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Criminal Revision Application No. 116 of 19 72, decided on 7th May 1975.

‑‑ S.435/439‑Revision‑Revi‑ion from order of acquittal Government not filing appeal against acquittal of accused‑Retrial order only course for High Court in such case‑Original trial not found illegal or conducted with material irregularity‑Judgment of acquittal not set aside‑Penal Code (XLV of 1860), S. 302.

A re‑trial cannot be normally ordered unless it is found that the original trial was itself illegal or was conducted with such material irregularities which might have occasioned a miscarriage of justice. The judgment of acquittal would not be set aside merely because another view of the evidence was possible.

Abdur Rashid Khondkar v. Chandu Matbar and 15 others P L D 1904 S C 795 ref

‑‑ Re‑trial‑Accused acquitted about five years ago‑‑Little possi bility of procuring attendance of witnesses who were not traceable during trial‑Justification for retrial on law and facts not existing‑High Court declined to pass retrial order in circumstances.

Nizam Ali Khan for Applicant.

S. Murtaza Hussain for Respondent No. 1.

Ahsanul Haq Qureshi for Respondent No. 2.

Date of hearing : 26th February 1975.

This application under section 435‑439 of the Criminal Procedure Code has being filed against the judgment dated 27‑7‑70 of an Additional Sessions Judge of Karachi, whereby he had acquitted respondent No. 2, Syed Sardar Ali, who was tried under section 302, P. P. C. for the murder of Yousuf son of Ali Muhammad who was married to his sister by name Afzal Begum alias Noor Jahan. On the day of the incident i.e., 15‑5‑1968, she was in the Civil hospital, Karachi where she was being treated on account of her illness and she died there.

2. According to P.W. Idris, who is the first informant, the deceased alongwith the other witnesses went to the Civil Hospital, but being informed that the dead body of Mst. Afzal Begum had already been taken away came to the house of the respondent No. 2 i.e., Quarter No. 161/9, Mohajir Quarter s Nazimabad. The deceased embraced the respondent No. 2 and started weeping when the respondent told him that he had already mourned much and that he should not shed any more tears from his eyes. It was, however, I learnt that the dead body had not been brought.

At that stage some one in a rickshaw came and told the deceased to go to the Civil Hospital as the body of Mst. Afzal Begum was not being given without his signature. Thereupon the deceased Yousuf, his father and mother P. Ws. complainant Idris and his father, P. W. Warrand came to the road to find some taxi when all of a sudden the respondent took out a knife and stabbed the deceased who fell down. The respondent continued to give him injuries even after that. He was taken to the hospital, but he expired on the same date at about 10‑30 p.m.

3. According to Dr. Muhammad Umar who examined the dead body of the deceased be had the following injuries :-

(1) incised wound from of chest just below right collar bone extending from the right shoulder to the middle of upper sternum oblique in direction and falling towards the sterm. It was stitched and 6 long.

(2) Incised wound left buttock 1x x music deep. Vertical in direction

(3) Incised wound second web between the index and middle finger of left hand 1x x tissue deep.

(4)Incised wound anterior aspect of proximal phalanx of left middle finagle 1/2x1/8 x skin deep:

and the cause of death in his opinion was profuse uncontrollable haemorrhage due to cutting of the subclavian and in nominate arteries.

The deceased was in a dangerous condition when brought and was rushed to the operation theatre, but he died on the table within one hour.

4. The evidence examined at the trial consists of the occular testimony of Idris Ahmad P W. 3. the cousin of deceased. Saira Rai, P. W. 4, the mother and Ali Muhammad Qasim, P. W. 6, the father of the deceased besides Abdul Sattar, P. W 7, his brother. P. W. Muhammad Tasleem who was examined as a mashie for production of a knife by the respondent did not support the Prosecution. He was brought in Court in handcuffs and he stated that he had acted as a mushir for the police but was in some other case; and did not know anything about this case. P. W. Muhammad Ayub, who had investigated the case also cnu1d not he examined at the trial as he had died. His deposition was 'brought on the record of the trial Court under section 33 of the Evidence Act. He had however stated in the Committal Court that the respondent No. 2 had produced the knife, the weapon of offence from its place of hiding on 17‑5‑68 after his arrest and for which the mashirnama hart been Prepared. However, according to the chemical analyser's report this knife had blood marks which had dis integrated arid therefore the origin of the same could not be traced.

5. In his defence the respondent No. 2., who was 21 years of age denied his presence at the spot and said that the police was searching for their brother Gulloo whose name had been given in his F. I. R., as the murderer. Having failed to find him, he was taken in. He also suggested that his sister Mst. Afzal was previously married to one Yakoob of Larkana, and had three children from that marriage. She had come to Karachi for treatment some nears before, when she had developed intimacy with deceased Yousuf. He as a young boy had acted as a messenger between the two. She then remained with Yonsuf and did not go back. On the day of the incident, according to him Yakoob who at times used to come to see his children, had met him at Karachi and had come to know about the death of Mst. Afzal. Respondent also produced certified copy of a judgment Exh. 39, to show that Muhammad Yakoob had bean prosecuted by Muqarab Ali, the uncle of the respondent to show that his relatives did not like the visits of Yakoob.

The trial Court considered the evidence of the eye‑witnesses in detail but did not place reliance on them as they all were near relations of the deceased and although many other witnesses bad admittedly come up and collected at the time of murder, but the prosecution had not cared to examine any of those witnesses. Besides this certain contradictions in evidence of these eye‑witnesses were pointed out, giving varying descriptions which created doubt in the mind of the Judge about their veracity, and it was said that the possibility of Yakoob the previous husband of Afzal Begum having come in the rickshaw to stab deceased in this case could not be ruled out. In any case the trial Court did think that corroboration to their evidence was necessary to make them reliable. The corroborative piece of evidence i.e., of securing of the knife on the pointation of respondent No. 2, was of no avail as it had not been proved. The mashie Muhammad Tasleem denied to be the person who acted as a mashie in this case. The investigating officer mentioned the name of Muhammad Saleem and Tour Gul to be the witnesses and said that they v ere not present, in Karachi at that time. Muhammad Tasleem was obviously therefore not the real mashie in this case. The conclusion of the trial Court was thus based on the proposition that the witnesses who were relations and interested required to be corro borated, more so on account of their inconsistent versions and such lacking. Although ire Court the witnesses all along pointed cut to the respondent as the person who caused injuries to the deceased, the F.I.R. described that person as 'Gulloo'. The respondent No. 2 also referred to this aspect of the case and stated that he has beet wrongly implicated.

5. The Government has not chosen to file as appeal in this case, and the only powers that could be exercised by the High Court in revision would be of orderings a re‑trial. A re‑trial cannot be normally ordered unless it is found that the original trial was itself illegal or was conducted with such material irregularities which might leave occasioned a miscarriage of justice. The judgment of acquittal would not be set aside merely because another view of the evidence was possible. In Abdur Rashid Khondkar v. Chandu Matbar and 15 others (P L D 1964 S C 795) the main considerations that should weigh the judgment of the High Court in exercise of its revisional jurisdiction are stated as under :‑

"The governing consideration must always be whether, in relation to the proved facts and circumstances, justice has been done in accordance with law. In particular, full weight must he given (1) to the fact that the appreciation of evidence by the trial Court is based upon the Court having seen anti heard the witnesses, and (2) that the fact of that Court having given the accused the benefit of any doubt serves to emphasise the need of giving full weight to that principle in the re-appraisement of the evidence that is necessitated by the appeal.

In revision, the High Court may not reverse an acquittal, but it may yet interfere with it in other way, so as to ensure that justice is done. Consequently, the proper line of approach would appear to be not by stressing the unassailability or finality of the order of the Court below, but by considering whether the case as presented, in its details and the supporting evidence, had been fairy and fully appreciated by the Court below, and its conclusion were reached in accordance with the basic principles governing the formation of a verdict adverse to an accused person. To say that is appreciation of evidence is never sufficient ground for interfering with an acquittal is to ignore the existence of degrees of misappreciation, from the very grossest forms, exhibiting perversity, to the mere ignoring of certain side aspects arising out of a piece of evidence. For the correct exercise of the reversionary power in st.ch cases, and particularly where the revision is brought against an original order of acquittal, the High Court should, in order to ensure that justice is seen to be done, survey the case, in its factual and evidentiary aspects and should find, where misappreciation of evidence is alleged, what the mis appreciation consists in and what is its degree and finally whether it has had a determinative effect upon the final conclusion. An estimate regarding the probabilities, in relation to the allegations of facts forms a necessary step in arriving at such a conclusion."

7. The trial Court in this case bas discussed the statements made by the eye‑witnesses, in their Gross‑examination, which have considerably weakened the prosecution case, Finally, the judgment criticised their evidence in these terms :‑

"It is an admitted position that when they went there they also saw number of people already sitting with the accused ; Mst. Saira Bai deposes that the accused had come out from the house armed with a knife and then assaulted the deceased. The other witnesses give a different version of the story. It has also been disclosed that the deceased was attacked on the mat. Some witnesses say that the deceased was attacked 5 or 6 paces away from quarter. Had the deceased teen attacked on the mat, the mat world have been stained with blood and the same secured by police. Since there were not less that 15 persons present at the place of occurrence every one would have seen the accused stabbing the deceased. No efforts were taken by the Investigating Officer to locate these persons and record their statements. Even P. W. 12 and P. W. 16 who reside near the place of occurrence were ignorant about the incident. Some of the eye‑witnesses even did not know the accused before. Since the witnesses are the interested witnesses and have given conflicting statements, no reliance can be placed upon their statements in con necting the accused with this crime."

Nothing has been shown in the evidence to differ with this criticism the evidence of the eye‑witnesses made in the judgement. Even otherwise, the judgment of acquittal was recorded in April 1970, and already a period of nearly five years has lapsed. There appears little possibility of procuring the attendance of witnesses who have already left and were not traceable during the trial. In the circumstances of the case, therefore, no useful purpose will be served if a re‑trial is ordered, for which as already stated there seems no justification In law as well as on facts.

This application is, therefore, rejected.

Petition dismissed.

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