence ; Mr. Inayat Ullah Khan had examined and stated with clarity several grounds which went to the veracity of Khan Bahadur, and the possibility of his statement having been concocted after consultation, both of which are elements of crucial importance in cases where false implication of enemies is suspected.
The second matter which in our opinion should have been considered in the appellate Court and which may well have swayed the decision of that Court is that witness Said Muhammad did not appear before Mr. Ahmad Khan. That single fact lent great importance to the view formed concerning Said Muhammad's credibility by Mr. Inayat Ullah Khan, who had both seen and heard him. In our opinion it makes no difference whatsoever that the acquittal of the accused persons by Mr. Inayat Ullah Khan had been set aside. It is to be noted that in his order, Mr. Justice Kayani did not advert to the evidence of Said Muhammad or to the view formed by Mr. Inayat Ullah Khan concerning his credibility. Therefore, it seems to us that the failure of Mr. Ahmad Khan to take into account Mr. Inayat Ullah Khan's view concerning Said Muhammad, in evaluating the latter's evidence, is an omission calculated to prejudice the course of justice. It is impossible to over‑stress the importance of appellate Courts and other Courts of retrial and rehearing j giving a full measure of weight to the opinion formed by a judge of first instance regarding the character and credibility of a witness who has been examined at length before him in relation to the facts of the case.
We are conscious that in the present case, Mr. Justice Kayani had held in a broad way that Mr. Inayat Ullah Khan's appreciation of the evidence was perverse, but as has been pointed out, that conclusion must be confined in its effect to the order for retrial, and can have no validity in relation to any subsequent proceedings. If the matter had came before Mr. Justice Kayani m appeal, so that the whole case might have been re‑heard, and if the credibility of Said Muhammad had been canvassed before him, he would undoubtedly have been competent to arrive at a conclusion on the point which would have been of binding effect. In a revision, however, and particularly where the learned Judge was himself ordering a retrial, such a definitive appreciation would be neither competent nor appropriate and in any case we do not see that in his order, the learned Judge has attempted to record any view much less a conclusive view, regarding the credibility of Said Muhammad.
The special nature of the advantage enjoyed by a Judge in estimating the credibility of a witness who has given viva voce evidence before him appears very clearly from the following passage in the speech delivered by Lord Shaw in the case of Clarke v. Edinburgh Tramways Co. (1919 (S C) H L 35, 36) :‑
"When a Judge hears and sees witnesses and makes a conclusion or Inference with regard to what is the weight on balance of their evidence, that judgment is entitled to great respect, and that quite irrespective of whether the Judge makes any observation with regard to credibility or not. I can of course quite understand a Court of Appeal that says that will not interfere in a case in which the Judge has announced as part of his judgment that he believes one set of witnesses, having seen them and heard them, and does not believe another. But that is not the ordinary case of a cause in a Court of justice. In Courts of justice in the ordinary case things are much more evenly divided ; witnesses without any conscious bias towards a conclusion may have in their demeanour, in their manner, in their hesitation, in the nuance of their expressions, in. even the turns of the eyelid, left an impression upon the man who saw and heard them which can never be reproduced in the pointed page. What in such circumstances, thus p3ychologically put, is the duty of an appellate Court In my opinion, the duty of an appellate Court in those circumstances is for each Judge of it to put to himself, as I now do in this case. the question, Am I who sit here without those advantages, sometimes broad and sometimes subtle, which are the privilege of the Judge who heard and tried the case‑in a position, not having those privileges, to come to a clear conclusion that the Judge who had them was plainly wrong If I cannot be satisfied in my own mind that the Judge with those privileges was plainly wrong, then it appears to me to be my duty to defer to his judgment."
That was said in a civil case, but would apply in our opinion with greater force to a criminal case, and particularly one where the Court has nothing but oral evidence of eye‑witnesses to go upon. This is not to say that finality should be admitted in favour of a conclusion of the relevant kind recorded by a Judge of first instance ; we have already indicated that such a conclusion may be revised by the High Court. Yet it is impossible to deny that an appellate Judge does not have the opportunity of watching the demeanour of witnesses, at the same time as he observes and controls the drift and conduct of the case, which is enjoyed by a judge of first instance. The latter gains a vivid appreciation of what the witnesses say or omit to say, and what such statements or omissions imply, which the appellate Court cannot recapture by even the most minute study of evidence as it appears on paper.
Mr. Inayat Ullah Khan had devoted particular care to the examination of Said Muhammad's evidence. It was conceded before him that one part of the evidence might be true, namely, that Khan Bahadur might have taken shelter in his dhok. (As to this we have observed already that no investigation was conducted on this point, i.e., no trail of blood was followed to the dhok, nor was blood looked for inside the hut, or was any person discover ed or produced who helped to carry Khan Bahadur from this dhok to Hazro). The defence at the first trial challenged Said Muhammad's statement regarding the arrival of the accused persons in pursuit of Khan Bahadur, and their conduct and statements at the dhok, and Mr. Inayat Ullah Khan noted the difficulty of believ ing that the accused persons having only the crippled Said Muhammad to overcome, left the dhok so quietly and easily. He observed further that Said Muhammad was ignorant concerning the men who took Khan Bahadur away, that Said Muhammad's name figured mysteriously in the initial report, though on the facts it was not known to Mst. Sahibji when she left for the thana, and that Said Muhammad had denied certain patent facts put to him, which went that to his independence as a witness, and on the basis of these circumstances of suspicion he recorded the following con clusion :‑
"I, therefore, do not believe the disputed portion of the story of Said Muhammad."
It may be said that the Judge did not record any opinion concerning Said Muhammad's demeanour in the witness box, but that is not to say that he did not at the same time express his opinion clearly regarding the credibility of Said Muhammad.
Mr. Ahmed Khan based his reliance on Said Muhammad's evidence on the ground that he was neither interested in the complainants, nor an enemy of the accused persons. The learned Judges of the High Court have found Said Muhammad's evidence to be convincing ; they have declared that "after perusing Said Muhammad's evidence and hearing learned counsel's criticism against it", they were "satisfied that he has given a true account of what he in fact saw". In arriving at this conclusion, the learned Judges have examined some, but by no means all, of the considerations examined by Mr. Inayat Ullah Khan. Neither Mr. Abroad Khan nor the appellate Court made any allowance for the advantage enjoyed by Mr. Inayat Ullah Khan of seeing and gaining an impression concerning Said Muhammad's credi bility in general, and in particular with reference to the facts of his deposition. In the context of the case, the credibility of Said Muhammad was a matter of crucial importance for the determina tion of the guilt or otherwise of the accused persons. We consider that the failure of the appellate Court in this respect, coupled with the complete absence of mention of the non‑production of Mst. Ismat and the consequential failure to consider the effect thereof on the prosecution case, are by themselves sufficient for raising an apprehension that the course of justice may have been diverted in consequence of these omissions. We would prefer, however, to found our decision rather on the earlier conclusion viz., that in consequence of the nature of the order of Mr. Justice Kayani, the appellants were denied a fair trial in the Court of Mr. Ahmed Khan, and the trial as well as the consequential proceedings are vitiated thereby.
For these reasons, we would allow this appeal and acquit the appellants.
A.H. Appeal allowed,
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