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Criminal Revision No. 735 of 1969, decided on 15th October 1969.

Ss. 403, 423(1)(b) & 439(2)-Autrefois acquit, principle of-Words "reverse the finding" in S. 423(1)-Word finding" implies "finding of guilt" as dis tinguished from "finding of acquittal"-Out of four persons charged and tried as accused, two accused, N and M acquitted whereas remaining two I and H convicted-No appeal or revision preferred against acquittal of N and M whereas I and H filing appeal to High Court against their conviction-High Court while disposing of appeal of convicts I and H could order their retrial but trial of acquitted accused, in circumstance, could not be ordered-- Despite any irregularity in trial, acquitted accused M and N, held, could not be retried along with I and H-Principle of autrefois acquit couched in S. 403 would be a bar to their re-trial.

The State of Andhra Pradesh v. Thadi Yarayana A I R .1962 S C 240 and Sultan Khan v. Taj Din P L D 1963 S C 97 rel.

Muhammad Ismail for Petitioner.

Mian Nisrullah for the State.

Purvaiz Akhtar for Respondents Nos. 2 and 3.

Four persons, namely, Muhammad Ismail, Muhammad Ali, Muhammad Hussain and Nawab, were tried, under sections 452/34, 302/34 and 307/34, P. P. C. for having trespassed into the house of Khushi, for committing murder of Khushi and for making murderous assault on Mst. Said Bibi and Mst. Begum Bibi. At the trial in the Court of Session, a part of the prosecution evidence was recorded by Mr. Amir Akbar Khan, Additional Sessions Judge, Sheikhupura, and on his transfer, the remaining evidence was recorded by his successor, Mr. Ihsan-ul-Haq Sethi. Mr. Ihsanul Haq Sethi acquitted Nawab and Muhammad Ali; and. convicted and sentenced Muhammad Ismail and Muhammad Hussain to suffer death and to undergo imprisonment for various terms. The condemned persons preferred an appeal (Crl. A. No. 306 of 1968) to the High Court. The learned Sessions Judge referred to the case under section 374, Cr. P. C. for confirmation of the sentences of death. A Division Bench of this Court concluded that the procedure followed vitiated the trial. Accordingly, the learned Judges on 28-4-69 passed the following order: -

"In these circumstances, the only course is to set aside the conviction of the appellants and direct that they be retried. Accordingly, we accept the appeal and order the retrial of the accused in accordance with law. The case is sent down and is entrusted to the Additional Sessions Judge, Sheikhupura for trial. We direct that the accused-appellants shall henceforth be treated as undertrial prisoners in jail. The death sentences passed on the appellants are not confirmed."

2. At the trial, the learned Additional Sessions Judge, by order dated the 23rd June 1969, amended the charge, deleting the names of Nawab and Muhammad Ali who had previously been acquitted.

3. Muhammad Ali, complainant, filed the present revision petition to have set aside the said order dated the 23rd June 1969. He urged that the judgment dated the 22nd April 1968 (being the result of an illegal trial) had been set aside by the High Court in order dated the 28th April 1969, with the result that Nawab and Muhammad Ali could not claim any benefit on account of that judgment. According to him, the refusal of the learned Additional Sessions Judge to try Nawab and Muhammad Ali was not sustainable in Law.

4. A notice was issued to the State and also to the acquitted persons. Mian Nusrat Ullah, Advocate, appeared for the State. Mr. M. Pervaiz Akhar, Advocate, appeared for the acquitted persons.

5. It is noteworthy that when on the 22nd April 1958, the Additional Sessions Judge acquitted Nawab and Muhammad (a) the Government did not prefer any appeal to the High Court against the said acquittal; (b) the complainant did not file any revision petition to have the order of acquittal set aside. Apparently, the Government and the complainant accepted that, for all intents and purposes, the acquittal was good in law.

6. The learned Judges of the Division Bench, while dealing with the appeal by, the condemned persons and the reference under section 374, Cr. P. C. did not feel inclined to take action suo motu and to issue any notice to Nawab and Muhammad Ali to show cause why the order of acquittal be not set aside. It is plain that in the absence of an opportunity to Nawab and Muhammad Ali to show cause against the order, the Division Bench was not competent to pass any order reversing the order of acquittal and directing their retrial. The concluding portion of the judgment, reproduced above, does not, in unequivocal terms, direct that the retrial shall be retrial of all the four persons, as distinguished from the condemned persons who had preferred an appeal. In the absence of any express direction it is legitimate to infer that there was no direction for the retrial of Nawab and Muhammad Ali as well.

7. Learned counsel for the petitioner, contended that the original trial being invalid, there was nothing to sustain the order acquitting Nawab and Muhammad Ali and that it naturally followed that they must be retried in accordance with law.

g. Section 423 of the Criminal Procedure Code runs as below: -

"The Appellate Court . . . . . may: -

(a) In an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be retried . . . . .

(b) in an appeal from a conviction, (1) reverse the finding and sentence, and acquit or discharge the accused, or order him to be retried . . . . (2) alter the finding, maintaining the sentence . . . reduce the sentence, or (3) . . . . alter the nature of the sentence . . . . .''

It has been held in a case reported as The State of Andhra Pra desh v. Thadi Narayana (AIR 1962 SC 240) that when an appeal is preferred from a conviction, the High Court, in pursuance of section 423 (1) (b) of the Criminal Procedure Code, is competent to reverse the finding and sentence and acquit or discharge the accused or order him to be retried by a Court of competent jurisdiction, and that the ward "finding" in clause (b) referred to the "finding of guilt" as distinguished from a "finding of acquittal." It follows that when Muhammad Ismail and Muhammad Hussain preferred an appeal from their conviction, the High Court was competent to reverse the finding of their guilt and the sentence and to order them to be retried, but the High Court was not competent under section 423 (1) (b) to direct the retrial of Nawab and Muhammad Ali in respect of whom no appeal from an order of acquittal had been preferred section 423(1)(6) being inapplicable. Reference may also be made to the case reported as Sultan Khan v. Taj Din (PLD 1963 SC 97). It is, therefore, inferred that the learned Judges of the Division Bench in their order dated the 28th April 1969, did not direct the retrial of Nawab and Muhammad Ali.

Since no appeal or revision had been filed to set aside the order of acquittal, nor had the High Court purported to take action to set aside the same, the order of acquittal of Nawab and A Muhammad Ali became final and unassailable. It is not a void' order that can be ignored. It is still in force.

Nawab and Muhammad Ali having been tried on certain charges and having been acquitted, the irregularity notwithstand ing, they shall not be tried over again. The principle of autrefois acquit couched in section 403, Cr. P. C. shall be a bar to the retrial for the same offence.

9. In view of what has been stated above, there is no force in the revision petition. It is dismissed.

Petition dismissed.

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